Texas Gov. Sends Border Warning to White House

Border Warning to White House: Texas Gov. Greg Abbott (R) sent a letter to the White House this week, warning the administration that his state will continue to defend the border because the president has failed to do so. It’s a political document as much as anything (the key points of which most will miss), but at least Abbott — unlike Biden — knows how to read the room.

President Biden Has “Refused to Enforce” and “Even Violated” the Immigration Laws. That letter begins:

The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration. [Emphasis added.]

Abbott offers three specific examples of how Biden has either “refused to enforce” the immigration laws or, in fact, “violated them”: his refusal to prosecute aliens for entering illegally under section 275 of the Immigration and Nationality Act (INA); the president’s migrant-release policies, which violate detention mandates in section 235(b) of the INA; and his use of taxpayer dollars to destroy the state’s border barriers, which “has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border — bridges where nobody drowns — and into the dangerous waters of the Rio Grande”.

Biden’s Non-Prosecution Policies. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, just 26 aliens were prosecuted for illegal entry into the United States in September 2023.

By contrast, again according to TRAC, nearly 4,000 aliens were prosecuted under section 275 of the INA during the Trump administration in February 2020, the last month before CDC issued its first Title 42 expulsion order to halt the introduction and spread of Covid-19.

That said, the Biden administration does continue to prosecute previously removed aliens reentering illegally under section 276 of the INA, 1,061 in September. Still, that’s well below the peak of such prosecutions under Trump in July 2019 (more than 4,000), and for what it’s worth, lower any month between August and December 2020, during the international Covid-19 travel shutdowns.

In Biden’s defense, the reason why so few illegal migrants are prosecuted for illegal entry is because his administration views all of them as “asylum seekers”. That excuse only goes so far, however, given that in FY 2023, Biden’s CBP and USCIS screened fewer than 6 percent of all illegal entrants for asylum claims. It just assumed the rest were coming for asylum and sent them on their way.

Biden’s Migrant-Release Policies. As noted, section 235(b) of the INA requires CBP to detain all inadmissible aliens — including illegal migrants — until they are either admitted, granted some form of relief from removal (like asylum), or removed.

Despite that statutory mandate, Biden’s DHS has released the vast majority of aliens encountered by CBP at the Southwest border — 88.5 percent of the total by my conservative estimates, or 3.3 million migrants according to a recently passed House resolution.

Those releases are what’s driving the Southwest border crisis, but to make things worse, not only has Biden refused to ask Congress for more detention money in his last two budget requests, but instead he’s asked Congress to cut detention funding by 26.5 percent despite the migrant surge, all the time wasting more than $163 million for paid-for but unused detention beds.

The Texas “C-Wire” Case. Which brings me to the stand-off between the state of Texas and the Biden administration over 29 miles of concertina-wire (“c-wire”) barriers along the Rio Grande in Maverick County, Texas.

Texas began installing those barriers in the weeks before Title 42 ended (on May 11), to deter what was expected to be a rush of illegal migrants, under a March 2021 state border-security effort known as “Operation Lone Star”.

All evidence suggests that CBP appreciates both the c-wire barriers and Texas’ help everywhere else along the 1,200-mile-plus international boundary between the state and Mexico. For reasons nobody has ever explained, however, that gratitude does not extend to Maverick County.

In September, CBP began cutting and ripping out the barriers there to allow illegal migrants to cross the Rio Grande into Texas, an action the state filed suit to stop. Incredibly (or ridiculously, based upon your point of view), Biden’s DOJ fought that suit all the way to the Supreme Court.

On January 22, in a 5-4 order, the justices voted to allow CBP to continue destroying the state’s fencing in Maverick County while the case continues in the lower courts, much to the state’s dismay.

Biden’s “Enticing” Migrants to Cross the Rio Grande by Ignoring His Own Policies. That case is far from over, but the Court’s order was almost definitely the impetus for Abbott’s January 24 letter. As the governor states:

By wasting taxpayer dollars to tear open Texas’s border security infrastructure, President Biden has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border — bridges where nobody drowns — and into the dangerous waters of the Rio Grande.

Objectively, that would be a brilliant political point for Abbott to make, if only people understood what the administration’s official border policy actually is.

Last January, the White House started allowing would-be illegal migrants to use the CBP One app to preschedule unlawful entries into the United States at the ports of entry, a program I’ve dubbed the “CBP One app interview scheme”.

