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How Governors Are Stirring the Anti-Immigrant Pot

In deploying the National Guard to the southwest border and with other actions, several Republican governors are illustrating the impact states can have on federal policies.

Gov. Greg Abbott announces a new deployment of National Guard troops to the Texas-Mexico border at a news conference in June at the Texas state Capitol. Listening are Lt. Gov. Dan Patrick, left, and House Speaker Dennis Bonnen, R-Lake Jackson.
The 1,424-mile road from Pierre, S.D., to the small town of Roma, Texas, tells a truly unusual tale of the states’ role in the immigration battles rocking the country. Since Donald Trump’s infamous 2015 claim that immigrants were “bringing drugs, they’re bringing crime, they’re rapists,” battles over the border have been a top-line issue in American politics. But to a degree rarely appreciated, the states have played a major role in shaping those battles — and not just in the border states.

Roma is one of the oldest Anglo towns in the American Southwest, founded in 1765, once a busy Rio Grande river port and lately a popular birdwatching site. But it’s also the center of the migration river flowing north from Mexico and Central American nations, with as many as 500 people crossing the Rio Grande on a typical night. It narrowly went for Joe Biden in the 2020 election, but now finds itself at the center of the child-migration challenge along the southern border. “What are we going to do with all these children?” asked one local resident. “There are too many. … Something has to be done.”

At the other end of the trail, in South Dakota’s capital, Republican Gov. Kristi Noem has mobilized part of the state’s National Guard and sent the troops south to the Texas-Mexico border. It’s a peculiar strategy, because it’s a fundamental point of law that the military cannot engage in law enforcement within the borders of the United States. The National Guard has no jurisdiction over immigration issues. The soldiers can’t stand guard. They can’t arrest people. They might be able to detain illegal immigrants briefly until federal immigration officials arrive. But they have no real power.

What they can do is to serve as a potent symbol — not at the border, but back in their home state, where Noem has done little to counter speculation about her interest in the presidency. The battle at the border, combined with her aggressive attack on coronavirus restrictions and vaccinations, has made her an up-and-comer among supporters on the right. “We need leaders with grit,” she told a gathering of conservatives earlier this month.

Noem isn’t alone. Thousands of National Guard and active-duty troops deployed by the Pentagon have been serving in limited roles at the border for years. But now, at the behest of the governors of Arizona and Texas, their GOP counterparts in states including not only South Dakota but also Arkansas, Florida, Idaho, Iowa and Nebraska have agreed to send more troops or police to the border. It’s not at all clear, though, what they could do when they got there.

In Texas, Republican Gov. Greg Abbott has taken a particularly tough stand. He’s declared a state of emergency because of illegal immigrants crossing the border, and his fundraising campaign to have the state build more of the federal border wall attracted a visit from Trump. And then, in early June, he ordered state officials to revoke the licenses of facilities caring for the unaccompanied children who had crossed into the state. For Abbott, facing a fight from the right in his 2022 renomination campaign, these big steps marked an effort to claim the immigration issue from his opponents.

In Abbott’s effort to revoke the state license from facilities housing migrant children, the issue has moved from a hollow symbol to an important action. A hidden side of the immigration issue is that federal officials, after they apprehend illegal migrants, don’t actually care for them. The Customs and Border Protection agency (CBP), part of the U.S. Department of Homeland Security, has responsibility for detaining them. CBP then turns them over to a little-known agency, the Office of Refugee Resettlement (ORR), which is part of the U.S. Department of Health and Human Services.

ORR is a tiny agency of only about 100 people. That’s right — just a hundred feds in charge of the care of the tens of thousands of children crossing the border. How do they manage? In Texas alone, ORR has contracted with 52 different nonprofit agencies and facilities. Across the country, there are about 200 such facilities scattered across 22 states. It’s a very complicated chain, with CBP handing the children off to ORR, ORR contracting with a huge network of nonprofits, and each of the nonprofits operating under a state license. If the state yanks a license, the facility has no choice but to shut down, and the children can have nowhere to go. So a governor can undermine the federal effort to take care of the migrant children through a simple regulatory action.
There’s a profound paradox here. Big showy decisions like Gov. Noem’s packing the National Guard off to the border have relatively little real impact because the Guard has no power when it gets there. On the other hand, small and relatively invisible decisions, like Gov. Abbott’s decision to revoke the state licenses of federally funded care facilities, can torpedo national policy and put the migrant children at enormous risk.

In the public mind, immigration might well appear to be a federal matter, as Article I of the Constitution suggests. But the states play a surprising role in shaping how national policy works. Republican governors are stirring the anti-immigrant pot in their jockeying over sending troops to the border. And the decisions the states make on seemingly mundane issues like licensing care facilities determine whether the federal government can make good on its pledge to house migrants.

That road from Pierre to Roma is a potent symbol. More important, it points to a critical reality that’s likely to become even more apparent as governors, some of them with eyes on the White House, jockey for position on the immigration issue. The feds might make national decisions on immigration policy, but the states play an important role in shaping how — and whether — it actually works.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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