The United States has a set of rules intended to exclude illegal immigrants from the country, and now Republicans find themselves negotiating over to what extent those rules can be ignored.
The group of senators that worked on a border deal with the White House for months has finally released the text of a bill that is touted as ending “catch and release” and mandating a “shutdown of the border” if illegal crossings exceed 5,000 a day.
President Joe Biden, who has done so much to create a de facto open border since the initial days of his administration, suddenly says this legislation is necessary so he can unleash his inner border hawk.
The bill is, to be sure, the best bipartisan immigration bill we’ve seen out of Washington, D.C., in decades, although that is an extremely low standard. The deal has worthy provisions, but it’s not going to compel Joe Biden to do anything he doesn’t want to and further entrenches a system that has been fundamentally distorted by mass bogus asylum claims.
The deal appears to be unraveling and deserves to do so.
The headline provision in the deal gives the president Title 42–type authority to exclude illegal aliens once there are an average of more than 4,000 illegal crossings a day over seven days and mandates that he does so once there are an average of 5,000 over seven days, or 8,500 on a single day. But, under current law, the president is already supposed to be excluding illegal immigrants.
There is a limit to how many days the president can use this authority, and the number of days steadily declines each year until it expires after the third. This is clearly an insurance policy against Donald Trump making full use of the authority should he be elected again.
The emergency authority would deactivate when the border crossings drop to 75 percent of the triggering number. This raises the possibility of Rube Goldberg–style, on-again-off-again border closures, when, again, the border is already supposed to be closed to illegal immigrants. Even during a closure, at least 1,400 migrants are to be processed each day at ports of entry, ensuring that the flow of asylum seekers continues regardless.
The deal seeks to toughen the “credible fear” standard that has been loosely applied to wave illegal immigrants en masse into the country. This would be a welcome change, but the bill creates a new process that bypasses the immigration courts and relies on notoriously open-handed asylum officers to make asylum determinations. It also dangles the prospect of expedited work permits, adding to the incentive for illegal immigrants to come here. The new asylum process is supposed to run much more quickly than the current system, but there’s every reason to believe it, too, will soon be overwhelmed.
The deal’s supposed end to “catch and release” doesn’t live up to its billing, since it gives the Homeland Security secretary the authority to send migrants to “Provisional Noncustodial Removal Proceedings” — in other words, to release them — if they express a fear of persecution or request asylum.
Moreover, the bill is careful to preserve the loophole for so-called unaccompanied minors that started the Biden border crisis in the first place and preserves Biden’s parole program for Cubans, Haitians, Venezuelans, and Nicaraguans.
As long as our immigration system is in thrall to the fiction that migrants who are overwhelmingly coming here for jobs are really asylum seekers, and ties itself up in knots considering these largely meritless claims, we are going to have trouble establishing order at the border. As Donald Trump showed in the latter part of his first term, controlling the border requires excluding the migrants from the U.S. in the first place. Then, barring extraordinary circumstances, anyone making it through the cracks should be detained and removed (the additional resources in the deal for these purposes are a good thing).
The cause of border security would be advanced much further if Congress dispensed with most of this bill and just created a Title 42–style authority that isn’t triggered or limited in any way. Prohibiting illegal immigrants from entering the country is the best tool against illegal immigration. As Ronald Reagan said, there are no easy answers, but there are simple ones.