This is a republic, and as such the power to make rules and change them is vested in the citizens, as expressed through their elected representatives. That’s often not how it works, though, given the sheer size, breadth, and power of this country and its government. Increasingly, we’ve become a “bureaucratic republic”, in which elected officials hash out rough outlines of what they’d like the executive branch to do, and unelected officials — many with de facto lifetime tenure and unprecedented authority — fill in the blanks. President Biden’s disastrous border policies underscore — and are increasingly testing — the limits of this informal system, which has led to a “test of strength” between congressional Republicans and the White House over funding and impeachment.
Federal Staffing. There is a saying in Washington, “personnel is policy”, meaning even the best ideas will fail unless the right people are in place to implement those ideas.
The legislative branch is supposed to be the most powerful, but it’s the least staffed. There are 435 members in the House of Representatives, and they are supported by a staff of just fewer than 9,250.
On the senate side, 100 senators are supported by just over 6,000 staffers, including those who work back in the individual states.
Few of those staffers — 60 percent of whom are under the age of 35 — will remain for long, trading the long hours and poor pay on the Hill for lucrative jobs in lobbying and industry. While they’re there, however — members, senators, and staff — must not only write new laws, but oversee the laws as written.
Compare that to the executive branch, where, counting the military, four million Americans work. As of 2021, there were around 2.145 million civilian executive-branch employees in the United States (average age: 47), and about 45,000 others spread around the world.
How the System Is Supposed to Work. As envisioned by the founders, the legislative branch writes the laws and the executive branch, well, executes them. The role of the judiciary was a bit vaguer at the outset, but fortunately (or not, depending on your point of view), the courts quickly defined their own role as interpreting the laws, ensuring they’ve been properly executed, and assessing whether those laws comport with the limitations in the federal constitution.
All of this is a gross simplification, of course, but fortunately the Supreme Court laid out how this is supposed to work with respect to immigration, at least:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added; internal citations omitted.]
As an aside, “due process” is one of those phrases Americans venerate and love to throw around, but it’s a rather complex concept generally, and especially when it comes to immigration. Again, fortunately, the justices explained that one, too, in rather basic terms in June 2020:
While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. ... Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.
Keep that in mind when “experts” discuss the limitations on the executive’s powers to “suspend” the entry of illegal migrants under section 212(f) of the Immigration and Nationality Act (INA).
Back to the main point, however, when Congress makes rules to govern the admission and removal of aliens under the INA, the executive branch is supposed to carry them out, particularly when Congress is explicit about how those admissions and removals are supposed to occur.
Congressional Mandates. Depending on how you look at it, there are either too many congressional immigration mandates or not nearly enough.
Section 212(a) of the INA establishes bright-line rules on which foreign nationals can be admitted, while section 237 of the INA begins: “Any alien ... in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens” (emphasis added).
Congress gives the secretary of DHS both adequate authority and clear direction on how to enforce those laws and more specifically secure the border in section 103(a)(5) of the INA:
He shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper. [Emphasis added.]
Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall 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.
Operational Control Defined.— In this section, the term ‘‘operational control’’ means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband. [Emphasis added.]
Speaking of border control and mandates, it’s well-established (if not universally accepted) that section 235(b) of the INA requires DHS to detain all inadmissible alien “applicants for admission”, including illegal entrants, until they are either removed from the country, admitted, or granted some permanent status.
Of course, the DHS secretary retains the authority to parole certain of those applicants for admission without formally admitting them, but Congress has also tightly cabined that authority (in section 212(d)(5)(A) of the INA), allowing the secretary to parole aliens “only on a case-by-case basis” and only “for urgent humanitarian reasons or significant public benefit”.
I could go on, but you get the point.
Enter the Bureaucrats — and the Advocates. You might have been thinking, when I was comparing the paltry staffing of the legislative branch vs. the lavish workforce the executive enjoys, that I was overstating things — this is a government, after all, not a street fight, and it makes a certain amount of sense to have fewer people writing rules than carrying them out. If you were, you’re correct, but only to a degree.
There’s a tome you’ve likely never heard of called the “Plum Book”, a listing of 4,000 separate high-level positions in the executive branch that the president has authority to dole out, 1,200 of which are subject to Senate confirmation (known as “Presidential Appointments Requiring Senate Confirmation” or “PAS”).
The president and members of Congress and senators aside, the people who fill those Plum Book positions are really the ones who control the levers of power in Washington, and one of the biggest inside-the-Beltway knocks on President Trump is that he never filled those spots with enough loyalists.
“Senate-confirmed” means “Senate accountable”, and you’ll notice that neither CBP nor ICE is currently headed by anyone Senate-confirmed. Biden couldn’t get the Senate to confirm Chris Magnus, his choice to be CBP commissioner, until December 2021, and Magnus was forced out less than a year later. ICE hasn’t had a full-time director since the Obama administration.
Keep in mind that Biden promised on his 2020 campaign website that he would have a confirmed CBP commissioner and ICE director in place within 100 days of taking office, in an attempt to show that he was more accountable for his policies than Trump had been. That hasn’t happened.
Consequently, DHS Secretary Alejandro Mayorkas aside, the immigration policies of this country are being crafted by a coterie of lower-level Plum Book folks and career employees. Many of the former are long-term immigrants’ advocates, and at least a few of the latter likely objected to the old Trump (and possibly, as I’ll explain below, Obama) ways.
