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Horowitz: We don’t need ‘border security’; we need to make illegal immigration illegal

Op-ed
John Moore/Getty Images

The most effective form of border security is not at the border itself.

Here’s a novel idea based on observations of the ebb and flow of illegal immigration over the past half-century. If you invite illegal aliens into the country and offer them jobs and benefits, they will come. If you make it clear that they will obtain zero benefits and, if caught, will be removed, they will not come. In other words, this is not some sort of natural disaster that requires more personnel at the border to ameliorate the situation. If you simply make illegal immigration illegal, they won’t come.

The Border Patrol is double the size it was during President Bush’s first term and has grown five-fold since 1993. We have thrown endless funds and infrastructure at the border. But what good are personnel and infrastructure if personnel are directed to coddle illegal aliens and release them, and then they get jobs and benefits in the interior of the country? Hence, just in the first 100 days of fiscal year 2023, there were a total of 718,000 encounters with illegal aliens, with 520,000 of them being released. Also, total gotaways are averaging 2,670 per day. So we are averaging 1.9 million aliens released (out of 2.6 million encounters) and another 1 million gotaways for a year.

Why? Because most of them go through a judicial process rather than being repatriated, and while they remain in the country indefinitely, they get to achieve their objectives. An analysis from Syracuse University found there are more than 2 million cases pending in immigration court with just about 600 administrative judges to preside over them. You can’t litigate your way out of an invasion, nor can you manpower or infrastructure your way out of people coming for benefits. It’s possible we could stop the problem with a military operation, but that is obviously something this administration would not do.

Thus, the illegal immigration issue boils down to two elements: banning all catch-and-release for all migrant encounters at the border and banning all benefits in the interior of the United States. Everything else fails to live up to the severity of the issue. This would be true even with a conservative president, but it rings even truer today with the Biden administration. You cannot simply declare, “There shall be border security” and here is yet another tranche of billions of dollars for the DHS that will likely be used more to target Americans than invaders. The Biden administration will never secure the border and will just use the money for more benefits rather than enforcement.

Border security in the abstract rather than focusing on interior enforcement is a honey trap. Senate Republicans are working with Sen. Kyrsten Sinema on a “border security” plan that will encompass some of these elements of more funding and infrastructure at the actual border in return for amnesty. But aside from the amnesty problem, let’s not forget that a border wall can only stop a physical invasion; it can’t stop an invasion of 1,000 lawsuits. As I reported in 2019, even in the Trump administration, border agents were bringing in illegal aliens from behind the fencing once they stepped on U.S. territory (which is a few feet behind the fence).

That’s why House Republicans should avoid the border security issue per se and instead push the following:

  • A categorical ban on catch-and-release.
  • Both states and Border Patrol agents (and ICE) can get standing in court to sue the DHS for violating the INA to their detriment.
  • Ban all federal benefits for illegal aliens, including K-12 education (to reverse Plyler v. Doe).
  • Explicitly deputize states to enforce immigration law (to reverse U.S. v. Arizona).
  • Accord a private cause of action to citizens or families harmed by sanctuary cities or the federal government’s lack of enforcement.
  • Dramatically expand criminal penalties for identity theft, which is the lynchpin of the illegal aliens’ ability to remain in the country. Allow states to enforce it.

This sort of agenda will not only halt illegal immigration to a trickle, it will ensure that the issue cannot get co-opted by vague bipartisan promises of border security in return for amnesty. Because Republicans have failed to push for real enforcement for two generations, the problem is now so bad that we need the states to step in, especially with a federal government facilitating the invasion. That is the key element Republicans should fight for.

Republicans are a day late and a dollar short if they are going to focus on the solutions from 10 years ago they originally opposed while they were still promoting amnesty. Thanks to Republicans buying in to the Democrat premise on the issue for decades (and Senate Republicans still pushing for it), we need a much stronger response. We are talking about an unfathomable four and a half million encounters since Biden took office. Anything short of cutting off magnets and allowing red states to enforce the law will not put a dent in the problem.

The reason illegal immigration continues is because we haven’t made it illegal. Illegal migrants come and litigate themselves into status. If it became clear that all illegal aliens will be returned (not just under Title 42), that they will not get benefits if they evade Border Patrol, and that red states will enforce the laws against them (including criminal penalties), the numbers will drop on their own. Once the flow dries up, the cartels will have less money and much less cover and chaos through which to bring in bad guys and drugs. At that point, we can discuss the best way to counter the cartels with kinetic force from a position of strength.

What the past 40 years of border/immigration debates should demonstrate is that everyone is supportive of “border security,” but nobody really is. That’s why it’s time to change the name of the game.
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