The Justice Department sued Virginia after it removed the names of 6,303 aliens and Alabama after it moved 3,251 aliens to an “inactive” list.

Keep in mind that it’s a felony under several federal statutes for an alien to claim fraudulently to be a citizen so he or she may register to vote or vote in U.S. elections, including 18 U.S.C. §§ 611, 911, and 1015(f). The Justice Department has a duty to enforce these statutes, something the agency apparently has no interest in doing under President Joe Biden and Vice President Kamala Harris.

The federal voter registration form established by the National Voter Registration Act, or NVRA, not only asks applicants whether they are U.S. citizens, it requires them to attest under penalty of perjury that they are citizens.

The form has a strict warning that if the would-be voter provides false information, he or she may “be fined, imprisoned, or (if not a U.S. citizen) deported from or refused entry to the United States.”

However, the Justice Department claims that Virginia and Alabama violated the law’s 90-day preelection deadline for “systematic” list maintenance programs. This, according to the DOJ led by Attorney General Merrick Garland, prevents all “systematic” removals from a voter registration list within 90 days of an election.

What the Justice Department fails to point out is that the 90-day deadline is in the second part of a section of the National Voter Registration Act that deals only with the removal of the names of registered voters who have moved.

The first part outlines the rule for removing the names of individuals who have moved to a different residence either within the state or another state. The second part then applies the 90-day deadline for such removals.

That section of the law also says that the deadline doesn’t apply to “correction of registration records” or to removal of names of voters who have requested it or who have died or become ineligible due to a criminal conviction or mental incapacity.

The common factor in all of those exceptions is that each deals with individuals who were eligible to vote when they registered but subsequently became ineligible.

The 90-day deadline obviously doesn’t apply to an alien who wasn’t eligible to register to vote in the first place and, in fact, was committing a felony violation of federal criminal law by registering.

Critics, including the Justice Department, have claimed that those exceptions are the “exclusive” reasons that a state may remove the names of registered individuals from the voter rolls.

In 2012, in Arcia v. Detzner, a federal case out of the Southern District of Florida, Judge William Zloch said that claim would “produce an absurd result.”

Zloch ruled that would mean a state couldn’t “remove from its voting rolls minors, fictitious individuals, individuals who misrepresent their residence in the state, and non-citizens.”

The 90-day deadline, the judge decided, “simply does not apply to an improperly registered noncitizen.”

In another 2012 federal case, U.S. v. Florida, Judge Robert Hinkle of the Northern District of Florida concluded that Congress drafted these provisions of the law to deal with the removal of names of registered voters “on grounds that typically arise after an initial proper registration.” The provisions don’t apply to “revocation of an improperly granted registration of a noncitizen,” Hinkle ruled.

In fact, the judge wrote, “the NVRA does not require a state to allow a noncitizen to vote just because the state did not catch the error more than 90 days in advance.”

Moreover, the Justice Department is also wrong in claiming that the law bars all “systematic” removals of voters’ names.

As Hinkle ruled, during the 90-day period “a state may pursue a program to systematically remove registrants on request or based on a criminal conviction, mental incapacity, or death but not based on a change of residence.”

What “matters here,” the federal judge added, “is this: none of this applies to removing noncitizens who were never properly registered in the first place.”

It is true that in a deeply flawed, cursory analysis, a divided panel of the 11th U.S. Circuit Court of Appeals overturned the Southern District of Florida decision and held that the 90-day deadline did apply to the removal of aliens’ names from voter rolls.

But Florida didn’t appeal this obviously wrong decision by two appeals court judges to the entire 11th Circuit or to the Supreme Court. The 11th Circuit panel’s decision not only is wrong based on the text of the statute, but any interpretation of the National Voter Registration Act that would force a state to allow an ineligible alien who violated criminal law by registering to remain registered so he may cast a ballot in an upcoming election likely would render the law unconstitutional.

