Below is my column in The Hill on the worsening situation at the Southern border and how the Supreme Court laid the seeds for this crisis over a decade ago. The courts have left few options for either the states or Congress in compelling the enforcement of federal law.
Here is the column:
The upcoming impeachment vote on Homeland Security Secretary Alejandro Mayorkas has caused a deep rift even among his critics, including some Republican members of Congress.
Many view Mayorkas as an unmitigated disaster as Homeland secretary. The massive numbers of migrants crossing the border has become a growing economic and security threat to the entire nation.
I have previously expressed my disagreement with the two articles of impeachment, which present their own inherent dangers to the underlying constitutional standards. But whatever happens in the House, the real crisis is not the employment status of Mayorkas. It is what brought the House to seriously consider this extreme remedy in the first place.
The seeds of this disaster were planted by the Supreme Court over a decade ago, in Arizona v. U.S., if not earlier. In that case, a 5-3 majority ruled against a state seeking to enforce immigration laws in light of what it described as a vacuum of federal action. The court declared that the states were preempted or barred from taking such action. While giving the state a small victory in allowing state officers to investigate the immigration status of a suspect with reasonable suspicion, it left little room for independent state action in the area.
Despite President Obama’s orders giving some migrants effective immunity from enforcement (such as the youths that came to be known as “DREAMers”), he actually deported a significant number of illegal migrants. At the time, many of us asked where the line would be drawn in the future, often raising the hypothetical of a president who abandons enforcement entirely or to a large extent.
It took a decade, but that hypothetical seems dangerously close to reality. Mayorkas is carrying out the policies of President Biden, who continues to praise his work and the worst record of enforcement in history. One of the first things that Biden did when coming into office was to seek to shut down policies and construction used to deter unlawful migration. At the same time, both Biden and Mayorkas were widely viewed as supportive of those crossing the border as many Democratic cities declared themselves sanctuaries for undocumented migrants pursued by ICE.
Now, even some Democrats are now criticizing President Biden for his lax policies and the failure to do more in securing the border, as hundreds of thousands pour into the country. Most are promptly released, and many are not even asked to appear for eight years at an immigration proceeding.
For the states, desperate times call for desperate measures. For example, Texas recently declared that it was acting unilaterally under Article I, Section 10, Clause 3 of the Constitution. That provision reserves the right of self-defense for a state that is “actually invaded, or in such imminent danger as will not admit of delay.”
The current crisis is a practical invasion, overwhelming towns and cities across the country. No state faces a greater danger than Texas. However, “invasion” was clearly meant in the traditional sense of a foreign power or army. Similarly, “such imminent danger” was referencing “such” an invasion.
The southern border in 2024 is, constitutionally, suffering no more an “invasion” than the Capitol riot in 2021 was an “insurrection.” There is a difference between the colloquial and constitutional meaning of such terms.
States have also tried to go to court to enforce these laws in cases like Arizona v. United States and, most recently, in U.S. v. Texas. They have often found the courts closed to them. The courts have denied standing to sue in many cases or else granted sweeping authority (and preemption) over immigration.
That has left many in Congress or the states with few meaningful ways to compel enforcement of the law. This includes provisions written as mandatory “shall” obligations, which have been effectively ignored by the federal government.
The result is that many now see impeachment as the only viable option to force change. However, given Biden’s support for his actions, it is difficult to see how Mayorkas’s removal would alter policies or practices in any respect.
Congress is not blameless in any of this. The court has virtually invited Congress to pass laws giving people greater standing to sue the government. It could also apply more stringent conditions on spending and block confirmations.
Yet this crisis is the result of decades of court rulings expanding executive powers while limiting the ability to challenge those policies. The court’s decisions narrowing standing have been deleterious, limiting those who can challenge unlawful or unconstitutional acts by the federal government.
States such as Texas are absolutely correct that this is a breach of the original understanding with the federal government. The combination of the sweeping preemption by the courts and diminishing enforcement by the agencies has left states as mere observers to their own destruction. It is like watching your house burn down as the fire department works primarily to prevent anyone else from putting it out.
The Biden fire department is claiming that, just as it has the authority to put out fires, it has the authority to let them burn.
The question is whether states have finally reached a point of near-total disempowerment, becoming effective nullities or nonentities in dealing with this overwhelming influx across their own borders. While they can patrol the border, they are powerless to exercise inherent powers to protect their citizens and society. It runs counter to the original federalism guarantees used to secure ratification of the Constitution. States were viewed as partners in our federalism system, not mere pedestrians.
