The Ugly, Inevitable Border Fight Between Texas and the Feds

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Written By Pinang Driod

The Texas National Guard has taken hostage a 2.5-mile stretch of the U.S. border with Mexico. According to a shocking Supreme Court filing by the Justice Department early this morning, armed soldiers and vehicles deployed by the state have repeatedly denied U.S. Border Patrol agents access to the Shelby Park area in Eagle Pass, Texas. The state did not immediately deny this; a spokesperson for Governor Greg Abbott said the state will keep “utilizing every tool and strategy to respond to President Biden’s ongoing border crisis.”

It’s an ugly stunt, part of a long series of provocations by Abbott, who is clearly more interested in garnering headlines than in generating solutions to the chronic delays and underinvestment that plague the U.S. immigration system. But national leaders have also left a policy vacuum. In 2016, the courts that judge whether migrants qualify for asylum had a backlog of 163,451 cases; that total grew to 614,751 in 2020 and 1,009,625 last year. Asylum seekers wait about four years on average just to get their hearing. Federal officials do not have the resources to process and manage the asylum flows at the border, and, as members of Congress drag their feet, Texas is running to take charge of the situation—not to provide order, but to publicize the disorder for political ends.

This could be “the biggest federal-state fight since desegregation,” Aaron Reichlin-Melnick, the policy director of the American Immigration Council, an immigrant-advocacy nonprofit, posited yesterday.

All indications suggest that Texas’s actions are creating more chaos. “Because Border Patrol can no longer access or view this stretch of the border, Texas has effectively prevented Border Patrol from monitoring the border,” the Justice Department asserted. In sworn testimony included in the filing, Robert Danley, the lead Customs and Border Protection field coordinator in the Del Rio area, recounted that the state is refusing to let Border Patrol or Department of Defense personnel into the 2.5-mile stretch, and that Texas “does not want Border Patrol to be able to arrest, process, or transport migrants out of the identified area.”

This is a major impediment to federal enforcement, the U.S. government suggested. In mid-December, Danley explains, as many as 6,000 migrants were waiting to be processed in the staging area now blocked from Border Patrol oversight. On practical grounds, federal agents are unable to police and process migrants at this crucial juncture and have been forced to move their operations to a small area along the shoulder of a busy two-lane highway that, Danley wrote, comes with “an increased risk to both migrants and agents of traffic-related injury.” If Abbott’s show of force is supposed to deter would-be immigrants, it doesn’t seem to be working. “This tactic has had no impact on migrant flow,” a Fox News correspondent reported, citing Border Patrol sources.

The federal government is now hoping that Abbott’s overstep will force the Supreme Court to step in and clarify Texas’s authority—or lack thereof—to set and enforce immigration policy. The timing of the solicitor general’s filing indicates how urgent the Biden administration believes the situation is.

Seeking to escalate the national immigration debate, Abbott, a Republican, has chosen a number of other aggressive tactics: busing migrants to various Democratic cities, signing a likely unconstitutional bill that made crossing the border between ports of entry a state crime, offhandedly expressing regret that homicide is not an option. “The only thing we’re not doing is we’re not shooting people who come across the border,” he said in an interview last week, “because of course the Biden administration would charge us with murder.” I would have hoped that something beyond the threat of jail time was holding our political leaders back from killing people, but apparently, I was too optimistic.

There’s a misconception that treating would-be immigrants harshly will reduce flows. Immigration hawks generally insist that Democrats who are weak on border enforcement are luring migrants into the country. Yet even when President Donald Trump was pursuing extreme and punitive policies such as family separation, asylum seekers were undeterred. Reports show that border apprehensions—including of families—increased while the family-separation policy was in place. Title 42, a Trump-era policy that allowed Border Patrol to return crossers to Mexico, actually led to “more successful illegal crossings,” according to one report, but ending it halved “successful covert illegal immigration.”

The only real solution to the chaos at the border is adequately staffing and funding the agencies and offices charged with processing asylum seekers. Even Democratic leaders, who have, with notable exceptions, been loath to blame the Biden administration, have regularly pressed federal officials to lead a centralized response instead of expecting individual states and cities to build their own process for accommodating new migrants with little to no federal funding.

Administration after administration has tried to kick the problem down the road, not wanting to tackle a growing asylum backlog that ensures that applicants spend years without having their cases heard and processed. Even the Biden administration’s recent foray into negotiations with Republicans on border issues has shied away from proposing policies that would create law and order in favor of ones—such as bringing back a version of Title 42 and ending successful orderly and legal immigration pathways—that simply sound tough on immigrants.

Texas should not have been busing migrants indiscriminately to cities without notification or assistance; the federal government should have taken on the role of directing migrant flows toward areas that would best accommodate newcomers. But the Biden administration, according to recent reporting from Reuters, rejected a proposal to transport migrants to other U.S. cities, because the White House was afraid of taking “full ownership” of the issue. Ultimately, there is no action that Texas can take on the border unless the federal government has already abdicated it.

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