Empowering States to Deport Illegal Aliens: A Blueprint
Since Biden took office, 5 million aliens have illegally crossed our border and many were released without even an immigration court date. Recent data show, in nearly half of cases, even those with a date fail to appear because they know their claims are bogus. A FAIR analysis showed Biden’s illegal immigrants will cost taxpayers an additional $20.4 billion annually, on top of $140 billion a year we already pay to support the long-term illegal population of 15.5 million. Border Patrol is apprehending more than 200,000 aliens a month, which doesn’t even include an estimated 500,000 “gotaways.” Illegal aliens are flooding small border towns and straining resources to a breaking point, while Martha’s Vineyard – an elitist liberal enclave with Obama’s sprawling summer estate – declared a “humanitarian crisis” for just 48 migrants flown in by Governor Ron DeSantis (R-Fla.). Meanwhile, ICE deportations have slowed to a trickle, from 186,000 in FY2020 (a year strained by COVID) to just 59,000 in FY2021 – a decline of nearly 70%. Cartels have seized control of vast swaths of the border, flooding our country with dangerous narcotics like fentanyl – a substance so powerful that just 2 mg (equivalent to a grain of rice) can be deadly.
The data point to an inescapable conclusion: this administration, kowtowing to open-borders advocates, has willfully abdicated its duty to secure the border, enforce immigration law, and protect families and communities. Their long-term goal is to grant illegal aliens amnesty and eventual citizenship, which means the right to vote. Liberal advocates are making the safe bet most will be Democrats. Even before that goal is realized, illegal aliens are counted in the decennial census and apportionment of House seats. If you are an open-borders advocate willing to sacrifice kids to fentanyl poisoning to consolidate power, this looks like a good play. For hardworking taxpayers trying to raise families and sleep soundly at night, this is cause for deep concern. It’s why states must do the job the federal government is unwilling to do by deporting illegal aliens.
On September 27, Senator Josh Hawley (R-Mo.) introduced the Empowering States to Deport Illegal Immigrants Act (S. 4948). The bill would let state and local police enforce federal immigration law, including by deporting illegal aliens. Of course, it won’t pass in the current Congress and, even if it passes with a Republican majority next Congress, won’t be signed into law by Biden. Fortunately, states already possess the constitutional power to carry out deportations – without changes to current law – and the urgency of the moment requires they wield it unapologetically.
On August 3, Senator Roger Marshall (R-Kan.) asked for unanimous consent on the Senate floor to pass a resolution (S. Res. 741) recognizing “the constitutional right of State Governors to repel the dangerous ongoing invasion across the …southern border.” Senator Dick Durbin (D-Ill.) objected and the resolution died, but it nevertheless lays out a good blueprint for states to use existent authority to deport illegal aliens wherever they’re found. To wit, Article I, Section 10, Clause 3 of the Constitution reads as follows:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. [Emphasis added]
As Sen. Marshall notes in his resolution, “the violent activity and smuggling of drugs, humans, guns, and other illicit goods carried out by drug cartels and transnational criminal organizations, and the crossing of the international border between legal ports of entry by significant numbers of individuals contrary to the laws of the United States” meet the definition of “actually invaded.” Therefore, the 50 state governors, as commanders-in-chief of their respective states, have the constitutional authority to repel such an invasion through force. Deportations may be carried out by state police, the National Guard, or any other force the state government may assemble. After all, the Constitution gives governors the power to “keep troops” when invaded. Governor Greg Abbott (R-Texas) has already deployed the Texas National Guard to the border as part of Operation Lone Star, but they are limited to an “observe and report” role. And while ferrying illegal aliens to Martha’s Vineyard, Washington, Chicago, and other sanctuary jurisdictions proves a point about liberal hypocrisy and relieves some of the burden on border communities, it doesn’t address the root of the problem the way deportations would. The benefits of such bold action are immediate and enduring.
To be sure, declaring an invasion and using state resources for deportations shouldn’t abrogate federal responsibility to do the same. State officials pondering such a move must continue to hold this administration’s feet to the fire in calling for increased ICE removal operations. States and municipalities should continue to make use of the 287(g) program, which allows for state/local collaboration with ICE, wherever possible.
Ultimately, if the administration doesn’t like states wielding their constitutional authority in this manner, they have an exit ramp: step up to the plate and do the job they are required to do at the federal level. Article IV, Section IV makes it clear: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion…” Until such time as they do so, states must take matters into their own hands.