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If Only There Were Some Sort of Federal Executive That Could Stop Migrants From Being Used As Pawns

The president's response to Abbott and DeSantis’s cruelty has been toothless and enabling.

11:29 AM EDT on September 26, 2022

The nation’s chief executive. (Official White House Photo by Adam Schultz)

The busing and flying of migrants under false pretenses by the hired goons of Texas governor and habitual border-security cosplayer Greg Abbott and Florida Governor Ron DeSantis to Martha's Vineyard, Washington, D.C., and New York City with zero local coordination has gripped a national media and the Democratic political firmament typically unbothered by the mistreatment of migrants, raising the basic question of: What can be done about this?

That throngs of liberals were demanding the immediate jailing of Abbott and DeSantis just goes to show the extent to which the whole of our culture is geared towards the punitive as the super-solution, the remedy to all ills, including to itself—the governors punish the migrants, we punish the governors and so on. Last week, Bexar County Sheriff Javier Salazar had announced a criminal investigation, though he couldn’t immediately name what criminal statutes might have been violated.

This will make a lot of people feel warm and fuzzy while likely accomplishing little beyond setting the precedent of sheriffs and other local law enforcement launching investigations into the transport of migrants. Prosecuting the governors is a self-evidently terrible idea that will most likely be weaponized by right-wing sheriffs to probe the many local governments and advocacy groups that actually help migrants get to their destinations. More sensible are the civil actions, like a recent lawsuit brought by several migrants against DeSantis for harms caused by the misleading nature of the transportation. Even these, though, are likely to drag on and provide relief to a small class of people even as Abbott and DeSantis escalate, thrilled as they are by the attention.

There are potentially some broader constitutional claims that could be made. For example, Linus Chan, a professor and director of the Detainee Rights Clinic at the University of Minnesota Law School, believes that the states are violating a doctrine known as the right to interstate travel, which very broadly holds that states can’t block people from moving between states or grant new arrivals fewer rights than other state residents. Chan pointed to a 1917 incident known as the Brisbee Deportation, in which over a thousand striking miners were forcibly bussed from Brisbee, Arizona, to New Mexico, as well as efforts by states to move homeless populations out of state.

"​​We've created this idea of trying to kick poor people out of one state and into other states, and over time, the courts and the Constitution have said that that's not allowable. So the contention on my end is that this is no different. Texas treating people as a problem that they can get rid of by sending them to another state is very problematic," he said.

That brings us to the federal government’s role, or rather the lack thereof. Customs and Border Protection officers have been giving migrants fake addresses and calendaring cases in courtrooms thousands of miles from where they’re ending up, all in an apparent effort to make them lose their cases by default. It's a pattern of conduct that could lead one to conclude that the agency is some sort of rogue militia, untethered from oversight and executive command.

This is to some extent practically true—CBP is the largest federal law enforcement agency, and Border Patrol in particular tends to view itself as something like the ronin, creating their own authority as they patrol the lawless expanse in some twisted fantasy of honor and heroics—but it is certainly not legally true. There is a clear chain of command here that tops out with the president himself, and with every second that ticks by in which President Joe Biden and Homeland Security Secretary Alejandro Mayorkas refuse to exert and impose their authority, the mutiny gets more entrenched and harder to dislodge.

It's the federal equivalent of situations that have calcified in municipalities around the country, with local police departments and sheriff's offices deriding even the idea of civilian oversight or accountability, first taunting elected leadership and moving to direct threats and force when the former doesn't work. The main difference here is that we're talking about a nationwide force of over 45,000 armed and uniformed officers, including Border Patrol. CBP here is not just incidental or even negligent in this scheme—it is an active participant, screwing over immigrants it sees as barely above vermin, to the extent that agents gleefully commemorate infamous instances of inhumanity, all in a protracted game of chicken with a president they're confident will blink.

The reason there are hundreds of recent asylum seekers milling about in San Antonio and desperate for transportation north in the first place is because the feds have abdicated their own role in this. DHS is happy to charter flights between different points along the border to facilitate so-called lateral deportations, for reasons that seem to stop at "increase cruelty." But it won't expend the same effort to actually help the people who it has already certified as having passed a credible fear test. There is precedent for this, with the Obama administration having instituted a policy to coordinate with nonprofits and migrants' friends and families to release asylum seekers directly to people or groups with which they would receive support.

"One of the sad realities is that the federal government is able, on a dime, to create a ton of detention facilities in no time flat when it comes to dealing with the surge, when they could, in fact, just provide more logistical support to the networks that are already there, to house people," said Chan. Doing so would not only ease the pressure on beleaguered cities bearing the brunt of the states' political antics, but give the federal government standing to challenge state and local officials maliciously shuffling people around the country. "Once they already have that humanitarian sort of response coordinated and put into place, then I think it becomes much easier for them to go into court and create a civil action against these state governments that are [fraudulently transporting people] and explicitly say that they are interfering with government programs."

Biden has recently taken a slightly less timid stance, but it seems he still fears the inevitable freakout over an effort to use federal resources to fly migrants to their destinations with coordination and buy-in from local governments and nonprofits. (If you doubt there would be such a freakout, simply recall the days-long outrage cycle over "illegal babies" daring to drink our babies' infant formula).

Instead, the president is content to leave these migrants as political cannon fodder for the sadists in Austin and Tallahassee, shaking his head solemnly in the universal sign of 'someone should do something about this' while ignoring the fact that the best positioned such person is himself. The inaction isn't the absence of a decision, it's a decision.

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