Any among us that hoped the Senate negotiated border bill would somehow be better than the leaks had advertised were sadly disappointed upon the bill’s release. The proposal is a policy failure and political quagmire for Republicans. The legislation does provide additional resources for physical security, i.e., more Customs and Border Protection (CBP) agents and equipment, but it does little to remove the current legal barriers to immigration enforcement and creates new incentives for never ending mass migration. It also gives Democrats ammunition to blame Republicans for the border crisis going forward for their refusal to “compromise” in the form of enacting the bill.
While changes to immigration law are needed, President Joe Biden inherited a series of policies from the Trump Administration that produced the lowest levels of illegal migration at the southern border in a generation, compared to the record setting crisis the Biden Administration has bestowed upon the nation today. A crisis President Biden has the authority under section 212(f) of the Immigration and Nationality Act to end.
Section 212(f) is the same statute President Trump used to implement his so-called “travel ban” and the Supreme Court, in upholding the ban, noted that the law is a “comprehensive delegation” that gives the president, “sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” The need and rationale for Trump’s travel ban pales in comparison to the catastrophe the country now faces under Biden at the border, and yet Biden refuses to act.
The Senate bill’s vaunted centerpiece, the Border Emergency Authority (BEA) under section 3301, is unnecessary in light of section 212(f), in some ways toothless, to the extent it’s discretionary, and utterly cumbersome with its limitations, exemptions, and time constraints. In theory, the BEA grants the secretary of homeland security authority to remove or deny entry to large classes of migrants and is triggered when 4,000 migrants are encountered daily for seven consecutive days, or when there is a 5,000 daily average for the same period, or 8,500 migrants are encountered in one day. This essentially codifies mass illegal migration by ensuring that anything just below these numbers is treated as acceptable.
Unlike the convoluted BEA, section 212(f) requires only that the president find the situation “detrimental to the interests of the United States” before proceeding, without any reference to the level of illegal migration occurring as required under the BEA. Thus, the BEA adds only confusion to the statutory mix, which could be used to complicate the president’s prerogatives under section 212(f) by activist lawyers and judges. Moreover, if President Biden won’t exercise his authority under section 212(f), why should anyone expect that he will allow the BEA authorities, as unwieldly as they are, to be used?
A major legal constraint to border security is the Flores Settlement of 1997, and the Senate border bill does nothing to fix it, or the unintended challenges created by the Trafficking Victims Protection Reauthorization Act of 2008. The Flores settlement limits the time, usually no more than 20 days, and manner in which minors may be detained by the Department of Homeland Security, and the Trafficking Victims Protection Reauthorization Act makes it extremely difficult to remove certain unaccompanied minors encountered at the border.
Combined, Flores and the Protection Act have contributed to explosions in family and unaccompanied minor encounters at the border, including the record 440,000 minors under the Biden Administration and the alarming rise in child abuse and trafficking operations. The Senate bill codifies Flores and expands its coverage to families under sections 235B and 240D and provides them with taxpayer funded lawyers under section 3512.
Other mass migration incentives created by the bill include immediate work permits to migrants released from custody under section 3502, expansion under section 3146 of the “parole” authority presently being abused by the Biden Administration by adding even more criteria that can be employed to grant it, and 50,000 new green cards per year under section 3402. The bill also provides work permits to children of H-1B visa holders under section 3403, and gives $1.4 billion under the appropriations section to non-governmental organizations that grant shelter to migrants across sanctuary cities that thwart immigration law enforcement. In its current form the bill ensures the border is never closed, as Senator Chris Murphy (D-CT), a negotiator on the bill noted in a statement, and mass migration becomes the new normal.
Any chance to salvage the bill will require a repurposing of its intent and an overhaul of its provisions with the goal of actually fixing the many challenges in the law that make securing the border on a regular basis so difficult. To that end, legislators must start from the premise that to make immigration policy, one must first be able to control immigration, and that immigration policy should be based on what’s in the best interest of the American people in general and the American worker in particular. At present, this country has no such control, and this bill in its current form won’t get us there.