One can see why this looks like a bait-and-switch for states, who were offered something very different when they agreed to abandon the Articles of Confederation. They understood the need for a stronger federal government and that states could not act as separate sovereign powers. States yielded authority to the central government, including interstate matters.
Yet, the Constitution would have likely failed in ratification if they had been told of the degree to which they would become dependent on federal authority within their states.
Clearly, the federal government will continue to determine who enters the country. However, Congress has repeatedly tried to impose limits on such actions through express legislative mandates.
That brings us back to the courts. Members of Congress have been told that they cannot sue to enforce mandatory provisions, while states are told that they cannot sue to secure their own borders. It reduces our system to a mere Potemkin Village, a facade of constitutional powers with little ability to protect them.
The combination of open borders and closed courts will continue to fuel this crisis. If the justices will not allow states to close their borders, they can at least open the courts to allow them greater ability to be heard.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
“Of the over 7.6 million illegals encountered by Border Patrol since January 2021, the number allowed to stay inside the U.S. is somewhere north of five million. But with the percentage of those allowed to stay now approaching 100 percent, if current trends hold, the total allowed to remain in the U.S. under the Biden administration will reach ten million by next January.”
https://imprimis.hillsdale.edu/an-immigration-crisis-beyond-imagining/?utm_campaign=imprimis&utm_medium=email&_hsmi=
You truly are pathetic, a lowly creature.
you know what’s fun .. no one respects your views as a lawyer –you fluff Trump, who loses everytime in court… … Do you enjoy being the joke of the legal professoriate, Turdley?
For some time, the Left has asserted that the border is *not* open, and that it *is* secure.
Now the Left asserts that without the “border” bill, the border will remain open and unsecured. (And, of course, that it’s Trump’s fault.)
I sure wish they’d pick a lane.
On the other had, the Supreme Court has expressed the opinion that the constitution is not a ‘suicide pact.’ States cannot be forced to allow their own deaths.
Well, to begin, this may perhaps be illegal migration, but it is definitely not illegal “immigration,” since immigration implies reciprocal agreement. I do, in fact, view this as foreign “invasion,” illegals as foreign invaders and outlaws. And have since the very early days of the Tea Party when we taxpaying New Yorkers first learned our local math teachers, example, were to replaced by ESL teachers, to the detriment of student citizenry and society.
Secondly, while the United States may have incidentally co-opted these southern state borders, the borders themselves actually exist first and foremost as a territorial border, in this case as a state or as a states’ border, borders themselves being the willful maximum of one’s defensible territory, that is an historic fact.
Third, regarding preemption, correct me if I’m wrong, but nowhere in the US Constitution does it specify that the federal government shall regulate immigration. Does it? And that which is not relegated to the states, etc. Texas is one hundred percent “within its rights” to defend its territory and its people by any and all means. If that places it at odds with this federal government as commandeered by Joe Biden, so be it. The US Constitution, in my opinion, is fully on their side.
“That which is not relegated to the “federal government, etc.” So says “betuadollar” this sixth Day of February in the Year of Our Lord, Two thousand and Twenty-Four, and Third in the Reign of the Mighty Joe Briben, King of Kings, etc, etc.”
This is probably one of the finest essays that you have ever posted.
The very conservative Wall Street Journal reports that Republicans were given the best immigration deal in about 40 years by the Democrats.
Republicans chose to keep the borders open and unsecured, for about a year, just to win an election. Allowing drugs and violent criminals to enter the USA to do what’s good for Trump but bad for the nation.
How about this deal: enforce the law now or leave office.
Good luck with that
Describing a turd as a turnip does not make the turd a turnip. The ‘deal’ is garbage. Further, Ukraine should not get one more nickel of American money.
“. . . to keep the borders open and unsecured . . .”
But the Left has been asserting for some three years that the border is *not* open and that it *is* secure.
Which is it?
Or is this just the Left’s contradiction du jour?
Why should Ukraine get 40 billion more for THEIR country, then we do to CLOSE THE BORDERS?? Giving more money to process more illegals in, is NOT what America wants…it is what the Cloward and Piven Progressives want. They lie to us. We don’t trust them to do ANYTHING about closing the border.
