Home inFocus Agenda for a New Congress (Winter 2023) A Deadlocked Congress Can’t Ignore the Border

A Deadlocked Congress Can’t Ignore the Border

Jonathan S. Tobin Winter 2023
U.S. Army Corps of Engineers South Pacific Border District contractor crews place a three-ton, 30-foot barrier panel at the Barry M. Goldwater Range along the U.S.-Mexico border near Yuma, Arizona. (Photo: U.S. Army Corps)

The new Congress is faced with a security and humanitarian crisis at the border with Mexico. Given the almost complete breakdown of efforts to prevent illegal immigration in the last two years, dealing with this problem ought to be a priority for Washington.

Yet with divided government returning to Capitol Hill in the form of a new Republican majority in the House of Representatives that will thwart the Democratic-controlled Senate and White House and vice versa, the prospect of any major reform, whether in terms of the Democrats’ goal of amnesty for illegal migrants or the Republican objective of regaining control of the border and sealing it off, is off the table.

While illegal border crossings have been a serious problem for decades, they have grown far worse since November 2020. As the New York Times first reported a month later, the election of a president who denigrated his predecessor’s efforts to seal the border by increased enforcement of the laws and by building a wall to make crossing more difficult, called for “compassion” for those breaking those laws, and supported amnesty for those already in the United States, sent a clear signal. Those wishing to enter the country illegally took Joe Biden’s victory as a signal to begin an explosion in illegal crossings.

That was followed by a series of policy decisions by Biden in which the “catch and release” policy former President Donald Trump had ended was resumed. Deportations slowed, apprehensions of illegals by the much-abused Immigration and Customs Enforcement (I.C.E.) were largely halted and even the work of those beleaguered Border Police left to deal with the problem was unfairly smeared as brutal and prejudicial.

In the subsequent two years, the Biden administration, Congress, and much of the mainstream corporate media have largely ignored what some are not inaccurately describing as the moral equivalent of an “invasion” of the United States. The devastating impact this is having on both border communities and the rest of the country is such that the indifference to the issue cannot continue. That indifference is symbolized by the fact that President Biden hasn’t visited the border and Vice President Kamala Harris, who was nominally put in charge of the problem, only made one desultory trip to it and then has rarely commented on it, let alone done anything to ameliorate it.

Any bill strengthening border security – the first and inescapable obligation of the government before any wider consideration immigration should even be considered – will be thwarted by the Democrats in the Senate or by a presidential veto. They have either willingly encouraged the surge or feel any efforts to stop it will displease the increasingly vocal leftist/progressive base of their party that wants nothing less than amnesty for illegal immigrants.

Yet if no solution to the larger questions is likely to be found in the next two years, that doesn’t absolve Congress, especially the House Republicans who acknowledge there actually is a crisis at the border, from using every weapon at their disposal to bring attention to a challenge that is virtually unprecedented in American history.

What Can Congress Do?

Moderates may be inclined, as they were in the immediate past Congress, to ignore the security dilemma and simply move to grant a path to citizenship to people who were brought into the country illegally as children – the so-called “Dreamers” – since few believe they should be deported. But the vast majority of conservatives as well as independents and many border state Democrats understand that anything, however well-meaning, that is done to encourage further illegal immigration, as almost certainly would be the case for action on the Dreamers, is unacceptable. Amnesty failed in the 1980s when then President Ronald Reagan accepted one in exchange for some more border security. The Democrats’ efforts to secure a new, broader amnesty is at the heart of the current crisis.

That means many in the new House majority will want to move on to other issues where some sort of compromise on fiscal matters might theoretically be possible with Biden and the Democrats. But that would be a mistake.

Instead, Republicans have no choice but to use the only mechanism at their disposal to highlight the emergency: impeaching Department of Homeland Security Secretary Alejandro Mayorkas for his acts of nonfeasance in which, acting on the president’s orders, he has presided over a situation in which the border is, for all intents and purposes, being erased.

This effort, which will not result in Mayorkas being thrown out of office since the Democratic Senate will never convict him even if the GOP’s narrow House majority impeaches him. It will be labeled as grandstanding and a colossal waste of time. But stunts like that will result in hearings in which they can finally bring the various elements of this catastrophe before the public in a way that has not been done before. It is the only option available to those who understand that the consequences of what is happening at the border are so serious that business as usual or playing by the conventional rules of Washington politics simply isn’t good enough.

The Evidence

In October of 2022, approximately 200,000 people were apprehended attempting to enter the United States illegally, with the overwhelming majority of them occurring at the southern border with Mexico. Officials conservatively estimate that an additional 64,000 persons evaded apprehension after entering the country without permission. This was the highest total of such migrants for any October on record.

That month added to the total of 2.2 million apprehensions for fiscal year 2022. That’s up from 1.7 million apprehensions in 2021, with the estimate of the number of those who were not caught being similarly high if not higher. Both these totals are marked increases over the number of illegals caught during the administration of former President Donald Trump when, before the pandemic hit, some 851,000 were apprehended, although the difference between then and now is that, unlike the policy adopted by his successor, most of those caught were not then released into the United States to await the unlikely prospect of them appearing for court hearings.

