After letting Texas Gov. Greg Abbott run wild with his catastrophic border security posturing, the Justice Department is suing him in an effort to force him to haul in the floating obstacle he’s placed in the middle of the Rio Grande. At the same time, a federal judge has struck down the Biden administration’s rehash of a Trump-era anti-asylum program that had just recreated Title 42′s draconian restrictions. The cycle of accountability continues.
We never thought that the transit ban 2.0 — a rule that made would-be asylum seekers ineligible if they’d transited through another country unless had already been rejected for asylum there, or got an appointment through an app derisively termed “asylum ticketmaster” — was an appropriate response to the end of Donald Trump’s signature Title 42.
On Tuesday, California Federal Judge Jon Tigar agreed, vacating the rule after reading the plain language of the law, which states that noncitizens shall be given an opportunity to apply for humanitarian protections regardless of how they entered the country.
There’s always a balancing act at the border, making processes fair but also expeditious, welcoming to humanitarian migrants without making the qualifying standards meaningless. It’s a balance that requires investing resources into both the adjudicative processes that determine eligibility and the logistical processes that can place migrants where they’ll be accommodated and give them the resources to self-sustain, including through work authorization. It doesn’t require abandoning our commitments, and certainly doesn’t require a state rolling out its own barbed wire.
Abbott’s contention, in a recent interview with Fox News’ Bret Baier, that he was prepared to defend Texas’ “sovereignty and its constitutional right to secure the border of our state and our country,” is perplexing. Any claim Texas may have had to conduct sovereign border enforcement without Washington’s signoff evaporated around, say, 1865.
We do of course have a federal system where individual states have their own ability to legislate and regulate around certain policy items. Immigration, national borders and customs are crucially not among those things, and haven’t been for well more than 100 years. In a pair of landmark decisions — Chae Chan Ping v. U.S. in 1889 and Fong Yue Ting v. U.S. in 1893 — the Supreme Court made clear that the federal government has plenary power over immigration.
The regulation of borders is a fundamental facet of a sovereign nation, not a component state. In just the past year, Texas has created mayhem, with Abbott setting off the current wave of migrant arrivals to New York and triggering not one but two diplomatic rifts with Mexico, first over his aggressive truck inspections and then over the mid-river wall of buoys.
That’s not to mention the fact that one of the troopers involved in Abbott’s ridiculous Operation Lone Star has now alleged that the ad hoc border force has received “inhumane” directives, including to deny migrants water and push them back across the barbed wire that they set up. This stomach-turning approach, which Abbott is pursuing exclusively as a political stunt to burnish his image and set up a showdown with the federal government, is predictably and intentionally causing the deaths of vulnerable migrants.
We’re glad that the DOJ is taking action against Texas, just as we’re glad that a federal judge isn’t giving the White House a pass to ignore immigration law. Ultimately, it’s Congress that must act, but in the meantime, it’s up to the federal government — and the federal government alone, not one of the 50 states — to honor our obligations in an orderly and sensical way.
That means at minimum taking back control of the border itself. Abbott’s buoys are small potatoes. Hopefully, it is just the first salvo in an effort to make an example of the out-of-control governor. Is it the case that Abbott is salivating at the prospect of representing himself as stymied by the spineless feds when he was just trying to take action? Certainly, but that doesn’t mean he should be left alone. He doesn’t care about border security, and even less so about the humanitarian plight of the migrants despite insistences that his barriers are actually about helping them.
Either Abbott successfully wrangles control of the border away from the feds, or he gets shut down and gets to crow to all his supporters and donors about how his noble efforts were derailed by nefarious open-borders Joe Biden. Yet at least his fundraising tour won’t kill anyone.
