Anyone following the four years of the Trump Administration’s efforts to regain control of the border could not help but notice that hundreds of lawsuits were filed by immigration advocates to delay, forestall, and challenge every move to improve border controls. While most of these lawsuits were unsuccessful, they helped run out the clock until a new administration could come in and undo what worked.
Biden has done that—taking direct aim at those Trump Administration policies and agreements that had the greatest amount of deterrent value.
Oddly enough, in contrast to the Trump experience, when the Biden Administration seeks to ignore and create new immigration law, courts are largely silent. Judicial pressure on the immigration system effectively pushes in only one direction—relaxation of controls and less enforcement.
The new Secretary of Homeland Security, Alejandro Mayorkas, knows this. It did not take long for our worst fears about Mayorkas to be realized. In a few short weeks since his confirmation, he has ushered in a border crisis of unimaginable proportions. There is no end in sight.
Mayorkas thinks he has the right to make up new immigration laws by abusing the concept of discretion until the exception has swallowed the rule.
When Policy and Lack of Enforcement Replaces Law
The secretary believes that he possesses an inherent right to revise immigration laws to suit an ideological and political preference. Generally, this preference favors relaxed controls and increased numbers outside the statutory scheme set out by Congress.
And it all starts with the exploitation of alien minors.
For Mayorkas, children are a perfect opportunity for mischief. The genesis of this trend began in the late 1990s, when the Clinton Administration entered into a “friendly” settlement with advocates to limit the amount of time (72 hours) alien minors could be held in detention prior to release to other authorities. Despite years of effort, the federal government has been unable to renegotiate this agreement.
In 2008, with the active assistance of then-Senator Joe Biden, Congress enacted a law that required apprehended alien minors from noncontiguous countries to be admitted and turned over to Health and Human Services for placement with sponsors (many here illegally themselves) in the United States. The law was nominally designed to protect alien minors from human trafficking. In reality—and the law’s sponsors must have seen this coming—the law encouraged exploitation by smugglers and traffickers.
Over the years, Congress has made it clear that requests for extraordinary relief of nearly any kind need to be done on a case-by-case, individualized basis. As former Senator Alan Simpson (R-Wyo.) liked to note, unless you have case-by-case consideration, you “lose control of your country.” With the exception of Temporary Protected Status (TPS—a program supposed to be designed for short term, emergent class-based relief because of temporary conditions in the home country), grants of immigration benefits and the discretion exercised to forebear enforcement must be carefully and individually considered.
It was on this basis that President Obama repeatedly claimed he lacked the constitutional authority to simply declare an amnesty for any class of alien minors. Here is where Mayorkas comes in. It was Mayorkas who decided to help Obama concoct the illegal Deferred Action for Childhood Arrivals (DACA) program in 2012. This program, announced by memo (not regulation), simply made new law by declaring there would be no immigration enforcement actions involving this group and they would be eligible to work and gain most American benefits.
The legality of the program continues to be litigated. Meantime, the precedent was established, and in 2014 the Obama Administration built on this concept to create the Central American Minors (CAM) program. This program operates outside our refugee and asylum programs and allows relatives in the United States (theoretically legally) to apply to bring children into the country under a legally vague form of parole.
It is now a huge loophole to be exploited en masse. Mayorkas plans to eliminate the need for illegal aliens to try to cross the border by simply flying them in at taxpayer expense.
Controlling the Border Is a Matter of Enforcing Actual Law
The Trump Administration put an end to this nonsense. They simply stopped the CAM program because there was no legal basis for it. More broadly, Trump established an important concept: If you enforce the laws properly as Congress intended, the nation could control its borders.
By appointing Mayorkas as DHS Secretary and simultaneously rolling back all of the progress made by the Trump Administration, the Biden Administration has created the perfect storm for a full-on crisis at the border. Traffickers and their allies understand that Biden has rolled back all interior law enforcement. Once you’re in, you’re in. All deterrence is gone. And there is no reason this phenomenon should be confined to aliens from Central America.
Mayorkas has an effective policy position that amounts to this: Immigration is unlimited. If you can get into the country illegally, you will stay and be allowed to sponsor your unaccompanied minors who present themselves at the border—without limit. There really is no practical limit to this flow. At the same time, push an amnesty bill to reward lawbreakers with green cards and future rights to petition more relatives.
So herein lies the flaw in the current debate. Whereas most Americans want to stop the massive increase in overall immigration represented by the crisis at the border, Biden, Mayorkas, and their allies have a vastly different agenda. Mayorkas has a plan, and it has nothing to do with putting Americans back to work or helping improve wages and working conditions.
His goal is to maximize the level of immigration—lawfully or otherwise—and impose the costs and consequences on unsuspecting communities. And that is why he is not suited to his current position and should be removed immediately in favor of someone who respects our rule of law.