Where is the line between Texas and Mexico? It’s a question that captivated Americans in 1846 but one that most of us thought was resolved definitively in the Treaty of Guadalupe Hidalgo two years later.
Instead, here in 2024, the Biden administration is conducting a bold experiment in postnationalism by reducing border enforcement to a series of checkpoints and pinky swears as it ushers in a record number of illegal immigrants from around the world. It is a slow-motion crisis that has, finally, become a top concern in voters’ minds.
But is the federal government’s failure to act a prelude to civil war? It’s not likely despite overheated rhetoric in the press.
President Joe Biden’s determination to roll back Trump-era restrictions meant that illegal crossings began to increase immediately once he took office. Customs and Border Protection officers had more than 100,000 land encounters on the Mexican border in February 2021, Biden’s first full month in office. Each month thereafter, at least 140,000 people crossed into the country illegally. In most months, it was far more, many of them trafficked by the cartels.
The administration did nothing to stop them. Anyone who was caught could claim asylum. While former President Donald Trump had required those passing through Mexico to stay there as their claims were processed, Biden repealed that policy. Now, migrants claim asylum and are processed and released in the United States to await a court date that could be years away. Meanwhile, the communities along the border are left to find them food and shelter.
In December of last year, the number of encounters grew to 302,304 — a new all-time record. Even Democrats were beginning to doubt the wisdom of Biden’s catch-and-release system. Sen. John Fetterman (D-PA) noted in January that the numbers were unsustainable. “That’s larger than the population of Pittsburgh … and that’s one month.”
He’s right. Another way to look at it: The total encounters on the border since Biden took office is, according to the most recent tally, over 7 million. There are only 15 states with that many people. A population transfer this massive over such a short period is unprecedented in American history.
It was once unnecessary to spell this out, but: Having a defined territory is one of the essential attributes of statehood in international law. A nation may choose to open its borders to another, as the European Union nations do with one another under the Schengen Agreement, but that is a choice enacted by the legislature passing a law to that effect. Effectively opening the border by executive inaction invites lawlessness. Or, as Trump said more succinctly in 2018: “If you don’t have borders, then you don’t have a country.”
It’s little wonder that Gov. Greg Abbott (R-TX) was compelled to take action. In 2021, Abbott sent the Texas National Guard and state troopers to assist the federal government in Operation Lone Star. The authorities were less than happy for the help. In 2022, Biden ended the pandemic-related restrictions on asylum-seekers and the situation got worse. So, Abbott began taking sanctuary cities at their word and sending some of the migrants north. Again, the welcome was not warm.
Conflicts between states and the federal government usually are competitions for power, with both sides claiming the power to act in some way. The dispute between Biden and Abbott is strange because it concerns a federal government determined not to act — but also to keep Texas from acting.
Last month, the Texas Department of Public Safety took over a park in Eagle Pass, one of the centers of illegal entry, and strung barbed wire to keep people from crossing the border there. (There are two road bridges and one rail bridge in Eagle Pass where people and goods can transit the border legally.)
The administration, at last, was stirred to action, against Texas. After a federal appeals court held that federal border agents could not cut the wire, it appealed to the Supreme Court, which stayed the order pending further adjudication. The 5th U.S. Circuit Court of Appeals will hear arguments on the case on Feb. 7.
In the meantime, federal officials are in the awkward position of fighting for the power to make it as easy as possible to enter the U.S. illegally. As with the busing to sanctuary cities, Abbott has maneuvered the administration into living up to the logical outcome of its rhetoric: “You want a sanctuary for illegal immigrants? Fine, then help us shelter some of the millions coming across the line. You want to keep Texas from enforcing the law? Fine, but you’ll explain to a court how immigration law is the job of the federal government alone — and also why you refuse to do that job.”
Republican governors across the country have pledged their support to Abbott, who calls Biden’s dereliction of duty “lawless” and holds that the result is an invasion that requires him “to invoke Texas’s constitutional authority to defend and protect itself.” Some Democrats have called for Biden to federalize the Texas National Guard, but so far, the administration seems willing to keep the fighting to the courtroom.
In the 2012 case of Arizona v. United States, Justice Anthony Kennedy wrote, “The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”
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Biden wants the power but not the responsibility. As a legal matter, he may prevail. But as a political matter, the ever-increasing flow of illegal immigration has become voters’ top concern, with 77% of them saying that the administration should cut a deal with the Republicans to increase border security. How long will Biden order his people to cut down wires while the voters would prefer them to be stringing more?
Nations need a border. The voters want a border. Will the administration listen?
Kyle Sammin is the managing editor of Broad + Liberty.