A surprisingly specific provision of federal law defining the secretary of Homeland Security’s obligation to “achieve and maintain operational control over” the Southwest border has emerged as a flashpoint between the current secretary, Alejandro Mayorkas, and Speaker of the House Kevin McCarthy (R-Calif.). Mayorkas has decided to fight it out in the court of public opinion, but real courts will likely have the penultimate say in what, ultimately, is a political battle.
The Secure Fence Act of 2006. One of the last pieces of legislation I worked on during my first tour on Capitol Hill was the Secure Fence Act of 2006 (SFA), which was enacted on October 26, 2006. It gave the DHS secretary 18 months to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States”.
Congress didn’t give DHS any leeway in implementing this provision, because it carefully and explicitly defined the term “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
In August 2021, I detailed the political circumstances that led the then-Republican-controlled Congress to send that legislation to the floor, but suffice it to say the SFA passed with wide bipartisan margins: 283 to 138 in the House, and 80 to 19 in the Senate. Among the Democrats who voted “aye” on the bill were current Senate Majority Leader Chuck Schumer (D-N.Y.) and Sens. Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.). And Sen. Joe Biden (D-Del.).
Operational control is the mandate in the SFA, but Congress also gave the DHS secretary any and all tools he needed to achieve that goal in that act.
Specifically, the SFA told the secretary to “take all actions” he deemed “necessary and appropriate” for the task, including surveillance “through more effective use of personnel and technology, such as unmanned aerial vehicles, ground-based sensors, satellites, radar coverage, and cameras”, as well as “physical infrastructure enhancements to prevent unlawful entry by aliens into the United States and facilitate access to the” physical border by CBP, “such as additional checkpoints, all weather access roads, and vehicle barriers”.
Note that not only did Biden vote in favor of the act, but he also made it a key talking point in his (unsuccessful) campaign for president in 2008.
In a November 2006 profile, NBC News described the then-senator as “favor[ing] tightening the U.S.-Mexico border with fences”, and Biden himself told attendees at a Rotary meeting in Columbia, S.C., that month: “Folks, I voted for a fence. I voted unlike some Democrats — you probably won’t like — I voted for 700 miles of fence”.
It must have been a successful applause line, because in an August 2007 campaign stop in Iowa, Biden laid out a series of “truisms”, the first of which was:
It makes sense that no great nation can be in a position where they can’t control their borders. It matters how you control your borders ... not just for immigration, but for drugs, terror, a whole range of other things. ... I have been arguing for more protection at the borders. ... You have to have a significant increase in security at the border, including limited elements where you actually have a fence.
Biden’s Policies and the Current State of “Operational Control”. I’m not sure whether Biden regrets making those statements, but as president his policies have been a 180-degree turn from what he promised on the campaign trail more than 15 years ago.
Among his first acts on the day he took office was to “pause” construction of fencing and barrier-related infrastructure (like all-weather access roads, ground-based sensors, and cameras) at the Southwest border. Forty Republican senators unsuccessfully challenged that action, and thus far Biden hasn’t budged much on border construction, as I explained in September.
That month, I went to Cochise County, Ariz., and when I came back described how — as a result of Biden’s pause — border fencing sat unfinished (with uninstalled fence panels rusting in the sun), uncompleted roads had washed out (at a cost of millions, with gravel piles creating a hazard for law enforcement), and light towers that are installed but not hooked up to any power source.
Those are the tangible effects of the Biden presidency at the Southwest border, and while significant, they pale in comparison to the administration’s intangible border actions.
Biden inherited what Rodney Scott, his first Border Patrol chief, described in a September 2021 letter as “arguably the most effective border security in” U.S. history. According to Scott, however, the new president quickly allowed that security to “disintegrate” as “inexperienced political appointees” ignored “common sense border security recommendations from experienced career professionals”.
Those inexperienced political appointees were likely taking their cue from the top, because Biden was plenty busy himself, quickly reversing the policies that Donald Trump had implemented to successfully bring operational control to the Southwest border.
Most significantly, and in a break from all his predecessors, Biden is the first president who has rejected any and all efforts to deter foreign nationals from entering illegally.
You don’t have to trust Chief Scott or me — just look at the numbers.
Since Biden took office, Border Patrol migrant apprehensions at the Southwest border have soared. In FY 2021, agents there apprehended nearly 1.66 million illegal entrants, a number never hit in history.
