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.
Under the “Kelo” U.S. Supreme Court ruling, states like Texas could easily create a secondary-border a few yards from the official national border and have complete control over immigration.
Texas has a solution if they choose to use it.
[source: film “Little Pink House” about the Kelo ruling].
I like the creativity, but I doubt that would work.
The issue is basically Federal rights vs State rights and Feds win.
The only solution is impeachment and this should be an impeachable issue.
How about working with Democrats to pass a border security bill instead? Texas can’t establish a US border, and all Abbott is doing is showing off for attention and for political reasons.
“According to new data published last month, the Biden Department of Homeland Security (DHS) has removed a higher percentage of arrested border crossers in its first two years than the Trump DHS did over its last two years. Moreover, migrants were more likely to be released after a border arrest under President Trump than under President Biden.”
https://www.cato.org/blog/new-data-show-migrants-were-more-likely-be-released-trump-biden
The Senate has a bipartisan bill, and Speaker Johnson is saying that he will not allow a vote on it in the House.
Republican Sen. Lankford: “The key aspect of this again is are we as Republicans going to have press conferences and complain the border is bad and then intentionally leave it open?”
You can cover up a lot of things by looking at percentages. The report shows that over approximately the same number of months, Biden has released 2,440,195 into the US compared to 712,930 by Trump. Actual numbers matter … not percentages.
Actually, when you’re assessing the likelihood of something, it’s the percentages that matter, not the absolute numbers, especially when the base number is changing.
But since you want absolute numbers, “In absolute terms, the Biden DHS is removing 3.5 times as many people per month as the Trump DHS did.” Biden expelled 2,557,603 people during the 2-year period assessed, compared to 647,437 expelled by Trump.
You are focusing on the expelled people … who don’t cause any issues for the US. But the report shows Biden has released 3.43 times as many people into the US than Trump did … that causes major issues for the US.
Absolute numbers are far more relevant than percentages.
It’s moronic to excuse one behavior by looking at what others have done. If a murder went free on a technicality, would you then grant freedom to another murderer? Or as my mom used to say, if everyone else is jumping off the cliff, would you follow? Follow the logic, or go back to night school.
Are you saying that Trump was jumping off a cliff and Biden followed him?
It’s not moronic to point out that it’s been a problem under both Republican and Democratic administrations, as there is no straightforward fix. It’s hardly analogous to murder, nor was Trump releasing people “on a technicality.” It’s intentional, not a technicality, that we allow people to apply for asylum.
Republican Sen. Lankford on Newsmax: “I would remind folks that during the Trump administration we also had days of more than 4,000 people that were illegally crossing the border in 2019 and they were struggling because there were gaps and loopholes in the law.”
Is the bipartisan Senate bill better than the status quo? Yes. So why won’t Speaker Johnson allow a vote on it. I think he’s scared that it will pass with bipartisan support in the House.
“Is the bipartisan Senate bill better than the status quo? Yes. So why won’t Speaker Johnson allow a vote on it.”
Such an attempt, as mentioned above, is pure stupidity. Today, Biden is not following the laws on the books and is doing everything to encourage immigration. Why would he follow any new law?
Let Biden follow our present laws, and then we can talk.
What you ignore and what Cato glosses over is the denominator, the massive number of additional aliens crossing the border. As Cato says, “Of course, the absolute numbers of releases have been higher under President Biden, but that reflects much higher arrivals, not any meaningful change in policy.” That tells the rational person that controlling the border and preventing crossings will do far more to stop the crisis than trying to catch the illegals after they’re here. Even Alzheimer’s Joe could probably understand that, at least to the degree that he understands anything. And that’s why his puppeteers won’t let him re-institute the Trump era controls that limited illegal crossings.
So the House Republican leadership should allow a vote on the bipartisan Senate bill.
The senate should vote on HR2 first.
Though I doubt that this bill is passing in the Senate.
Why? Is the Biden Administration presently enforcing the law?
We should remember that the premise of the American “Thanksgiving” is when white European illegal immigrants were saved by the Native Americans from starvation and death.
If that doesn’t motivate you to treat immigrants humanely, maybe you need a new church?
Last week the Democrats in Congress gave Republicans everything they asked for in an immigration bill. The best deal in decades offered by the Democrats.
