Trump Must Enlist the States to Secure the Border: Filler

It was a chart showing the Biden-Harris Administration’s disastrous mass illegal migration numbers that helped save Donald Trump’s life from a would-be assassin’s bullet in Butler, Penn., when Trump tilted his head slightly to review it. Since then, Trump has talked about organizing the largest mass deportation operation since the Eisenhower Administration to address the 10 million-plus migrants and counting that have entered the U.S. illegally in just under four years. This includes a record number of criminals and terrorists encountered under so-called border czar Kamala Harris’s watch. To achieve his goals, a future President Trump will need the next Congress to bring the states into the mix as full immigration enforcement partners.

Despite their nationwide responsibilities to secure the border, Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection are each roughly half the size of the New York Police Department. In federal fiscal year 2023, ICE made a total of 170,590 arrests nationwide. At that rate, the agency might solve the problem by the next millennium. 

For all detention operations in the U.S., ICE is authorized by Congress to detain an average of only 34,000 migrants, which is a fraction of the number of migrants that currently enter the U.S. illegally each month, and a fragment of the number of beds most major hotel brands offer.

Meanwhile, the Border Patrol has failed to detain and screen nearly two million migrants who unlawfully entered the U.S. in the last three and a half years, so called “got aways,” resulting in a population greater than 11 individual states now roaming the country.

In 2012, in the case of Arizona v. United States, the Supreme Court all but excluded the states from independently regulating immigration. In Arizona, following a challenge by the Obama Administration, the court struck down a state statute making it a misdemeanor for migrants not to comply with federal registration requirements and for migrants to work without federal authorization, and that gave state and local law enforcement officers the power to arrest illegal aliens.

Central to the high court’s holding in Arizona was the notion that Congress in the current era intends to occupy the field of immigration enforcement alone, and the states can only tread on that space with the express approval of the federal government. As the late Justice Antonin Scalia pointed out in his dissent, this is a marked departure from the first hundred years of our Republic when the states exercised near-exclusive authority over border security and immigration matters.

Passing Congressional legislation allowing the states to once again independently enforce immigration law would create an enormous force multiplier in the nation’s capacity to arrest, detain, return, and remove illegal aliens by enlisting tens of thousands of state and local law enforcement officers and others to the cause. It would also free up federal assets to focus on those areas where state resources are lacking and where illegal migration remains a major challenge.

A new state-federal framework to secure the border should be based on four fundamental principles – state engagement in direct immigration enforcement is voluntary, states cannot deny entry to those federal law allows in, nor can they openly shield those that are here unlawfully, and states cannot deport those that federal law deems legally present. Such an approach would enable the states to enact laws similar to what Arizona tried to do over a decade ago and which Texas is attempting to do now but is tied up in federal litigation by the Biden-Harris Administration and others.

The Texas law makes it a misdemeanor to cross the Texas-Mexico border between the U.S. ports of entry. Repeat offenders can be charged with a felony and up to 20 years in prison. The statute also allows state court judges to deport offenders after serving their sentences. To ensure states like Texas don’t fall victim to an administration intent on countermanding federal immigration law, Congress must also limit federal executive branch discretion that, when exercised, is at odds with state actions consistent with Congressional aims.

Over the years, the Biden-Harris Administration has been removing border barriers imposed by Texas and other states on the grounds the states are acting inconsistent with executive branch discretion in enforcing, or rather not enforcing, immigration law. This, despite the fact those barriers serve the broader aim of preventing unlawful entry, and where the barriers so far have not been ruled outside the scope of the state’s authority by the Supreme Court. In other words, the nation is left in the untenable situation where the states can continue to erect the barriers and the Biden-Harris Administration can continue to remove them.

While a future Trump Administration could try to empower the states via regulation, there are several downsides to this approach. A successor Democrat administration could simply revoke such a regulation, or the federal courts could strike down any broad delegation to the states on the grounds the executive branch itself lacks the authority to do so.

As Justice Scalia noted in the Arizona decision over a decade ago, the longstanding immigration crisis has left the nation with “a federal government that does not want to enforce the immigration laws as written” and which leaves “the States’ borders unprotected.” By working with Congress to fully empower the states to help secure America’s border once again, Donald Trump can achieve his immediate goals and leave a lasting border security legacy for years to come.