The Morning Dispatch: The Border Crisis Worsens

Happy Wednesday! Today is Manatee Appreciation Day, folks. Don’t forget to appreciate a manatee or two. They’re Gov. Jeb Bush’s favorite mammal!

Quick Hits: Today’s Top Stories

• The Biden administration reaffirmed its predecessor’s designation of China’s acts against Muslim minorities in the Xinjiang province as a “genocide” in an annual report on human rights unveiled Tuesday by Secretary of State Antony Blinken. 

• President Joe Biden on Tuesday announced his intent to nominate 10 individuals to serve as Federal Circuit and District Court judges, as well as one to serve as D.C. Superior Court judge. Also on Tuesday, Biden signed into law a bill extending the Paycheck Protection Program application deadline for businesses to May 31.

• Politico reports that Russian hackers stole “thousands” of emails last year from U.S. government officials working in the State Department’s Bureau of European and Eurasian Affairs and Bureau of East Asian and Pacific Affairs. It is unclear at this point whether the campaign was part of the previously reported SolarWinds hack.

• Following the release of a World Health Organization report that concluded it was “extremely unlikely” that COVID-19 originated in a laboratory in Wuhan, China, the U.S.—alongside Japan, the U.K., Australia, Canada, and others—issued a statement calling for access to more data on the topic. “We support a transparent and independent analysis and evaluation, free from interference and undue influence, of the origins of the COVID-19 pandemic,” the joint statement read.

• The National People’s Congress, Beijing’s largest parliamentary body, passed a law on Tuesday that will permit only those deemed to be “patriots” to serve on Hong Kong’s Legislative Council. The move completely overhauls Hong Kong’s elections system, as Chinese Communist Party officials will now be able to replace pro-democracy opposition leaders with individuals who pledge loyalty to the Chinese government.

• President Biden on Tuesday announced a series of executive actions aimed at addressing “the increase in acts of anti-Asian violence” in recent months, including devoting nearly $50 million toward programs for Asian American victims of domestic violence and sexual assault and creating a “COVID-19 Equity Task Force committee” to address xenophobia targeting Asian Americans.

• The New York Times reports that Rep. Matt Gaetz is being investigated by the Justice Department for allegedly having a sexual relationship—and traveling across state lines—with a 17-year-old girl. Gaetz denied the charges, claiming he and his family are being extorted and have been cooperating with  federal authorities.

• The United States confirmed 71,085 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 5 percent of the 1,422,873 tests reported coming back positive. An additional 1,063 deaths were attributed to the virus on Tuesday, bringing the pandemic’s American death toll to 550,955. According to the Centers for Disease Control, 32,973 Americans are currently hospitalized with COVID-19, and 1,789,510 COVID-19 vaccine doses were administered yesterday. 96,044,046 Americans have now received at least one dose.

Border Conditions Worsening

For the last two months, President Biden has attempted to walk a tightrope on immigration enforcement. On the one hand, he has left large chunks of former President Trump’s border security regime in place, including pandemic-related emergency orders that expel asylum seekers apprehended at the southern border without assessing the merit of their claims. On the other, he has created a carveout in that policy for unaccompanied minors, with officials arguing that denying children entry to the border is inhumane.

This attempt to strike a balance has drawn criticism from both sides of the aisle for weeks. Now, however, it seems to be nearing complete collapse. On Tuesday, reporters who toured one of the administration’s so-called “influx facilities”—overflow spaces offering temporary shelter to children the administration has not yet had time to place elsewhere—found it shockingly overcrowded, with 17 times the number of children that Centers for Disease Control pandemic protocols say it should be allowed to hold safely.

The facility tour brought one outrageous sight after another. More than 600 children stuffed into a “pod” designed to hold 32. Very young children held in a large room with stone floors made “suitable” by the addition of a few colorful mats, plastic playpen barriers, and kid-programming on TVs. Kids who had tested positive for COVID—who had received tests only once becoming symptomatic—lined up outside, waiting for a quarantined bus. Many kids had been held far longer than the 72 hours permitted by law, but there was nowhere else to send them: The Department of Health and Human Services, which runs better-equipped facilities that meet minimal quality-of-life standards, is out of places to put them, too.

