It is a grave error to view the swarming of illegal aliens across our southern border as anything other than a challenge to our sovereignty — a challenge abetted, rather than repulsed, by a president who vows to “fundamentally transform the United States of America.” The challenge brings into sharp relief a question I’ve repeatedly pressed (see, e.g., here, here, here, and here): If the states cannot or will not defend themselves, are they still, in any real sense, sovereign?
As expected, the president’s mainstream-media allies portray Obama as a man struggling to manage a crisis beyond his control, a crisis their thin and exhausted playbook instructs them to blame on George W. Bush. Nonsense.
As one would expect, the usual Obama apologists claim that the administration was not conspiring in the invasion. Rather, it was preparing for a humanitarian crisis it had heard alarms about but was somehow powerless to avert. On its face, this is laughable: The executive branch has many ways of discouraging and stopping attempts by foreigners — whether as an armed force or in overwhelming numbers — to enter our country. More significantly, the facts here point unmistakably to willful administration collusion.
The January 2014 solicitation published by DHS’s bureau of Immigration and Customs Enforcement foretells (a) the arrival of 65,000 “unaccompanied alien children,” and, tellingly, (b) the administration’s intention to transfer them to “Office of Refugee Resettlement (ORR) shelters located throughout the continental United States.” Weasel Zippers points out the glaring fact, largely ignored by the press, that by planning to dispatch the new arrivals to ORR, the administration implicitly presumed that they should be deemed refugees, not excludable or deportable illegal aliens.
The president has spent nearly six years giving effective legal immunity to millions of illegal aliens already here. His administration, meanwhile, hooks them on the government gravy train and fights state efforts to detain them, deny social services to them, and prevent them from fraudulently voting. Under those circumstances, the rolling out of a federal red carpet for teeming masses of illegal aliens must be understood as intentional.
To be sure, the administration, in its arrogance and ideological zeal, underestimated the resulting groundswell of American protest. It has thus fallen back on its modus operandi, which should be painfully familiar by now: Once assured that an Obama-caused disaster is fully underway, the president endeavors to evade accountability by making a couple of disingenuous gestures in seeming opposition to the crisis he has orchestrated — enough for his courtiers to run with.
So, after 300,000 illegal aliens of all ages have spent thee months pouring in, Obama finally tells ABC News that “unaccompanied children” should not be sent to the United States because the trip here is dangerous and “if they do make it [here], they’ll get sent back.” Right. Then, even as his administration, under a veil of secrecy, transfers tens of thousands of illegals to communities across the country (without notifying state officials), Obama ceremoniously deports a grand total of 38 Hondurans. That’s — as Sweetness & Light computed — one-one-hundredth of a percent of the swarm that has crossed our border since April. Predictably, the president’s media accomplices highlight these trifling, cynical ploys as clear proof that Obama opposes the invasion he has instigated. And while we are diverted debating that claim, thousands more invaders are resettled as refugees.
In the interim, the press blames Bush. It’s a shrewd gambit: The charge is plausible because the GOP establishment has desperately pushed amnesty for years; even better, the charge involves a complex 2008 law, so it is difficult to unwind. Indeed, even conservative pundits have accepted the premise that what the press monotonously tells us is a “Bush-era law” has contributed mightily to the border crisis.
In reality, this 2008 measure, known as the “William Wilberforce Trafficking Victims Protection Act,” was a Democratic amendment, added by Senator Dianne Feinstein and then-Senator (and Vice President-elect) Joe Biden to the seemingly uncontroversial reauthorization of a Clinton-era anti-human-trafficking law. Yes, Bush did sign the measure just before leaving office — the third time he’d signed a reauthorization of the feel-good, anti-human-trafficking law. But to blame this law for the crisis is to blame a leak in the kitchen faucet for the flood that is carrying the house away.
The act gives extensive due-process protections to “unaccompanied alien children” who come to the United States from “non-contiguous” countries — i.e., not Mexico or Canada (which is why the swarm originates in Central America). But only if these children are actually victims of human trafficking, the narrow class the legislation aims to protect. As a new report from the Center for Immigration Studies explains, the Wilberforce law is “largely irrelevant” to the situation at hand, which involves illegal aliens willingly smuggled into the country so they can live here, not coercively trafficked into the country for purposes of sex slavery or other indentured servitude. As the report elaborates, immigration law distinguishes smuggling from trafficking.
