What can states do when federal enforcement falls short?
What can states do when federal enforcement falls short?
I n late February, a grim morale survey of National Guard troops stationed along the Texas border was leaked to the Texas Tribune. The survey included responses from nearly 250 members of a Texas Air National Guard unit involved in Governor Greg Abbott’s “Operation Lone Star,” a deployment of some 10,000 state troopers and National Guard units to enforce the state border. Its findings — telling of troops’ “frustration, anxiety and anger,” according to the Tribune — were consistent with a number of public indicators of dissatisfaction among border-enforcement officials. On top of a January Texas Standard report detailing “pay delays, cuts to tuition assistance and low morale,” an Army Times piece in late December reported that there have been at least four suicides since the program was launched last March.
These reports scratch the surface of a struggling, if ambitious, state-led effort to patrol a formidable stretch of the U.S.–Mexico border at a time when federal immigration enforcement is falling short.
It’s no secret that things are ugly at the southern border — and not just in Texas. Customs and Border Protection (CPB) reported a record high of more than 2 million encounters with border-crossers across the Southwest in 2021. Many of them involved migrants who surrendered to law enforcement in the hopes of being released into the U.S., taking advantage of what’s referred to as “catch and release” — the web of policies, regulations, and legal rulings that prohibit the detention of many migrants at the border, mandating that they instead be released pending further court processing at a future date.
In 2021, just over half of the border encounters led to expulsion. Upwards of 400,000 detainees were released into the country for processing or asylum hearings. But, as is well documented, many migrants never show up for further processing: Immigration courts have the highest “failure to appear” rates of any court system in the nation.
The border statistics cover California, Arizona, and New Mexico, as well as Texas. All those states can fairly point the finger at the Biden administration, which is primarily responsible for immigration enforcement. At the outset of his presidency, Biden made good on his campaign promise to dismantle his predecessor’s immigration policies: The flurry of memos and executive orders released in the first months of the new administration included rescinding Trump’s immigration emergency proclamation, ending construction of the border wall, restricting “interior enforcement” (i.e., deportations), and broadening the scope of legitimate asylum claims. All that came on top of the suspension — and subsequent court-ordered reinstatement with “key changes” to “address humanitarian concerns” — of the Trump-era “Remain in Mexico” policy, under which migrants were kept south of the border while their asylum claims were processed rather than released into the interior.
Absent a robust federal response, Texas has attempted to enforce what it can of its 1,241-mile border, by far the longest of the four border states’. (Arizona, which has the second-longest southern border, shares just 372.5 miles with Mexico.) Abbott likes to talk about Operation Lone Star’s high number of apprehensions and detentions, repeatedly pointing to his administration’s emphasis on “catch & jail” rather than catch and release. But the two approaches are often more similar than they may seem: Problems and bureaucratic snags reportedly have plagued Operation Lone Star since its inception, leading to repeated releases of jailed migrants after an initial holding period in already overwhelmed facilities. As of the end of January, Operation Lone Star had led to the arrest of more than 2,500 migrants on trespassing charges. All of them were men — women and children are handed directly to federal agents, where they are often released under the Biden administration’s liberal immigration policies — and only about 900 were still being held in state jails. Many of those 900 detainees can feasibly expect to be released: Texas statutes mandate that someone detained for trespassing must be released 15 to 30 days after arrest if prosecutors fail to file charges in time.
As a result, Operation Lone Star has managed to detain only a relatively small number of illegal aliens, while many more have been released by court orders. In November, the Wall Street Journal reported that just 3 percent of the program’s arrests have led to convictions; of the 170 cases that were resolved, “about 70% were dismissed, declined, or otherwise dropped.”
On top of the problems of overcrowded jails and a dearth of immigration judges, Operation Lone Star has also run up against a number of ideologically hostile local prosecutors and officials. Eleven border counties have refused to participate in the program altogether, effectively nullifying its operations along a swath of the Rio Grande Valley. Out of the state’s 32 border counties, only two — Kinney and Val Verde — have actually moved forward with prosecutions. The conservative Kinney County has taken the most aggressive approach to prosecution, but it has been beset by the same legal snags that have led to the release of detainees elsewhere in the state. In Val Verde, “the county attorney began dismissing or declining to prosecute most of the trespassing cases,” the New York Times reported. As a result, Val Verde has “seen a sharp drop in the number of migrants arrested.”
Abbott has made a real effort to pick up the slack left by the Biden administration’s lackluster enforcement effort. While he was initially skeptical of the border wall, for example, he is now appropriating state funds and soliciting public donations for the project. “It’s not that he’s doing nothing — let’s be objective here,” Matt Schaefer, the vice chairman of the Texas House Freedom Caucus, told National Review. “For the first time, we’re actually prosecuting some criminal trespass cases along the border.”
“But it’s such a minuscule number of cases,” Schaefer added. “It sounds really good on the campaign trail, but as far as overall effectiveness goes, it’s very, very minimal.”
Conservative criticisms of Operation Lone Star tend to hinge on the distinction between detention and expulsion. “As far as whether it’s having a large impact on what’s happening, it’s just not,” Schaefer said. “And it’s very expensive, because we end up paying for [detainees’] room and board while they’re detained, and for their legal defense. It keeps them in that holding facility for weeks, maybe a few months, and then they’re released, and all it did was delay their integration into Texas and the United States.”
A truly effective response to the immigration crisis likely would require expelling migrants at the border, rather than Operation Lone Star’s inconsistent detention efforts. Border-security advocates say that there are tools for doing this at the state level. One proposal, initially floated by the Center for Renewing America in October and endorsed in a legal opinion by Arizona attorney general Mark Brnovich last month, argues that the drug cartels’ “operational control over vast swaths of the southern border” provides a constitutional basis for state action: “The Constitution provides a firm foundation for states to act decisively in the absence of the federal government.” The legitimacy of a state’s move to deploy the full force of its military apparatus to the border depends on whether cartel involvement in the border crisis could feasibly be classified as an “invasion.” If so, the argument goes, states could take military action at the border without the consent of Congress under Article I, Section 10, clause 3.
Schaefer argues that such a classification would be appropriate, given that “the cartels have complete operational control on the other side of the river, and a lot of influence on the north side of the river as well.”
Not everyone backs the proposal, of course. The Arizona State Law Journal’s Savannah Wix criticized the Arizona attorney general’s endorsement of the “invasion” classification as “too broad a view of invasion as defined within the Constitution.” Arizona governor Doug Ducey released a statement to the Phoenix New Times slamming the attorney general’s opinion, saying that “for Attorney General Brnovich to imply the [National] Guard is not on our border does them a serious disservice and shows that he fails to appreciate the commitment these men and women have for protecting Arizona.” The statement did acknowledge that the federal government “has totally failed to address this very real public safety and humanitarian crisis.”
But advocates argue that the proposal is constitutionally sound and would free up serious enforcement resources. “We believe you certainly have an invasion when the cartels have operational control,” Russ Vought, the president of Center for Renewing America, told National Review. “I mean, we have the presence of a narco-state on our southern border, and no one wants to talk about it. The politicians often refer to it as an invasion politically, in their rhetoric. They just don’t want to say it legally, as it pertains to what they could then do about it.”
Abbott, whose office did not respond to a request for comment, has described the border crisis in those terms. But he has yet to embrace this legal classification. In the meantime, Operation Lone Star is “just a Band-Aid,” Vought said. “It’s because of that fundamental strategy the cartels have of using illegal immigration to basically just blow past the line — and then play to the fact that they know we’re going to have to process these individuals with inadequate resources — that this has to be shut off to the greatest degree possible.”