On Border: Talk, Not Solutions
Terry H. Schwadron
April 29, 2022
U.S. immigration enforcement issues at our southern border are so fouled at this point that even the various players are at odds over who should solve them.
Because this Congress, this government, won’t deal head-on with a comprehensive approach to resetting the immigration rules and practices, we’re awash in hype and certain confusion about exactly what our policies are and how they should be working.
If ever there were a need for a President Joe Biden and Republican leaders to speak together, to address the nation, this seems the topic and the time. Instead, our national policies — and our expression of American values — are flying from slogan-filled flagpoles, publicity stunts and scattered but clearly less-than-fully-effective attempts at control.
We are neither rolling back the worst practices from the previous administration nor communicating effectively what we want from a country that based its values on attracting its people from around the world. We are either lifting embargoes on immigration or not, we either are forcing migrants to stay in Mexico or not, dealing fairly with Dreamers, and handling war refugees from Afghanistan and Ukraine with the same rules as Central Americans or not.
The ever-spreading maze is worsening amid conflation of legal and ill
Just this week:
— Republicans made sport in Congress for the last two days by batting Homeland Secretary Alejandro Mayorkas around — threatening to impeach him over what they see as “open borders” and demanding that he publicly admit failure to keep borders secure. Republicans demanded “answers,” but made clear that discussing immigration is a campaign weapon, not an avenue for solution-making.
— The U.S. Supreme Court found itself struggling to understand why the question of immediate deportation of migrants seeking asylum or other Proceedings to Mexico was even before the court rather than Congress, and justices regardless of orientation were frustrated that there only are executive orders in place — instruments to be overturned by an incoming administration.
Further, the justices exclaimed legal bafflement over the claims of Texas, which brought the challenge, to substitute itself for the federal government. Regardless of outcome, there was distaste for this single federal judge, a Trump appointee in this case, to have pushed his singular, narrow reading about immigration enforcement as the meaning “may” and “shall” in the governing federal law.
In a separate case a year ago, the Supreme Court said the Biden administration must comply with a lower court’s ruling to reinstate the Trump’s policy to require asylum seekers to wait outside the United States for their cases to be decided because it had not properly spelled out the reasons for change.
— There was a slew of politicking going on in public and private this week to get Biden to rescind plans to lift the so-called Title 42 rule that also would keep migrants in Mexico to comply with covid rules — at the same time as other federal courts are telling the administration that mask mandates are beyond federal executive powers. Both Republicans and several Democratic senators were decrying whether there is a plan to forestall an expected increase in renewed migration as soon as the lift order takes effect on May 23.
From a strictly political view, Republicans were using an assortment of grandstanding events at the border to promote the would-be lurking danger, while at-risk Democrats were simply trying to dam a potential campaign broadside. Gov. Greg Abbott in Texas was sending buses with migrants to be dropped off in downtown Washington just to promote the idea that the administration is not facing immigration issues directly. Abbott’s actions drew a withering review from Washington Post columnist Dana Milbank
— Plus, there was evidence that sizeable groups are restless in Mexico and Central America about trying to test the new Biden policies, and complaining loudly about preferential for white, Ukrainian refugees over non-white migrants fleeing violence at home.
Ignoring the Obvious
What seems remarkable here is the ostrich factor, that somehow things will improve if we just stick our collective heads in the sand. Why are we asking the judiciary to resolve immigration and foreign policy decisions regarding Mexico rather than taking them on in our political halls? Why are we so afraid of publicly disagreeing about what clearly is a mess at the moment?
Solicitor General Elizabeth B. Prelogar argued that the misreading by the lower court judge in the current case has resulted in the administration negotiating weekly with Mexican authorities and left U.S. officials hamstrung to implement their own policies.
The judge in last year’s case about the same issue had said that federal law requires that the administration detain all who enter the country illegally, but Congress has never provided enough funding to do so. The Biden administration disputes that.
Chief Justice John G. Roberts Jr. asked what good would come from continuing to force migrants to wait in Mexico for resolution of legal claims of asylum in the United States.
In this week’s arguments, several justices wondered why there was a benefit to releasing undocumented immigrants into the United States. Again, it points to a lack of congressional and administration planning.
At the height of the Trump years, the border police were sending 10,000 migrants a month back to Mexico. Last month the Biden administration used MPP to return 900 asylum seekers to Mexico, up from 487 in February and 209 in January, according to the government’s most recent report. That amounted to less than 1 percent of the more than 109,000 border-crossers the Biden administration returned to Mexico or their home countries under the pandemic-era emergency border restrictions known as Title 42.
Immigration arrests along the Mexico border reached their highest levels in at least two decades last month, U.S. Customs and Border Protection data show.