Biden’s Border Policies Appear to Be Shifting – Emphasis on “Appear”

By Andrew R. Arthur on November 17, 2022

It appears that the Biden administration has recognized that, despite Democrats’ better than expected results in the midterm elections, the border remains a major vulnerability for the president and his party as they head toward the 2024 general election. Consequently, there appears to be a shift in Biden’s border policies with a major emphasis on “appears”.

Midterm Election Results. It would be an understatement to say that Democrats overperformed their expectations in the 2022 midterms.

They will control the Senate, barring a victory by GOP candidate Herschel Walker in the Georgia runoff with incumbent Sen. Raphael Warnock (D) and a defection by a current Democratic senator.

Defections haven’t been uncommon in the recent past: Republican Arlen Specter (Pa.) changed his party affiliation to Democrat after the party took the Senate in 2009; Republican Sen. Jim Jeffords (Vt.) crossed the aisle to caucus as an Independent with Democrats in 2001; Democratic Sen. Ben Nighthorse Campbell (Colo.) become a Republican in 1995; and Sen. Richard Shelby (D-Ala.) switched parties to caucus with the Republicans in 1994.

Two possible defections come to mind: Sens. Joe Manchin (D-W.Va.) and Jon Tester (D-Mont.), both up for reelection in 2024 in states that are solidly Republican.

Donald Trump took nearly 57 percent of the vote in Montana in 2020, and Republicans won both of the state’s House seats in 2022 – incumbent Rep. Matt Rosendale with 56.6 percent of the vote, Rep.-elect Ryan Zinke by a much narrower margin of 49.7 percent to 46.6 percent for Democratic candidate Monica Tranel.

Tester has not decided whether to will seek reelection. Either Zinke or Rosendale (who challenged Tester unsuccessfully in 2018) may vie for the seat, and you can add Gov. Greg Gianforte (R), a former tech entrepreneur and multimillionaire, to that list. Any bid by the incumbent Tester would likely be easier with an (R) at the end of his name on the ballot, but he’s won hard fights as a Democrat in the Big Sky State in the past.

West Virginia is by any metric ruby red. Trump won there with 69.6 percent of the vote in 2020, and incumbent Republican Reps. Alex Mooney and Carol Miller each coasted to victory with nearly two-thirds of the votes cast in the Mountain State.

Republican challengers for Manchin’s seat, including Mooney, state Treasurer Riley Moore, and Gov. Jim Justice, have been lining up for months, even though the election is nearly two years off.

Manchin’s support for the “Inflation Reduction Act”  effectively a green energy bill  enabled senate Democrats to pass it in August, a sore point in West Virginia coal country and legislation that even Forbes admitted “won’t help” the state. By October, the senator’s popularity among registered voters had dropped to 42 percent, with 51 percent disapproval in his home state.

That said, as a Democrat Manchin can demand concessions from both the White House and Senate Majority Leader Chuck Schumer (D-NY). Current Minority Leader Mitch McConnell (R-Ky.) would likely give Manchin anything he wanted to cross the aisle but could not protect either the senator or his state from executive branch reprisals. Although he teased a switch in the past, Manchin will likely remain a Democrat.

Republicans have passed the 218-seat threshold to secure control of the House of Representatives, and a plurality of registered voters according to at least one recent poll want immigration and border legislation to be top of the party’s agenda.

There is a saying on Capitol Hill, “If the Senate is a club, the House is a truck stop”, reflecting the bare-knuckle legislative style in the chamber. The administration’s immigration officials will likely be sitting on a very hot seat when Minority Leader Kevin McCarthy (R-Calif.) takes the Speaker’s gavel, regardless of whether he has a one-seat or 50-seat majority.

Current House Judiciary Committee Ranking Member Jim Jordan (R-Ohio)  an entrenched and dogged Biden foe  will play an outsized role in House investigations and oversight of the administration’s immigration policies, given the committee’s significant jurisdiction over the subject.

Expect the House Oversight and Homeland Security committees – which both have immigration jurisdiction to pile on, assuming Republican control of the body. And note that under House rules, chairmen have significant subpoena authority that is denied to the minority party.

Mayorkas on the Hot Seat. All of that could add up to a long two years for DHS Secretary Alejandro Mayorkas (assuming he sticks around), and for his subordinates who have had a role in the administration’s immigration policies. 