Republicans responded by placing politics over their own country’s welfare – rejecting the Dems generous deal to make Trump look good for the next election. Trump was playing petty politician, not leader.
Republicans in Congress voted to make Americans LESS safe on immigration! Even real Republicans opposed their party leaders. That’s not patriotism!
Stop the anchor baby nonsense – it is a misinterpretation of the law.
Halt all legal immigration until the border is secured and all illegals are deported.
Jail time for hiring illegals
Finish the wall. It isn’t perfect but it reduces the manpower requirements.
Declare any NGO assisting illegals a terrorist organization.
Need more?
Abide by the Constitution.
It appears as though the Supreme Court wants it both ways. On one hand, they quickly defer to federal authorities as the proper authority to enforce immigration laws (in a normal sane world, I wouldn’t disagree). On the other hand, they refuse to take any action against those same federal authorities who intentionally refuse to enforce immigration laws under the ridiculous facade of processing amnesty claims. The Supreme Court can argue the meaning of “invasion” in the Merriam-Webster’s dictionary context, but at 8 million and climbing, millions of Americans aren’t buying that legal reasoning anymore and want accountability. You can’t have it both ways Jonathan.
If states had standing, could they sue under a mandamus theory to compel specific enforcement of immigration laws?
That was the thing about Obama – he very intentionally did things in a way that set the stage for them being cumulative, eventually reaching critical mass, and in their language difficult to dispute in polite company (classic Marxism, BTW).
I guess we should thank our lucky stars; had Hillary won, this would’ve all happened with zero recourse years ago. Think what you will of Trump, but his taking office was the only thing that pressed the pause button, with the subsequent dem panic revealing precisely and openly what we are dealing with.
The Senate bill borders on parody (no pun intended). They really do think we are stupid, and with a large swath of the dem constituency, I fear they might be correct.
As already mentioned, Turley says it is not an invasion because it is not an army and I agree that January 6 was not an insurrection because there was no use of guns . . . except by Lt, now Captain, Byrd who did not follow protocol and killed Ashli Babbitt. Trump’s AG can go back and file charges against Byrd in 2025. We need the TRUTH!
Multiple people had guns. Just search on “firearm” here: https://www.justice.gov/usao-dc/capitol-breach-cases
Many more people had and used other weapons. Search on “weapon” in the same database.
When you utterly fail to fulfill your duties to enforce the law as a public offical, you are an enemy of the State and should be removed with extreme speed.
re: Mespo
Sort of like George W. Bush violating Ronald Reagan’s Torture Treaty (also a felony under federal law)? The DOJ only prosecuted those supporting Reagan’s treaty.
Or is this just “Team Sports” winning in spite of the law?
Great point! Now that immunity has been removed from the POTUS after he leaves office, Obama can be charged with murdering US citizens, “W” Bush can be charged with torture and Clinton can be charged with indecent exposure
That ruling is still pending. Glad to know that you think Trump is wrong in asserting absolute immunity.
biden campaigned on open borders. America elected biden. mayorkas is doing what biden orders. what’s the problem? America gets what it deserves.
Over his career, Biden has probably campaigned for every possible position on any issue. But America is supposed to hold him to his Constitutional duties over and above his campaign promises.
As is constantly advanced by the simpleton media, we live in ‘historical’ times. Hardly a week passes whereby the the media does not witnesses yet another ‘historical’ event to point out (and supposedly be embraced by the multitude that failed high school history). Well, we truly have such a circumstance now in the Roberts’ Court. The Roberts’ Court has now replaced Roger Brooke Taney’s as providing the worst decisions in history. Roberts and his voting block have achieved that which has long been sought after by many bureaucrats: ambiguous mediocrity.
And how did Roberts et al. attain that lofty accomplishment? By simultaneously ignoring one clearly written part of the Constitution (Article 2, Section 1) while embracing a very narrow and concrete interpretation of another part (Article I, Section 10, Clause 3) of the Constitution.
Turley states: “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.” Consider changing the wording a little to ask the question that anyone can provide an obvious answer: Would the Constitution have been ratified by the states if those states had been told that their borders and security would not be maintained by the federal authorities? My guess is even most Harvard law grads could answer that question.