Another Cowardly Anonymous Soviet Democrat Woke Useful Idiot Liar tried these lies:
the very conservative Wall Street Journal reports that Republicans were given the best immigration deal in about 40 years
That would be “the very conservative” Wall Street Journal that has been publishing editorials calling for wide open borders for over 20 years. I wonder if the Soviet Democrat Marxist Useful Idiots sent here to Lie Like A Proud Biden have ever read the WSJ – that they want us to believe is very conservative. Commies reading a capitalism oriented newspaper?
https://www.wsj.com/articles/SB962587622846857507
“As one of this newspaper’s proud little traditions, on the Fourth of July we offer an editorial salute to immigration. Starting during the immigration debate of 1984, we proposed a five-word Constitutional amendment: ‘There shall be open borders’. We have repeated this periodically since under an editorial headline invoking Liberty’s torch'”
And the second regularly regurgitated Soviet Democrat lie, right up there with “that laptop doesn’t belong to the Crackhead Kid, it’s only Russian election disinformation”:
Republicans chose to keep the borders open and unsecured, for about a year, just to win an election. Allowing drugs and violent criminals to enter the USA to do what’s good for Trump but bad for the nation.
Bribery Biden and The Soviet Democrats have been issuing invitations to Illegal Aliens to not only win the 2020 election, but to import Replacement Soviet Democrat Voters to win all future elections. Let’s have a look at the Cowardly Anonymous Soviet Democrat’s employer, Bribery Biden, The Big Guy who’s the Mexican Drug cartels financier:
Jan. 20, 2021, Biden halts border wall construction.
Jan. 20, 2021, Biden expands the “illegal” Deferred Action for Childhood Arrivals (DACA) program that allows cartels to freely traffick children into the United States.
Jan. 20, 2021, Biden endorses the U.S. Citizenship Act, which would grant U.S. citizenship to foreign lawbreakers.
Jan. 20, 2021, Biden revokes Trump-era executive orders that enforced immigration laws.
Jan. 20, 2021, Biden ends restrictions on immigration from countries rife with terrorism.
Jan. 20, 2021, Biden stops deportations for 100 days, “effectively providing amnesty to criminal and other removable aliens and sending the signal the Biden Administration would not enforce the law.”
Feb. 1, 2021, Biden’s Department of Homeland Security (DHS) requires a “process [that] shall provide for assessments of alternatives to removal including, but not limited to, staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.” It’s another means to allow foreign law-breakers to remain inside the United States indefinitely.
Feb. 2, 2021, Biden signals end to “Remain in Mexico” policy that kept would-be illegal migrants in Mexico while their usually false asylum claims were adjudicated in U.S. courts.
Feb. 6, 2021, Biden administration begins to terminate agreements for other countries to hold migrants making U.S. asylum claims.
Feb. 2021, Biden administration stopped refusing to admit illegal migrant children under Title 42.
Feb 17, 2021, Biden Centers for Disease Control (CDC) allows trafficked children to enter the United States freely under Title 42.
Feb. 25, 2021, Biden administration speeds up its release into the United States of unaccompanied migrant children illegally entering the United States.
March 2, 2021, Biden administration loses track of 20,000 illegally present foreign children.
March 5, 2021, CDC ignores pandemic protocols to increase U.S. acceptance of custody for overwhelming surge in illegal migrant children.
March 10, 2021, Biden reinstates Obama-era parole programs that allow foreigners illegally present in the United States to sponsor family members for U.S. entry.
March 16, 2021, DHS Secretary Alejandro Mayorkas announces the federal government will pivot to “processing” illegal immigrants instead of sending them home.
March 20, 2021, DHS begins allowing migrants into the United States without even setting a date for appearing in court later.
March 30, 2021, DHS expands detention capacity for unaccompanied migrant children.
March 31, 2021, Biden administration erases background check requirements for adults living with an unaccompanied migrant child trafficked into the United States.
April 30, 2021, Biden cancels future border wall construction.
June 15, 2021, Biden makes it possible for more illegal migrants to chain-migrate family members into the United States.
June 16, 2021, Biden administration allows people petitioning for asylum to bring family members in with them.
June 16, 2021, The Biden Administration expanded the categories allowing a foreigner to petition for asylum.
July 2021, Border Patrol releases at least 50,000 illegal immigrants into the United States without court dates.