Sen. Josh Hawley (R-Mo.) called on Mayorkas to resign in September for both the disaster at the Southwest border and for what Hawley described as Mayorkas’s “intentional disregard” for the immigration laws.

That followed the filing of an impeachment resolution in August by Rep. Andy Biggs (R-Ariz.) “for high crimes and misdemeanors”. The grounds for impeachment in the resolution included the following:

Secretary Mayorkas has failed to faithfully uphold his oath and has instead presided over a reckless abandonment of border security and immigration enforcement, at the expense of the Constitution and the security of the United States. Secretary Mayorkas has violated, and continues to violate, this requirement by failing to maintain operational control of the border and releasing hundreds of thousands of illegal aliens into the interior of the United States.

Secretary Mayorkas has willfully refused to maintain operational control of the border as required by the Secure Fence Act of 2006. His actions have directly led to an increase in illegal aliens and illegal narcotics, including deadly fentanyl, entering the United States.

Notably, Biggs is on both the Judiciary and Oversight committees.

Mayorkas has only himself and congressional Democrats to blame. Democratic leadership in both the House and Senate have largely avoided the humanitarian disaster at the Southwest border, even as it has continued to fester. On the few occasions Mayorkas was called to the Hill to testify, his tone was one of defiance and many of his answers bore only rough resemblance to reality.

Shift in Policy? There are indications, however, of a shift in the administration’s border policies to stem the illegal migrant tide at the Southwest border.

In October, as my colleague Nayla Rush reported, DHS implemented a new pathway to discourage Venezuelans “fleeing the humanitarian and economic crisis” from illegally entering the United States through the Southwest border.

Of the 2.2 million-plus migrants who entered illegally at the Southwest border in FY 2022, more than 187,000 were originally from Venezuela.

Another large portion of that migrant flood has been Cuban nationals – more than 220,000 of whom entered illegally at the U.S.-Mexico line last fiscal year, nearly 10 percent of the total. On November 11, Reuters announced that Cuba has agreed to accept deportation flights of its nationals from the United States, after lobbying by federal government officials.

Why are so many Cuban and Venezuelan nationals coming to the border? Relations between the United States and those two socialist governments are tenuous, at best, and they likely are coming with the expectation that they will not be sent back. That increasingly looks like a losing bet.

The most significant evidence of a shift in policy, however, was the resignation of CBP Commissioner Chris Magnus, who was given the option to either quit or be fired. As I explained in the New York Post earlier this week:

Despite the ongoing border catastrophe he faced on arrival, Magnus focused his attention on attempting to change Border Patrol’s “culture.” By mid-October, unnamed administration officials were complaining to DC tip-sheet Politico that Magnus was disinterested in the migrant crisis and had fallen asleep during key meetings, prompting congressional Republicans led by Georgia Rep. Jody Hice to call for his resignation.

Such leaks usually indicate the target is being set up for a fall, but Magnus was seemingly oblivious. The last straw for Mayorkas was purportedly a pay dispute between the commissioner and Border Patrol head Raul Ortiz (who was not on board with Magnus’ “reforms”) and Magnus’ appearance — against the secretary’s recommendations — at a meeting of Border Patrol chiefs in El Paso.

The owners of losing football teams often face the choice of cutting underperforming players or firing the coach. In the border context, Mayorkas is the coach, and Biden’s advisors – for now – have chosen to cut Magnus, who was not viewed as a “team player” by Border Patrol rank and file.

Democrats’ electoral prospects will likely brighten for the 2024 elections if the administration changes its tack at the border and apprehensions fall. Even in that event, however, Mayorkas will probably still face a lot of pent-up anger from a Republican-led House, and his attempts to scapegoat Magnus for the administration’s policies will likely be in vain.

If the White House is concerned about the best interests of the country, however, a policy shift is in order. Border Patrol agents have set new annual apprehension records at the Southwest border in each of the past two fiscal years, and even Democratic northern cities are suffering under the strain of new migrant arrivals. What can’t go on forever, won’t, and this migrant surge can’t go on much longer.

There have long been rumors of a rift among Biden’s White House advisors on immigration policy. Whether the faction that cares about U.S. sovereignty and the rule of law (or even just about winning elections) is prevailing remains to be seen – but that appears to be the case. With a major emphasis on “appears”.