The Senate voted last week to block President Trump's emergency declaration on the southern border, and the president vetoed that measure, passed earlier by the House. Congress is unlikely to be able to override the veto. Then the measure will be challenged in the courts, likely in the Northern District of California, and a district court judge will enjoin the president's action, and then the matter will wend its way through the courts. I'm not psychic, just realistic.
It is interesting how all of this has been treated. CNN actually had "live updates" of the Senate vote posting on its website, as if it were the birth of a panda or a possible nuclear war between two of the world's largest countries. Actually CNN did report on the latter story, but did not provide live updates, the kind of coverage that one would expect out of a conflict potentially pitting a country of almost 1.3 billion people against one that has more than 200 million, both of whom have nuclear arms and a potential animosity against each other, as the National Interest has noted.
Dr. King, in what I think was probably one of his greatest quotes stated: "We live in a world of guided missiles and misguided men." Paraphrasing one of the greatest men of the 20th century is always a tricky business, but nonetheless I believe that: "We live in a country of serious problems and unserious legislators."
On March 8, I wrote a post captioned "Humanitarian and National Security Disaster at the Border: A Congress-and court-caused Katrina". And, I meant it. Not every government benefit will eventually be abused, but poorly thought out ones inevitably will. TVPRA, the Flores settlement agreement, and the credible fear standard (at least as implemented by the last administration) were ripe for abuse, at least at the hands of motivated individuals who are willing to exploit them. I'm not talking about the aliens who are currently taking advantage of those "laws", but rather the $3.5 billion to $4.2 billion industry (according to the UN) that is engaged in smuggling migrants from Central and South America north.
Smugglers are the lowest form of criminals, exploiting human misery and national sovereignty, committing some of the most heinous crimes (often simply to slake their basest instincts), and they leave destabilization and broken lives in their wake. But there's no doubt that they understand the flaws in the system and how to exploit them. They should be stopped, and especially by people who claim to care about the people those smugglers prey on.
That would happen, if only the smugglers were evenly matched in the houses of Congress. All too often, the people's representatives cling to shibboleths, emotion, and talking points to frame their worldview, especially as it relates to immigration. I testified before Congress twice in the last two weeks, once about unaccompanied alien children (UAC) and once about "Protecting Dreamers and TPS Recipients". Both were called by the majority, and both involved a population of individuals in the United States with tenuous or no legal status.
The focus of each hearing was more or less the same: How to address the interests of foreign nationals (UACs, Dreamers, and/or TPS recipients) who are present in the United States. Putting it in the best light to my hosts, that is akin to feeding the hungry or housing the homeless. In my testimony, I quantified the population of individuals who were affected, and identified the root causes of why those individuals were in their particular situations. In the best light to me, my response was akin to identifying the number of hungry and homeless, and explaining how we can end hunger and homelessness in the United States. No one in the majority asked me any questions about the causes, however, or even seemed to have any interest in those questions.
Respectfully, this is the same as trying to figure out what to do with the water in a leaky boat without figuring out how to stop the leaks. I would say that was because the leak problem is complicated (although it's actually not), but the attitude of most members seemed to be that there was no leak at all. Perhaps the water came from rain, or the boat was swamped by heavy tides. At least such questions were posed by the majority at the first hearing (although that was no real attempt to probe the validity of the answers), but there were none from the majority in the second.
All of which brings me back to the wall vote. Laurence Tribe most succinctly summarized the position of most Senate Democrats in an opinion piece that he wrote for USA Today on March 14:
The resolution is less than a page long and does little to capture the full human stakes of Trump's latest act of self-aggrandizement. The declaration itself is causing serious harm to our border communities — and that harm can't be undone if Trump vetoes the resolution, as he has vowed he will. Cities like El Paso, Texas, thrive as safe and successful communities precisely because of their cooperative relationship with the Mexican authorities and people.
Trump's emergency declaration transforms his personal xenophobia into a national statement of government policy, repainting these communities as dangerous places to live, work or visit. Whether or not federal shovels enter the ground to wreak further havoc, the shadow cast by the declaration undermines the ability of these communities to promote the prosperity of their residents.