In a bit of foreshadowing, I’ll tell you that consequently Mayorkas is the only “civil officer” of the United States responsible for the administration’s immigration policies — aside from the president and vice president — who is subject to impeachment under Article 2, section 4 of the U.S. Constitution.
“Prosecutorial Discretion” and the Supreme Court. It’d be an understatement to say that Biden’s immigration and border policies are wildly different from the ones followed not only by his immediate predecessor but by his old boss, President Obama, as well.
Here’s proof: In FY 2013, five years into the Obama administration, DHS detained 82 percent of the applicants for admission CBP encountered at the Southwest border, until they were either admitted, deported, or granted relief. An additional 9 percent were detained for at least a while before being released.
In the first three years of the Biden administration, by contrast, DHS has released at least 88.5 percent of all the applicants for admission it has encountered at the Southwest border who weren’t expelled under Trump-era Title 42 orders. In December alone, Border Patrol simply cut loose 76.5 percent of the illegal migrants it apprehended.
And my colleague Jon Feere recently discussed the massive decline in the number of removable aliens — and criminal aliens in particular — that DHS has removed from the United States in six of the past seven fiscal years.
There have been amendments to the INA over the past decade, to be sure, but nothing explains those tectonic enforcement shifts. The explanation, to the degree there is one, is “prosecutorial discretion”.
All government employees have some latitude when it comes to doing their jobs. If the DMV stops taking walk-ins at 4 PM, and you show up five minutes late but are still allowed to take your driver’s test, you’re the beneficiary of that administrative largesse.
The Biden administration has employed that concept in extremis, however, when it comes to taking “enforcement action” — collectively the investigating, questioning, apprehending, detaining, prosecuting, and removing of deportable aliens — both at the border and in the interior.
The administration claims that it lacks detention space (even while beds go unfilled and it asks Congress to cut detention funds), so it ignores those border detention mandates in section 235(b) of the INA and the limits on its parole authority. To assess every criminal alien’s case holistically, it requires ICE officers to consider irrelevant (and inane) “mitigating factors” before even opening an investigation.
All in the name of “prosecutorial discretion” — or more precisely filling in the enforcement blanks Congress has left in the INA even when no such blanks exist.
“A Test of Strength”. Various states have sued the Biden administration to force it to either detain border migrants or reinstate Trump’s “Remain in Mexico” program (Texas v. Biden), as well as to arrest, detain, and remove criminal aliens (Texas v. U.S.).
Keep in mind that Biden isn’t the first chief executive in our Anglo-American tradition to suspend the enforcement of laws he didn’t like (it goes back to at least King Charles II in the 17th century, and was a trigger for the 1688 “Glorious Revolution”), and Anglo-American courts have long struggled to respond.
That includes our current Supreme Court, which in its June 2023 opinion in U.S. v. Texas (the parties get reversed in the case name if the defendant loses below and appeals) held that states lack standing to force the administration to comply with the arrest and prosecution mandates for aliens in the INA.
With due respect to Justice Kavanaugh, who wrote that majority opinion, Justice Gorsuch’s concurrence is both more cogent and logical. He contended that there’s no judicial redress for the states’ injuries because even if the Court vacated the administration’s prosecutorial discretion policies, DHS could still follow the same policies, and there’d be nothing the states or the justices could do about it.
But that’s not the end of it. During the November 2022 oral arguments in U.S. v. Texas, U.S. Solicitor General (SG) Elizabeth Prelogar laid out her position on why the states lacked the standing to bring the case that Justice Kavanaugh later concluded they did not have. In response, Justice Kavanaugh summarized the SG’s points and read them back to her:
I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it — if some administration comes in and says we're not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced.
Prelogar responded, “Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive.” What constitutes “dramatic abdication of statutory responsibility” is in the eye of the beholder, of course, but that’s what she said.
Even if the SG didn’t exactly take Justice Kavanaugh’s bait, Justice Alito did, writing in dissent from the majority’s standing analysis that: “[T]he Court’s answer today is that the Executive’s policy choice prevails unless Congress, by withholding funds, refusing to confirm Presidential nominees, threatening impeachment and removal, etc., can win a test of strength.”
There have been many who have criticized House Republicans for threatening to withhold $61 billion in funding for Ukraine until Democrats agree to pass H.R. 2 (which would curb the executive’s immigration discretion) and their attempts to impeach Mayorkas for his non-enforcement of the immigration laws. They have a common thread — the discretion I’ve discussed, and the administration’s alleged abuse of it.
With respect to impeachment, consider the following from New York Times on January 31:
The G.O.P. argues that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But in the United States, the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.
That’s not exactly the House’s argument, but note that the Times’ article isn’t an opinion piece — it’s a news article. In any event, it begs the question of whether Mayorkas has, in fact, “exceeded those authorities” Congress gave him in when he failed to “uphold certain aspects of immigration law”.
Thanks to Justice Kavanaugh and his colleagues on the majority, the courts can’t answer that question, and even if they could, there’s nothing that the courts can do to stop him.
The Supreme Court’s June 2023 opinion in U.S. v. Texas leaves congressional Republicans with only two options they can use to force the Biden administration to secure the border: withholding funds and impeachment. They’ve chosen both.