Things just got worse from there. In FY 2022, agents at the Southwest border apprehended more than 2.2 million illegal migrants, and in the first four months of the current fiscal year, Southwest border agents have already apprehended more than 762,000 illegal migrants.
Even those dismal apprehension numbers don’t tell the whole story, because they don’t include the 1.2 million illegal migrants who were detected entering illegally but who successfully evaded agents at the Southwest border under Biden, known colloquially as “got-aways”.
The Biden administration contends its recently announced “New Border Enforcement Actions” will allow CBP to get a handle on the Southwest border, but as I have explained, those actions are (1) little more than an effort to apply a pseudo-legal gloss to the ongoing disaster there; (2) likely illegal (at least in part); and (3) will be proven futile in short order.
Admittedly, apprehensions did drop in January to their lowest levels since February 2021 (Biden’s first full month in office), but those short-term improvements aren’t as great as the president asserted they were in his State of the Union address on February 7.
Those developments will also almost definitely be short-lived, particularly once CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, which direct the expulsion of illegal migrants, end — which could happen as soon as May 11.
By any reasonable interpretation or metric, Mayorkas has failed to achieve — let alone maintain — operational control of the Southwest border as defined in the SFA.
Mayorkas’ Take. Nonetheless, the secretary contended otherwise during a February 19 appearance with CNN’s Chris Wallace.
As that outlet explained, when he was asked “by what measure the border is secure”, Mayorkas responded:
There is not a common definition of that. If one looks at the statutory definition, the literal interpretation of the statutory language, if one person successfully evades law enforcement at the border, then we have breached the security of the border.
…
What our goal is — to achieve operational control of the border, to do everything that we can to support our personnel with the resources, the technology, the policies that really advance the security of the border, and do not come at the cost of the values of our country. And I say that, I say that, because in the prior administration, policies were promulgated, were passed, that did not hew to the values that we hold dear.
There’s a lot to unpack there, but I’ll make it brief. The “statutory definition” of operational control is the “common” one, and the only one federal law expects the DHS secretary to comply with.
As for the “values of our country that we hold dear”, it would have been helpful had Mayorkas delineated what, exactly, those values are and entail. The Trump policies were challenged numerous times in federal court, and in most cases were found to pass legal and constitutional muster, suggesting that they weren’t as bad as Mayorkas makes them out to be.
The Border and Blackstone’s Formulation. That said, I can shed a little light on where the administration is coming from.
Last May, the secretary appeared on “Fox News Sunday”, and was asked by host Bret Baier whether it is “the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border?”
Mayorkas responded: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.” What he meant is that Biden’s goal is to allow every foreign national who can make it to the United States — legally or not — to apply for asylum here.
Many of those who have entered illegally are coming for purely economic reasons, which isn’t a basis for asylum, but in any event, most of the rest won’t satisfy the rigorous standards for asylum protection under U.S. law. Because the Biden administration has released most migrants who were not expelled under Title 42 (some 1.8 million-plus by my estimates and climbing), they will likely be here forever anyway.
It’s important to note also that the Immigration and Nationality Act (INA) requires DHS to detain all illegal entrants — from the moment of apprehension until they’re either granted asylum or removed. Biden has apparently determined, however, that detaining “asylum seekers” contravenes the “values that we hold dear”, and so has largely refused to comply with that INA detention mandate.
Which leads me to the reason that he has done so.
Most of our legal standards are based on and derived from English common law, and in interpreting that law, U.S. courts often turn to English jurist Sir William Blackstone’s 18th century “Commentaries on the Laws of England”.
He offered therein what has come to be known as “Blackstone’s formulation”: “It is better that ten guilty persons escape than that one innocent suffer.” If you wonder why there’s a presumption of innocence in criminal cases, or why convictions require proof of guilt beyond a reasonable doubt, look no further.
In the border context and giving the president and his DHS secretary the full benefit of the doubt, the administration has deemed all illegal migrants to be “asylum seekers” unless and until their asylum claims are denied. We don’t detain or remove aliens who have been granted asylum, so under Biden’s calculus, it’s contrary to our values to impose those restrictions on those who may be granted asylum.
Of course, if Mayorkas were to come out and say that, the illegality of such a policy (to say nothing of its logic) would be obvious, and that’s likely why he beat around the bush when talking to Wallace.
