Many of Joe Biden’s earlier immigration-related statements have somehow gone down the memory hole, like his promotion of border fences to stem drug smuggling, demand for accountability by the Mexican government to stem illegal migration, or concerns that smuggled kids were getting physically and sexually abused on their way here. One big one was a promise to ensure “responsible, Senate-confirmed professionals” would be leading ICE and CBP. Both are headed by “acting” officials, and that’s a problem, because it leaves Congress and the voters fumbling in the dark for accountability.
The Vow. Biden made that vow on his 2020 campaign website, which is still up even though the election is long over. It has now mutated into a fundraising tool for the “Biden-Harris” administration (with a link asking visitors to “Donate to the DNC to help elect Democrats”), but because no one else talks about it, I’m likely one of the few who’s been there recently.
Here’s the full quote:
In the first 100 days, a Biden Administration will:
Ensure that Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) personnel abide by professional standards and are held accountable for inhumane treatment. Biden will increase resources for training and demand transparency in and independent oversight over ICE and CBP’s activities. Under a Biden Administration, there will be responsible, Senate-confirmed professionals leading these agencies, and they will answer directly to the president.
Implicit in that excerpt is a contention that ICE or CBP had previously engaged in categorical “inhumane treatment” or failed to “abide by professional standards”. While there have been isolated abuses by individuals in each agency both before and after Biden’s inauguration, it begs some major questions, or as we say in the law, “assumes facts not in evidence”.
As for “transparency in ICE and CBP’s activities”, this is likely the least transparent administration in history, and I can remember Richard Nixon.
As I recently explained, for example, I can’t accurately assess within a million how many illegal migrants have been released at the Southwest border — in violation of law — because the Biden administration refuses to disclose those statistics, except under court order.
Then, there’s Biden’s first trip as president (and possibly ever) to the Southwest border, which included a bowdlerized, “Potemkin Village” version of the carnage and chaos there, or his policies — unmoored from legal imprimatur or common sense — that force CBP to present border statistics that are opaque and meaningless to any but the most canny expert.
The Actors. Despite Biden’s vow to install Senate-confirmed officials to lead ICE and CBP within his first 100 days, that’s not what happened.
CBP has been helmed by Acting Commissioner Troy A. Miller since last November, and it’s not the first time he’s filled that role under Biden.
Miller first served as acting CBP commissioner from the start of the Biden administration in January 2021 to December 7 that year, when one Chris Magnus was confirmed as commissioner — 321 days after Biden took office. Miller then returned to his full-time role as deputy CBP commissioner.
To be fair to the president, Biden had originally nominated Magnus to be CBP commissioner in May 2021, but as noted it took until December for the Senate confirm him, and that only happened on a party-line vote in the upper chamber, 50-47.
That delay resulted from a number of factors, including Magnus’ refusal to admit there’s a disaster at the Southwest border (toeing the party line during his confirmation hearing by calling it a “significant challenge”), his past criticism of immigration enforcement (he wrote a 2017 op-ed in the New York Times calling then-AG Jeff Sessions’ policies “anti-immigrant”), and because he was inexperienced.
Magnus had never served in the federal government, let alone at CBP, before Biden named him to be commissioner. Prior to his confirmation, Magnus had largely been in local law enforcement, almost exclusively in the Upper Midwest and San Francisco Bay areas. He was also police chief in Tucson, Ariz. (which is at least close to the border), but even then, he served for less than six years.
It was in that role in 2017 that he declined a Border Patrol request to help in the pursuit of an escapee, which angered the component’s leadership. So he might have been a “professional”, but likely not in the way Biden was ostensibly describing on his campaign website.
In any event, Magnus was forced out in November 2022 following a scathing exposé in Politico in which he was described as “unengaged in his job” and “focused primarily on reforming the culture of the Border Patrol, addressing its long list of allegations of racism and violence”. Likely worse, the article included allegations that Magnus had “fall[en] asleep during multiple meetings”.
In response, Magnus’ office told Politico that the commissioner “has spent his 10 months on the job getting up to speed on the agency’s ‘many complex areas’”. Again, likely not the sort of professionalism Biden promised for a position that doesn’t allow much time for on-the-job training.
Nothing I can find suggests Biden has nominated a new CBP commissioner, but prior to Magnus’ truncated tenure, the agency had not had a Senate-confirmed commissioner since Gil Kerlikowske, who served under President Obama and resigned when Trump took over.
Then, there’s ICE, where at least there’s more continuity (but not in a good way).
Tae D. Johnson has been ICE’s “Senior Official Performing the Duties of the Director” (that is, “acting director”) since about a week before Biden took office in January 2021. He replaced Jonathan Fahey, who resigned abruptly after a few weeks on the job.
Biden had nominated the sheriff of Harris County, Texas, Ed Gonzalez, to head the agency in January 2022, but as Government Executive magazine explained that June just before Gonzalez withdrew his nomination, he:
never appeared to gather enough support to win approval. Republicans have opposed nearly every element of the Biden administration’s immigration policies and some Democrats voiced apprehension about Gonzalez’s nomination after a police affidavit surfaced accusing him of domestic abuse. Both Gonzalez and his wife have denied the allegations.