Anyone who thinks the new immigration bill will do much to stop illegal immigration should read Chris Murphy’s summary on X. While highlighting many of the bill’s weaknesses (which he sees as positives), he fails to mention that Biden can suspend the operation of the admittedly insignificant procedures that kick in after 5,000 daily encounters for a week simply by saying it’s in the national interest to do so. How any Republican could support this bill is beyond me, unless they single-mindedly favour lower wages for their business constituency or would do anything to get funds for Ukraine. Scalise has said if it passes the Senate he will not bring it to the House floor. Hope he sticks to that.
“How any Republican could support this bill is beyond me”
Have you read it?
“How any Republican could support this bill is beyond me ”
Daniel, it should be beyond all, especially since The Biden Administration has yet to avail itself of those powers it presently has and has, by EO, removed those things protecting the border.
I wouldn’t vote for any Republican who supports the bill. It demonstrates a mindset incompatible with good governance.
When the Federal government and one political party become one and the same, expect incompetence at the best and tyranny at the worst.
It is a MAGA lie that the “borders are open” and Biden somehow has the power to “shut the borders”. Biden ditched Trump polices because they were illegal and/or inhumane. There is a bill in Congress right now to help address this issue. Guess who is blocking it? Yup, Republicans.
That bill is a distraction design to fool folks just like you, friend.
Turley is right that the courts have abdicated the right of the states to protect themselves. I remember the Arizona decision and it was “surprising” in its decision and tone. I would disagree with his statement that This is no more an invasion than 1/6/2021 was an insurrection. Contraband, drugs, lawless cartels that are also murderous in their impact on migrants and border citizens, other criminals from other lands, NGO’s flouting the law and ushering in migrants and getting paid by the feds, taking down the law abiding wall and impeding the states self protection. This is not only an invasion, there are acts of treason here committed by the federal officials who do not fulfill the laws we have and this leads to the death of American citizens.
An invasion by any definition of the word.
Texas also was a republic and surrendered certain rights when they accepted statehood but they also received assurances and the acts by Mexico above the Rio Grande was the precipitating factor of the Mexican American War of 1846 . Texas may decide that the Federal Government has failed to h uphold their part of the bargain and could act unilaterally.
I would, of course , condemn that move, but would send money to Texas to support their acts.
No president – Republican or Democrat – can prevent illegal immigration as long as the USA borders a third world economy. That’s why Canadians aren’t invading the northern border.
If Canada paid 10 times more income for the same job, Trumpers would be jumping fences trying to get into Canada then sending the money back to their families in the U.S.
Foreign aid would be well spent raising the third world wages of Mexico and Central America. That’s the only way to fix this.
Dude. Facts and logic have no place on this blog.
You and Sammy boy are perfect examples of why this crisis goes on and will continue under Joe Biden. No inkling that border crossing was far, far lower during the Trump Administration. But on top of that monumental ignorance you have the idea we, the USA, could actually raise wages in throughout the world. My guess is neither of you know how many zeros follow the leading one in a trillion.
1. What Trump did was illegal and inhumane. I don’t want to go back to treating immigrants like animals (or worse).
2. The economy is doing better now, so more immigration.
3. I like immigrants. They are good for the economy, always have been. And bonus they bring good cuisine.
4. Our immigration system is so messed up that it is near impossible to blame any president for it. Nor do I blame the immigrants. I blame the Republicans who have a burning desire to be cruel to immigrants. And I do not buy the BS that “we are only opposed to illegal immigration.” History has shown the to be BS.
Remain in Mexico was neither illegal nor inhumane.
” I blame the Republicans ”
Sammy, you are so ignorant. The McCarran-Walter Immigration Act of 1952 was created by McCarran, a Democrat, and Walter, also a Democrat. I have no love for either party, but it is time for you to close your mouth and start reading so you don’t sound so stupid. I think most politicians recognize a need for immigration, but only the Democrats want to let in murderers, rapists, drug runners, and those released from jail to immigrate to the US. Democrats close their eyes to the number of children dying in the desert, the women raped, the slavery of immigrants and the chaos unregulated immigration creates. But let us not forget over 100,000, primarily young, die from drug overdose due to the Democrat Party’s desire for votes rather than the security of the United States. By the way, did I mention terrorism? Yes, terrorists are setting up shop in the US to make 911 look insignificant.