There is a lot to unpack there, but let me try. First, it should be noted that, as the El Paso Times has reported, the president stated in his 2019 state of the union address:
The border city of El Paso, Texas, used to have extremely high rates of violent crime — one of the highest in the country, and considered one of our Nation's most dangerous cities. Now, with a powerful barrier in place, El Paso is one of our safest cities.
Calling a place "one of our safest cities" hardly deters potential residents, businesses, or tourists. In fact, it encourages them, and suggests that other cities could be the same way with the proper infrastructure.
That said, I do not remember El Paso being one of the most dangerous cities in America, but I will confess that my frame of reference is limited to roughly 1994 forward. It did use to have a problem with illegal entry, which I will get to in a moment. As that paper noted:
Any informed discussion on the topic [of the relationship between a wall and crime] must start with Operation "Hold-the-Line", which began in September 1993 and continued through 1995 when it petered out until 2001. It took the form of repairing a dilapidated fence in El Paso's downtown area and extending it outward.
While it can now be viewed as a glorified chain-linked fence that was often cut, the barrier served its purpose, albeit with high maintenance costs.
A more sophisticated fence/barrier was built in 2008-2009 that essentially replaced the old fence. Improvements were made, and it was expanded from Fort Hancock, Texas, to Santa Teresa, New Mexico.
The paper explained that 1995 is the earliest point for which FBI kept record data. Since then (as a graph therein shows), however, violent crimes in El Paso have been lower than the national average, and, in fact, have remained steady or fallen in the last couple of years, during which the national average has increased slightly.
The Center for Immigration Studies described the success of Operation "Hold the Line" back in 1995:
The El Paso Border Patrol sector, under the supervision of Chief Silvestre Reyes, proved that illegal immigration could be effectively deterred by a preventative deployment of agents along the border. ... By mobilizing his sector's resources along the border around the clock, he converted what had been a widely breached border river and fence between the busy cities of El Paso and Ciudad Juárez, Mexico, into an effective deterrent. The apprehension data show a precipitous drop from the outset of the operation.
Apprehensions had been rising by an average of 33 percent per year for the two years prior to the start-up of the new strategy. The data show also that the initial rate of success, for the most part, has been continued. Upon visiting the border, it was possible to verify the continued absence of any large groups or more than the occasional solitary individual or twosome eyeing the border security on the U.S. side.
Chief Reyes later became Congressman Reyes, a Democratic representative, one-time chairman of the Hispanic Caucus, and Beto O'Rourke's predecessor in his seat, TX-16. I met Rep. Reyes, and everyone on the Hill knew his reputation. He is no xenophobe.
With respect to the safety of El Paso, it is possible that the city is safe is because of its "cooperative relationship with the Mexican authorities and people", but the fact is that most towns on the U.S. border are safe even when their sister cities on the other side of the border are in the midst of bloody turf wars between cartels.
For example, the El Paso Times reported in January 2018 that El Paso's sister city, Juarez (population 1.4 million), suffered 773 homicides in 2017, including one incident where a man was "found hanging from a bridge". By my math, that is 55.2 homicides per 100,000. KFOX reported in September 2018 that in 2017, by comparison, "El Paso's violent crime rate" was "about 356 per 100,000," its "murder rate 2.5 per 100,000", and its burglary rate about 189 per 100,000 people.
El Paso was plainly safer (and less dangerous than the Texas average according to KFOX), but it does not appear that the "cooperative relationship" Tribe lauds helped Juarez much, at least that year. Again, cooperation is a two-way street, so if that were the answer, crime rates in both cities would have been low. They weren't.
The El Paso Times explained why Juarez saw so much violence in 2017:
Following years of a vicious drug cartel war, homicides in Juárez had fallen to about 300 in 2015, comparable to 336 killings in 2007 before the war erupted. Juárez had 3,000 murders in 2010.
