What should be done about the crisis at our border?
To be clear, if the administration continues to concede that forum-shopped judges can issue universal injunctions on border security, no matter the precedent, justiciability, or issues of standing, then there is quite literally nothing the administration can do. By definition, anything that will effectively shut down this flow will be challenged in a specifically liberal court, and the Supreme Court will take forever to overturn it.
The administration must assert, as an independent branch of government, that universal injunctions issued by courts are unconstitutional, as suggested by Justice Clarence Thomas. At the very least, such an opinion issued by the attorney general will force the Supreme Court to finally confront this vital question, not just on our border, but on the very question of what the judicial power is.
Once the administration is willing to do this, here are a mixture of policies that are completely within the president’s powers, both inherent and delegated, to deter this particular wave of illegal immigration, defend against the cartels exacerbating it, and demagnetize the incentives for them to come here.
1) A complete shutoff of immigration processing (but not commerce) at our land border: The president should assert his unquestionable authority to deny entry to anyone seeking entry without existing valid documents, including those “seeking” asylum. He should announce that all processing of any asylum claims is suspended for at least six months. It would require holding the line against the first wave of migrants in the pipeline by turning them back. Those who manage to get in or refuse to depart, the administration should hold in tent cities while offering them the option to voluntarily depart at any moment. But admission into the country will be closed off, pursuant to the president’s inherent and delegated authority. Concurrently, the president should launch a media campaign in Central America announcing the shutoff and stating that no immigration status can be obtained at our land border without having applied at our embassies. President Obama launched such a campaign in 2014. President Clinton launched a similar campaign with the Haitian migrants in 1993 and agreed to process their asylum claims only in Haiti.
2) Tent cities plus rocket docket: The construction of tent cities, pursuant to DHS’ existing mass migration emergency plan, would likely be necessary to partially enforce (1), but could also work as a standalone idea, without a full shutoff. If the administration doesn’t want to completely shut down the process, it could house the very next wave of migrants in tent cities and then immediately transfer immigration judges and deputize other officials into adjudications in order to rapidly dispense with the bogus claims in less than seven days, as was done in 1989. This is actually required by law anyway, and holding them in tent cities will ensure they are not released, but also make it possible to fulfill the Flores settlement requirement of a 20-day limit.
3) Have Border Patrol immediately screen out invalid claims of credible fear: The best way to ensure that asylum law is properly and expeditiously interpreted is to have border agents immediately screen out, and most often reject, credible fear claims the minute the claimants step foot on our soil. This will begin the seven-day clock for them to expend their appeals and allow us to hold them even under the Flores limit.
4) End the Flores settlement: Contrary to public perception and even assertions by this administration, the law does not require DHS to release children within 20 days. The law actually mandates detention of all those making credible fear claims and places no time limit or exception on children. It comes from Flores, which is not even a court opinion, but a settlement. The administration has the ability to vitiate this settlement and started the process of doing so last September. It should enact a new rule to hold family units together. The 45-day comment period has long passed, and it’s a mystery why the administration has not promulgated the rule yet. Even if it fears lawsuits on this issue, idea (1) would still override Flores, and idea (2) would make it moot, because they wouldn’t need to be held longer.
5) Designate the Mexican cartels as terrorists: In addition to helping streamline the flow of illegal immigration, the cartels pose a general threat to this country that needed to be dealt with years ago. Now would be a good time to signal that we are serious about attacking them. Designating them as terrorists, a move Trump can make unilaterally, will open up numerous DOD and intelligence resources to harness against the cartels. It will also bolster the political case for using the military. The military can work to eradicate the cartel’s lookout scouts, who operate on our soil. This will not only defend against criminals and drug traffickers, it will disrupt their system of directing flows of migrants into strategic locations.
6) Operation Hold the Line: The president should deploy the military to enforce our sovereignty. This could work in tandem with enforcing a complete shutoff by having enough manpower to hold the line at the border and not allow anyone to enter. Deployment of the military will also help with the other part of this crisis; namely, how the cartels and smugglers are bringing in criminals, gangs, drugs, and special interest aliens while Border Patrol is completely overwhelmed. This is using the military to hold the line on our border and not allow caravans in and to deter and defend against cartels. That is literally the quintessential purpose of having a military.
7) Deputize numerous federal officers as immigration officers: Trump should recruit as many law enforcement agents into the immigration enforcement business as possible to buttress the work of both Border Patrol and ICE. He can deputize all park rangers and Bureau of Land Management agents (or any federal officer who wears a badge) into securing the border and enforcing immigration laws. The president also has the power (8 U.S.C. § 1103(a)(10)) to deputize local law enforcement, with the permission of local authorities, to “to perform or exercise any of the powers, privileges, or duties” of immigration enforcement in the event that the attorney general determines that there is “an actual or imminent mass influx of aliens.”