The influx of Haitians is possibly linked to a May 2021 decision by the Biden administration to grant Temporary Protected Status (TPS) to Haitians. Center for Immigration Studies fellow Todd Bensman noted that the Mexican government’s decision to release a hold on migrants in the city of Tapachula likely also contributed to the influx. Many of these migrants are in fact not traveling directly from Haiti at all, as evidence of abandoned Brazilian and Chilean identification documents along the border show.
The Biden administration has finally, after weeks of bad press, begun to deport single adult Haitians (typically males). It is utilizing Title 42 authority, which allows the immediate return of illegal aliens as a public health measure due to the COVID pandemic, despite having repeatedly sought to end the Trump-era statute. An Associated Press report noted that Haitian migrants were being admitted to the country on what one official said was a “very, very large scale,” numbering in the thousands.
The massive flow of migrants utterly overwhelmed Border Patrol’s processing capability. Migrants are now simply provided a ticket upon arrival. When their number is called, they are processed, receive temporary travel papers and then released into the United States.
Texas Department of Public Safety (DPS) and Texas National Guard units were moved to the border to physically blockade prominent illegal crossing points, and to help guard the migrant camp to allow Border Patrol officers to carry out processing. The head of the Border Patrol union’s Del Rio Chapter told the Washington Examiner that without Texas troopers, the situation would be even more dangerous:
Governor Gregg Abbott has sought to bolster Texas Guard and Public Safety capabilities at the border. He recently signed a $1.88 billion funding bill, which includes funds to construct a 730-mile border wall. The Biden administration abruptly terminated construction of a border wall upon taking office, leaving significant gaps and unsecured areas, including at the Del Rio sector.
State governors have repeatedly urged the Biden administration to uphold its legal responsibility to secure the nation’s borders. In a September 20 letter to President Biden, 25 governors asked for a meeting to demand action on the border crisis.
States have already beaten the Biden administration in court, winning a reinstatement of the Trump administration’s “Remain in Mexico” policy, which the Biden administration abandoned upon taking office in contravention of a legal agreement between the federal government and the state of Texas.
Yet the ongoing crisis makes clear that there are few legal processes capable of forcing a recalcitrant federal government to carry out its obligations. The Biden administration continues to use Border Patrol agents—whose job it is to keep those who would illegally cross the border from doing so—to process, transport and release into the country migrants who have no legitimate claim to entry, often relocating them in states without the consent of state governments.
Federal, state and local leaders are struggling to find ways to force the Biden administration to meet its obligations. Representative Chip Roy has called for the impeachment of both the president and DHS Secretary Alejandro Mayorkas for their blatant refusal to fulfill their constitutional duties. In a Twitter thread, Rep. Roy urged Texas to take “extraordinary measures” to protect its citizens and secure the border, in the absence of federal leadership:
Roy is right. As long as the federal government under the Biden administration continues to stubbornly refuse its constitutional obligation to the states, the states are obliged to pick up that slack and defend their citizens.
We should 1) maximize the guard, law enforcement, volunteers willing to go, & hold the line & turn people away / back to Mexico regardless of what the feds say,
Request support from every state in the union (to extent not already) to hold the line.
Take specific steps, with whatever personnel necessary, to track & ensure all persons apprehended by the feds a) get deported under Title 42, b) are in ICE custody & get a hearing and (90%+) get deported, or c) get shipped out of Texas (perhaps DC, San Francisco, NY).
pressure Mexico as a state to work with Texas to carry out MPP and to work with us to knock knees out from under cartel(s) in Taumalipas… and
if all else fails - shut the border down, including highways.
This is likely to require states to increase their own budgets for public safety and security, including for law enforcement and the National Guard, and if necessary, to think creatively about new units and capabilities to meet increasing needs.
National Guard units across the country remain overworked. Many have still not received federal reimbursement following numerous deployments, including for the quixotic mission to secure the U.S. Capitol building, which outraged some U.S. governors after guard units were forced to endure humiliating accommodations and accusations of extremism.
A future Congress may also consider ways to help states acquire assets useful for their immediate security, in cases where federal action is either undesirable or will not be forthcoming due to a derelict administration. For too long, state National Guards have borne the burden of supporting federal priorities (for example in Afghanistan), while state security concerns, especially on the border, played second (or even third) fiddle.
All 50 states have a right to expect that the federal government will fulfill its obligations in areas where the Constitution delegates specific powers to it. But the Constitution does not absolve state governments of their responsibility to protect their citizens in the absence of federal willingness to uphold the law. Thankfully America’s Founders recognized the value of a federal system which supports the overlap of police powers necessary for the protection of citizens and their rights.
Kyle Shideler is director for Homeland Security and Counterterrorism at the Center for Security Policy.
The views expressed in this article are the writer’s own.
