Ch 3.4 | 🔐Immigration

Jul 06, 2023

[Updated since original publication]

The immigration system in the U.S. is widely acknowledged to be broken, but there is little consensus on how to fix it. There appears to be no political will to address the issue, and our polarized positions have pushed us toward a dangerous flashpoint.

Let’s start with a foundational fact: Unless you are a descendent of indigenous people, you are an immigrant or a descendent of one. Throughout history, the debate about immigration has brought out some of the deepest anxieties and biggest disagreements in America. A decade or two ago, the immigration debate was mostly about economics; today it’s been politicized and subsumed by the culture wars and our polarized discourse.

I want to make one other thing clear: I believe it is beyond debate that we have a crisis at the border. I don't believe it's reasonable to conclude otherwise.

Trump once said,

A nation without borders is not a nation at all. We must have a wall. The rule of law matters!

I agree with Trump that we need a safe, secure border, and I also agree, albeit ironically, given the source, that the rule of law matters. I also believe that there is a need for strong border security, and that a wall should be a component of a comprehensive strategy. For the first time in a decade of polling on the subject, that seems to be the majority position.

Where we diverge is how to implement an immigration system that provides legal pathways to citizenship and is in the best interests of America.

It is imperative that we quickly develop a common sense consensus on how to secure our border in order to stem the tide of illegal immigration, while agreeing upon acceptable legal pathways to citizenship. It's clear that we are gaining alignment on the former, but we are far from a consensus on the latter.

Like many of the topics I have explored, the parties have moved so far to the extremes in their perspective on immigration that finding a common sense solution seems to have moved out of reach. The pendulum continues to swing farther and farther away from the middle.

What's going on at the border is a tragedy and a complete failure of policy in large part due to the dysfunction in Washington.

The politics of border security

Trump made a campaign promise to "build a wall and have Mexico pay for it." Despite the fact that Republicans had control of the White House, the Senate and the House, they barely built any of it and never addressed the flow of illegal immigration at the border.

From what I have been able to ascertain, the main obstacle came from his fellow Republicans in Congress. Key GOP senators expressed misgivings — especially moderates like Lisa Murkowski of Alaska and border-state incumbents like John McCain of Arizona and John Cornyn of Texas. Cornyn argued in early 2017:

I don’t think we’re just going to be able to solve border security with a physical barrier because people can come under, around it and through it.

So even during Trump's term, his own party lacked consensus on how to address border security.

But during the Biden Administration, what seems abundantly clear is that instead of working to find solutions to the border crisis, the GOP has been concentrating on inflaming its base.

Let's start here: In September 2022, Govs. Ron DeSantis (Florida) & Greg Abbott (Texas) pulled a political stunt ahead of the midterm elections and escalated their campaign to transport migrants across the country, deepening a war with the Biden administration and Democratic states. Abbott has spent more than $100 million of Texas tax dollars to send migrants to cities led by Democrats. These migrants have applied for asylum and are waiting for a hearing; they were in the U.S. legally. As Heather Cox Richardson reported, “ In September 2023, Texas stopped coordinating with nonprofits in those cities that prepared for migrant arrivals.”

Illinois Gov. J.B. Pritzker, a Democrat, responded by saying that Abbott chose

to sow chaos in an attempt to score political points by sending asylum seekers from Texas to the Upper Midwest in the middle of winter—many without coats, without shoes to protect them from the snow—to a city whose shelters are already overfilled with migrants you sent here. You are dropping off asylum seekers without alerting us to their arrivals, at improper locations at all hours of the night.

Pritzker wrote that he supports bipartisan immigration reform but

[w]hile action is pending at the federal level, I plead with you for mercy for the thousands of people who are powerless to speak for themselves. Please, while winter is threatening vulnerable people’s lives, suspend your transports and do not send more people to our state. We are asking you to help prevent additional deaths. We should be able to come together in a bipartisan fashion to urge Congress to act. But right now, we are talking about human beings and their survival. I hope we can at least agree on saving lives right now.

Speaking on the “Dana Loesch Show” in January 2024, Abbott said:

The only thing that we’re not doing is we’re not shooting people who come across the border, because of course the Biden administration would charge us with murder.

Is this really how we want our leaders in this country to behave?

And the media can't help but fuel the narrative. The Washington Free Beacon, a right-wing publication, published this video, "Biden Accidentally Admits His Administration Has Been Lying About the Border Crisis for Years."

According to the Free Beacon:

During Biden's three years in office, the United States has repeatedly set new record highs for illegal border crossings, including by migrants on the FBI's terrorist watch list, and drug smuggling from Mexico. Still, Biden's aides have insisted the border is "closed," "not open," and totally "secure."
When Republicans have criticized Biden for failing to address the reality at the border, news outlets have played defense for the president and his White House.

The politics are as frustrating as the facts on the ground. Obviously, the administration "insisting" that the border is secure is a fabrication. Moreover, facing an unprecedented surge at the border (discussed below), it is undeniable that the Biden administration has failed to resolve this critical issue. Isaac Saul from Tangle News in January wrote convincingly in "The border standoff in Texas":

Of all the failures of the Biden administration, I think the border situation reigns supreme. Not only have we exceeded all records of encounters and likely "gotaways" into the U.S., but the fighting between Republican governors and the federal government has sown disorder. Rather than disperse the burden, infighting has spread the crisis into various cities and states across the U.S. that are just not prepared to deal with this influx of migrants. This is caused by both the sheer number of migrants entering the country and the red state governors who unilaterally started transporting migrants out of their own states.
But, more than anything, it is a result of the Biden administration’s failure to lead. They haven't exercised executive authority in a way that has improved the situation, they haven't mustered any reforms through Congress, and they haven't been able to maintain a functioning relationship with state leaders that have an "R" next to their name. Just as the federal government’s authority in this dispute is supreme, the federal government — led by President Biden — is fundamentally atop the blame pyramid for what we are witnessing now.

