States Must Use All Lawful Tools to Address Biden Border Crisis: Heritage Experts

States Must Use All Lawful Tools to Address Biden Border Crisis: Heritage Experts

Feb 15, 2022 3 min read

WASHINGTON—Mark Morgan, former acting CBP commissioner and visiting Heritage fellow, Lora Ries, Heritage senior research fellow and former DHS acting deputy chief of staff, Mike Howell, Heritage senior advisor for government relations and former DHS oversight counsel, and Hans von Spakovsky, Heritage senior legal fellow, made the following statement Tuesday about the dire situation at the border:

"The Biden administration has intentionally and recklessly degraded our border security capabilities, ceding operational control of our border to the Mexican cartels. This feckless policy has had predictable results. Under Biden’s watch, U.S. Customs and Border Protection (CBP) recorded more than 2 million encounters in 2021, while also experiencing at least 600,000 ‘got-aways’—individuals who evaded Border Patrol and are now at large in our country, including, murderers, rapists, pedophiles, violent offenders, gang members, such as MS-13 (the most violent, prolific transnational gang in our country), and aliens on the Terrorist Screening Database. The Mexican cartels are engaging in violent crime, human smuggling, sex trafficking, and drug trafficking on a massive scale, which is jeopardizing our country’s safety, health, and national security at epic levels, as evidenced by several grim statistics including over 100,000 drug-related deaths in a 12-month period—the highest ever recorded. American citizens are dying at the hands of illegal aliens, including the recent execution of a Texas police officer by an illegal alien fugitive also wanted for murder in El Salvador.


"The human toll and suffering, along with the vast complex set of threats we face driven by the cartels, are incalculable. The Biden administration has turned a blind eye to all of it, effectively surrendering our border and our sovereignty. President Biden has violated his constitutional duty by failing to take care that the immigration laws in our country are faithfully executed and to protect the states against the onslaught they, and all of us, are facing.


"State governors, especially in the border states, are left as the last—indeed, only—line of defense against the current administration's open-border policies. Although considerable effort is underway by states to defend themselves against the threats thrust upon them at the hands of ruthless cartels, they are limited by the very authorities the Biden administration refuses to enforce. The result has been devastating: foreign-based cartels have exploited the administration's failure to protect the states against the cartels’ operations of death and destruction, gravely harming our national security, safety, and public health. The cartels are winning, terrorist organizations have an open path into the U.S., and our federal government is letting it happen. This is a deep betrayal of our nation by its leaders, and is unparalleled in our history.


"This is the first time that scores of policies have been quickly undone with the entirely predictable outcome of causing the worst border crisis in modern history. Unfortunately, in 2012, in Arizona v. United States, the Supreme Court, in a closely divided decision, deprived the states of many of the tools they were using to combat illegal immigration. There have been changes in court personnel and the situation has dramatically deteriorated since then. States should take action to urge the court to overturn this terrible decision.


"Recently, Arizona Attorney General Mark Brnovich, a highly respected lawyer, issued a legal opinion arguing that border states have been 'actually invaded' by hostile non-state actors, which he contends gives the border states the constitutional authority to take more aggressive actions to combat the dangers they face. Without commenting on the merits of this novel and untested legal theory, we certainly align with his frustration and the desperate situation that these states, and all of the interior states, are currently facing.


"We encourage all states to utilize every legal means at their disposal to address this catastrophic crisis along our southern border. The urgency of the moment requires this. The United States of America simply cannot withstand this attack on our sovereignty endorsed and facilitated from the White House. The federal government got our country into this situation. States must use all lawful tools to get us out of it, including mounting a challenge to U.S. v. Arizona that, if successful, will give them the legal authority to defend their sovereignty and security."