“We do not have a God of chaos, nor do we satisfy the demands of justice and mercy by ignoring both.”
There comes a time where we have to make unforeseen and difficult decisions that will change our lives and the lives of those for whom we are responsible. That time has come for the elected state senators and representatives and governor of Texas.
It is time to shut down the Texas-Mexico border and immigration systems for a “time out” until order is restored and the existing immigration laws are enforced. It is the first duty and responsibility of Texas to protect its citizens.
But can Texas authorities do that? Can a sovereign state protect its borders if the national government blatantly refuses to carry out the federal laws that already exist to do just that?
As a first step, Texas Governor Greg Abbott launched Operation Lone Star [update here] in early March of 2021, sending the Texas National Guard and State Trooper elements to the border. The goal is “[to] fill security gaps [especially for human smuggling, drugs, and gangs] created as the federal officers are overwhelmed at detention centers.”
However, now ninety days into the new administration, it’s obvious that Washington has no intention of stopping the massive waves of illegal aliens and unaccompanied minors washing across the southwestern borders. It is an intentional political act.
The only recourse seems clear. Texas authorities must seal the vulnerable border crossing points and do the job themselves.
First, the crisis is immediate. A human disaster and unspeakable tragedy are happening as the public watches in real-time along the Texas-Mexico border. Tens of thousands of illegal aliens and unaccompanied minors have already walked into Texas this year. In January, 75,000 illegal aliens were apprehended entering the United States, which was the highest January number since 2006. By March, the unlawful crossings had skyrocketed to nearly 200,000 (not including up to another 40% who enter the country undetected). Some experts now predict that 1 to 2 million illegal aliens will cross the border this year alone. (See my March 23rd article, Immigration Reboot 2.0, here.)
Illegal aliens and unaccompanied minors are pouring into the southwestern states at the implicit invitation of the newly installed Administration in Washington, D.C., which has verbally encouraged and condoned breaking the law. Also, without uniform testing for COVID-19, perhaps thousands of people infected with the coronavirus have been released into the general US population, and some are put on planes – at a time when millions of US citizens and businesses are still grappling with various restrictions, limitations, and health concerns.
The conditions of the “detention” facilities housing unaccompanied minors are appalling, unconscionable, and dangerous.
Existing and makeshift facilities – including large public buildings and tents set up on three military bases are overcrowded by the thousands. One Texas facility has 4,800 unaccompanied minors packed into a facility designed for 480. The Department of Health and Human Services (HHS) and the Customs and Border Protection (CPB) have custody of at least 18,000 children in facilities designed for 4,000 according to Forbes, and The Washington Post reports over 50,000 detained by Immigration and Customs Enforcement (ICE).
Lawyers representing migrant organizations have written reports for the courts, asking for intervention in West Texas. One wrote, “Toothbrushes are not provided. Few [children] are allowed to shower. Toilets are extremely dirty [and] sinks lack running water, soap or towels.” Another stated that “Never before in my life have I witnessed, heard of, or smelled such degradation and inhumane treatment of children in federal immigration custody.”
Recent shocking videos of smugglers dropping two small children from the top of the border wall near El Paso and two other small children found by US Border Patrol officers abandoned in the desert are only the tip of the iceberg. Children as young as six years old have told legal representatives that overworked federal agents are handing off babies and toddlers to unrelated, untrained older children for care. Food is very basic with no fruits, vegetables or milk.
Last week Governor Abbott [here] stated that the Texas Rangers were investigating “credible” accusations of child rape at one detention facility. “While we wait on the Biden administration to act, I’m directing DPS (Department of Public Safety) and Texas Rangers to immediately begin investigating these allegations,” he stated.
Considering the overcrowding of often unsupervised minors, it seems reasonable to believe that rape and child sexual abuse may be a common occurrence, not a rare one.
This disaster is a clown show run straight from the Oval Office. The very people who have lectured and belittled the previous administration for their perceived callousness towards unaccompanied children and illegal immigrants are, in fact, devoid of any compassion or emotion. The radical socialists don’t care about the illegal aliens, the children, and the working-class Americans who have to live with the consequences of the border invasion. They care only about the politics of wide-open borders, labor at third world pay scales, and securing a new population for vote harvesting.
Federal officers, at the direction of the Department of Homeland Security, have stopped even the minimal attempt of issuing a “notice to appear” for a court hearing for those claiming “refugee” status (up to 90% of whom historically never show up). Instead, the migrants who are released are asked to call for a hearing date on the “honor system.” Obviously, those released will simply vanish.
None of this catastrophe is the fault of agents and officers directly on the ground. They have been overwhelmed by a human tide of illegal aliens and minors. These officers can only do so much with the resources at hand, the lack of additional funding and resources tied up in Washington, and the political mismanagement from a bungling administration that deliberately initiated the crisis in the first place.
The corrupt national media-entertainment complex – who hardly let a day go by without reporting on President Trump’s “cages” (built during the Obama Administration to protect children from sexual predators) has been remarkably silent and incurious about the border chaos. Mr. Biden and his agencies have closed off reporting with minimal blow-back by the media, and even unassisted visits to these facilities by members of Congress have been tightly controlled.
The Biden gang has been both evasive and outright lying about the border crisis. Mr. Biden even went so far as to claim that “this [massive illegal entry] happens every year at this time,” which is a preposterous assertion even for one of the most prolific plagiarizers in modern politics.
It needs no explanation nor apology, but America has been an immigration magnet for its entire history. Freedom has that effect. And though that process has always been contentious and provoked political backlash at various levels, the American story on legal immigration has been remarkable and unique in world history. Since 1980 and the enactment of the Refugee Act, the US has taken in more refugees than every other country in the world combined.