Moreover, the children at issue are not really “unaccompanied” as that term is defined in the federal code. Again, the law is intended to protect children who are forced to come to our country for certain nefarious purposes. The children in this case overwhelmingly have family members who have taken up residence in the U.S., often illegally. Joining these family members is the objective of their illegal entry. Many of the “children” are also gang members who, while technically minors, voluntarily come here to wreak havoc. Finally, even if we were to concede, for argument’s sake, that the human-trafficking law truly applies, its own terms allow its suspension in exceptional circumstances — a fact acknowledged by Senator Feinstein, an author of the law, who told the New York Times that the law has the “flexibility” to allow for accelerated removal proceedings.
The “Bush-era law” actually contributes to the border crisis in only one significant way: as the sleight-of-hand by which our lawless president suddenly claims to be bound by the rule of law. It is the due-process camouflage for his ruinous and legally unnecessary importation and strategic dispersal of thousands of low-skilled, unassimilated, future Democratic voters.
Make no mistake: President Obama has instigated this crisis — a two-fer that advances the project of remaking the country while crowding the IRS, the VA, Benghazi, Bergdahl, the Taliban, ISIS, Hamas, the EPA, Obamacare, Ukraine, and other debacles out of the public’s finite attention span. The invasion was invited by a systematic campaign to gut the immigration laws.
As Faithless Execution relates, that campaign has included punishing states that attempt to police illegal immigration. Obama’s Justice Department unabashedly contended in court that it was immaterial whether state enforcement practices conformed to congressional statutes; what mattered was whether the state was in violation of Obama’s immigration policy — i.e., the policy of non-enforcement. If not, state self-defense measures had to be invalidated.
In addition, when Congress, prodded by intense public opposition to Obama’s agenda, declined to legislate amnesty for various categories of illegal aliens, the president unilaterally and unconstitutionally decreed this amnesty — also presuming to confer benefits like work permits and “unlawful presence waivers.” Further, while padding statistics to create the illusion of significant deportation activity, the administration contorted the doctrine of prosecutorial discretion into a rationale for dropping pending criminal cases, and otherwise declining prosecution, against thousands of illegal-alien felons, who have been loosed on our streets.
The administration has become infamous for its complicity in conspiracies to smuggle illegal aliens into the United States. Think that’s hyperbole? Consider this scathing opinion filed late last year by Judge Andrew S. Hannen of the federal district court in Texas. The case involved a Salvadoran alien named Patricia Salmeron Santos, who entered our country illegally and took up residence in Virginia. As the judge related, she then
started this conspiracy by hiring alien smugglers to transfer her child from El Salvador to Virginia. . . . The criminal conspiracy . . . was temporarily interrupted when [the co-conspirator smuggler, Mirtha Nava-Martinez] was arrested [trying to smuggle the ten-year-old child into the country with a false birth certificate]. Despite this setback, the goal of the conspiracy was successfully completed thanks to the actions of the United States Government. This Court is quite concerned with the apparent policy of the Department of Homeland Security (hereinafter “DHS”) of completing the criminal mission of individuals who are violating the border security of the United States. Customs and Border Protection agents stopped the Defendant at the border inspection point. She was arrested, and the child was taken into custody. The DHS officials were notified that Salmeron Santos instigated this illegal conduct. Yet, instead of arresting Salmeron Santos for instigating the conspiracy to violate our border security laws, the DHS delivered the child to her — thus successfully completing the mission of the criminal conspiracy. It did not arrest her. It did not prosecute her. It did not even initiate deportation proceedings for her. . . .
The DHS, instead of enforcing our border security laws, actually assisted the criminal conspiracy in achieving its illegal goals. . . . In summary, instead of enforcing the laws of the United States, the Government took direct steps to help the individuals who violated it [sic]. A private citizen would, and should, be prosecuted for this conduct.
Judge Hannen went on to recount that this was the fourth case in as many weeks that followed this fact pattern. In each case, illegal-alien parents funded criminal conspiracies to smuggle their illegal-alien children into the country; in each case, Obama’s DHS stopped the smugglers and the children at the border, yet — instead of arresting the illegal-alien parents behind the scheme — willfully perfected the conspiracy by doing what the smuggler had been illegally recruited to do: deliver the children to their illegal alien parents. “The DHS,” the court concluded, “has simply chosen not to enforce the United States’ border security laws.”
Just so. And if a renegade United States government is not going to secure the borders of the United States, the states must secure their borders or surrender. As the Supreme Court recognized in 1837, each state has a sovereign right and duty of self-defense — one that is never “more appropriately exercised” than in preventing her citizens from being
exposed to the evil of thousands of foreign emigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the state to protect its citizens from this evil.
It still is. Or maybe they should just wait a few years. By then, perhaps Speaker Boehner’s lawsuit against President Obama will be over and he’ll be ready to sue Central America.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was released by Encounter Books on June 3.