The crux of the issue lies in diametrically opposed views of immigration policy on the left and right. Now that's not to say that the Biden administration and lawmakers from both parties haven't tried to find common ground.

Unfortunately, Republicans’ insistence that they want border funding has proved to be a lie, as Trump, extremists in the party and others bowing to pressure from their leader rejected the plan. Since the border crisis has become one of Biden’s biggest weaknesses, Trump and his allies thwarted the bipartisan solution. On Jan. 25, 2023, Heather Cox Richardson discussed in her Letters from an American whether the GOP's attempt to turn the migration influx at the southern border into an issue that can win for them in November:

In December 2023, extremist House Republicans refused to pass a supplementary funding bill that is crucial to Ukraine’s effort to resist Russia’s 2022 invasion, insisting that the “border crisis” must be attended to first, although they refused to participate in the negotiations that Biden and senators promptly began.
Then, after news hit that the negotiators were close to a deal, House speaker Mike Johnson (R-LA) and Fox News Channel personality Laura Ingraham told the television audience that they had both spoken to Trump and he opposed a deal. Negotiations continued, and last night, journalists reported that Trump was pressuring Republican lawmakers to reject any deal because he wants to run on the issue of immigration and “doesn’t want Biden to have a victory.”
Today, Senator Mitt Romney (R-UT) told CNN’s Manu Raju that “the fact that he would communicate to Republican senators and congresspeople that he doesn’t want us to solve the border problem because he wants to blame Biden for it is really appalling.” Attacking Romney on social media, Trump said: "[W]e need a Strong, Powerful, and essentially 'PERFECT' Border and, unless we get that, we are better off not making a Deal, even if that pushes our Country to temporarily 'close up' for a while, because it will end up closing anyway with the unsustainable Invasion that is currently taking place,” which he called “A DEATH WISH for the U.S.A.!...”
Now, after insisting the border issue must be addressed and riling up their base to believe it is the biggest crisis the U.S. faces, MAGA Republicans are in the position of having to refuse to address the problem. So they are escalating their rhetoric, claiming that the bipartisan deal to address the border is not good enough.

The Oklahoma Republican Party condemned one of its own, GOP Sen. James Lankford, for the "crime" of ignoring Trump's orders and working with Democrats on a bill that would dramatically increase security at the border: "Until Senator Lankford ceases from these actions, the Oklahoma Republican Party will cease all support for him,” the censure resolution states.

When asked why Republicans should let Biden “take a victory lap” with a border deal, Lankford, who has been part of the border deal negotiation team, responded:

Republicans four months ago would not give funding for Ukraine, for Israel, and for our southern border because we demanded changes in policy. So we actually locked arms together and said we’re not going to give you money for this, we want a change in law. And now it’s interesting, a few months later, when we’re finally getting to the end they’re like, ‘Oh, just kidding, I actually don’t want a change in law because [it’s] a presidential election year.’ We all have an oath to the Constitution, and we have a commitment to say we’re going to do whatever we can to be able to secure the border.

In "The GOP’s Great Betrayal," the Atlantic noted:

So vital aid to Israel and Ukraine must be delayed and put in further doubt because of a rejected president’s spite and his party’s calculation of electoral advantage. The true outcome of the fiasco in Congress will be the collapse of U.S. credibility all over the world. American allies will seek protection from more trustworthy partners, and America itself will be isolated and weakened.

If you're looking for an opportunity to digest the politics of the border crisis from both sides of the aisle, here are the open remarks at a hearing of the House Oversight and Accountability Committee on "The Biden Administration’s Regulatory and Policymaking Efforts to Undermine U.S. Immigration Law."

Chairman James Comer (R-Ky.)
Ranking member Jamie Raskin (D-Md.)

It's well worth the time to understand how both sides are posturing around the border.

In the right-leaning National Review, Noah Rothman discusses rejected bill in his article "A Hawkish Bill Meets a Dovish GOP":

If you could speak to any sentient political observer from ten years ago, when the “Gang of Eight” immigration-reform bill failed, and tell him that Congress had since abandoned amnesty entirely, your interlocutor would probably conclude that the GOP had won the great immigration debate. Indeed, if you went on to inform your perplexed time-traveler that not only had congressional negotiators produced an enforcement-only immigration bill, but they’d also baked into it provisions designed to contain Russian, Chinese, and Iranian aggression, he would probably conclude that the Republican Party was the dominant force in American politics.
If you then notified him that Democrats controlled both the Senate and the White House while the GOP maintained only the smallest of conceivable House majorities, you might have a medical emergency on your hands. Only when you told your companion that the GOP had somehow convinced itself that it was in its best interests to reject all this would your company recover from the shock of it all. Republicans’ getting in their own way is the perennial constant, after all.

The Wall Street Journal editorial board called it “a border security bill worth passing.”

“This is almost entirely a border security bill, and its provisions include long-time GOP priorities that the party’s restrictionists could never have passed only a few months ago. Republicans demanded border measures last year as the price for passing military aid for Ukraine, Israel and Pacific allies. Democrats resisted at first but later agreed to negotiate and made concessions that are infuriating the open-borders left. Will Republicans now abandon what they claimed to want?,” the board wrote.
“Oklahoma Sen. James Lankford, who negotiated for the GOP, deserves thanks for digging into the policy nuances and writing a bill that Mr. Trump never came close to getting when he was President,” the board said. “Republicans may think they can write a better law if Mr. Trump wins in November, but don’t count on it. Democrats will again demand much more in return. If Republicans pass up this rare chance at border reform, they may not get a better one."

And yet, House Speaker Mike Johnson (R-La.) said the bill was "dead on arrival" in the House and former President Donald Trump has been criticizing the bill harshly since before the text was released. Many Senate Republicans also said they would not support the bill before the text was released, and some misrepresented its content before its details were made public. Minority Leader Mitch McConnell (R-KY), who is supportive of the bill, conceded it faces headwinds because it is now an election year.