Like those that have come in recent years, most are from Central America. A growing number of them are from elsewhere on the globe but made their way to northern Mexico in order to enter the United States. They come at a time when the general perception is that the Biden administration has created a situation in which the border is more or less open for those who wish to enter illegally or for the vast number of economic migrants who are increasingly making largely bogus claims for asylum on the grounds of suffering persecution at home.

But the situation is more than a matter of eye-popping numbers that measure what even The Washington Post has described as a new “surge” occurring at the border on Biden’s watch.

The flood of migrants is largely being managed by drug cartels who exact fees from those who wish to cross into the country and who they use to help bring in massive amounts of illegal drugs like fentanyl, which is helping to exacerbate an ongoing American addiction crisis. This has resulted in one of the largest human trafficking schemes in modern history that has helped destabilize both northern Mexico as well as impacting the United States.

Of equal importance is the toll this surge is taking on border communities in the Southwest. They are overwhelmed by the cost and logistical challenge of dealing with so many people crossing into the United States.

That is only likely to get much worse if, failing a last-minute decision from the federal courts, a key measure that has actually kept this crisis from being much worse is lifted.

Title 42

The Center for Disease Control’s so-called “Title 42” order, issued during the coronavirus pandemic, gave federal authorities the right to exclude migrants from the United States and turn them back to Mexico. In spite of the fact that this measure provided the lever by which many of those apprehended at the border were not allowed to stay, the Biden administration has wanted to discard it.  But with the courts forcing a decision, the probable end of the order, no matter when it comes, will result in a far greater percentage of those millions who cross into the United States illegally staying.

For the last decade, the standard number for the total of illegal immigrants now in the United States is usually reported by the press as 11 million. But as far back as September 2018, a Yale University study found that the real number was likely at least twice that if not far higher. After the last two years of surging illegal immigration, it is likely the real number of illegals now exceeds 30 million.

The Border States

Such a state of affairs explains the dire social welfare situation in border states that has been illustrated by the efforts of Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis to send some of those illegals released into the United States to cities like Chicago and New York and in one highly-publicized stunt, the Martha’s Vineyard resort. Those are all bastions of liberal support for open borders and amnesty, which had declared themselves “sanctuaries” for illegals where the government would receive no cooperation in seeking to deport them. But their leaders think the problem of caring for these people isn’t their responsibility.

Those cities were quick to call for more federal aid to assist them in dealing with the trickle of illegals who wound up on their doorsteps, realizing that, despite their insistence on the right to declare themselves outside the law with respect to immigration, this is a problem only Washington can solve.

One possible avenue of compromise might be to seek increased aid to border communities to help them cope with the cost of, among other services, housing and medical care for the tens of thousands arriving every month. But while that might be kindhearted, anything that makes it easier to live with open rather than closed borders, is part of the problem, not the solution.

Borders Are Not Racist

It should be specified that opposition to illegal immigration and a belief that stopping it is a political priority is not tantamount to racism or a repudiation of a desire to welcome legal immigrants. While some opponents of immigration often speak of those entering the United States illegally as being more likely to commit crimes (other than the one, that is, of entering illegally), studies have shown they are no more likely to be criminals than other people. Most simply wish to come to America to better their lives and those of their families. But a situation in which economic migrants aren’t required to follow the rules that legal immigrants observe means the end of the rule of law. That so many are now making unjustified asylum claims when few of them are in genuine fear for their lives at home further illustrates just how easy it is to game the broken system.

Moreover, given the outsized role that criminal organizations that deal in drugs have in organizing the mass crossings into the United States, the question of the motivations of those who make up the tens of millions of illegal immigrants is irrelevant to the debate about whether to secure the border. The fact that among those caught entering the country have been people who were on the government’s terrorist watch list and now are coming from countries outside of Central America makes Washington’s abandonment of its obligation to maintain control of the border all the more intolerable.

Pushing for Change

That brings us back to the question of whether House Republicans would be justified in impeaching Mayorkas or otherwise holding proceedings that, while not connected to viable legislation.

In the last Congress, the Democrats’ Progressive caucus used its bully pulpit in the House majority to continue to push for amnesty, demonize I.C.E. and the Border Patrol and support Biden’s refusal to finish building the border barrier that Trump began. Their numbers in the Democratic minority have only grown making any effort to put aside the question of comprehensive reform of the immigration system and to concentrate solely on fixing the border a non-starter.

This leaves Republicans no choice but to use their power to hold hearings to draw attention to the problem and either shame Biden into changing his mind and stepping up enforcement efforts or at least set the stage for a future Congress and White House to act.

It can be argued that impeaching an official for following the president’s orders and policy choices is unfair even if it does amount to an act of nonfeasance and doesn’t constitute a “high crime” or “misdemeanor” that the Constitution says is grounds for impeachment. But, as the Democrats showed in the last two Congresses with their attempts to force Trump from office, impeachment is a political measure, not a court of law.

Whether or not this gambit or any other succeeds in galvanizing the attention of the public at a time when liberal legacy media is still uninterested in the surge of millions of illegals or the plight of border communities, Republicans and Democrats who understand the consequences of further indifference, must do something. The longer Washington waits to cope with this problem, the worse it will get.

Jonathan S. Tobin is editor-in-chief of Jewish News Syndicate (JNS.org), a senior contributor for The Federalist and a columnist for Newsweek. Follow him on Twitter @jonathans_tobin.