The House of Representatives has launched an impeachment inquiry into whether Joe Biden, while serving as vice president, abused the powers of his office to enrich and protect his dissolute son and himself. But if Republicans are going to pursue such a step, they might have stronger grounds in focusing not only on Biden’s vice presidential deeds but also on his refusal, as president, to exercise his own powers and responsibilities—namely, by failing to enforce federal immigration laws.

A president’s most basic obligation is to enforce, or execute, federal laws as written and passed by Congress. The opening line of Article II of the Constitution declares, “The executive Power shall be vested in a President of the United States of America.” The essence of executive power is the authority—and the corresponding responsibility—to carry out the laws. If any more clarity were needed, the Constitution also states that the president “shall take Care that the Laws be faithfully executed.” The current immigration crisis is largely a product of Biden’s refusal to fulfill his core constitutional duty to enforce federal laws.

Under Biden’s presidency, illegal aliens are often willingly turning themselves in to the authorities under the guise of seeking asylum, even though from fiscal year (FY) 2008 through FY 2019, only 14 percent of those claiming a credible fear were actually granted asylum. In the words of Raul Ortiz, whom the Biden administration selected as U.S. Border Patrol (USBP) chief, aliens are likely “turning themselves in because they think they’re going to be released” into the United States. This awareness of the likelihood of being released has brought a flood of illegal aliens to the American border, a flood that won’t be significantly affected by Biden's recently announced change of heart on building a few miles of border wall.

Indeed, the cause of the current migrant crisis is Biden’s refusal to detain illegal aliens as the law requires. In the words of U.S. District Court Judge T. Kent Wetherell, that refusal is “akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border.” Aliens—and cartels—can hardly miss this signal, and so they have come to the border in huge numbers. Calculations by the American Main Street Initiative (where I am president), based upon U.S. Customs and Border Protection statistics, reveal that in just two and a half years under Biden, 1 million more encounters with noncitizens at the southwest border have taken place than in the prior eight years combined under Presidents Obama and Trump.

Many of these noncitizens have stealthily crossed the border and gotten away. In fact, Biden has already presided over more “got-aways” than his two immediate predecessors combined. Many more have been apprehended at the border and summarily released into the U.S. In December 2020 (under Donald Trump), the USBP released 17 aliens into our country. Two years later, in December 2022 (under Biden), it released 140,355—more than 8,000 times as many.

As these numbers demonstrate, a night-and-day difference exists between immigration enforcement before Biden and under Biden. Of the three most recent presidents, Biden is the clear outlier. His refusal to execute federal immigration laws is unlike anything we’ve ever seen before from any president.

The Immigration and Nationality Act (INA) states that if “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding.” It also states that “if an alien asserts a credible fear of persecution, he or she shall be detained for further consideration of the application for asylum.” Supreme Court Justice Samuel Alito writes that these detention “requirements, as we have held, are mandatory.”

As the American Main Street Initiative points out, “the law requires that those entering the U.S. without proper documentation be continuously detained until their claim can be adjudicated, since they don’t have the documents required to enter lawfully.” This law is not being enforced. As Andrew Arthur, a former federal immigration judge now at the Center for Immigration Studies, writes, “The reason why nearly 100,000 migrants are jamming the streets and hotels of New York City is because the Biden administration refuses to detain them.”

The Biden administration claims that it lacks the space to detain these migrants, but this is a thin excuse stemming from a self-inflicted wound. Judge Wetherell observes that the Department of Homeland Security had the capacity to detain an average daily population (ADP) of 55,000 people just four years ago, but under the Biden administration “DHS requested a reduction to 32,500 ADP for fiscal year 2022” and for FY 2023 “requested a further reduction to 25,000 ADP.” So the administration claims that there isn’t enough detention space, even while proposing further reductions in detention space.

When Biden took office, he announced that on Day One his administration would “reset” immigration-enforcement policies and that it would emphasize “equity.” DHS subsequently announced that it would apply Biden’s notions of equity in “the immigration and enforcement context.” In practice, this has meant prioritizing equity over law enforcement—thereby substituting a de facto new immigration policy for Congress’s duly passed policy, which Biden has no constitutional authority to do.

In an interview last year, Fox News anchor Bret Baier asked DHS Secretary Alejandro Mayorkas whether “it is the objective of the Biden administration to reduce—sharply reduce—the total number of illegal immigrants coming across the southern border.” Mayorkas amazingly wouldn’t answer yes, instead replying, “It is the objective of the Biden administration to make sure that we have safe, legal, and orderly pathways for individuals to be able to access our legal system.”

Such a policy has had significant consequences. In just the first two years under Biden, America’s foreign-born population over the age of 16 rose by 3.9 million. That’s more than enough people to populate a new Los Angeles—or, if you prefer, a new Dallas, Fort Worth, and San Antonio combined. This two-year increase of 3.9 million easily surpasses any decade-long increase in the foreign-born population prior to 1970–1980.

Sixteen years ago, then-senator Biden said, “No great nation can be in a position where they can’t control their borders.” He added that this matters “not just for immigration, but it matters for drugs, terror, a whole range of other things.” Well, the number of encounters on the southwest border between the USBP and those on the terrorist watch list increased from three in FY 2019–2020 to 238 in FY 2022–2023. That’s a 79-fold increase in just three years.

An unsecured border also invites human trafficking. The U.N.’s International Organization for Migration now calls our southwest border “the deadliest land route for migrants worldwide.” A 2023 DHS Inspector General report says, “FY 2022 set the record for migrant deaths with more than 800 migrants dying while attempting to cross the Southwest border.” The Wall Street Journal reported earlier this year that up to 30 bodies a month have been found in the Rio Grande near Eagle Pass, Texas: “‘It’s like a graveyard,’ said Maverick County Sheriff Tom Schmerber. . . . ‘I’ve been working on the border for almost four decades and never saw tragedies of this magnitude.’” Particularly troubling is the thought of what such treks might mean for innocent children. “The border between the ports is no place for a kid,” writes Arthur, and that “is likely the safest part of the journey.”

Arthur recently visited Cochise County, on the Arizona–Mexico border, where he found an open gate in the border fence. “I was told that there are dozens of high-speed chases across the county weekly,” he writes, with “many of the drivers” being Americans who are “lured to the border via social media to serve as cartel mules carrying drug and migrant ‘loads’ with promises of adventure and easy cash.”

This is the situation that President Biden has created. In sum, his administration has prioritized illegal aliens over Americans, substituted its own immigration policy for Congress’s policy, and failed to fulfill its constitutional responsibility to enforce federal immigration laws, abdicating that duty in the name of equity. Whether this Constitution-defying combination of negligence and usurpation warrants impeachment is for Congress to judge—but many Americans would probably find it at least as relevant to the question as what Biden did when he was vice president.

Photo by PATRICK T. FALLON/AFP via Getty Images


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