The latest upsurge in violence has been attributed by authorities to fighting among drug-trafficking groups associated with street-level sales of crystal methamphetamine.
Instead of a "cooperative relationship" with the Mexican authorities and people who could be endangered by a fence (and, by the way, it is not clear how in an area that already has fencing additional fence would cause harm), my experience is that the relative safety of El Paso (especially compared to the carnage in Juarez) goes back to an aphorism expressed by Saul Bellow in his novel Adventures of Augie March, which I will clean up for my readership: "Don't defecate where you masticate."
Drug cartels depend on their ability to pass illicit narcotics across borders and into the interior the United States (and not just, or generally, the town across the border), one, and two, the last thing a drug cartel in Mexico wants is the attention, and the force, of the United States government directed at it. I was told this time and time again when visiting border consulates and the Border Patrol.
Both of those interests give the cartels strong incentive not only to tamp down the violence in U.S. border towns, but also to "punish" those who engage in such violence. I'm not a constitutional law professor at Harvard, or an attorney representing El Paso County in its lawsuit to block the president's emergency declaration, but I am a former government attorney who has been to more border towns than I can remember over two decades, and a former congressional staffer who held two separate positions overseeing border operations over seven years in total. I am also a former immigration judge who has had in-depth conversations with a number of drug traffickers.
Anecdotally, I have been told that the heads of particularly violent drug groups owned handsome estates in one border city (which I will not name), and that the mayor, federal representative, and federal senator representing a separate (unnamed) border town on the Mexican side actually lived on the American side, each for his and her own safety. Proving my point, and Mr. Bellow's.
Furthermore, it is not simply the safety of U.S. border cities that the president has cited as his rationale for additional infrastructure along the border. First, there is the danger of a humanitarian disaster that unchecked immigration poses to the migrants themselves. As the White House noted in a January 19, 2019, statement:
America faces an immediate humanitarian crisis from our unsecured border.
According to a 2017 Doctors Without Borders Report, more than 30 percent of women are sexually assaulted on the trek to the border.
On average, the United States Border Patrol refers approximately 50 individuals to a hospital or medical provider, including children who cross the border in need of medical attention.
The number of families and unaccompanied children crossing the border illegally has grown dramatically in recent months. This past December, Border Patrol apprehended 32,284 families and unaccompanied children. Just six months prior, Border Patrol apprehended only 13,164 families and unaccompanied children.
This can hardly be termed "personal xenophobia".
Tribe also argues that "The data show that border crossings are at their lowest level since 1971." Almost as a pre-response, a March 7, 2019, White House statement contained the following points:
MYTH: There is no crisis at the border.
FACT: We continue to face a surge in illegal immigration that has brought the border crisis to a breaking point.
There has been a massive surge in illegal migrants arriving at our border, with more than 76,000 apprehended or deemed inadmissible at a port of entry last month — the most of any February during the past 12 years.
This fiscal year, U.S. Border Patrol has seen a 97 percent increase in apprehensions compared to the same time period last year.
Even before this recent surge, former President Obama called the situation at our southern border "a humanitarian crisis" as early as 2014.
MYTH: The problem at the border used to be much worse.
FACT: Today, we face an unprecedented number of illegal immigrants that loopholes prevent from being returned quickly to their home countries.
The makeup of illegal immigration has completely changed from previous years. Now, record numbers of family units and minors are arriving at our border, and legal loopholes force them to be released into the interior of the country. Human smugglers know this, and these criminal enterprises routinely exploit these loopholes to smuggle children across the border as leverage.
By contrast, in FY 2000, Customs and Border Patrol (CBP) apprehensions were primarily single adults and, as such, 95 percent of those apprehended were repatriated within hours.
Apprehensions of family unit aliens and Unaccompanied Alien Children (UAC) have surged by 338 percent and 54 percent respectively this year.
I made similar points in my March 8, 2019, post, as well as in my congressional testimony. I more than admire Tribe and his resume. His hackneyed and simplistic talking point, however, reflects a misunderstanding of the situation that we are facing at the border.
