Horowitz: Texas should secure its own border. Here’s how.



"Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?"

That was the question Justice Antonin Scalia posed in his partial concurrence in Arizona v. U.S. in 2012, when there were 357,000 apprehensions at our southern border. With four months left in this fiscal year, there have already been 900,000 apprehensions, with the numbers from the past three months nearly tying the all-time record.

But the situation at the border is even worse than those numbers suggest. The number of gotaways, which are usually the worst criminals, is higher than ever. Also, this comes at a time when Border Patrol and border infrastructure are much larger and more robust than they were during the greatest previous waves of illegal immigration 20 years ago, which makes the lack of deterrent behind those numbers all the more remarkable.

The reason why things are worse than ever despite more agents on the ground is because our Border Patrol is now being used to actively work with the cartel smugglers. Todd Bensman of the Center for Immigration Studies reports that CBP has prohibited agents from catching the smuggler who steers the rafts across the Rio Grande River.

"So established is this non-belligerence arrangement that cops and smugglers often banter with one another across the water or at the Texas shore about the weather, or how long the boats might be running tonight," reports Bensman. "Scenes play out where Border Patrol agents simply watch from five or six feet away as smugglers stand on the Texas riverbank or in shallow Rio Grande waters helping their illegal-alien customers out of boats."

From his conversations with high-ranking officials at the Texas Department of Public Safety (DPS), Bensman, who worked at the Texas DPS for 10 years, reports that CBP is warning Texas officials that they should also refrain from nabbing the smugglers as well.

Taken together, this strategy ensures that all the assets of Border Patrol are actually being harnessed to facilitate a more efficient invasion, which is why the numbers are sky high.

Which brings us back to the original question posed by Scalia in 2012: Are states really at the mercy of DHS' criminal behavior in not only leaving the border wide open but downright facilitating human smuggling into the states?

In 2006, then-Sen. Joe Biden and Senate Majority Leader Chuck Schumer voted for the Secure Fence Act. It required the secretary of homeland security to "take all actions" necessary within 18 months of passage to "achieve and maintain operational control over the entire international land and maritime borders of the United States" (emphasis added). Section 2(b) of the bill defined "operational control" as "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband."

What has ever come of this requirement? Why should a state be constrained by "federal powers," if they are suffering from the results of the feds violating those very federal powers?

Article I, § 10, cl. 3 (the Compact Clause) states:

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.

The Constitution is clear that, all things equal, states shouldn't engage in warfare with other countries. But all things are not equal in this case, and the Constitution made an exception for those times when states are invaded and in imminent danger.

John Marshall, during the Virginia Ratifying Convention, made it clear that this section affirms that the power given to the states by the people to repel an invasion "is not taken away" by the federal war powers. "When invaded, they [can] engage in war, as also when in imminent danger," asserted the future chief justice during the debate over the Compact Clause on Monday, June 16, 1788. "This clearly proves that the states can use the militia when they find it necessary."

Joseph Story in his commentary on the Compact Clause writes that while the prohibition on states making war is obviously necessary, it was "wisely guarded by exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union."

Still, a state may be so situated, that it may become indispensable to possess military forces, to resist an expected invasion, or insurrection. The danger may be too imminent for delay; and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of Congress.

Haven't the border states (the ones that still care) waited long enough, with too much delay, to act unilaterally?

Some might suggest that caravans and groups of illegal aliens coming north are obviously not part of a declared war. But if you look at the original language of Article IV's guarantee clause protecting states from invasion, Madison originally drafted its language to be read as protecting against "foreign violence." It's clear that this was not necessarily referring to formal warfare with a nation-state, but repelling violent incursions from Indian tribes. If a state can't protect against foreign violence, then what can a state do?

Remember, in addition to telling CBP to stand down at the border, the Biden administration is handcuffing ICE from removing even the most violent foreign criminals. Does that mean a state is forced to allow illegal alien rapists to remain within its borders with no recourse? There has been a 900% increase in apprehension of criminal aliens just in the Laredo Sector alone. Is Texas without any right to stop the untold numbers who are likely getting away and cutting through the ranches of its citizens?

As always, the Lone Star State needs to go it alone and lead the way. Governor Greg Abbott should call a special session to bolster the resources and legal authority of state and local law enforcement to deter and punish illegal aliens. The following issues should be addressed:

  • A surge in funding for an entire division of the Texas DPS to focus solely on deterring illegal immigration.
  • A surge in resources to build or repurpose jail space to hold illegal aliens who are charged on state crimes.
  • Severe mandatory minimum sentences for human smuggling, criminal trespassing, child endangerment, and other existing state crimes that can be used to hit those coming over the border. Also, make them ineligible for bail because they are, by definition, the ultimate flight risk.
  • Pass Rep. Bryan Slaton's bill to have Texas build the border wall. This can be done with a public crowdsourcing campaign as well.
  • In addition, it's time to make illegal immigration a state crime. Many federal crimes are doubled up as state crimes, and there's no reason why illegal immigration should be any different. With a new Supreme Court, it's time to challenge some of the premises behind the erroneous legal theory of the 2012 Arizona v. U.S. decision.
Throughout the Trump tenure, blue states successfully thwarted the enforcement of immigration law with sanctuary policies. Why then shouldn't red states be able to enforce the laws the feds refuse to abide by? The Constitution was designed for the federal government to protect the states from invasion. At some point, that principle can no longer be contorted to such an extent that it becomes a suicide pact,s whereby states are bound by the federal government's own malfeasance.