Instead of addressing border security through legislation, House Republicans focused their efforts on impeaching Homeland Security Secretary Alejandro Mayorkas, claiming that he committed high crimes and misdemeanors because he allegedly breached the public trust and refused to enforce immigration law.

Heather Cox Richardson reported that Rep. Seth Magaziner (D-R.I.) noted that

across the system, we are at and above capacity, and so, what should the secretary do? The secretary, because he has not received the funding to provide adequate detention capacity, has to use his judgment for who to detain and who to release. That is not illegal. It is certainly not impeachable. And it is the exact same kind of discretion that every other director before him has used. In the last two years of the Trump administration, 52% of migrants apprehended at the southern border were released, not detained…. Nearly a million people. I did not hear my Republican colleagues trying to impeach the secretary or acting secretary under the Trump administration during those years. But here they are, trying to impeach Secretary Mayorkas for doing the exact same thing.”

She continued:

Rather than passing the laws the country needs, the extremist Republicans appear to be determined to tee up an issue on which Trump can run for president in 2024. House speaker Johnson has demanded “ZERO” illegal crossings into the U.S., but this is a standard that no previous homeland security secretary has met because it is impossible to wall off every single means of entering this country by water, air, or land. And—despite Republicans’ false claims that Biden has established “open borders”—immigrants were more likely to be released into the country during Trump's term than during Biden’s.
What is going on here is an attempt of the extremist Republicans to undercut the administration by attacking a key cabinet officer not for actual misbehavior but on policy grounds.

As usual, Tangle’s Isaac Saul did a great job explaining the why we need a better immigration system and how we can move forward:

The main issue for our overwhelmed border isn’t drugs. The vast majority of the drugs coming into the U.S. and killing Americans in astonishing numbers come through legal ports of entry. It’s also not ‘illegal immigrants.’ The migrants who are coming here illegally are mostly being found and apprehended — many simply give themselves up. Our issue is not being unable to control the border in the sense that we can't spot and apprehend migrants coming through, it's that, after we do apprehend them, we simply can't do anything with this many people. We don't have the infrastructure to properly house or care for them. We don't have enough judges, lawyers, and officials to adjudicate their asylum claims and decide whether to deport them or allow them to stay here legally. And if we do make a decision, we don't have the resources to deport, incarcerate, or keep track of them if (and often when) we let them go.
Every dollar we put into the construction of physical wall would be far better spent on solutions to logistical problems.
If we genuinely want to increase the security of our border, we should increase the technologies and resources we know are good at spotting crossers: Hiring more border agents, expanding surveillance, and creating more checkpoints. That would actually help. 20 miles of wall in an already well monitored area with plenty of citizens on the ground will only change crossing locations (nobody is going to travel thousands of miles from Venezuela and turn around because of a 20-foot fence, even if it’s 20 miles long). It isn't going to stop or meaningfully change the flow of migration, and it's going to do harm to a lot of local people along the way.
Of course, one potentially helpful policy outcome here might be that the construction of the border wall — if properly publicized — sends a signal to would-be migrants about this administration's evolving posture toward immigration. It is very possible that could temporarily cause a downturn in the numbers, but I sincerely doubt it would have any meaningful impact.
As has been true for decades now, any really meaningful border reform will come from the president acting in concert with Congress. For Biden, using an executive action to build a bit of wall is a political loser — he's getting credit from nobody and criticism from everyone — and a policy nothingburger.

Biden's ‘open border’ policy

The narrative that we all hear is that Biden has an “open border” policy. But, is that true? If you read GOP talking points, you’d believe that Biden upon his inauguration simply opened our borders and began letting millions of illegal immigrants pour into America.

In “Biden’s Open Border Betrayal,” the conservative Heritage Foundation asserted:

Biden’s open borders are by design. He came into office, signed executive orders and dismantled the immigration system the Trump administration built. The magnitude of this crisis simply cannot be overstated. The floodgates are wide open, and migrants surging to our border know that more likely than not, if they cross over they have a real shot at staying in the United States.

Contrast that with an article published by The Hill, "Border Patrol says surge in border crossings is overwhelming its resources," which cites another conservative think tank:

[T]he Biden administration — which a conservative think tank found has been more aggressive at removing migrants than the Trump administration — has signaled concern through its actions and statements.

The think tank referenced by The Hill is the CATO Institute, which published a report titled, "New Data Show Migrants Were More Likely to Be Released by Trump Than Biden."

In reality, in 2021 and 2022 there have never been more apprehensions at the border.

So the data doesn't seem to support, in any binary fashion, that the Biden administration has an "open border" policy or is "lax on enforcement" at the southern border. The math demonstrates that there have been a record number of arrests (over 5 million in the first two years of the Biden administration, compared to 1.4 million border arrests made during the entire four years of the Trump administration).

The GOP has argued that apprehensions are a proxy for unlawful entries. When border apprehensions are up, it means we’re experiencing higher levels of illegal immigration. This administration apprehending millions of migrants isn't a sign of a porous border — it's the sign of an overwhelmed one.

