Team Biden’s Lose-Lose Approach to the Border

Give the Biden administration credit: If there is one skill they have demonstrated time and again, it is an aptitude for identifying the strategic low ground in political confrontations, and then positioning themselves so that they consistently fight their battles from that ground. That has once again proven to be the case in their recent confrontation with Texas over the ongoing historic border disaster.

Democrats, and their allies in the media, will be quick to assert that the Biden administration has the law and Constitution on its side, having secured a narrow 5-4 Supreme Court Decision allowing the federal government to remove border barriers constructed by Texas. This is technically true, but the political value of the Court’s ruling is dubious.

While Joe Biden would like to be Abraham Lincoln or even Andrew Jackson in a new sectional crisis, his moral and political position is weaker, largely as a result of his own actions.

Leaving aside how both Lincoln and Jackson have been cancelled on the left, it’s worth noting that Joe Biden and the Democrats have gone out of their way for years to suggest that the Supreme Court as an institution is not and should not be the final say on constitutional questions. They have also argued that Supreme Court decisions are purely political.

It will be difficult now for Democrats to generate a crusade in defense of a Court they themselves have disparaged, especially when the deciding vote in the Biden administration’s favor in this case was cast by Amy Comey Barrett, who Democrats insist was illegitimately appointed. Exclude her and the balance is 4-4, with Texas’ position sustained.

In short, the Biden administration’s efforts to justify itself on the basis of defending the rights of the Supreme Court place it at odds with the rest of its messaging, messaging it is likely to resume later this year if the Court overturns Chevron deference or issues any number of other rulings liberals are sure to be outraged about.

Similarly, it is far from clear that Democrats want to go to war, figuratively, on the principle of federal supremacy and power. Prior to 2016, many Democrats allowed themselves to believe that they would always control the levers of federal power, and it is clear that for at least some Democrats the Trump presidency did not disabuse them of the notion.

In recent years, however, it has largely been blue states defying Washington. That defiance was not just of Donald Trump, nor did it end in January 2021. The greatest clashes of the last few years on gun rights, abortion, and environmental regulation have pitted blue states and cities against the U.S. Supreme Court.

New York, for instance, has indicated a desire to defy gun rights decisions from the Court, while it seems probable that blue states will want to reserve the right to nullify any future Supreme Court disapproval of new Biden regulations allowing for the interstate mailing of the abortion drug Mifepristone.

A few Democrats seem vaguely aware of this, at least enough to lack the enthusiasm if not bloodlust their more foolish colleagues are displaying for the confrontation over the border. They recognize that not only is the principle at stake one of dubious value to their cause (would they want the president using troops to enforce Supreme Court decisions against California or Massachusetts?) but that the prize at stake is a poisoned chalice.

Biden is, after all, forcing a confrontation with Texas and 25 other state governors over his power to remove barriers from a border Biden cannot control at a time when overwhelming majorities of Americans, including a large portion of Democrats, want nothing more than for the border to be secured.

Battles, whether political or military, require an objective to be successful. If those pursuing them cannot even define what “success” is, failure is guaranteed. Biden presides over a party and movement which is not even sure what a successful border policy looks like.

Some, including an increasing number of younger activists, hew to the view that there is no “problem” at all except for what they regard as a xenophobic hate campaign stirred up by the right-wing media, and the purpose of Biden’s border policy should be to “protect” migrants from these nefarious forces which include the state of Texas.

Others believe that the only problem with illegal immigration is that it is illegal, and primarily want to regulate the arrivals, not stop them.

Finally, there are voters and the Democrat politicians closest to them who believe things must stop but lack a policy other than the one associated with the hated Donald Trump. They hoped to use the Senate talks on linking border security to Ukraine aid as a vehicle to sneak “Republican-lite” border policies past their base without the need for open confrontation, or to go far enough to fix the situation. With that option off the table, taking a tough stand on who controls the border allows them to temporarily avoid the question of what they would do if they controlled it.

The Biden administration has tried to reconcile these irreconcilable visions by remaining mum on why precisely the border patrol needs access to Eagle Pass and other illegal crossing hotspots. One moment it is to protect migrants, another it is because Texas is somehow undermining efforts to control the border, and in between the administration tries to avoid the question entirely by focusing on the constitutional and political elements.

True to form, this has left Biden in the worst of all possible positions – battling to uphold the power of a Supreme Court majority including Amy Coney Barrett, who the left argues is illegitimate, to carry out a policy which is unpopular and will make a situation worse, to set a precedent which will endanger the causes his own supporters hold dear.

Equally true to form, the administration developed no Plan B in the event their Plan A, the “bipartisan” Senate deal, fell through, and with that killed by Donald Trump, Biden has no option but to pursue a policy he knows will fail and to do so at enormous cost to the causes and principles he purports to care about. Biden is guaranteed to lose no matter the outcome. That, sadly, is the tale of his presidency for America.

Walter Samuel is the pseudonym of a prolific international affairs writer and academic. He has worked in Washington as well as in London and Asia, and holds a Doctorate in International History.