Illegal alien who could have been deported admits to years of child sex abuse

How is it that so many illegal aliens who go on to commit heinous crimes were caught by law enforcement for previous infractions but never removed? That is the question that should be the subject of endless hearings by Senate Republicans, as House Democrats hold a string of hearings on the welfare of illegal aliens. The case of an illegal alien who just admitted to sexually assaulting two minors for many years should serve as the latest example of the need for aggressively enforcing the laws on the books.

On Saturday, Palm Beach County, Florida, officials arrested Dilson Mejia-Licona, an illegal alien from Honduras, on two counts of lewd behavior with a minor. He is accused of sexually assaulting a child between 2012 and 2017 while the girl was 6 to 11 years old. He is also charged with sexually assaulting her older sister who is now an adult when she was about 13 years old.

The details of the domestic relationship surrounding the alleged assaults, first reported by the Palm Beach Post, appear to be murky. The police report doesn’t really describe Mejia-Licona’s relationship to the victims, but it appears that he was a boyfriend of the mother of these girls. The police report is extremely graphic and describes them all sleeping in the same room, with Mejia-Licona admitting to touching them in terribly graphic ways over an extended period of time. When the female detective who is fluent in Spanish asked him why he acted this way, he replied, “I don’t know, I guess I am just perverted.”

As we’ve reported before, the child molestation problem is not just a criminal alien issue, but is systemically part of the culture in some parts of Central America where child marriages are the rule, not the exception. Roughly one quarter of pregnancies in Honduras are to teen mothers, the second highest rate in Latin America. While the Honduran government has taken steps to ban child marriages, they are still commonplace particularly in the rural areas and among the poorer residents, precisely the people who come here illegally. With hundreds of thousands coming from those villages in rural Central America, it’s no surprise we are seeing an epidemic of child sex cases with illegal aliens.

However, there is something more disturbing about this. What if these alleged molestations could have been prevented? Our laws are designed so that illegal aliens are supposed to be detected upon their first interaction with a government entity. They are required to register with DHS (8 U.S. Code §1304), and their status is not supposed to be shielded from detection (§1324). According to court records, Mejia-Licona had been caught at least three times driving without a license in 2012, 2017, and 2018. How is someone like that caught without a license and not asked about his citizenship?

Those of us who live in the real world are asked all the time whether we are citizens for the most mundane private or public services, irrespective of how we look. How is it, then, that illegal aliens can be pulled over by cops and cycle in and out of county courts without their illegal status ever being discovered and turned over to the proper authorities? Yet, Mejia-Licona appeared in court several times during these cases and even got a Spanish-language interpreter paid for by taxpayers. Had he been removed after the first incident of driving without a license, these girls would never have been harmed.

Driving without a license is a serious problem and the fact that he was on the roads without one and was caught three times over a period of 6 1/2 years, according to court records, demonstrates the lawlessness in immigration enforcement. Congress needs to work with state officials on creating a process for always asking citizenship status when an officer pulls someone over for a driving violation or at least in the forms in court. Some of the worst criminals are often initially engaged by law enforcement or the court system through traffic citations, and if they are here illegally, that should be their last infraction in this country.

Even absent new congressional action, there is no reason why politicians on a local level shouldn’t be more proactive in enforcing immigration laws the same way localities enforce so many other federal laws. As Justice Clarence Thomas said in Arizona v U.S. (2010), “States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority.” There is nothing in federal statute that prohibits local law enforcement from inquiring about citizenship status as a standard for every interaction with a resident.

Indeed, it is preposterous for anyone to assert that local law enforcement can’t arrest someone who must be deported by federal law. Quite the contrary: 8 U. S. C. §1644 unambiguously says that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from” federal immigration officials “information regarding the immigration status” of a foreign national. And, of course, §1373(c) says that ICE “shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency.”

Florida no longer permits counties to be sanctuary jurisdictions, thanks to Gov. Ron DeSantis. However, the horrific alleged crimes of Dilson Mejia-Licona should prompt more aggressive action to actively ensure that citizenship of anyone who cycles into the justice system is known and conveyed to the right authorities. After all, why should we harbor other countries’ criminals when we have enough of our own?

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