As reported by The Atlantic:

One of the maddening and self-contradictory aspects of conservative propaganda on this issue is that Republicans frequently cite metrics that indicate just how closed the border is, as if they demonstrated the opposite. Earlier this month, House Republican Oversight Committee Chair James Comer released a statement condemning Biden’s “open border policies” while announcing that “Fiscal Year 2022 set records for the number of arrests of illegal border crossers, the number of migrants who died making the journey, the number of dangerous narcotics seized, and even the number of suspected terrorists arrested trying to illegally cross the border.”
The reason that migrants are being arrested and dying on the way, and that drugs are being seized, is that the border is not open. That migrants are seeking to enter the U.S. is presented in and of itself as evidence that the law is not being enforced, but they are drawn by America’s prosperity. If there was no desire to come here at all, that would indicate a far more serious problem: America would no longer be the kind of place people all over the world aspire to live in.
The Biden administration has not been as harsh or lawless as the Trump administration was, and it has prioritized deporting undocumented immigrants who cross illegally and those with criminal records. Nevertheless, it has continued an enforcement-heavy approach, which means that the record numbers of migrants have been met with large numbers of deportations. It has narrowed the ability of migrants to apply for asylum if they enter illegally and worked with countries in Central America to slow migration. The administration has shown itself willing to negotiate with Republicans over stricter immigration policies—potentially even reviving some Trump-era practices that Democrats once rightly denounced as inhumane.
I do not believe these harsher enforcement measures would stop migration—short of truly monstrous methods, a better life for one’s children will always be worth the risk for some—but Biden is willing to give Republicans changes that they say they want to the law. What they really want however, is to be able to falsely accuse the Biden administration of allowing an “invasion” of migrants they claim he could halt at any time.

With respect to the Heritage Foundation's assertion that Biden "dismantled the immigration system the Trump administration built," some of that is undeniably true. However, the "system" that Trump built was really a dismantling of the legal immigration system. We will discuss that in more detail below. But in terms of what Biden has done to dismantle what Trump built, take for example the fact that Biden ended the practice of separating families at the border, which was a policy of the Trump administration. Biden also reversed a number of Trump-era policies that made it more difficult for people to seek asylum in the United States.

In terms of Title 42, it's worth noting that it continued to be in effect until May 2023 when the public health emergency for Covid-19 was lifted after being put in place in March 2020. At that time, the United States was faced with the implications of a return to Title 8 — the standard, decades-old rules for enforcing immigration law. In the face of that prospect, as the Guardian reported ("Title 42 migration restrictions have ended, but Biden’s new policy is tougher"), Biden pledged as a candidate to dismantle Trump’s hardline immigration agenda, but the new rules he implemented are in fact more restrictive:

Biden is now replacing Title 42 with an arguably tougher, more restrictive policy. His administration on Friday started implementing a rule barring migrants from asylum if they don't request refugee status in another country before entering the US.

According to the Migration Policy Institute:

Although Biden entered office promising to end the use of Title 42, which prevented individuals from being able to seek asylum by permitting rapid expulsions, court challenges and on-the-ground realities interfered, prompting outcry from immigrant advocates that the president’s border posture was little different than Trump’s.
In late 2022 and early 2023, the administration expanded Title 42 to Cubans, Haitians, Nicaraguans, and Venezuelans, and paired the move with a new humanitarian parole program allowing nationals of those countries to apply for parole from outside the United States. The administration also announced that migrants would have to schedule their arrival at a port of entry through the CBP One mobile app used by U.S. Customs and Border Protection (CBP).
In practice, Title 42 was used primarily for nationals of Mexico and Central America. Between January and May, just 34 percent of Cubans, Haitians, Nicaraguans, and Venezuelans encountered by the U.S. Border Patrol between ports of entry were subject to Title 42, compared to 68 percent of Mexicans and Central Americans. While Title 42 was in effect from March 2020 to May 2023, the Border Patrol carried out 2.8 million expulsions.

That said, Isaas Saul of Tangle News, in "Joe Biden and Donald Trump are not the same," cites a CBS article in stating:

... once Title 42 expired, Biden implemented a new policy that was more of a "carrot and stick" approach. He opened the door for tens of thousands of migrants to come to the U.S. legally using the CBP One app, in a program that previously did not exist. 450,000 migrants have been allowed into the U.S. using this program, which Trump never would have approved and Republicans have criticized harshly. Again, there is a big difference between 450,000 and zero

In April 2023, CNN published "‘It feels like Groundhog Day’: Federal officials frustrated by whiplash as Biden turns to Trump-era border policies," in which it covered how asylum officers express their frustration at Biden for not dismantling Trump's policies:

US asylum officers are frustrated by policy whiplash under President Joe Biden, and some are considering leaving their posts, as administration officials contemplate restarting controversial Trump-era border policies that would largely limit who could seek refuge in the United States.
“It feels like Groundhog Day,” another asylum officer told CNN. “With the Trump era, it felt like we had really gotten to rock bottom and when Biden took over, it seemed like a light ahead of us. It feels very disheartening.”
“It’s really disappointing because it’s asking asylum officers and civil servants to conduct work that is not in accordance with our mission or international agreements,” another asylum officer told CNN, referring to the proposed rule.

The article continues:

The rule will likely take effect in May and is expected to last for two years.
The dissatisfaction among asylum officers over stringent asylum policies is reminiscent of the Trump years. CNN spoke with asylum officers located across the country who said they had hoped Biden would correct course from his predecessor, but the latest slate of policy considerations, they say, is discouraging.
“I’m blindsided. I didn’t expect this at all,” one asylum officer told CNN.
Asylum officers are often conducting difficult interviews with migrants describing the trauma and conditions they’re fleeing in their home countries.

On the other side, if you want to read the full-throttled position of the GOP regarding the Biden administration's immigration policies, Politico published a Senate Republican Conference memo that didn’t pull any rhetorical punches. If you read this memo (titled “Biden’s Border Crisis Is the Worst in American History; His Policies Continue to Make it Worse”) and take each assertion as fact, then on its face the border crisis lies solely at Biden's feet. That said, I did find that as I read through and researched the subject, some of the claims don't hold water. For example, the memo claims: "He's ending Title 42." We've already discussed this issue at length.

The memo also claims that Biden was "stopping the construction of the border wall". Yes, it is true that Biden, upon taking office, issued a proclamation ending the redirection of funds for border wall construction and pausing all such construction to the extent permitted by law. But due to legal and budgetary constraints, construction and related activities continued! The funds for the border wall were appropriated by Congress during the Trump administration, specifically for the construction of a barrier system along the southwest border. Biden requested Congress to reprogram these funds, but Congress did not agree to do it! Consequently, the Biden administration was legally required to use the funds for their intended purpose as per the 1974 Impoundment Control Act, which states that an administration cannot substitute its own policy priorities for those enacted into law by Congress.

