What Florida’s Lawton Chiles could teach us about border protection, immigration and asylum today

As border security, immigration and asylum rank among voters’ major concerns, solutions can seem out of reach. However, we might learn lessons from the late Gov. Lawton Chiles’ unconventional approach in the 1990s when tens of thousands of Haitians and Cubans set out for Florida in almost anything that would float. His actions led to a more effective federal response. That’s exactly what is needed to answer the even greater humanitarian challenges today.

Gil Kerlikowske
Gil Kerlikowske (Provided)

We three authors have long-established connections with Florida individually and bring different perspectives to this debate, but we all want to get border protection, immigration and asylum right. One of us was a top immigration official under President George W. Bush, another a top border protection official under President Barack Obama after directing the Office of National Drug Control Policy within the White House, and the third served as Chiles’ special counsel.

Emilio T. Gonzalez
Emilio T. Gonzalez (Provided)

What did Chiles do, and what can we learn from it today? He initially felt that Florida had been left out of the loop, just as many governors may today. He challenged the federal government, even sued it, but he did so in search of solutions. He directly communicated with the White House, which ultimately was receptive to his ideas. He reached intergovernmental understandings involving federal interdiction and repatriation or alternatively leveraging Guantanamo Bay for processing, and federal coordination with state and local first responders instead of independent state and local action.

Mark R. Schlakman
Mark R. Schlakman (Provided)

He sought to limit migrant arrivals in Florida to those who had family ties but also to provide work authorizations for them. Given Floridians’ considerable cultural ties, Chiles also facilitated professional exchanges and other initiatives with Haiti.

Contrast that with today. Months ago, Senate majority and minority leaders had greenlit a bipartisan if imperfect framework for border security legislation and additional resources, which earned preliminary support from stakeholders like the National Border Patrol Council and United States Conference of Mayors. However, most congressional Republicans eventually stepped back from the plan.

And while the US House narrowly passed HR 2 last year, also known as the Secure the Border Act, only Republicans voted for it. So for purposes of critical analysis, one reasonably might consider whether the objective was to advance legislation the Senate could support and the president could sign.

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As we write, the mayors of New York, Chicago, Denver, Seattle and other major cities continue to confront extraordinary humanitarian challenges at tremendous cost resulting from some border states — and Florida — relocating migrants to urban and other areas that hadn’t previously experienced challenges familiar to American border communities. Earlier this year in a letter to President Joe Biden and congressional leaders, nine Democratic governors in states representing more than 100 million Americans renewed calls for Congress to act.

As a matter of law, it’s well-established that the federal government has exclusive jurisdiction on border security, immigration and asylum. Therefore, when a state acts independently, it is inherently suspect. That didn’t dissuade Gov. Ron DeSantis from backing an immigration-related law last year, or boasting about a migrant relocation program for which he secured funding from the Florida Legislature, at one point flying about 50 Venezuelans and Peruvians to Martha’s Vineyard — from Texas.

Nor has it deterred Texas Gov. Greg Abbott from engaging in constitutional brinkmanship, erecting razor wire barriers at the border and championing a Texas law authorizing judgment, detention and deportation of certain non-US citizens. Even though paused by a federal appellate court amid ongoing litigation, other states are following similar paths.

Members of the National Guard watch as migrants try to cross the Rio Grande from Mexico into the US near Eagle Pass, Texas, on July 11, 2023. Texas Republican Gov.  Greg Abbott has escalated measures to keep migrants from entering the US, pushing legal boundaries along the border with Mexico to install razor wire, deploy massive buoys on the Rio Grande and bulldoze border islands in the river.  (AP Photo/Eric Gay)
Members of the National Guard watch as migrants try to cross the Rio Grande from Mexico into the US near Eagle Pass, Texas, on July 11, 2023. Texas Republican Gov. Greg Abbott has escalated measures to keep migrants from entering the US, pushing legal boundaries along the border with Mexico to install razor wire, deploy massive buoys on the Rio Grande and bulldoze border islands in the river. (AP Photo/Eric Gay) (ERIC GAY | AP)

Not long after the nine Democratic governors sent their joint letter to Biden and congressional leadership, DeSantis joined two dozen other Republican governors in expressing support for Abbott’s strategy. At least a dozen of these governors also sent National Guard service members to Texas.

