DHS Secretary Alejandro Mayorkas appeared before the Senate Judiciary Committee this week at its annual “Oversight of the Department of Homeland Security” hearing. “Fiery” is a good description, but there was one particularly notable exchange between the secretary and Sen. John Kennedy (R-La.) in which Mayorkas redefined his statutory “operational control” mandate to secure the Southwest border as “maximizing the resources we have to deliver the most effective response”. The secretary redefining statute is problematic enough, but the bigger issue is that neither Biden nor his DHS secretary is complying even with that watered-down “Mayorkas standard”, because the president is wasting money and authority Congress gave DHS for border security.
“Operational Control”. The operational control mandate comes from the Secure Fence Act of 2006 (SFA), which was passed with an overwhelming bipartisan majority in both houses of Congress and enacted on October 26, 2006.
The SFA 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, instead explicitly defining the term “operational control” as follows: “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
Biden’s Southwest Border Disaster. By any objective interpretations of those terms, Mayorkas’ DHS has failed to even achieve, let alone maintain, operational control at the Southwest border.
Since President Biden took office, Border Patrol migrant apprehensions at the Southwest border have soared. In FY 2021, Border Patrol agents there apprehended nearly 1.66 million illegal entrants, an apprehension record.
Things have just gotten worse from there. In FY 2022, agents at the Southwest border apprehended more than 2.2 million illegal migrants, and in the first five months of the current fiscal year, Southwest border agents have already apprehended nearly 892,000 new illegal migrants.
Even those dismal apprehension numbers don’t tell the whole story, because they don’t include the almost 1.4 million illegal migrants who were detected entering illegally but who successfully evaded agents at the Southwest border under Biden, known colloquially as “got-aways”: at least 385,000 in FY 2023, according to Border Patrol Chief Raul Ortiz; 599,000 in FY 2022; and 389,155 in FY 2021.
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.
Kennedy and Mayorkas. Which brings me to Tuesday's hearing.
Sen. Kennedy asked Mayorkas: “Mr. Secretary, our southern border is not secure, is it?” The secretary complained that he had addressed the issue earlier in the hearing, prompting the senator to ask: “Why don’t you address it again?”
Here’s Mayorkas’ response: “Of course. Let me share you a few things. Number one, when I speak of securing the border, I am speaking of maximizing the resources we have to deliver the most effective response. Let me assure you ...”
At which the senator cut the secretary off and asked: “Because we are trying to secure it and succeeding?” Mayorkas’ rejoinder: “We are so focused on the security of our southern border we are doing so much.” Senator Kennedy: “But not succeeding. But we are not succeeding.”
Back to the Secure Fence Act. To be clear, in that exchange Mayorkas redefined his remit in the SFA as “maximizing the resources we have to deliver the most effective response” in securing the Southwest border. Even if that were the mandate, the problem is the Biden administration is not maximizing its resources to secure the Southwest border, as the SFA makes clear.
Operational control is the mandate in the SFA, but Congress didn’t simply set the bar and walk away. It also directed the DHS secretary to use any tools he needed to achieve operational control.
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”.
It's called the “Secure Fence Act” for a reason. Congress expected the DHS secretary — Mayorkas, his predecessors, and his successors — to use all necessary authorities and resources to stop terrorists, drugs, migrants, and contraband from entering. That includes infrastructure, including but not limited to, well, fences.
Biden’s “Pause” on the Border Wall System. DHS refers to that infrastructure as the “Border Wall System”, and it includes not just fencing (consisting of “internally hardened steel-bollard barriers from 18’ to 30’ high”), but also “new and improved all-weather access roads”, “perimeter lighting”, and “enforcement cameras”, as well as “other related technology”.
Hours after he was sworn in on January 20, 2021, however, Biden paused “work on each construction project on the southern border wall”.
That paused not just the fencing, but the roads agents use to patrol the border, the lighting, the cameras, everything. And, with limited exceptions, that pause remains in place, and so construction materials sit rotting and untouched on the border like the elderly Miss Havisham’s uneaten wedding cake in Dickens’ Great Expectations.
Here’s what that looks like at the Southwest border in Arizona:
Worse, Congress has given the administration to improve DHS’s Border Wall System $1.375 billion in FY 2020 and an additional $1.375 billion in FY 2021. While I don’t have a picture of what $2.75 billion looks like (picture a 30-ton monolith of $100 bills), most of that money is still also sitting around, gathering its own dust.
The definition of “operational control” at the Southwest border is not “maximizing the resources Secretary Mayorkas has to deliver the most effective response”, but even if it were, he would still be failing. Congress may want to call the secretary back in to clarify that point.
Policy Is What Matters. Of course, infrastructure is just a part of securing the border. Policy is more important, and as U.S. district court Judge T. Kent Wetherell II explained in his March 8 opinion in Florida v. U.S., Biden’s “catch and release” policies — as implemented by Secretary Mayorkas — are drawing migrants to enter the United States illegally.
Thanks to those policies and their deleterious results, the most important resource that Mayorkas has at his disposal — our Border Patrol agents stationed at the Southwest border — are strained to the breaking point.
Congress, not Alejandro Mayorkas, gets to define what the secretary’s “operational control” mandate at the Southwest border consists of. But even by the “Mayorkas standard” — “maximizing the resources we have to deliver the most effective response”— Mayorkas himself is failing.