Public commentators have recently argued, out of deep frustration, that Biden Administration border officials should be prosecuted for failure to enforce laws, protect citizens, and do their job – that is, for permitting human and drug traffickers to penetrate the US southern border.

The argument is appealing, but hard to do. Biden officials are surely complicit in undermining US public health and safety, glibly letting human and drug trafficking explode, overdoses topping 100,000 annually, and illegal aliens pouring over the southern border. People are angry!

Objectively, policies were upended a year and a half ago. The border wall, travel ban, and Trump executive orders were halted, including the Trump executive order “to employ all lawful means to enforce the immigration laws of the United States.”

Biden and cabinet have issued executive orders limiting enforcement actions, limiting deportations, shipping illegals to the interior, and objectively endangering public health and safety. 6000 ICE enforcement officers have averaged one arrest every two months.

Any illegals, unless caught, are free to roam – unless convicted of a crime. Case by case evaluation requirements favor illegal crossers. We saw 1.3 million illegal crossers between January and September 2021, the highest for such a period. This does not count “got aways,” roughly 1000 a day.

Meantime, drug trafficking and foreign source overdoses exploded. Roughly 12 percent of unaccompanied minors have COVID, and after May 2022, Biden will no longer enforce Title 42, which protects Americans from border crossers with communicable diseases.

Anecdotal data is as infuriating, with “planeloads of undocumented migrant children” flown around the country, many at night. Others are shipped by busses, as border patrol agents are hamstrung and overloaded.

So, why can’t those endangering public health and safety be prosecuted using anti-human trafficking and anti-drug trafficking laws? The question is good, the principle is right, but the stretch is long – legally. 

In short, those who traffic in persons or drugs – who benefit in any way from official or unofficial complicity, promotion to harboring, are potentially liable for related crimes.

Likewise, those involved in acts of negligence, gross negligence, or recklessness, looking the other way to facilitating not doing their duty, might realistically be held liable.

However, rub in any federal prosecution is three-fold. First, no federal prosecutor, who works for the Attorney General, who works for the President, will bring a charge against a federal employee doing the President’s bidding.

Second, federal laws are specific and require elements hard to prove, even if sensible, that would find a federal employee involved in human or drug trafficking – unless they personally profit, knew they were violating the law, were part of a criminal enterprise, or otherwise clearly contravened federal law.

However, State laws also exist – in every state – against human and drug trafficking. State prosecutors do not work for the US Attorney General or all Democrat governors, so in theory, a law able to describe a criminal act by a federal official, which occurred in or had a result in the State, might open up liability.

That said, this, too, is hard. State laws require specifics – like profiting from the deed – that are likely missing.  More, laws like Section 1983, which give citizens a right to sue for violation of civil rights also offer “qualified immunity” to government officials.

What is qualified immunity? The concept goes back to the 1870s, codified in the Section 1983 law. It basically says that a government employee cannot be sued if they (1) believed in good faith their conduct was lawful, or (2) the conduct was objectively reasonable.

A jury might find – if a prosecutor were so bold – letting illegal aliens or those trafficking into the interior was presumptively and objectively unreasonable, but Section 1983 would protect them if the government official “believed in good faith their conduct was lawful.” 

Most federal officials, even if dyed-in-the-wool socialists, communists, or anarchists, would likely believe their actions – directed by Biden’s orders – were at least nominally lawful.

The upshot is that we have a Federal Government which, under Biden, is objectively endangering the public health and safety of communities, more so if Title 42 is lifted and contagious aliens are released to the interior – perhaps some with foreign drugs.

On the other hand, these offenses are chiefly political in nature, not profiting government employees, just under politically motivated, indefensible Biden policies.

What is the answer? Public discussion – and a recognition that public health and safety of the nation is in jeopardy if laws we expect to protect us are not enforced, but undermined.

Perhaps more to the point, while Federal and State prosecution is limited, barring personal profit, the answer is clear. It lies at the ballot box – in November.

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