Sunday, January 29, 2023


There is much discussion today related to the “unprecedented” crisis at our southern border. The Department of Homeland Security recently reported that encounters between Border Patrol agents and migrants illegally entering the United States at that border were in excess of a quarter of a million in December alone — truly an unprecedented figure. And while the absolute number of unauthorized aliens at the border drawn there by President Biden‘s policies during his administration is unprecedented, the relative capability of federal authorities to address the crisis is not.

It’s been said that drastic times call for drastic measures. Speaking of drastic times, the crisis at the border that unfolded in 1950 compelled Congress to enact a measure authorizing state and local law enforcement to aid federal authorities in addressing that crisis. That authority exists still today, and the application of that authority not only at the border but throughout the entire country could go far in quelling the chaos in border communities such as Del Rio, Texas, as well as places far from the border like New York City.

In 1951, President Harry Truman established the President’s Commission on Migrant Labor to investigate the explosion in illegal crossings at the southwestern border. In its final report, titled “Migratory Labor in American Agriculture,” the commission declared that while such crossings were nothing new, the situation in 1950, “in its newly achieved proportions, [was] virtually an invasion.” The number of illegal crossings had risen from 29,000 in 1944 to 565,000 in 1950.

According to Border Patrol records, the number of “law enforcement and civilian positions” in the service in 1945 was 1,400. The number of encounters at the southwestern border in 1950 was slightly less than a quarter of those reported by the Department of Homeland Security for fiscal 2022. But when compared with the number of Border Patrol officers billeted to the southwestern border alone in 2022 — nearly 17,000 — the relative capacity to respond 70 years later dwarfs that of the early 1950s.

The federal government’s capacity to respond does not necessarily translate into the political will to do what is necessary to secure the border. The operation of the Biden administration’s policies is testament to that. It is our good fortune that previous Congresses put into place certain provisions that did not assume that the federal government would have the capacity or political will to secure the border alone.

Shortly after Congress received the report of the president’s commission, it enacted legislation in early 1952 to grant extraordinary authority “to assist in preventing aliens from entering or remaining in the United States illegally.” The new statute’s provisions empowering federal officers to arrest “any person … who brings into … the United States … or attempts to bring into … the United States … any alien… not lawfully entitled to enter or reside within the United States” was not extraordinary.

What was extraordinary is that the statute provided that “all other officers whose duty it is to enforce criminal laws” could make the same arrests as duly authorized federal officials. These “all other officers” not only include full-time state and local law enforcement personnel but also National Guard personnel who have been deputized to execute state law. The original statute included felony criminal penalties not only for those bringing in unauthorized aliens, but also penalties for those who transport, move, or harbor in “any building” such an alien.

Today, this same arrest authority is found in 8 USC Sec. 1324. In addition, in 1996, Congress added a conspiracy provision that applied to “any person … who engages in any conspiracy to commit” those same felonious actions. Given the nature of the human smuggling industry today, no migrant crosses the southwest border without voluntarily approaching and subsequently paying a cartel-sanctioned smuggler to do so. Therefore, virtually every unauthorized adult alien who has illegally entered the United States in the last several years is a co-conspirator in this enterprise. In addition, those who transport or move or harbor in “any building” are subject to the same arrest authority — executed by state and local law enforcement bodies — for committing those acts or conspiring to do so.

When Congress wanted to gain control and restore order at the country’s southwestern border more than 70 years ago, it authorized the aid of state and local law enforcement. That authority exists still today. Given the Biden administration’s policy priorities that have resulted in drawing record numbers of migrants entering the United States illegally, states and their locales can stand in the gap, once again, to strengthen the rule of law at the border.

• John Hostettler is vice president of federal affairs for states trust at the Texas Public Policy Foundation. From 1995 to 2007, he served six terms in the House of Representatives, and he was chairman of the Subcommittee on Immigration, Border Security, and Claims of the Committee on the Judiciary for two terms.

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