In 2019, in Bellitto v. Snipes, another case arising out of Florida, a different 11th Circuit panel held that in applying the NVRA, “Congress would not have mandated that the state register” an individual who “is not eligible to vote.”

If the NVRA does not require a state to register an ineligible alien to vote, it cannot be construed to require a state to maintain and continue the registration of an ineligible alien.

Alabama and Virginia should fight the Justice Department and be willing to take these cases all the way to the Supreme Court. Maintaining the security and integrity of the American election process and protecting voters against foreign interference that voids their votes requires no less.

Read Hans von Spakovsky’s complete Legal Memorandum: “The National Voter Registration Act Does Not Prevent States From Removing Aliens from Voter Registration Rolls at Any Time.”

In truth, this deal is a political ploy that would support his open-border policy and fund his unlimited illegal immigration plan.

Why is Biden’s claim a tall tale? Because federal immigration law already gives Biden the ability to close the border—and he, his advisers, and his political allies know it.

And anyone who believes that, if this bill passes, Biden will close the border is a modern-day Charlie Brown who actually believed time and again that Lucy wouldn’t snatch the football away when he tried to kick it.

The president’s already existing authority to shut down the border was specifically upheld in 2018 by the U.S. Supreme Court in Trump v. Hawaii over the so-called travel ban issued by then-President Donald Trump.

As Biden’s political allies will no doubt remember, since they led the charge against it, Trump “shut down the border” to aliens from certain terrorist and other nations until the Department of Homeland Security could determine whether it was able to accurately verify and investigate the backgrounds of aliens from those countries.

Trump acted under 8 U.S.C. § 1182, which states that when “the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens … .”

Trump also acted pursuant to 8 U.S.C. § 1185, which provides that the president can set the “rules, regulations, and orders” for entry of aliens into the U.S. “subject to such limitations and exceptions as the President may prescribe.”

The Supreme Court upheld the travel ban since these existing immigration statutes give “deference to the President” to decide when the entry of aliens should be restricted, and provide him with “‘ample power’ to impose entry restrictions in addition to those” already outlined in federal immigration law.

Moreover, the Supreme Court refused to second-guess Trump’s national-security rationale for issuing the travel ban because such national security determinations made by the commander in chief are entitled to great deference, since courts are not in a position to make such determinations.

In addition to this broad, virtually unlimited authority, the head of U.S. Customs and Border Protection, acting Commissioner Troy Miller, is authorized by 19 U.S.C. § 1318 (b)(2) to “close temporarily” any port of entry into the U.S. “when necessary to respond to a specific threat to human life or national interests.”

The open southern border of the U.S. is clearly a national security problem of the highest order and is obviously a threat to our “national interests.” Millions of illegal aliens are overwhelming communities across the country, and human traffickers, drug smugglers, criminals, and terrorists are freely entering with little to no obstacles in their way.

A coalition of former FBI officials recently issued a warning to Congress about the “imminent danger” we face from this flood of aliens, which those officials say is “one of the most pernicious ever to menace the United States.”

As they point out, “military-aged men from across the globe, many from countries or regions not friendly to the United States, are landing in waves on our soil by the thousands—not by splashing ashore from a ship or parachuting from a plane, but rather by foot across a border that has been accurately advertised around the world as largely unprotected with ready access granted.”

Biden doesn’t need this Senate bill to fix this problem.

What he needs to do is to exercise the will power to actually shut down the border; accept the help of states and cooperate in their efforts, like those of Texas, to install barbed wire fencing and eventually a wall everywhere it is needed; stop his “catch and release” policy; quit unlawfully granting mass parole and work permits to illegal aliens; reinstate the “Remain in Mexico” policy for asylum-seekers; and take the many other actions to enforce federal immigration law that have proven effective in the past.

In other words, quit sitting on the sideline telling tall tales and get into the arena, and do the right thing. The country is waiting, but its patience has run out.

Abbott did so in the face of the deliberate and intentional inaction by the Biden administration to make sure the border stays open so millions of illegal aliens could continue to flood across from Mexico.