So, while the Biden administration halted the expansion of the border wall and redirected the focus towards other immigration and border management strategies, it continued construction activities. So that too is false.

Next, I researched another claim made in the memo regarding whether Biden gave U.S. Citizenship and Immigration Services officials the authority to grant asylum to migrants who cross the border without an immigration court/judge reviewing that claim. It is true that the administration implemented a new policy that allows USCIS asylum officers to adjudicate certain defensive asylum claims. This policy change was implemented because the system was overwhelmed and it represents an effort to alleviate the burden on immigration judges and to expedite the asylum decision process. If the USCIS officer does not grant asylum, the case is then referred to an immigration court. This rule was gradually incorporated as part of an initiative to manage the high number of asylum applications and the significant backlog in the immigration court system.

Prior to this change, asylum cases were primarily handled by immigration courts, where a judge would review each claim. The new policy enables USCIS officers to make determinations on asylum claims in specific circumstances, particularly for those who have been apprehended and have passed a credible screening. The rule aims to provide a more expedient process for asylum determinations, though it has raised concerns regarding its impact on due process due to the shorter timelines involved. This policy change does not mean that all asylum claims bypass immigration courts. Rather, it introduces an alternative pathway where certain cases can be decided by USCIS officers. Cases not granted asylum by USCIS officers are still referred to the immigration court system for further review. This initiative is part of the broader efforts to manage the significant backlog of asylum cases and to streamline the asylum process within the existing legal framework.

The memo does contain accurate statements as well. For example, with respect to ICE enforcement, the memo accurately recounts that enforcement dropped precipitously in 2021.

I wasn't able to fact check every claim in the memo, so I'm sure there is merit to other assertions. Like every other issue we've explored in this project, nothing is simple and we shouldn't trust the narrative we are fed by the duopoly. We all need to research the talking points that we're fed and ascertain for ourselves if the claims are true or false, whether they are black, white or gray. One thing I'm certain of is that it's rarely as binary or simplistic as presented.

The surge

If you take the GOP position at face value, the unprecedented surge at the southern border is solely a direct result of Biden's policies. But is it true?

According to the Carnegie Corporation, which published "What Does the End of Title 42 Mean for U.S. Migration Policy?":

There is a major mismatch between the U.S. labor market, which is increasingly dependent on immigrant workers as the U.S. population ages, and the legal pathways available to those people who would like to come to the United States — and this mismatch accounts for much of the rise in unauthorized migration to the U.S.
But these pressures have been augmented by a series of major crises around the world. These include the Russian invasion of Ukraine; the Taliban takeover in Afghanistan; and a mixture of authoritarian government and collapsing economy in countries like Venezuela, Nicaragua, Cuba, and Haiti. And climate change has further exacerbated migration from some traditional sending countries — in Central America and the Caribbean — that are experiencing significant changes in weather patterns.

According to The Hill:

The broader picture, the agency argues, is a pattern well beyond its control.
A global refugee crisis is playing out around the world, with about 110 million people worldwide who were forced from their homes as of the end of 2022 — the most since the chaos during and after World War II, according to the United Nations.
In the Western Hemisphere, that global crisis has its own regional tinge, playing out amid economic collapse and authoritarian rule in countries such as Venezuela and Nicaragua, and a rise in civil violence and targeted killings in Mexican states such as Michoacan and Guerrero, according to CBP.

In addition to the global refugee crisis, ABC news reported on "What's behind the historic, 'serious challenge' at the southern border":

Experts have described these "push factors" as primarily driven by poor economic conditions in Central and South America, natural disasters fueled by climate change as well as a general lack of security, according to the Congressional Research Service.
The numbers are record-breaking.

According to The Atlantic:

... illegal immigration is rising because the U.S. economy is unusually strong compared with those of other Western nations, owing to the massive fiscal response to the coronavirus pandemic and the Federal Reserve’s success in bringing down inflation without a corresponding rise in unemployment. A land of opportunity will draw people seeking opportunity, especially people in desperate situations in their own countries.

A flashpoint

Is it really going to take a civil war to address the southern border? Consider what's happening in Texas.

On December 18, 2023, Texas Gov. Gregg Abbott signed into law S.B. 4, a measure that attempts to take into state hands the power over immigration, which the Constitution gives to the federal government. Courts have repeatedly reinforced that immigration is the responsibility of federal, not state, government, but now, according to Uriel García of the Texas Tribune, “some Texas Republicans have said they hope the new law will push the issue back before a U.S. Supreme Court that is more conservative since three appointees of former President Donald Trump joined it.”

On Jan. 3, 2024, the Department of Justice filed a lawsuit over the new law, saying: “Texas cannot run its own immigration system. As Texas Public Radio reports:

Its efforts, through S.B. 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

Ultimately, the U.S. Supreme Court ruled that Texas can’t block federal agents from the border. The high court’s order effectively maintains long-running precedent that the federal government — not individual states — has authority to enforce border security. But this battle isn't over yet.

Consider this statement from the Republican Governors Association in which some 25 other Republicans are standing with Abbott: “The lawless southern border threatens the lives of all Americans, including Idahoans,” said Idaho Gov. Brad Little. “Virginia stands with Texas,” said Virginia Gov. Glenn Youngkin. Others are joining the rebels.

Newsweek has reported that "GOP Governors have already sent troops to Texas amid 'civil war' fears.