Meanwhile, a Border Patrol official told reporters that they’ve started to see families who try to seek asylum, only to be immediately expelled thanks to the ongoing pandemic measures, engage in “self-separation”—the children crossing into the U.S. again, while the parents remain behind. Now “unaccompanied,” the children are able to qualify to remain in the U.S. under the Biden policy.

It’s important to note that it isn’t fair to consider the influx facilities entirely in a vacuum: The administration has argued that even grim conditions in such temporary facilities are preferable to the conditions they’d be returning children to. 

But it’s undeniable by now that Biden has validated both progressive and conservative critiques of his border policy: The former, that the administration had not adequately prepared to begin handling migrant children in a humane way; the latter, that Biden was naïve to think migration patterns would not shift to accommodate whatever pathways into the country he left open. The goal of allowing unaccompanied children to stay was certainly not to incentivize family separation—but that’s exactly what we’ve begun to see.

Kristi Noem Tries to Navigate the Culture Wars

Over the past several years, Kristi Noem has transformed from a relatively anonymous member of the House, to the governor of South Dakota, to a potential candidate in the 2024 GOP presidential primary. Coupled with her close relationship with former President Trump (she once gifted him an $1,100 model Mount Rushmore with his face on it), Noem’s championing of the anti-lockdown cause throughout the pandemic has rendered her somewhat of a folk hero on the populist right. 

“We never instituted a shelter in place order,” she reminded a receptive CPAC audience last month. “We never mandated that people wear masks. We never even defined what an essential business is, because I don’t believe that governors have the authority to tell you that your business isn’t essential!”

The strategy almost certainly contributed to South Dakota’s elevated COVID-19 death rate—eighth highest in the country on a per capita basis—but it also gave Noem a powerful  issue that appeals to Republican primary voters heading into 2024. Things were shaping up nicely for a presidential run—she had even mastered the time-honored tradition of denying having any interest in higher office. But lately, another, unrelated culture war issue is threatening to derail any national aspirations she may hold.

In recent weeks, Noem has faced immense pushback from social conservatives over her handling of HB 1217, a measure passed by the South Dakota state legislature that would have required athletes in both K-12 and college sports to compete according to their biological sex, or “in accordance with the student’s genetics and reproductive biology.” The legislation passed by an overwhelming majority in the House, and by a five vote margin in the 35-seat Senate, sending the bill to the governor’s desk.

Then, Noem sent it right back.

Using a procedural maneuver unique to South Dakota called a “style and form” provision, Noem asked the legislature to make certain changes to the bill. Although many headlines claimed otherwise, at this point the bill was not vetoed. Under the South Dakota Constitution, the legislature could have made the requisite changes and sent it to Noem’s desk for her to “certify.” The legislature did not make the changes, so it was eventually returned to the legislature as a vetoed bill.

Although she reiterated her belief that “boys should play boys’ sports, and girls should play girls’ sports,” Noem voiced concern over the “vague and overly broad” language in HB 1217, arguing it could result in unintended consequences. She advocated for her suggested changes in a press release, claiming they would limit the scope of the bill to only elementary through high school sports in South Dakota, and clean up the vague language surrounding “civil liability” issues.

Ian Fury, Noem’s communications director, told The Dispatch that the governor was advised that, as passed, the bill would not have survived a court challenge from the National Collegiate Athletic Association. Noem also had other issues with the bill, Fury added, including a provision that would have allowed for “all sorts of lawsuits that had nothing to do” with transgender athletes competing in sports. The legislation took a “big government approach” in requiring families to fill out annual forms certifying the sex of their child instead of just producing a birth certificate, Fury argued. The South Dakota legislature did not accommodate Noem’s changes, so the bill was not certified and result in what was effectively a de facto veto. 

“There’s been this idea out there that she could have signed the bill at that point. That’s false,” Fury contended. “So, instead, she took the action that she could take: She issued two executive orders.”

Noem defended the approach in a National Review op-ed yesterday, calling for a special legislative session in late May or early June to address this issue. “As passed, this bill was a trial lawyer’s dream. It would have immediately been enjoined had I signed it into law, meaning that no girls in South Dakota would have been protected,” she wrote. “Unfortunately, the state legislature failed to accept my proposed revisions to the legislation. So I have signed two executive orders: one to protect fairness in K–12 athletics, and another to do so in college athletics. Conservatives should not doubt my desire to fight on this issue.”