Tribe continues:
And although it's true that most of the opiates in the USA enter through the southern border, the vast majority — an estimated 90 percent of heroin, 87 percent of methamphetamine and 80 percent of fentanyl — come undetected through legal ports of entry and wouldn't be stopped by a wall.
Again, from the March 7, 2019, White House statement:
MYTH: A wall wouldn't help because drugs are coming through ports of entry.
FACT: Not only do we not know the amount of drugs smuggled between ports of entry, but building the wall will help free up more resources to seize the drugs coming in.
Obviously, there are more drug seizures at ports of entry that are manned by security than remote areas of the border with limited law enforcement presence. That doesn't mean drugs aren't coming in between ports of entry.
A physical barrier allows law enforcement personnel on the ground to carry out their missions more safely and effectively, preventing more deadly drugs and criminals from crossing our border in undermanned areas.
These are similar to points that I made in January 2019:
Admittedly, seizures at the ports are higher. In FY 2018 (as of August 31, 2018), CBP officers seized 47,945 pounds of cocaine, 4,813 pounds of heroin, 67,292 pounds of methamphetamine, and through July 2018, 1,357 pounds of fentanyl. Any border expert would tell you, however, that that is to be expected. At the ports of entry, according to the agency, "CBP has undertaken a number of initiatives, such as the use of non-intrusive inspection technology, to increase its ability to examine cargo effectively without slowing the flow of trade, which plays a significant part in the U.S. economy." Put another way, CBP is better able, and has more resources, to screen cargo (including vehicles containing drugs) at the ports of entry than it does between the ports.
It is curious, however, that wall skeptics inevitably fall back on the DEA's conclusions that "the vast majority of illegal drugs that enter the country do so through legal ports of entry, hidden among legitimate traffic." More than 72,000 Americans died of drug overdoses in 2017 according to the National Institutes of Health (NIH) National Institute on Drug Abuse, including nearly 30,000 "related to fentanyl and fentanyl analogs". If the DEA was such an expert on how drugs enter the United States, it could be argued, why would any drugs enter at all? Further, stating that most drugs enter the United States through the easiest process by which they could be interdicted (in vehicles at the ports of entry) raises the same sort of skepticism in my mind that I have when I'm told that law enforcement has identified the person responsible for a long unsolved crime, but that the person is dead. In both instances, the answer seems like an easy out. We know what we know, but do we really know what we don't know?
Even accepting the discrepancies between drug seizures along the border and at the ports of entry as reflective of the actual flow of illicit narcotics into the United States, respectfully, that is how it should be, and is a fact that should be encouraged. I will be the first to admit that we do not know how many persons, or vehicles for that matter, cross the border between the ports of entry, because Border Patrol can only estimate the number of persons and vehicles that it does not see or seize. That said, we want to push drug smugglers to the ports of entry, because, as noted, the capability to identify and to seize drugs at the ports (where we know exactly how many persons and vehicles enter) is higher. Given the profits involved, and the sophistication of the organizations that engage in illicit drug trafficking, no cartel or individual smuggler is going to come upon a fence and decide that it will not be moving its drugs to the United States. Instead, faced with such obstacles, it will opt to take the riskier route through the ports, where the likelihood of apprehension is higher. Good.
In fact, we know from experience that fences stop vehicular traffic across the border, as I explained a February 2019 post captioned "Border Barriers Stop Drive-Throughs: The most crucial role of infrastructure":
In FY 2005, I was told, there were 2,700 drive-throughs in the Yuma Sector. One of those drive-throughs, as I noted in a February 5, 2019, post, resulted in the January 19, 2008, murder of Senior Border Patrol Agent Luis Aguilar. By FY 2010, when border infrastructure was in place, the number of drive-throughs dropped to two. Not 2,000, but one more than one.
There may be good arguments not to improve infrastructure along the border, but Tribe hasn't made them, and they've not come out of our representatives in Congress. Serious problems require serious solutions by serious men and women. The solutions are evident. It is time for our representatives to get serious about them.