Aug. 5, 2021, Border Patrol gives green light to alternatives to detention and parole, effectively ending another means to deportation.
Aug. 17, 2021, DHS expands its policy of catch and release.
Aug. 31, 2021, Nearly half of the more than 100,000 illegal immigrants released into the country since March 21 without court dates failed to check in with federal officials.
Sept. 24, 2021, Biden falsely accuses border agents of “whipping migrants” in Texas.
Sept. 30, 2021, DHS grants a form of amnesty to millions of migrants in the form of rolling back deportations across the entire United States.
Fiscal Year 2021, More than $300 million in federal grants reward cities encouraging illegal immigration.
Oct. 8, 2021, DHS cancels more contracts meant for a border wall.
Oct. 12, 2021, DHS suspends its inspections of large worksites to discover illegal migrants.
Oct. 27, 2021, Mayorkas suspends enforcement of immigration laws at schools, hospitals, social service facilities, and recreational areas, among others.
Oct. 29, 2021, Mayorkas terminates “Remain in Mexico” program.
Nov. 2021, Biden administration creates new program for releasing illegal aliens into the United States.
Dec. 17, 2021, Immigrations and Customs Enforcement (ICE) encourages greater immigration of family units by reducing its detention centers for such groups.
Jan. 2022, Biden administration found failing to vet Afghan refugees.
Apr. 1, 2022, Biden administration doubles down on efforts to end Title 42 in court.
Apr. 3, 2022, Biden administration encourages prosecutors to stop filing cases for immigration court removals.
Sept. 9, 2022, Biden eliminates curbs against foreign citizens receiving welfare benefits.
Oct. 31, 2022, DHS expands DACA child trafficking program.
Dec. 13, 2022, Biden administration sues Arizona for state efforts to secure the border with shipping containers.
Jan. 2023, Biden administration expands role of CBP One app to expand migrant entry through online appointments instead of in-person review.
Jan. 6, 2023, Biden administration expands migrant parole beyond legal and historical limits to encompass millions of foreigners.
Feb. 25, 2023, Biden administration reportedly lost track of 85,000 trafficked migrant children over two years.
March 2023: ICE allows non-detailed foreign illegals to grow to 5.3 million.
March 25, 2023, Biden administration requests less funding for detention beds despite record border crossings.
March 28, 2023, DHS inspector general finds federal government misused pandemic funds to support services for illegal immigrants.
Apr. 13, 2023, Biden expands Obamacare benefits to DACA recipients, putting foreign border crossers on public health welfare.
Apr. 27, 2023, Biden administration expands use of CBP One app and creates additional parole programs for migrants.
Apr. 30, 2023, Biden administration reduces already-scant vetting of illegal migrants from China.
May 5, 2023, Border Patrol expands appointment capability on CBP One app despite the technology’s abuse by criminal cartels.
May 11, 2023, Biden officially terminates use of Title 42 expulsion authority.
May 31, 2023, Biden administration ends DNA testing program to reduce child trafficking.
July 7, 2023, Biden administration expands more parole programs for Central American countries.
July 24, 2023, Biden administration sues Texas to stop state efforts to secure the border with floating barriers.
Aug. 10, 2023, Biden administration demands $14 billion to fund migrant welfare.
Aug. 29, 2023, federal law enforcement sets out to find more than a dozen Uzbek migrants linked to ISIS whom ICE released into the United States.
Aug. 2023, DHS transforms ICE into social services agency instead of a branch focused on law enforcement.
Sept. 8, 2023, Biden administration seeks to make delayed adjudication of asylum claims equal granting the largely fraudulent claims.
Oct. 4, 2023, Biden administration issues new rules that allow strangers to take unaccompanied migrant children.
Dec. 21, 2023, Biden administration counts 18-, 19-, and 20-year-old migrants as “unaccompanied minors” to allow them illegally into the United States.
Dec. 28, 2023, Mexican government says meetings with DHS secretary and Secretary of State Antony Blinken focused on “regularizing” status of “Hispanic migrants who have been undocumented.”
Jan. 3, 2024, Biden administration sues Texas to stop them from sending illegal foreign migrants out of the United States.
I don’t know whether this is “the best immigration deal in about 40 years.” I do know it is a very very bad deal. Bad for the country. And bad for its citizens.
But I didn’t expect anything else from the thoroughly un-American libtards in Congress. Especially Chuckie. The Benedict Arnold of the 21st century.