Meanwhile, The Atlantic (in "The Supreme Court Has Itself to Blame for Texas Defying Its Orders") reported:

Abbott’s neo-secessionist bluster, cheered on by GOP governors and Republicans in Washington, including House Speaker Mike Johnson, has set up a confrontation with the federal government over immigration policy. “We encourage all willing States to deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the Border,” Donald Trump wrote on Thursday. There’s not much evidence that Abbott’s stunts have been effective at all—as the Texas Tribune reported, his administration has“provided little proof to substantiate” wild claims about stopping drugs and crime, and has fought public-records requests investigating its boasts. My colleague Jerusalem Demsas wrote earlier this month, “If Abbott’s show of force is supposed to deter would-be immigrants, it doesn’t seem to be working.” As with terrorism or crime however, for some people the metric of success for a particular policy on immigration is not whether it fixes the problem but whether it is sufficiently cruel.

Here is a Tangle podcast where Josh Hammer from Newsweek makes his case that Texas is well within its legal right to do what it's doing, and that the Supreme Court has erred in past rulings. Take a listen.

We are heading for a constitutional crisis … or worse.

In "The legal fight over whether Texas can seize control of the border, explained," Vox explains:

Under existing law, it is well established that the federal government is in charge of nearly all questions of immigration policy and may override state immigration policies that conflict with its goals. As the Supreme Court said in Arizona v. United States (2012), “[I]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
But it is unclear whether the current Supreme Court, with its 6–3 Republican supermajority, will honor this longstanding balance of power between the national government and the states, which has been in place at least as far back as the Court’s 1941 decision in Hines v. Davidowitz.
Though the Court’s Monday order in Department of Homeland Security v. Texas was a victory for the Biden administration, it was also an ominous sign that many of the justices are eager to shift power away from the federal government — and toward state officials like Abbott, who are eager to impose more draconian enforcement policies.

Vox continues:

On Wednesday, shortly after the Supreme Court ruled against him in the razor wire case, Abbott released an angry statement accusing the federal government of breaking “the compact between the United States and the States” by opposing Abbott’s preferred border policies. He also claimed that he has the authority to act against the federal government’s wishes because he “declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself.”
This is, to put it mildly, a terrible legal argument.
The clause of the Constitution that Abbott references provides that “no State shall ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” One thing that immediately stands out after reading this language is that it does not authorize any state to do anything. Rather, this clause is a prohibition on certain state actions; it forbids states from waging “War” except in limited circumstances.
It is very odd to read a provision of the Constitution that limits state power as giving a state the power to violate federal law.
Abbott’s argument that a rush of migrants trying to enter the United States constitutes an “invasion,” moreover, was rejected by no less of an authority than James Madison. In an 1800 document, Madison wrote that “invasion is an operation of war ... And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.”
In other words, undocumented migrants from non-hostile nations are neither an “invasion” nor are they something a state can wage “War” against.

So can you say with absolute certainty that Biden's policies alone caused the surge, or is that a talking point designed to inflame the public? To me, it's way too simplistic a view to state that Biden's policies alone led to this wave of migrants seeking asylum in the United States.

The politics of a legal immigration system

When you dig deeper and get beyond the politics of border security you see that the real crux of the issue is a diametrically opposed view on the right and the left about the path to citizenship.

Let's start with the inscription on the Statue of Liberty.

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore.

The question remains: Can we examine immigration policy with a recognition that our country has benefited, and will continue to benefit greatly, from immigration?

During the Trump administration, the president’s frequent attacks on the legal immigration system were well documented. It is important to remember that before the pandemic, Trump faced his own wave of migrants that overwhelmed border patrol agents and forced the administration to release thousands of undocumented migrants into the U.S., something he promised not to do. His plan to create disincentives for migrants with harsh rhetoric and a proposed wall didn't actually do that much to stop illegal immigration.

He also claimed that he had one of the lowest rates of immigration in history. From what I've read, that might be technically correct, but it's not because he prevented people from illegally crossing the border. In fact, as we'll discuss later, the Biden administration has arrested more than twice the number of migrants illegally crossing our southern border. Trump built a "paper wall." As a result, what we had under Trump was the lowest legal immigration rate in history, but his administration and the GOP never addressed the rate of illegal immigration.

The Trump administration’s attacks on legal immigration pathways included an expanded travel ban from African and Muslim majority countries and a rapid dismantling of the asylum system. The Trump White House also issued an order allowing an increased, systemic rapid expulsion of asylum seekers including migrants found at the border and children. His policies were overtly racist. By keeping more people out, deporting people who are here, and creating an atmosphere of nativism and fear that affects everybody, Trump attempted (and in many ways succeeded) in dramatically reducing immigration to the United States, particularly by people of color.

Biden previously accused Trump of waging “an unrelenting assault on our values and our history as a nation of immigrants.” According to Migration Policy Institute:

On his first day in office, President Joe Biden announced sweeping plans to reform decades-old U.S. immigration laws, undo many of the restrictive policies of the predecessor Trump administration, and provide a pathway to legal status for the nation’s estimated 11 million unauthorized immigrants. Two years later, few of those ambitions have been realized and the administration presents an image of one struggling to find its footing on immigration. Despite the slim Democratic majority in both houses of Congress during the president’s first two years, lawmakers remained paralyzed on immigration and did not advance the Biden agenda. Meanwhile, Republican state officials successfully used the courts to halt many of the administration’s executive efforts.
However, the Biden administration, like the predecessor Trump and Obama presidencies, has relied on the toolbox of executive actions to implement its priorities and transform key elements of the sprawling immigration system. In fact, midway through its term, the Biden administration has far outstripped the pace of executive actions taken during the Trump administration, which was perceived as the most activist yet on immigration. From January 20, 2021 through January 19, 2023, the Biden administration took 403 immigration-related actions, according to calculations by the Migration Policy Institute (MPI), putting it on track to soon overtake the 472 immigration-related executive actions MPI counted for all four years of the Trump administration.

The article is worth reading. It’s one of the best I’ve found at describing the situation holistically.