Under the circumstances, any such move by the president would be an abuse of the applicable law.

A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military. Under 10 U.S.C. § 12301(a), the secretary of defense (and thus the president) is given the authority in “time of war or of national emergency declared by Congress, or when otherwise authorized by law” to order National Guard units to active duty.

But they cannot be called to active duty by the president “without the consent of the governor of the State.” If the governor consents, the unit called into federal service under Title 10 reports to the president as the commander in chief while in federal service.

State governors, however, like Abbott, remain the commanders in chief of their state National Guard units, such as the Texas National Guard, unless they have consented to the president’s call for those units to be in active federal service.

The only exception to the consent requirement is contained in subsection (f) and it only applies if National Guard units are needed for active duty for overseas service—such as when we were in the Iraq and Afghanistan wars.

Thus, under this statute, without the consent of Abbott, Biden has no power to simply seize control of the Texas National Guard as he is being urged to do and order them to stand down, since we are not in a war and the Guard is not needed for service abroad.

Biden could go to the extreme by trying to use the Insurrection Act of 1807 to take over the Texas National Guard. The Insurrection Act authorizes the president to federalize the National Guard under certain narrow and exceptional circumstances. The last time it was invoked was by President George W. Bush to help quell the deadly widespread riots in 1992 in Los Angeles after the arrest and beating of Rodney King, when state authorities were unable to cope with the violence and mayhem.

Under 10 U.S.C. § 252, the president can “call into Federal service the militia of any State” when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”

Clearly, there is no insurrection going on in Texas as defined in that law.

Nor is Texas violating any court order issued in “the ordinary court of judicial proceedings.” The state has been placing barbed-wire fencing on state-owned and private property, and no court has ordered Texas to remove or cease installing that fencing.

The only thing that has happened is that the U.S. Supreme Court vacated—while the case between Texas and the federal government is on appeal—an injunction that prevented the feds from removing the fencing. But nothing prevents Texas from continuing to put in more fencing, even after it has been removed.

Biden would also be hard-pressed to legitimately use another part of the Insurrection Act, 10 U.S.C. § 253, which allows a president to use a state militia (the National Guard) if an insurrection or domestic violence “hinders the execution of the laws of that State, and of the United States.”

It is Texas that is trying to ensure that federal laws are being enforced and complied with. And it is the Biden administration that is “hindering” the execution of the laws of the United States with its abject refusal to enforce our immigration laws, to prevent illegal aliens from crossing the border, and its unlawful granting of mass parole to those aliens once they are in the United States.

If Biden tries to call forth the Texas National Guard, the most likely federal statute for him to try to use, according to a source familiar with National Guard operations, is 10 U.S.C. § 12406. This provision allows the president to “call into Federal service” the National Guard under one of three circumstances: an “invasion by a foreign nation”; “a rebellion or danger of a rebellion against the authority of the Government of the United States”; or the president’s inability “with the regular forces to execute the laws of the United States.”

The fatuous argument that Biden would have to make is that Texas is engaged in a rebellion against the authority of the United States or some such other rubbish. But as already noted, there has been no rebellion by Texas and no court order of any kind finding that Texas is somehow violating federal law or refusing to comply with federal courts.

The third precondition obviously also does not apply. A claim that any of these preconditions have been met would be met with derision.

Instead of carrying out his duty as president to “take Care that the Laws be faithfully executed,” which includes our immigration laws, Biden has violated his oath of office and is acting like a bully to violate the law, threaten states like Texas that are faced with a desperate situation, and thwart the will of the people who want a secure border and the rising tide of illegal immigration stopped.

If the Biden administration would spend as much time fighting illegal immigration as it does fighting border states that are actually trying to do something about the problem, we might begin to see some progress. But don’t hold your breath.

Have an opinion about this article? To sound off, please email [email protected], and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the URL or headline of the article plus your name and town and/or state.