Abbott continues to transport more migrants — already more than 100,000 — to states essentially led by Democrats. That any state — on the border or not — experiences this kind of impact underscores the federal government’s responsibility to take additional strong steps to secure the border — also in coordination with Mexico and other nations — while still respecting legally binding obligations involving asylum for people fleeing a well-founded fear of persecution. Additionally, the federal government must alleviate the extraordinary humanitarian challenges that states are confronting even in the face of partisan gridlock on Capitol Hill.

That brings us back to what Chiles did in the 1990s. Before he was governor, he served three terms in the US Senate, 16 of those years with then-Sen. Joe Biden, including as Budget Committee chairman. He was in the Senate during the Mariel boatlift in 1980 when another Florida icon — the late Bob Graham — was governor and 125,000 Cubans made landfall.

Chiles and then-President Bill Clinton were both Democrats, as was the late US Attorney General Janet Reno, also a renowned Floridian. (The Immigration and Naturalization Service was a Department of Justice agency before being aligned into three separate immigration agencies within the Department of Homeland Security post-9/11.) Chiles wasn’t picking a partisan fight. He was looking out for Florida’s interest but seeking ways to address the problem in league with the federal government.

Chiles was aggressive. He declared a state of emergency. He sued the federal government for failing to adequately enforce US immigration law. And yet, he saw the distinction between state and federal roles. He refrained from deploying the Florida National Guard in ways he determined overreached. He opposed state immigration-related laws, deferring to principles of federalism, and was cognizant of legally binding international treaties involving asylum that carry the weight of federal law.

While the US District Court for the Southern District of Florida dismissed Chiles’ lawsuit, the federal appellate court later emphasized that Congress intended questions involving whether the federal government “is adequately guarding the borders of the United States to be ‘committed to agency discretion by law ‘ and, thus, unreviewable…”

This legal analysis highlights lessons being re-learned today. For one, it offered additional rationale for the Senate to summarily dismiss the articles of impeachment the House advanced against US Department of Homeland Security Secretary Alejandro Mayorkas without reaching any evaluation of job performance.

Unlike Chiles, DeSantis and Abbott are among an increasing number of governors challenging federal authority by taking matters into their own hands in the absence of meaningful congressional action. That frustration isn’t misplaced. After all, the last comprehensive immigration reform legislation was signed into law by President Ronald Reagan.

In the face of continuing inaction in Congress, Biden administration officials are assessing the extent to which the president can use his executive authority to act on the border despite generally being limited to current federal law and appropriations, at least as a stopgap that would pass constitutional muster.

Highly credible nonpartisan think tanks like Migration Policy Institute, and the Wilson Center, which just released an extensive Working Group Report entitled “US Leadership Matters in Addressing Forced Displacement Crisis,” and recommendations relating back to the independent US Commission on Immigration Reform offering invaluable research and analysis to advance necessary and long elusive border security, immigration and asylum reform legislation. And the European Union’s new Pact on Migration and Asylum provides relevant comparative analysis.

But until Congress demonstrates corresponding resolve to govern across its partisan divides, and ongoing litigation reaches finality, the onus falls squarely on the federal executive branch to reconcile converging humanitarian and national security imperatives. For those who seek reasonable solutions in the interim, Chiles’ legacy offers governors — regardless of political party affiliation — and Biden administration officials another way forward.

* Mark R. Schlakman is a lawyer and senior program director for the Florida State University Center for the Advancement of Human Rights, and advises Rambana & Ricci, PLLC, a Tallahassee immigration law practice.

* Gil Kerlikowske was director of the White House Office of National Drug Control Policy and later the commissioner of US Customs and Border Protection within the Department of Homeland Security under President Barack Obama.

* Emilio T. Gonzalez, who earned a doctorate in international relations from the University of Miami, was director of US Citizenship and Immigration Services, an undersecretary position within the Department of Homeland Security, under President George W. Bush.