A year later, the Migration Policy Institute issued another report, "Biden at the Three-Year Mark: The Most Active Immigration Presidency Yet Is Mired in Border Crisis Narrative."

By taking 535 immigration actions over its first three years, the Biden administration has already outpaced the 472 immigration-related executive actions undertaken in all four years of President Donald Trump’s term. Partly as result of these efforts, legal immigration is returning to and in some cases surpassing pre-pandemic levels, including refugee admissions on pace to reach the highs of the 1990s; a new border process seeking to discourage irregular arrivals has been adopted; temporary humanitarian protections have been extended to hundreds of thousands of migrants; and enforcement priorities have been focused on narrower categories of unauthorized immigrants. Combined, these changes have fulfilled some of President Joe Biden’s campaign promises, helped bolster the U.S. economy, and reduced fears of seemingly arbitrary enforcement against removable noncitizens.
Yet the border crisis confronting the Biden administration has left the most activist presidency yet on immigration accused of inaction by critics—to the extent that the House of Representatives this month launched impeachment proceedings against the administration’s Homeland Security secretary.

The report continues:

The speeded pace of executive actions taken by the current and last administration is, in part, a response to continued inaction in Congress, which has not passed a major immigration overhaul in nearly three decades.

Whichever side of the aisle you're on, it seems obvious that our antiquated immigration system needs to be addressed and we need leaders willing to compromise and find common sense solutions.

We often hear claims that Biden is not enforcing our immigration laws, an inaction causing our border crisis. As Isaac Saul wrote in "My Solutions to the Border Crisis":

Many Americans believe Biden is flouting U.S. laws and not enforcing the border, but some of his biggest problems come from the current laws that he actually is enforcing. In particular, our asylum laws come from the U.N.’s 1951 Convention Relating to the Status of Refugees. Those rules require us not to penalize asylum seekers for crossing the border illegally if they present themselves without delay for processing.
In other words, crossing the border illegally and immediately surrendering to law enforcement to claim asylum — which many immigrants do — is actually lawful. Unfortunately, it also amounts to a massive loophole in our system, and those who take advantage of it must be granted an asylum hearing. While many migrants are deserving of asylum, many more are abusing this system. The majority of those claiming asylum end up not qualifying once their claims are actually heard.

Biden is under assault from the GOP, which is exploiting the crisis at the border. But his policies are also creating challenges for him within the progressive wing of the Democratic Party. Republicans criticize so-called "catch and release" for allowing migrants to get lost in the U.S. interior, while Democrats and immigrant advocates have been upset with the Biden administration for not cutting back on what they see as the punitive practices used under Trump.

In December 2023, CNN reported that "Joe Biden’s Embrace of Stricter Border Measures Puts Him at Odds With Key Reelection Allies":

Biden, who pledged to restore the US immigration system during the 2020 campaign, is now considering immigration restrictions that stand to have lasting implications for migrants, a move that could backfire with his progressive base. While the tone and policies from the president are still markedly different from former President Donald Trump – who over the weekend doubled down on saying immigrants are “poisoning the blood of our country,” language condemned for its ties to White supremacist rhetoric – the concessions from the White House to get aid passed are now frustrating the people who are expected to hit the trail for Biden next year.

In January 2023, Axios published an article "Biden's sudden centrist push on immigration:

Immigration has long been a political minefield — and the administration has struggled to politically address the record numbers of border crossings.
The right accuses Biden of having "open border" policies and rhetoric. Left-wing immigration activists decry the administration's use of Title 42, expedited dockets for asylum seekers, for-profit detention spaces and restricted access to asylum.
Democrats have tended to avoid the touchy subject beyond hammering Trump policies, such as family separation. "We need to have a message as Democrats," Cuellar said. "We can have both. We can treat migrants with respect while also providing security." Biden's decision to announce controversial, new border policies from the White House and then visit the border was striking. "The country needed to hear from him," Escobar said.
Meanwhile, Republicans have been more than happy to keep attention on immigration, most notably through efforts by some governors to bus migrants from border states to Democratic enclaves, driving national headlines.

The Guardian states in "Biden’s ‘carrot and stick’ approach to deter migrants met with anger":

Under pressure to address a surge of migrants at the US-Mexico border, Joe Biden announced a far-reaching crackdown on migrants seeking asylum last week, expanding the use of a controversial public health measure known as Title 42 to restrict people from Cuba, Nicaragua, Haiti and Venezuela from illegally entering the US, while offering those legally seeking relief a new pathway to America.
Before the president’s first trip to the US-Mexico border since he took office in 2020, immigration advocates condemned the Biden administration’s decision to expand Title 42 as disheartening and a failure to uphold his campaign promises. They took some solace in the creation of a legal pathway to asylum for those in four countries, but still, for them, Biden’s actions were not enough – they leave out other migrants, and the parole program is beset by requirements that impose significant barriers to migrants without access to resources, perpetuating inequities within the US immigration system.

In an opinion in the Washington Post, "The left needs to win, not duck, the immigration debate" Perry Bacon Jr. wrote:

The Biden approach is flawed on multiple fronts. The administration’s rules on applying for asylum are overly strict and are likely denying access to the United States to people who have legitimate grounds to be here. These policies have created an intraparty fissure, with progressives and even some more centrist figures slamming Biden as overly harsh, while more conservative Democrats such as Rep. Henry Cuellar (Tex.) echo Republican talking points and say the administration has not been restrictive enough. Voters are more dissatisfied with Biden on immigration than most other issues, according to polls.