I’ve opposed that scheme because it’s facially unlawful (it contravenes the INA in any number of ways) and because it erases the numerical limits Congress has placed on immigration to the United States.

According to DHS’s Yearbook of Immigration Statistics, just over 1 million aliens obtained lawful permanent residence (received “green cards”) in FY 2022. The CBP One app interview scheme, by comparison, will allow an additional 500,000 aliens with no right to be in the United States to enter annually — equal to about half the annual number of green cards.

There are two benefits of the scheme, however. First, it frees Border Patrol agents who would otherwise have to pick up, transport, and process those aliens, and thus ideally frees them to stop drugs, criminals, and terrorists from entering illegally. Hold that word “ideally” in mind for a minute.

Second, it is much safer for the aliens, because it allows them to cross safely (albeit still illegally) through the ports instead of making a perilous trek across the wildly unpredictable Rio Grande or the barren border wastelands of New Mexico, Arizona, and California.

That White House initiative to drive would-be illegal entrants to the ports was given a boost in May, when DHS published its “Circumvention of Lawful Pathways” (CLAP) rule.

The CLAP rule creates a “rebuttable presumption” that aliens who cross the border illegally are ineligible for asylum. The problem, as my colleague Elizabeth Jacobs and I have explained in the past, is that the rule is so shot full of exceptions that it does little good.

The illegality of the CBP One app interview scheme and the ineffectiveness of the CLAP rule aside, both define the official policy of the Biden administration: Illegal migrants aren’t supposed to cross the border (in Texas’s case by fording the Rio Grande) illegally — they are required to use the ports of entry.

Aside from suing to end the CBP One app interview scheme, the state of Texas isn’t stopping illegal aliens from coming through the ports. In fact, it’s adding teeth to that official administration policy by placing c-wire barriers along the Rio Grande to deter migrants from crossing illegally, basically funneling them to those 28 Southwest border ports of entry.

Nobody disputes that Biden’s CBP is cutting those barriers to assist migrants in entering illegally. Whether it’s also doing so to “process” those aliens (as the administration claims) is disputed — and every federal judge who has examined that claim has not only rejected it, but ridiculed it.

Again, ideally, Biden’s CBP One app interview scheme would free up overwhelmed agents to secure the border and also protect migrants’ lives, but those benefits can only be realized if CBP also deters aliens from crossing illegally.

Not only isn’t Biden allowing CBP to deter aliens from entering illegally, but he’s gone all the way to the Supreme Court to prevent Texas from deterring them, either — all in contravention of his own official policies.

Reading the Room, Politically. There are a lot of references in Abbott’s letter to both the founders (Madison and Hamilton) and the U.S. Constitution (particularly the “invasion” clause), but it’s more a political document than a legal one.

Texas was blamed for the deaths of three migrants who drowned in the Rio Grande near a park the state seized and cordoned off in Eagle Pass, but Abbott explains why that narrative doesn’t make any sense. Texas was trying to deter them and every other migrant from making that perilous crossing — it was Biden’s rejection of his own policies that, as the governor stated, “enticed” those aliens to come.

Abbott understands what the White House doesn’t: The president’s immigration policies are intensely unpopular outside of his own party, but instead of moving to the center and changing those policies, Biden and his allies in Congress are deflecting the blame onto Texas, congressional Republicans, and (incredibly) Donald Trump.

The White House’s media acolytes are happily peddling those narratives, and they may yet land, but the polling hasn’t shifted yet. If you want proof of how unpopular Biden’s border policies have become, look at a statement of support for Texas that 25 other Republican governors published on January 25, which reads in part:

We stand in solidarity with our fellow Governor, Greg Abbott, and the State of Texas in utilizing every tool and strategy, including razor wire fences, to secure the border. We do it in part because the Biden Administration is refusing to enforce immigration laws already on the books and is illegally allowing mass parole across America of migrants who entered our country illegally.

“Razor wire” was an epithet when Trump used it, but the signers include not just governors of deep “red” states like Ron DeSantis (Fla.), Jeff Landry (La.), and Kristi Noem (S.D.), who have not been shy about their immigration positions, but also centrists in “purple” and “blue” states like Glenn Youngkin (Va.) and Joe Lombardo (Nev.). None wants to sign their state party’s death warrant — and none are.

I am not saying that Abbott’s letter is any sort of political “stunt” — quite the opposite. Texas may have suffered a setback over CBP’s wanton destruction of its c-wire in the Supreme Court, but the governor is now bringing his case to the court of public opinion — where he’s likely to find a more receptive audience.