{S} enator Kyrsten Sinema has lashed out at critics of the Senate border deal. In her defense of the deal’s still-unpublished terms, however, the Arizona independent (formerly a Democrat) proves the point that the negotiators contemplate undercutting existing laws that require detention and rapid expulsion of illegal aliens. President Biden has all the authority he needs to address a crisis that he has caused by not using it.

It is quite something for Senators Sinema, James Lankford (the Oklahoma Republican leading the GOP side), and other dealmakers to blast their critics for peddling misinformation when they have yet to release the text of what they say they’ve agreed to. Great work if you can get it: Don’t show other lawmakers the terms, selectively leak parts of the agreement to friendly journos, and then complain that it’s the other side that’s not playing fair.

According to Politico, Sinema stated:

The rumors that are swirling about what this legislation does are wrong. Our bill ends catch and release. It ensures that the government both has the power and must close down the border during times when our system is overwhelmed. And it creates new structures to ensure that folks who do not qualify for asylum cannot enter the country and stay here.

Where to begin?

Catch-and-release is already against the law. Our existing immigration statutes require that illegal aliens who attempt to enter the United States “shall be detained” until the conclusion of their removal proceedings — even if they have an ostensibly colorable fear-of-persecution claim. (Title 8, U.S. Code, §1225(b)(1)(B)(IV).) Catch-and-release is happening precisely because Biden won’t enforce the law, not because we need new authorities.

The Border Patrol uses the euphemism “encounter” to describe its interaction with illegal border crossers because its agents do not detain them. Biden, moreover, declines to use the detention space we have. Congress provides for only about 30,000 detention spaces; yet, while Biden doesn’t fully exploit even those paltry resources even as he continues allowing millions of illegal aliens to enter — over 6 million so far when we tally up those released into the country following their apprehension and those not apprehended at all because government agents are so overwhelmed by the administrative work of “processing” illegal aliens they are not performing the principal duty of patrolling the border. Center for Immigration Studies chief Mark Krikorian reports that the Biden administration

has asked for progressively less money each year for detention, has terminated contracts with private firms and local governments to provide detention space, and is closing a 2,000-bed detention center in California that’s virtually empty.

So, Senator Sinema, if (a) illegal immigrants are crashing the ports of entry and otherwise sneaking in by the thousands per day, (b) Biden has already released millions into the country even though current law required their mandatory detention, and (c) we already lack anything close to sufficient detention space even as Biden won’t use the space available, how are you ending catch-and-release? Why would anyone believe that an administration that ignored current law mandating detention will detain just because you passed yet another law? If the border is not simply closed, where is the government planning to detain the hundreds of thousands of illegal aliens crossing the border each month? What happens to the millions already at liberty who are supposed to be detained and rapidly removed?

Sinema elaborated that under the deal, illegal aliens who claim asylum at places other than ports of entry would be detained immediately, and remain detained while their claims are adjudicated. But that is what is supposed to happen under current law. Ergo, rather than strengthening border-security law, the senators contemplate markedly weakening it.

Sinema contrasted this treatment of illegal aliens making claims in places other than ports of entry with illegal aliens who make claims at the ports of entry: Under the still-veiled Senate deal, Sinema suggests that they would be permitted to enter the country for 90 days while their claim is decided, and then immediately removed if it is rejected. But those people are supposed to be detained now, throughout their proceedings. If new law were written permitting their release, that would undercut current immigration law, which makes detention mandatory. No one should be fooled by the tough-sounding 90-day deadline: Given the numbers we are talking about, that tight time frame is unrealistic, and the Biden administration would surely ignore it anyway — if the president won’t enforce the detention requirement, what assurance could we have that he’d enforce a mere deadline for hearing and removal? After all, they’re releasing people now with the expectation that proceedings would take years to complete.

And how risible is Sinema’s claim that the Senate dealmakers are ensuring “that the government both has the power and must close down the border during times when our system is overwhelmed”? The president has the power right now to ensure that the border is closed. There is no need to wait for the “system” to be overwhelmed.

Section 212(f) of the Immigration and Nationality Act (codified at Title 8, United States Code, §1182(f)) clearly states in pertinent part:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.

In construing the breadth of authority vested in the president by this statutory provision, in combination with the president’s inherent national-defense power under Article II of the Constitution, Chief Justice John Roberts wrote for the Supreme Court in Trump v. Hawaii (2018):

By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that §1182(f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale [v. Haitian Centers Council, Inc. (1993)] . . . (finding it “perfectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the “sweeping proclamation power” in §1182(f) as enabling the President to supplement the other grounds of inadmissibility in the INA).

The president has all the authority he needs right to shut down the border this second. And what are the senator and her colleagues talking about when they envision “times when our system is overwhelmed”? The system is overwhelmed now. Even if not a single additional illegal alien were trying to enter (as opposed to the record 371,000 — more than the population of Cleveland — who entered just last month), cities and states across this country would still be buckling under the weight of the millions Biden has ushered in.

This nation’s health-care, education, law-enforcement, and social-services resources cannot handle the crisis we presently have. Sinema, like Lankford, is upset about criticisms that the deal they contemplate would provide for a trigger of some several thousand illegal-alien entries per day before the border was required to be closed. I am willing to withhold further rebuke on that score until I see exactly the numbers and formula they have in mind — although, again, if there is misunderstanding, it is the senators’ fault for not being transparent about what they’ve agreed to and for selectively leaking. But it is academic in any event: The border crisis is untenable now, no matter how many more waves of illegal-alien entries the senators would tolerate before requiring that action be taken.

Biden has the authority to close the border right now. He has more than sufficient reason to do it right now. And the senators anticipated new proposals spun, though to sound muscular because they’d call for detention and removal of certain classes of illegal aliens, would actually undermine current law. Again, why tamper with statutes that already mandate detention of all illegal aliens and swift removal of those who have no right to remain?

If Senator Sinema and her colleagues want to do the country a service, they would tell President Biden: “Close the border now using the abundant authority you already have, stop releasing captured illegal aliens onto our streets, and show us a plan for how you are going to remove the millions you’re already lawlessly permitted to enter. Do those things, show us you are serious about border security, and then we can talk about what new laws might be helpful. But after you’ve spent three years creating a mess that you have all the power you need to stop, we’re not going to propose new laws that allow you to falsely claim that existing law wasn’t sufficient for you to do your job.”