Even after fifty years of virtually unconstrained illegal immigration and the accompanying massive economic and social dislocations it has caused, what is happening on the border since January is a stunning, unprecedented, and reprehensible act of lawless conduct on the part of the installed administration in Washington.
In the absence of coherently enforced immigration policies, Texas authorities must do what the federal government is unwilling or unable to do.
But sitting like an elephant in the middle of the discussion is the century-old evolution of federal versus state responsibility for immigration and the capture of those laws to the exclusive use of the post-war American ruling class. Missing is any concern for the welfare of actual American citizens.
As with so many activities, the Federal Government has assumed power over immigration through the Supreme Court, statute and prerogative even though it has no enumerated constitutional authority.
The US Constitution nowhere uses the word nor confirms the enumerated power over immigration to federal control, much less the plenary power now entrusting near-total immigration function to the Executive Branch. In Article 1, Section 8, the Constitution states that Congress will “establish an uniform Rule on Naturalization.” The second reference is in the 14th Amendment, granting citizenship to “All persons born or naturalized in the United States.”
Until the late 1800s, immigration was largely a state matter. In 1875, the US Supreme Court ruled in Henderson v. Mayor of New York that the various coastal states’ immigration laws were unconstitutional because Congress had exclusive power to regulate and control “foreign commerce.” The ruling was followed by further application of the Supremacy Clause (Article Vl, Clause 2) and the legal utility of the concept of plenary power, all of which federalized immigration matters without a Constitutional amendment.
Alas, an all too frequent event with all too predictable consequences.
As recently as 2012, the States’ role versus the Federal Government has been challenged in the courts. The Arizona legislature passed a law, SB 107, which made it a state crime to reside or work in the State without “legal permission” and allowed law enforcement to arrest persons for unlawful presence. Lower courts sided with the Federal Government, which sued Arizona, asserting that the State had no power to enforce immigration laws. In a 5-3 (one recusal) decision, the US Supreme Court ruled that the Federal Government has “broad, undoubted power over immigration and alien status,” which precluded all of SB 1070’s provisions except the ability of law enforcement to ascertain the legal status of those arrested for other crimes.
Now retired Justice Anthony Kennedy wrote in the majority opinion, perhaps foretelling the present escalating chaos, “With [Federal] power comes responsibility, and the sound exercise of national power over immigration [depends] on the nation’s meeting its responsibility to base its laws on political will informed by searching, thoughtful, rational civic discourse. Arizona may [be frustrated] with the problems [of illegal immigration] while that process continues, [but may not] undermine federal law.”
Of course, the Federal Government has consistently ignored all of Justice Kennedy’s criteria of responsibility.
In a powerful dissent, the late Justice Antonin Scalia wrote that “[SB 1070] helped enforce the law more effectively.” Its provisions, he added, “[were] a defining characteristic of sovereignty: the power to exclude from the sovereigns territory people who have no right to be there.” Justice Clarence Thomas agreed with Justice Scalia and added a rebuke to Washington’s sense of proprietorship over the various States. “[There] is no conflict between the ‘ordinary meanin[g]’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.”
The sitting Attorney General of Texas, Ken Paxton [listen here], has suggested that it may be time for the Texas legislature to pass new laws on illegal immigration and re-challenge the Federal Government. He believes the high court may be more favorably inclined to support the various States.
There is, however, a fundamental Constitutional duty that the Federal Government has ignored for too long: Article 4, Section 5 of the Constitution could not be more precise: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against Domestic Violence.
Indeed, Texas (and other southwestern states) have endured a 50-year invasion where the Federal Government has ignored its duty to the States and instead actively encouraged up to 20 million non-citizens to break US law as their first action entering the country. (Made more evident in the Federal Governments’ refusal to sanction or punish the eleven states that have declared themselves “sanctuary states” and refuse to work with federal immigration authorities to detain criminal illegal aliens. Now, the Biden Administration is also releasing illegal aliens who have committed crimes directly out of jail into communities without processing deportation orders, as required under US immigration law.)
If the individual sovereign States in the Union already have the constitutional power (Article 1, Section10) when “actually invaded, or in such imminent Danger as will not admit delay” to defend against invasions up to waging war, then do they not have the sovereign power to enforce the lawless borders in the absence of the Federal Government’s willingness to uphold the law? Or when the Federal Government ignores or breaks its constitutional oath?
In opposing the Alien and Sedition Act as unconstitutional in 1798, James Madison spoke to this general concept. He petitioned the Virginia legislature to seek a resolution of “interposition” against the Act, arguing that, “The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
The State of Texas is unique. It already has a 21,000 member Texas National Guard which includes air components and Special Forces. The Texas Department of Public Safety has nearly 5,000 officers, including the Texas Rangers and State Troopers. It is a well-equipped force with air, marine, and intelligence capabilities combined with extensive experience on the Texas-Mexico border fighting cartels, smuggling, and gangs.
After five decades, the political debate over illegal immigration, where the voters vote consistently for orderly and legal immigration and against unlawful entry – while Washington and big business interests continually sabotage those wishes – has come to a critical juncture. It is perhaps the last time to “get it right.” Texas voters should make their voices clear to the Legislature and Governor Abbott now – by every means possible.
If Texas were to seal the vulnerable border crossing points and stop the flood of illegal aliens from crossing into the US in the first instance, the American people would have a chance in 2022 and 2024 to make their approval heard in Washington – and the courts.
Illegal immigration and its effects have morphed into a “nation-changing” human catastrophe for US citizens – and illegal aliens – alike. One need look no further than California, transformed from affluence and prosperity to the highest rate of poverty in the nation, in scarcely a generation. The case for (at least) Texas to do the hard but right thing is overwhelming. We do not have a God of chaos, nor do we satisfy the demands of justice and mercy by ignoring both.