Is your head spinning yet? So the GOP says Biden is too lax, and the Democrats say he's too restrictive. Here's Isaac Saul's take:

The state of the immigration debate is a great reminder of how tough it is to be a "moderate" president on anything — but especially on an issue like immigration.
In one corner you have Republicans hammering Biden for the staggering number of border apprehensions, which is both reflective of migrants’ increased desire to get here and of the Title 42 policy, which leads to so many people re-attempting a border crossing after they have been expelled. 1.9 million arrests is a huge number, and for immigration restrictionists it is even more frightening when paired with images of makeshift migrant camps under the Del Rio International Bridge or single male adults being flown across the country after apprehension.
In the other corner, you have Biden's own immigration appointees resigning because his policies are so inhumane they can't stomach them. Or the six immigration officials who announced they were leaving but gave no reason why. And then, of course, you have immigration lawyers and activists lined up around the block ready to hammer Biden for not immediately ending Trump-era policies like "Remain in Mexico" (Of course, Biden tried, but a federal judge stopped him).

If we had strong leaders who could put country over party, we absolutely could construct a common sense policy on immigration while securing our borders. Instead, the situation has become desperate, a true human tragedy and the lack of alignment and leadership is becoming a national crisis.

The importance of migrants was underlined during the Covid-19 crisis under Trump when it was revealed that the founders of both BioNTech and Moderna, two of the companies at the forefront of the development of the vaccine against the virus, are immigrants to the United States and Germany respectively. I came across a very interesting article that examines the historical role of immigrant inventors in the United states. Immigrant inventors appear to have been of central importance to American innovation during the 19th and 20th centuries, both through their own inventive activity and through their influence on domestic inventors. This article lays out a compelling case that:

To meet our rapidly evolving national security needs and achieve lasting economic growth, the United States must foster a 21st-century science and technology workforce that employs the creativity and ideas of people from across the country and worldwide. We can out-compete China and other highly populous nations only if we draw upon the talents of all Americans and leverage our history as a welcoming nation to attract, educate and retain a global science and technology talent pool.

If you'd like to open your mind, listen to this interesting episode from “Honestly with Bari Weiss.” In “America's Broken Immigration System: An Honest Debate,” guest host Kmele Foster moderates a discussion between Alex Nowrasteh and Jessica Vaughan. They discuss questions like: Are current levels of immigration helping or hurting America? How do we balance humanitarian concerns with America’s economic and security needs? Should we be trying to enforce more or less restrictions at the border? And what exactly should we do to fix our immigration policies? Nowrasteh is the director of economic and social policy studies at the Cato Institute, a libertarian think tank. Vaughan is the director of policy studies for the Center for Immigration Studies, a self-described “pro-immigrant but low immigration” think tank.

While they couldn’t be more opposite in their approach — Nowrasteh favors free immigration, while Vaughan argues for restrictionist policies — they looked for common ground, debated the facts and searched for solutions. That’s very unlike what we are seeing from our political leaders.

To provide some additional insight into the happenings in Washington on the subject of immigration, here is another article by Tangle. "The Senate's two immigration bills," published in 2022, discusses the fact that a handful of Republican and Democratic senators had been working together to push through an immigration bill before Republicans took control of the House in January 2023.

The Sinema-Tillis bill would exceed the $25 billion of security and detainment funds sought by former President Donald Trump in 2018, hiring more officers and giving pay raises to Border Patrol agents. Some Senate negotiators have said the bill could include as much as $40 billion of border security funding.
The measure may also reform the asylum process, building out more regional processing centers, hiring more immigration judges, and allowing migrants to be kept in custody until their asylum cases are heard and adjudicated, rather than releasing them with a date for a court hearing. Republicans want the bill to speed up the adjudication of asylum claims, with some calling for creating a 72-hour process.
At the same time, Sens. Michael Bennet (D-CO) and Mike Crapo (R-ID) are working on a narrower bill to pass a House measure that would provide a pathway to citizenship for farmworkers. That bill, the Farm Workforce Modernization Act, passed the House last year with the support of 30 Republicans and all but one Democrat. It provides pathways to citizenship for millions of unauthorized agricultural workers, simplifies the H-2A guest worker visa program for the agricultural sector, and makes the web-based E-Verify program that checks if an employee is eligible to work in the U.S. mandatory for all agricultural workers. … The Sinema-Tillis bill would exceed the $25 billion of security and detainment funds sought by former President Donald Trump in 2018, hiring more officers and giving pay raises to Border Patrol agents. Some Senate negotiators have said the bill could include as much as $40 billion of border security funding.

It’s an interesting read, because it provides insights not only into the political divide between the parties but into the infighting within each party as they seek to build a consensus.

Let’s turn back to the Carnegie Corporation's June 2023 report, which concludes:

Immigrants have always made an outsized contribution to innovation, entrepreneurship, and creative change in the United States. This will grow even more important as the growth rate of the native-born population continues to slow and then turns negative around 2032. Immigrants are already providing most of the growth in the labor force (and soon it will be all of the growth), and they will also be vital to sustaining a robust tax base.
To make sure that immigration policy succeeds and meets the challenges of the future, at least three things need to happen.
First, the U.S. needs a legal immigration system that can handle the demand for workers in the country in predictable and consistent ways, which requires redesigning an antiquated immigration system largely built on the foundations of a 1965 law.
Second, the U.S. needs to be able to bring down unauthorized immigration to ensure the credibility of the immigration system by channeling migration into legal pathways and more effective protection efforts.
And third, and perhaps most importantly, the U.S. will need to find ways to invest in immigrants once they are in the country, providing equitable access to education, labor markets, and long-term legal status. And this will need to include regularizing the status of the millions of undocumented immigrants who are already in U.S. communities and contributing to the workforce, starting with those who have been in the country the longest, came as children, or have U.S.-born children of their own.
Finally, as immigration — most of it from Latin America and the Caribbean, Asia, and Africa — becomes increasingly more visible, we will have to contend with historical racial and ethnic barriers in U.S. society, and recommit ourselves as a country to a far broader and more inclusive sense of nationhood.

In the end, this is a critical issue and we should expect better from our leaders in Congress. It's shameful that they continue to put the political needs of their parties ahead of the needs of the citizens of the United States!