Border crisis deepens as governors assert control

The governors of 20 states sent a letter to President Joe Biden and Vice President Kamala Harris last month asking them to take immediate action to end the crisis at the southern border. The governors said the crisis is spilling over the border states into all of their states.

They claim that the Biden administration enticed undocumented immigrants to the border and incentivized illegal crossings with irresponsible rhetoric and by reversing the Trump administration’s border security measures.

The last thing we need during a deadly pandemic is a self-created crisis that undermines public safety and threatens our national security.

Biden claims that the border crisis was caused by Trump’s border security policies, which makes no sense to me. But I don’t think it matters at this point. I agree with Harris that it is time to stop the political “finger-pointing” and concentrate on dealing with the situation.

However, that is not what Biden is doing. Instead of taking immediate action to end the crisis, he has made it worse by terminating the Trump administration’s Migrant Protection Protocols (MPP) program. Under that program, approximately 68,000 aliens who had made illegal border crossings or sought admission without proper documentation were returned to Mexico and required to wait there for the duration of their immigration proceedings.

Ending the program won’t reduce the number of illegal crossings. It will encourage more of them.

Giving up on Biden

Arizona Gov. Doug Ducey and Texas Gov. Greg Abbott appear to have given up on trying to persuade Biden to secure the border.

They are trying instead to secure the border without his help, and they have issued disaster declarations to activate their right to request assistance from the rest of the states — and the other parties to the Emergency Management Assistance Compact.

All 50 states, the District of Columbia, the U.S. Virgin Islands, Puerto Rico, Guam, and the Northern Mariana Island are parties to the compact.

The border crisis

The number of illegal border crossings has reached a 20-year high.

In the four months before Biden took office illegal crossings averaged 70,000 a month — then rose to 97,640 in February, his first full month in office; to 169,204 in March; to 173,686 in April; and were 172,011 in May.

We are still in the midst of a deadly COVID-19 pandemic and most of the crossers come from Mexico, Honduras, El Salvador, and Guatemala, which is a problem because the vaccination rate in those countries is very low.

Emergency declarations

On April 20, 2021, Arizona Gov. Ducey signed a border crisis declaration of emergency that includes the following assertions:

• No one knows whether the foreign nationals entering the United States through Arizona’s border have been exposed to COVID-19 and no resources have been made available by the federal government to mitigate the risk these individuals pose;
• Federal agencies have adopted a “catch and release” policy towards the undocumented aliens they apprehend;
• The influx of foreign nationals is causing financial hardships to local and State agencies and endangering the health and lives of citizens and law enforcement; and
• The federal government has failed to prevent, mitigate, or take significant action to stop or reduce this influx, which has created conditions of extreme peril to the safety of persons and property within our state.

Texas Gov. Abbott signed a disaster declaration on May 31, 2021, which includes the following assertions:

• The Biden administration has been unwilling or unable to enforce federal immigration laws or to deter and stop illegal border crossings;
• The individuals unlawfully crossing the Texas-Mexico border pose an ongoing threat of widespread and severe damage, injury, and loss of life, including property damage, human trafficking, violent crime, threats to public health, and a violation of sovereignty and territorial integrity; and
• Under Texas law, declaring a disaster allows the use of all available state and local resources needed to manage the situation, and activates the State of Texas Emergency Management Plan.

Other states’ assistance

The purpose of the Emergency Management Assistance Compact is to provide for mutual assistance in managing any emergency disaster that is duly declared by the governor of the affected state, whether arising from natural disaster, technological hazard, man-made disaster, community disorders, insurgency, or enemy attack.

According to the letter in which governors Ducey and Abbott request assistance from other parties to the compact, many of the illegal crossings involve state-law crimes, such as criminal trespassing or smuggling of persons. And most of them entail federal-law crimes, too. For instance, making a single illegal crossing is punishable by a fine and incarceration of up to six months, and subsequent offenses are punishable by a fine and incarceration of up to two years.

As the U.S. Department of Justice opined in 1996 — the same year the compact won congressional consent — “state and local police may constitutionally detain or arrest aliens for violating the criminal provisions of the Immigration and Naturalization Act.”

This is not going to end well for Biden or the country unless he reinstates Trump’s border security measures or finds some other way to secure the border before the political battle he is having with the governors gets out of hand.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.