Note that ICE has not had a full-time director since Obama’s last appointee to the position, Sarah R. Saldaña, resigned shortly before Donald Trump took office in January 2017.
But then, it’s a thankless job, and again, I cannot find any new nominee who has been put forward for the position.
Johnson is, at least, a professional, having started with the former INS as a student trainee in Salisbury, Md., in 1992, and working his way up the ranks since then to become deputy ICE director.
The problem is that the Government Accountability Office (GAO) informed the president in February that Johnson’s continued service in the acting role violated the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345–3349d. Johnson hasn’t done anything wrong, it’s just that (according to GAO at least) the law only permitted him to serve in that acting position for 210 days.
Consequently, as GAO explained: “Mr. Johnson’s service as Acting ICE Director from November 16, 2021, to the present day is in violation of the Vacancies Act.” DHS disagreed with GAO’s interpretation, but in any event, the Washington Examiner reported on April 18 that Johnson would be retiring in the next few weeks (which he has not confirmed).
If Johnson does leave, Patrick J. Lechleitner, another career employee and Johnson’s acting deputy, is next in line and his likely (acting) replacement.
Why Full-Time Leadership Is Important. ICE and CBP (especially) are massive bureaucracies. ICE’s budget is about $8 billion, and it’s staffed by more than 20,000 employees in 400-plus offices, both in the United States and worldwide. CBP, which touts itself as “one of the world's largest law enforcement organizations”, has more than 60,000 employees and a budget of about $24 billion.
While both agencies demand what Biden described as responsible and professional leadership, neither has a confirmed leader. That’s a problem, for two reasons.
First, there is nobody truly politically accountable running either ICE or CBP.
Specifically, neither has a head official whom Congress can hold to account to enforce the immigration laws (not this administration’s strong point), nor more importantly any political official to blame when things go wrong. Let me explain that last point.
Remember when various high-level administration officials and the media excoriated mounted Border Patrol agents for an alleged “whipping” incident in Del Rio, Texas, in September 2021? Not only didn’t such abuse occur, but DHS Secretary Alejandro Mayorkas apparently knew it didn’t happen, and yet stood by silently while such potentially career-ending allegations were being hurled at line agents.
Real-time blame for that incident — to the degree any was due (any knowledgeable observer knew it wasn’t) — would have been directed at the Senate-confirmed commissioner had one been in place. But there was no responsible agency head at CBP to take the incoming fire, and so it was directed by any number of parties — including the president and vice president — at the agents themselves, instead.
Those agents didn’t head to the Rio Grande on a September afternoon of their own volition. They were stationed miles away, in Carrizo Springs, Texas, and were sent there by higher-ups. Nobody pointed the finger at the higher-ups, and there was no real commissioner to hold to account. So, the agents took the blows.
That’s just one example, but it likely won’t be the last, and it simply degrades line-level morale even more than the border disaster itself already has.
Second, and relatedly, Congress could hold a Senate-confirmed director or commissioner accountable for the two agencies’ failures to enforce the law, if only there were such an official.
If CBP under Troy Miller releases hundreds of thousands of illegal migrants who are supposed to be detained, whom can Congress and the courts blame? Not Miller — he’s just a career staffer following orders from those higher up.
The problem is no one knows who’s the higher-up giving those orders. Biden’s ultimately responsible, but even the most hands-on chief executive (think Bill Clinton) isn’t really making border release decisions. So, that’s a thin reed for impeachment and any attempt to do so would likely fail.
DHS Secretary Alejandro Mayorkas is the next political official down, and he’s facing impeachment threats on this very ground, but no one who watches his recent performances in Congress thinks he’s pulling the strings. He’s “Baghdad Bob”, not Saddam Hussein.
The House can vote to impeach him, but the Democratic-controlled Senate is unlikely to convict, and even if it did, he’d probably just be replaced by either another punching bag or — more likely — an acting, and thus politically unaccountable, placeholder.
The same is true for Johnson (or Lechleitner or whoever comes next). In FY 2022, ICE removed just 38,447 removable convicted criminal aliens — down from 39,149 in FY 2021, but more significantly, a massive decline from the 150,000-plus ICE removals of convicted criminal aliens in FY 2019. Johnson’s just doing what he was told — by somebody.
Again, Mayorkas signed the memo (currently enjoined pending Supreme Court review) driving that decline, but nobody seriously thinks he wrote it. The people who did craft that baleful policy are lurking around DHS HQ, or the Eisenhower Executive Office Building, or the West Wing, making it almost impossible for Congress to find them.
It’s no secret that congressional Republicans (and the American people with them) are hopping mad about illegal immigration. Because Biden failed to follow through on his promise to appoint politically accountable leadership at the agencies charged with addressing the problem, however, they’re chasing ghosts, and fumbling in the dark like Clarice Starling looking for Buffalo Bill. That’s bad for America.