“This Has Got to Stop.” One person who isn’t buying what Mayorkas is selling is House Speaker Kevin McCarthy. He went to Cochise County last week, saw what I saw there in September, and on February 16 declared:
This has got to stop. And it starts with the Secretary of Homeland. Stop lying to the American public. Tell them the truth what’s happening, and change back the regulation that we had before so our border can be secure.
The “regulation” in question could either be the Trump border policies that Scott discussed, or even the (fairly similar) Obama ones that preceded them, but in any event, the speaker is correct.
The Biden administration apparently assumed that if it took a “kinder, gentler” approach to border security, its largesse would not be exploited by tens of thousands of migrants per month. The naivete of that tack is now blatantly obvious, and yet still the White House pushes ahead. The way in which it categorizes those migrants may be changing, but the outcomes are no different.
Speaking of Obama, perhaps Biden and Mayorkas should heed his wise counsel. While on ABC’s “Good Morning America” in September 2021, Biden’s erstwhile boss described the dilemma between U.S. border security on the one hand and our humanitarian instincts (to which the secretary alluded with Wallace) on the other as follows:
Immigration is tough. It always has been because, on the one hand, I think we are naturally a people that wants to help others. And we see tragedy and hardship and families that are desperately trying to get here so that their kids are safe, and they're in some cases fleeing violence or catastrophe. ... At the same time, we're a nation state. We have borders. The idea that we can just have open borders is something that ... as a practical matter, is unsustainable.
Anything “unsustainable” can’t be sustained, and as I have recently explained, Biden’s border policies have already begun cooling the ardor of the American people for even legal immigration. McCarthy’s right — “This has got to stop” — if for no other reason than to safeguard America’s commitment to its status as a “nation of immigrants”.
The Role of the Courts — Both Legal and Political. Mayorkas and Biden didn’t have to face these facts in the last two years largely because the president’s fellow Democrats controlled both houses of Congress and were in no hurry to discuss the border.
That’s changed now that Republicans run the House, but McCarthy is dealing with a razor-thin majority and a Democratic majority in the Senate that will block any serious border-security proposal the House GOP sends it.
Which brings me to the courts. Biden’s migrant release policies are currently the focus of two separate suits filed by Republican attorneys general (Texas v. Biden and Florida v. U.S.), while the president’s most recent attempt to rebrand would-be illegal migrants as quasi-legal “parolees” has drawn a legal challenge of its own, in Texas v. DHS.
The Supreme Court under Chief Justice John Roberts has been loath to get involved in political issues whenever it can avoid them, so those cheering for a clear opinion branding the Biden border policies as illegal or Mayorkas as a scofflaw should not get their hopes up. And even the High Court cannot force Biden to detain or remove any specific alien.
That said, any court decision that undercuts the legality of the administration’s border policies will put additional political pressure on the president and his secretary to change course.
Two separate resolutions calling for Mayorkas’ impeachment have been introduced in the House — one by Rep. Pat Fallon (R-Texas) and one by Rep. Andy Biggs (R-Ariz.) — and both are largely premised on the secretary’s failure to achieve operational control.
While neither is likely to go anywhere in the Senate at present, Democrats will be defending 20 Senate seats in 2024 compared to 13 seats for the GOP. A number of those seats currently held by Democrats (in Wisconsin, Pennsylvania, Michigan, Arizona, and Nevada) will be hotly contested. Two others — in West Virginia and Montana — are in states where Trump won handily in 2020.
If the Supreme Court (in particular) issues anything close to a repudiation of the legality of any of Biden’s border policies, more than a few of the president’s fellow partisans in the Senate may view Mayorkas as reasonable “collateral damage” in their efforts to retain control in the next Congress.
Such an opinion would also play into the hands of either Trump (who has announced plans to retake the presidency) or Trump’s strongest opponent for the GOP presidential nod, Florida Governor Ron DeSantis (R). The latter hasn’t announced he’s running (yet), but he also hasn’t shied away from using his position to challenge Biden’s border policies.
With due respect to the secretary, Mayorkas isn’t the most effective spokesman for Biden’s immigration policies. That said, even an orator on par with Presidents Reagan, Clinton, or Obama would likely have a tough time defending what’s occurring at the Southwest border. That’s especially true with a skeptical GOP controlling the House, and a legion of state court challenges relying on some fairly specific language in the INA.