AMAC Exclusive – By Louis J. Senn
In a quiet news dump just before the Christmas holiday, the Biden administration released Customs and Border Patrol statistics from November showing more than 233,000 apprehensions along the U.S.-Mexico border – the worst November on record. While House Republicans have pledged to address mass surges in illegal crossings via legislation, and the Supreme Court recently delivered some good news for border patrol and law enforcement agents, the Biden administration and congressional Democrats seem more determined than ever to ignore the crisis – setting the stage for what could be a catastrophic 2023.
According to official data, throughout October and November, the first two months of the 2023 Fiscal Year, border agents apprehended more than 410,000 individuals attempting to enter the country illegally. That two-month figure represents a more than 20 percent increase over 2021, and is more than the total number of illegal crossers Border Patrol apprehended in all of FY 2016, 2017, 2018, or 2020. In total, there were more than 2.76 million illegal border crossings in FY2022, shattering the previous annual record by more than 1 million.
Overwhelmed border towns and law enforcement agencies did receive some welcome news earlier this month when the Supreme Court moved to keep Title 42 in place temporarily. The Trump-era policy allows CBP to expel illegal border crossers quickly by using public health authorities first invoked by the Trump administration in the early months of the COVID-19 pandemic. Some experts had estimated that ending Title 42 would have caused illegal crossings to swell to more than 14,000 per day – a more than twofold increase over figures for November 2022, the last full month for which data is available.
Nonetheless, the Biden administration had moved to end the policy at the behest of far-left immigration activists. After the administration originally announced plans to end Title 42 in early 2022, a judge blocked the move. But then, in November, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., ruled that Title 42 must be rescinded, giving the administration a December 21deadline. On December 16, a three-judge panel at the U.S. Court of Appeals in Washington, D.C., rejected a lawsuit brought by 19 Republican states to delay lifting Title 42 – sending the issue to the Supreme Court.
The Supreme Court then voted 5-4 to temporarily keep Title 42 in place until the Court can hear oral arguments, likely in late February. Ironically, the administration also asked the Supreme Court to delay the order so that it would have additional time to prepare for an expected influx of migrants. Even in its arguments to the Supreme Court, the administration recognized the difficulty that is before them, stating, “The government recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings.”
But while this temporary stay is good news for border states, it is hardly a long-term solution to the crisis. The case before the Supreme Court is technical in nature, not a matter of policy. In its one page order, the Court made clear that it will only hear arguments on the issue of the states’ ability to “intervene to challenge the District Court’s summary judgment order,” but will not issue a ruling on the actual use of Title 42 and whether or not it should remain in place.
Even if the Biden administration keeps Title 42 in place (an increasingly unlikely prospect) the situation Biden’s actions have created is already dire. According to a CBP source, of 617,250 total illegal border crossers during the first 90 days of FY2023, just 186,573 were expelled under Title 42. The other 430,677 were released – a figure that does not even include an estimated 240,000 “gotaways.”
But as the situation at the border becomes more and more severe, the Biden administration and Democrats in Congress have continued to pursue their open-borders policies no matter the cost. Just days after Title 42 was set to end, Biden signed a whopping $1.7 trillion dollar omnibus bill that contained, among other things, $45 billion for Ukraine and $410 million for the border security of Jordan, Lebanon, Egypt, Tunisia and Oman – but essentially nothing to secure the U.S.-Mexico border.
Of the less than $2 billion in combined funding for CBP and ICE (0.12 percent of the overall package) most is dedicated to processing people who have already crossed the border. As Representative Steve Scalise (R-La) wrote, “There’s absolutely nothing in this bill for border security…They’re doing border security in foreign countries, and they’re impeding border security in our country.”
A frustrated Justice Neil Gorsuch wrote in his scathing dissent from the Court’s 5-4 decision last month that, while he sympathizes with the border states’ plight, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Gorsuch’s concerns are well-founded – in the face of possibly the worst border crisis in history, Democrats have not only failed to enforce immigration laws on the books, they have actively worked to encourage more illegal immigration and exacerbate the disaster. Now the task falls to the new Republican House majority to confront the crisis as it convenes this week.
Louis J. Senn is a lawyer living in Louisville, Kentucky. He previously served in the Trump administration.
