Joe Biden Voted to Require DHS to Achieve “Operational Control” of the Border in 2006; It Is Still the Law

(Center for Immigration Studies) Border Patrol Agent: ‘We’ve Surrendered the Border’

During an August 3 report from La Joya, Texas, Fox News reporter Bill Melugin stated he had been told by an agent: “We’ve surrendered the border.“ Melugin’s segment, replete with pictures of migrants simply walking into the United States and large numbers of them massed under a bridge in the nearby town of Mission, confirms that agent’s assessment. The president made a political deal in 2006 that required DHS to achieve “operational control” of the border, and the bill for that deal has come due.

As I explained on July 16, Border Patrol agents apprehended more migrants in the months of April, May, and June than in any month in the last 21 years. Those apprehensions have been increasing since April 2020(at the height of Covid pandemic shutdowns), but they were turbocharged beginning in February.

In January, agents made almost 78,500 apprehensions, but the next month, apprehensions broke the 100,000-mark when nearly 102,000 migrants were encountered by Border Patrol at the Southwest border. That was the first time that apprehensions there had exceeded 100,000 since a surge in May 2019.

I termed the situation at the border that year “a humanitarian and national-security disaster”, and I was right, for reasons that I explained in March 2019. I plainly need some stronger description for what is going on now, because the summer of 2021 makes the situation two years ago look like the “good old days”.

The then-Trump administration responded to that surge with a series of initiatives to gain operational control of the border. These included safe third-country agreements with Guatemala, El Salvador, and Honduras, the Migrant Protection Protocols (MPP, also known as “Remain in Mexico”), Prompt Asylum Claim Review (PACR), and the Humanitarian Asylum Review Process (HARP).

Those initiatives worked, and by January 2020, apprehensions at the Southwest border fell to 29,205, 75 percent lower than they had been the previous May. Apprehensions increased beginning in May 2020 (for reasons explained by my colleague Todd Bensman on August 3, including campaign promises by various Democratic candidates), but as noted, they shot up after the inauguration.

Why did apprehensions skyrocket then? It wasn’t just the “usual seasonal bump”, as analysts at the Washington Post asserted on March 25. It was a natural, inevitable response by would-be migrants (and more importantly, their smugglers) to actions taken by the newly installed Biden administration.

Biden ended MPP, PACR, and HARP, as my colleague Robert Law noted in February, and his State Department has suspended with an eye toward terminating those safe third-country agreements.

The Trump border initiatives were the “guardrails” that were dissuading would-be migrants from entering the United States illegally. In December, the incoming Biden administration had promised to set up its own guardrails before ditching Trump’s policies, but that never happened.

It is worth clicking on the last link (from the Washington Post on December 22) and reading what the president-elect had to say then. Here is the first paragraph: “President-elect Joe Biden said Tuesday he will keep his pledge to roll back the Trump administration’s restrictive asylum policies but at a slower pace than he initially promised, to avoid winding up with ‘2 million people on our border.’”

Official CBP statistics reveal that, through June, the agency has encountered almost 1.12 million aliens at the Southwest border in FY 2021. As Bensman reported, a high-ranking DHS official disclosed in a court filing that an additional 210,000 encounters occurred at that border in July (official statistics have not been released by CBP for last month).

That would bring Southwest border encounters this fiscal year to more than 1.3 million, with two months left to go in FY 2021. Given the fact that CBP encounters at the Southwest border have been on an upward climb each month this year, encounters could well surpass that two-million mark Biden claimed in December he wanted to avoid.

Of course, Biden was setting the bar pretty low if his goal was to avoid two million apprehensions in FY 2021.

Border Patrol’s yearly apprehension numbers for the Southwest border go back to 1960, and the largest number of apprehensions in that 61-year period was in FY 2000, when there were fewer than 1.644 million. In fact, there have only been 19 years in the past 61 when agents apprehended more than one million aliens, and none in the last 15 years.

Just going by the official CBP statistics, Border Patrol has made more apprehensions at the Southwest border in just the first nine months of FY 2021 (more than 1.076 million) than they have in any year since FY 2005 (fewer than 1.172 million). July’s numbers will break that record.

That said, none of these official statistics include “got aways”, that is, aliens who have entered illegally and successfully evaded apprehension. As I explained in July, at least one researcher believes that Border Patrol only apprehends 68 percent of all illegal border-crossers. If true, more than a half a million additional illegal migrants have entered the United States this fiscal year.

One might argue that the Biden administration is free to set whatever border policies that it wants, and that it is up to the voters to decide in the next election whether they want hundreds of thousands of aliens entering the United States illegally, and a Southwest border that authorities have surrendered.

One would be wrong, however, because that is not what the law mandates.

The law in question is the “Secure Fence Act of 2006”, which was enacted on October 26, 2006. It gave the DHS secretary 18 months to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States”.

Congress did not intend to give DHS any outs in implementing this provision, because it carefully and explicitly defined the terms therein: “In this section, the term ‘operational control’ means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”

As a House staffer, I worked on the Secure Fence Act of 2006, and it was a crafty bit of business. Republicans controlled both the House and the Senate at the time, and Republican George W. Bush was in the White House.

The GOP was headed into what looked like a bad mid-term election (the war in Iraq was dragging down the president’s approval numbers, and congressional Republicans’ electoral hopes with it), and leadership picked immigration as a weak point for Democrats.

In essence, Republicans in the House and Senate were daring their Democratic colleagues to vote against achieving “operational control” of the border, both to burnish their own national-security credentials and to undermine their political opponents.

The Democrats did not rise to the bait. Sixty-four Democrats in the House voted in favor of the bill and just 18 Democrats (including Jim Jeffords (I-Vt.) who caucused with the Democrats) voted against it in the Senate.

Among the Democrats who voted for the Secure Fence Act of 2006 in the Senate were current majority leader Chuck Schumer (N.Y.), would-be president Hillary Clinton (N.Y.), and then-Sen. Barack Obama (Ill.). And current President Joe Biden (Del.).

Simply put, if you were a Democrat in the Senate who had national ambitions, or alternatively were sitting in an “unsafe” seat (like Evan Bayh of Indiana or Blanche Lincoln of Arkansas), you voted for the bill.

It was the essence of a “political deal”. Even as a staffer I knew that, and certainly as a senator of long tenure, Joe Biden knew it, too.

The problem for Biden is that the bill for his support of the Secure Fence Act of 2006 is now coming due. He voted in favor of a strict requirement that DHS achieve “operational control” at the Southwest border by preventing all unlawful entries in exchange for a bright political future. He got the latter, which means that he must amend his policies to achieve the former.

There is a straight line from Biden’s “catch, release, and disperse throughout the United States” border policies and the historic numbers of illegal migrants who are entering the United States today. His kvetching about “the prior Administration’s cruel and reckless immigration policies” may appeal to his base, but those policies resulted in something approximating the required level of “operational control”.

The chaos at the border is not just a political liability (although it plainly is that, as I explained in July); it is also a legal one for Biden.

I cannot say that I have read through all the various suits filed against the administration’s immigration regime, but the president is lucky if he has ducked the question of whether his DHS secretary, Alejandro Mayorkas, is even trying to achieve “operational control” of the Southwest border.

The president may argue that he was making a deal with the devil in casting his vote for the border restrictions in the Secure Fence Act of 2006 (he wasn’t), but a deal’s a deal, especially when it’s the law. Now, the requirements of that act, including the prevention “of all unlawful entries into the United States” is his responsibility, and that of his DHS Secretary, Mayorkas. If he does not install “guardrails” to meet those requirements, there may be more than just a political price to pay.