“What Trump did was illegal and inhumane. ”
Sammy, take note: you never mention what Trump did that was illegal and inhumane. Why? Because you are ignorant and do not read. Not knowing much of anything, you like to blab nonsense.
Tell us precisely what Trump did that was illegal and inhumane.
S. Meyer,
Sammy lacks logic, facts and common sense.
Upstate, lacking an advanced cerebrum, Sammy functions reflexively, almost entirely on his brainstem and spinal cord.
Manhattan DA Bragg offers explanation for releasing those involved in NYPD attack with no bail
https://justthenews.com/government/courts-law/manhattan-da-bragg-says-his-office-looking-new-footage-individuals-involved?utm_source=referral&utm_medium=offthepress&utm_campaign=home
These are the kind of people Biden is letting in.
Other than the gratuitous swipe at “Trumpers”, can you even estimate how much money would be required to raise the wages of the rest of the world? Even with unlimited money how you your affect such a solution? Your advice is a non-solution to the problem, which actually stems from terrible governance worldwide.
Turley says: “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.” This is incorrect. The purpose of a fire department, its empowering statutory authoirity, rests on having a public service that puts out fires. The founders did, indeed, plan for having a rogue executive who fails to uphold the Constitution. It was called impeachment. Congress is proceeding exactly as the founders envisioned. It may be slow and cumbersome but it ultimately should do the trick. And, of course, the people have the ultimate say here in electing someone in November who understands the federal role in managing this republic.
Four years is too long to wait for a possible solution. As we see an anti American President can do far too much damage in that poeriod of time and with the growth of partisan based ideology the normal checks and balances no longer apply.
Republicans in the 70’s voted to remove a lawless President while today there is hardly a democrat that would vote to impeach and remove Biden no matter what he does. He could cede Florida to China and get away with it just as he is cedeing Texas to countries S of the border without effective opposition. Something MUST be changed in our system as it has become disfunctional and now works against the interests of the very people whose will it is supposedly based upon.
I believe any government official helping illegals…against the LAW…should be jail…and I mean by the 1000’s!
Bring back the Rule of law….and I include Judges ILLEGALLY rulings.
Democrats are Fascists, directly seeking to destroy the USA. We need to jail them by the thousands…I think a Nuremberg like Trial is NECESSARY!
Just because you get a position of power, doesn’t give you the immunity to BREAK LAWS! Anyone go to jail over the OBVIOUS Russian Hoax Conspiracy which Lasted for years!
And yes I want to JAIL every single person involved!
The Democrats are Fighting A Civil War against America….their SECOND, and Few people are fighting back!
I’ve changed my mind.
Ship them all to Florida. And make them stay there.
Then the criminal element will be arrested and punished. And we won’t have to suffer the indignity of those who flip the bird at Lady Liberty.
Tickler File: Busy Week
February 2024 Presidential Primary & Caucuses
Feb 6th, 2024 (Tuesday)
Nevada Democratic presidential primary election
Republican primary held the same day is non-binding.
Feb 8th 2024 (Thursday)
Nevada Republican presidential caucuses
Supreme Court of the United States (Feb 8th 2024 – Thursday)
COLORADO STATES RIGHTS – BALLOT HEARING
https://www.supremecourt.gov/
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Feb 24th 2024 (Saterday)
South Carolina Republican presidential primary election
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Feb 27th 2024 (Tuesday)
Michigan presidential primary election
Ref: [Link] cnn.com/election/2024/calendar
—
Note: Early Voting is available in some States.
For Example: Early Voting in North Carolina begins Feb. 15th 2024
Check with your State’s, State Board of Elections website.
Re N.C.: Early Voting Sites:
In-person early voting for the March 5, 2024, statewide primary election begins Thursday, Feb. 15, and ends at 3 p.m. on Saturday, March 2. Early voting sites and schedules are available at the Early Voting Site Search. Locations and voting hours are also available at Early Voting Sites for the March 5, 2024 Primary Election (PDF).
Don’t Forget Your Photo ID
North Carolina voters will be asked to show photo ID when they check in to vote. Learn more: Voter ID.
https://www.ncsbe.gov/voting/vote-early-person
Turley needs to authorize a staffer to police off-tooic comments, particularly those made early in the commenting process. It detracts from any utility the site has, and from the value of thoughtful, on-topic comments. It is beginning to get out of hand.
“off-topic”