Is the border crisis an ‘invasion’?

Texas Gov. Greg Abbott claims that President Biden’s failure to faithfully execute the immigration laws enacted by Congress has violated Article IV, § 4 of the U.S. Constitution, which provides that “[t]he United States . . . shall protect each [State in this Union] against Invasion.”  

The border crisis hit a new record in May 2022, which saw the largest number of illegal border crossers along our southern border since CBP began keeping track in 2000, and these unprecedented numbers are overwhelming local communities across Texas.

Abbott has decided to attempt to exercise his state’s authority under Article I, § 10 of the U.S. Constitution to protect itself against an “invasion” of undocumented migrants at the Southwest border.

Clause 3 of Article 1 § 10 states:

“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added)

The Supreme Court has held — in the mid-1800s — that the phrases “unless actually invaded” and “in such imminent danger” refer to an invasion or the threat of an invasion by a foreign enemy, “indians,” or pirates.

It would be quite a stretch to apply that interpretation to this situation.

But the courts may do it anyway.

It’s reasonable to expect states to be able to protect themselves when a president releases more than a million migrants — about whom little if anything is known — into the country. 

Gov. Abbott isn’t the only one who is concerned. Ipsos recently announced poll results which indicate that more than half (54 percent) of American adults believe it is at least somewhat true that we’re experiencing an invasion at the southern border (40 percent of the Democrats, 76 percent of the Republicans, and 46 percent of the independents).

And 42 percent of American adults believe that it is at least somewhat true that the Biden administration is implementing an open border policy at the southern border (29 precent of the Democrats, 63 percent of the Republicans, and 37 percent of the independents).

Record-breaking numbers

The border patrol has encountered more than 1.8 million illegal crossers at land borders in fiscal 2022, and there are still two months left to go in the fiscal year. That number is higher than the entirety of illegal crossers in fiscal 2021, when the border patrol encountered nearly 1.7 million illegal crossers. The highest number of encounters in the four previous fiscal years was 859,501 in 2019.

Catch and release

In May, U.S. Customs and Border Protection (CPB) released 95,318 migrants into the United States that it had encountered at the Southwest border, bringing the total of illegal migrant releases under the Biden administration to 1,049,532 — which is a population larger than the number of residents in the president’s home state of Delaware.

Andrew R. Arthur has observed that, “There were 496 days between Jan. 21, 2021 (the day after the inauguration) and May 31, 2022… DHS released — on average — 2,115 illegal migrants per day throughout that period.”

But is it an invasion?

Philip Bump, a national correspondent for the Washington Post, questions whether the border crossings can be considered an invasion. The migrants are stopped when they try to enter the United States, and the ones who are released are released on parole or alternatives to detention to wait for a hearing. Moreover, most of the migrants who are released show up for a hearing before an immigration judge.

He would have a good point if DHS maintained control over the released migrants, but that’s not the case. 

Even if Bump is right that most of them appear for their hearings, “most” is not good enough when more than a million are released into the country: At past rates, more than 400,000 of them won’t appear at their hearings.

And what difference does it make that many of them appear at their hearings if some of the ones who receive a deportation order abscond after their hearings.

The end-to-end enforcement lifecycle approach that CBP used in its Fiscal Year 2020 Enforcement Lifecycle Report (report) provides a more realistic measure, and it indicates that catch and release border policies don’t work.

The report describes the final or most current outcomes — as of March 31, 2020 — associated with the 3.5 million encounters with illegal border crossers and inadmissible migrants between 2014 and 2019. Overall, only 59 percent of their cases had been resolved through a final outcome of repatriation or relief from removal. Repatriations occurred in 1.8 million cases (51 percent) versus 1.7 million cases (49 percent) that had no confirmed departure, including the 284,000 cases in which the migrants were granted relief or other protection from removal (8.1 percent).

Detention matters

According to the report, 42 percent of the migrants remained in custody between their initial encounter and a final enforcement outcome. These migrants were repatriated 98 percent of the time, with only 0.5 percent receiving relief or other protection from removal and 1.5 percent remaining unresolved as of March 31, 2020.

In contrast, migrants who were not detained after their initial encounters were repatriated only 30 percent of the time, with 15 percent granted relief and 55 percent unresolved; 40 percent of the unresolved cases were still being processed, and 11 percent were subject to unexecuted removal orders.

That was then, and this is now

I think the results are likely to be worse now.

Many more undocumented migrants are being released, and the numbers are likely to double when the Title 42 order is terminated, which is inevitable. Approximately 1.7 million (53 percent) of the 3.2 million illegal crossers the Border Patrol has apprehended at the Southwest border during the Biden administration were expelled pursuant to that order.

Also, the wait for a hearing is much longer now. As of the end of July, the immigration court backlog was more than 1.8 million cases, and the average wait for a hearing was 818 days.

If you don’t want to call this an invasion, what would you call it?

More to the point: If it’s not an “invasion” under current interpretation of the law, what recourse should states have to limit the flood of undocumented migrants being released into their territories?

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://www.blogger.com/blog/posts/2306123393080132994