Some social conservatives, however, are very much doubting Noem’s desire to fight on the issue.

“It’s just a facade,” said Terry Schilling, president of the conservative American Principles Project. “I think that she is surrounded by really bad advisers, who are not socially conservative, who do not want these types of fights.” A combative Tucker Carlson pressed Noem last week on whether she was “caving to the NCAA” by not signing the bill as written.  

While actual examples of transgender athletes seeking to participate in sports based on declared gender identity rather than biological sex remain relatively rare, the issue has resulted in legislation in more than two dozen state legislatures, according to a count by the ACLU. And  the issue remains top of mind for many Americans—not just Republicans. Fifty-three percent of registered voters in a recent Politico/Morning Consult poll “strongly supported” or “somewhat supported” banning transgender athletes from competing on women’s sports teams, including 59 percent of men and 46 percent of women. Most importantly for Noem, 74 percent of Republicans did as well.

“It’s obvious she has national aspirations,” Schilling told The Dispatch. “If you can’t stand up to the NCAA or the Chambers of Commerce, how are you going to stand up to China, or Russia, or Syria, or any of these other countries who are our enemies?” 

When asked how this episode may affect her aspirations for higher office, Fury bristled. “If this was about that, the easy thing to do would have been to just sign the bill,” he said. “But she has to make decisions that are best for her state.”

Worth Your Time

• Is there an antidote to the rampant polarization  of the American election system? Nick Troiano, executive director of Unite America, thinks he has at least one answer. In a piece for The Atlantic, he highlights what he calls the “primary problem” in our election system: “A small minority of Americans decide the significant majority of our elections in partisan primaries that disenfranchise voters, distort representation, and fuel extremism—on both the left and, most acutely (at present), the right.” By ditching partisan primaries and replacing them with better alternatives—like Washington’s nonpartisan “top two” primary or Alaska’s single, nonpartisan primary (and ranked choice voting system)—Troiano thinks we can expand voters’ options in general elections and perhaps even tamp down some of the political extremism we’ve seen in recent years. 

• Over at FiveThirtyEight, Alex Samuels places the divides within the Democratic Party on immigration in historical context, and explains how these fissures might affect the Biden administration’s approach to the U.S.-Mexico border crisis. In Samuels’ view, there are two main camps in the Democratic Party: The moderates, who support limited deportations and focus on the effects of  immigration on the American worker; and the progressives, who defend a more “humanitarian” approach to the issue by calling for increased immigrant access to welfare programs and demanding a complete halt on deportations. “Biden’s approach has so far been to roll back what Trump did, but he is ultimately going to have to pick a side within his party or work toward some sort of compromise,” Samuels writes. “If he moves too far left, he risks losing moderate voters, but at the same time, if he doesn’t move left enough, he risks breaking his promise of a ‘fair and humane’ immigration overhaul.”

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Toeing the Company Line

• Tuesday’s Sweep is jam-packed—the campaign cycle never ends! Sarah breaks down some early 2024 Republican primary moves and looks at the effect of the “Defund the Police” slogan in 2020, Audrey excerpts her excellent profile of Texas congressional candidate Michael Wood, and Chris Stirewalt dives into Democratic proposals to raise taxes.

• With both chambers of Congress on recess this week, Haley used the down time to ask freshman Reps. Peter Meijer and Jake Auchincloss about their first few months on the job. Check out her latest Uphill to learn what has surprised them most, what it’s like to be recognized in public, how they hired staff, and how they contend with the legislative process. “I’m not a legislative accelerationist, and it feels like there’s a lot of accelerationists milling about, especially on the Democratic side of the aisle, who want to press the advantage in ways that I frankly think will be to their detriment long term, and definitely to the institution’s detriment as well,” Meijer told Haley. “These things that seem like wins in the moment, that seem like short-term wins, I think will build up into long-term losses.”

Let Us Know

On the first day of March, we asked you where you thought we’d be on the pandemic “back-to-normal” scale by the end of the month.

Well, today’s March 31. Have things in your neck of the woods progressed faster than, slower than, or about the speed you expected? 

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Audrey Fahlberg (@FahlOutBerg), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), and Steve Hayes (@stephenfhayes).