Immigration was already bound to be a pivotal issue in this year’s elections. The standoff between Texas and the federal government, however, emphasizes just how egregious the problem has become—and highlights an especially glaring vulnerability for President Biden in November.
Here’s a recap of the escalating standoff. Last week, Chief Justice John Roberts and Justice Amy Coney Barrett joined the Supreme Court’s liberal minority in a 5-4 ruling that allows U.S. Border Patrol agents to dismantle razor wire along the river in Eagle Pass, Texas, which the state had built to prevent illegal border crossings. The federal government claimed that the razor wire prevented Border Patrol from aiding migrants in distress, including three who recently drowned. Texas governor Greg Abbott responded that Border Patrol was never denied access and blamed the Biden administration for the migrant deaths. Abbott has said that he will continue defending the state’s border despite the Court’s ruling.
Meantime, the Biden administration has two other border-related cases pending against Texas. In one, the federal government is suing Texas to remove a 1,000-foot, state-erected floating barrier in the Rio Grande near Eagle Pass. In the other, it is suing Texas to challenge a state law, set to go into effect in March, that would give state judges authority to issue deportation orders.
While the words “border,” “immigrant,” and “immigration” don’t appear in the Constitution, “invasion” does. Abbott argues that Article 4, Section 4, which promises that the federal government “shall protect each [State] against invasion,” justifies his decision to step in where the administration has failed. Abbott has already officially declared the deluge of illegal migrants an invasion, maintaining that Article I, Section 10 of the Constitution, which acknowledges “the States’ sovereign interest in protecting their borders,” justifies his actions.
For its part, the administration says that the courts have long given the federal government sole authority to establish and enforce immigration laws. In Arizona v. United States (2012), for example, the Court found it “fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject (immigration) with one national sovereign, not the 50 separate States.”
We don’t know how the Supreme Court will rule in pending and future cases, or whether it will buy Texas’s “invasion” argument, though Justices Coney Barrett and Roberts siding with the Biden administration on the razor wire issue doesn’t bode well on that score. In any case, Governor Abbott is correct in claiming that the administration has failed to enforce United States laws and has enabled the migrant crisis through a series of executive actions and policy decisions—including, but not limited to, its catch-and-release policies, nullifying the successful “Remain in Mexico” policy for asylum applicants, halting border-wall construction, issuing mass paroles for lawbreaking migrants, and undermining Border Patrol officers’ authority.
The administration claims to be acting on behalf of the Border Patrol in the Texas standoff. The Patrol’s union, however, sides with Abbott. “The current border disaster was singlehandedly caused by . . . you guessed it . . . Joe Biden,” the Patrol’s X account wrote in one post. “There is not a Border Patrol agent out there that thinks it’s okay to cut that razor wire. Unfortunately, because of the Supreme Court ruling, it is—it becomes a lawful order.” Progressives like most unions, but not this one, and the media have largely ignored its statement.
Can the influx of migrants be considered an invasion? Many of those surging the border don’t have malevolent intentions, though that doesn’t mean that they should be allowed to break our laws. Do enough of them pose a threat to consider their cumulative efforts an invasion? A group of ten retired FBI executives with more than 250 years of combined experience in the bureau’s intelligence, counterterrorism, and criminal operations divisions believe that the answer is yes. They recently penned a letter to congressional leaders describing the migrant crisis as a “new and imminent danger” that “may be the most pernicious [threats] ever to menace the United States.”
In modern history, "the U.S. has never suffered an invasion of the homeland and, yet, one is unfolding now,” the ex-FBI officials wrote. “Military-aged men from across the globe, many from countries or regions not friendly to the United States are landing in waves on our soil by the thousands—not by splashing ashore from a ship or parachuting from a plane but rather by foot across a border that has been accurately advertised around the world as largely unprotected and with ready access granted.” Like the volleys from the Border Patrol union, these officials’ warning has been all but ignored by the media, which have obscured Biden’s culpability in the border crisis.
As Democrats and Republicans spar over border-security funding and Abbott’s war with Biden and blue state governors and mayors continues, how the president chooses to mitigate the border-related damage to his reelection hopes will be telling. He may be in cognitive decline, as his critics insist, but he is still a career politician capable of reading the polls, which show that the public blames him for the crisis. Many independents and a not-insignificant portion of Democrats want a secure border—perhaps explaining why Biden said over the weekend that he will “shut down” the border if Congress sends him border-security legislation that includes funding for Ukraine.
“(The legislation) will also give me as president, the emergency authority to shut down the border until it could get back under control,” he said in South Carolina. “If that bill were the law today, I’d shut down the border right now and fix it quickly.”
Trusting Biden to fix the border “quickly,” or ever, would be a bit like trusting a doctor who accidentally amputated your leg to sew it back on. But even as 55 percent of Americans view Biden unfavorably, according to the RealClearPolitics average, he knows he’s likely to face an opponent with roughly the same unfavorable score. The president can placate his base and try to shift the conversation back to issues he prefers—abortion, or “saving democracy”—or he can make a last-ditch effort to mitigate the border crisis and risk alienating progressives, already furious with him about the war in Gaza. Biden’s “shut down the border” comments suggest that he is listening to warnings from influential voices like Ruy Teixeira at the Liberal Patriot, who has argued that immigration could cost him the election. If it’s nothing short of his political hide that finally serves to motivate President Biden to enforce the nation’s laws at the border, millions of Americans will take it.
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