{O} n X/Twitter, Fox News’ superb reporter Bill Melugin has a good analysis of the long-awaited Senate border legislation. It is very fair in presenting what is enticing about the proposal. The problem is that what is enticing is disingenuous and, ultimately, counterproductive.
That is to say, the good in the bipartisan Senate negotiators’ proposal — and there definitely is some — (a) can already be accomplished under current law, and (b) would require faith that the Biden administration will for some reason enforce these provisions even though it has systematically refused to enforce existing border-security provisions. More important, to get the illusory good in the proposal, Congress would have to enact provisions in the deal that would both undermine existing statutory restrictions and etch into our law magnets for illegal immigration.
The Proposed Removal Formula
The most significant aspect of the deal (which can be read here) is the one the senators tout as, in effect, not merely forcing an immediate shutdown of the border but ending the main driver of illegal immigration — ending, as Melugin aptly puts it, “the whole idea of ‘I made it to U.S. soil, you have to process me.’”
Immediately, we detect the flaw in the senators’ calculations that I have repeatedly emphasized (see, e.g., here, here, and here): Both legally and practically speaking, the border can be shut down, right this instant. There is no legal requirement that any alien who sets foot on American soil be permitted to apply for asylum (which is a discretionary act of national clemency, not a right of the alien). There is similarly no mandate that such aliens be routed into a “process” that enables them to remain — even though their first contact with our nation is to flout its laws, and even though empowering illegal aliens this way is patently harmful to aliens who are attempting to enter by complying with our laws.
To state it clearly, it is not true under existing federal law that an illegal alien who makes it onto U.S. soil has a right to be processed or seek asylum. As things stand, that is a wayward proposition, and there is no need for a new law to reform it. To the extent that the senators claim otherwise, they are either misinformed or misleading us.
Now, why do the senators claim that their proposal would “require” the border to be shut immediately? Because of its algorithm as applied to current conditions — although I surround require in sneer quotes because the senators presume that President Biden will enforce the proposed border-closing formula even though he is not enforcing existing law and even though his political base believes the United States should not have borders (giving Biden the incentive to game any system in favor of maximizing illegal immigration).
If the senators’ formula were enforced, the border would have to be closed because it calls for closure when there is a seven-day “average” of 5,000 illegal-alien “encounters” per day. (Encounter is the euphemism the Department of Homeland Security uses for apprehensions of illegal aliens at ports of entry and elsewhere — it doesn’t say apprehension or arrest because that would imply detention, which is not happening in most cases.) The border would also have to be closed under the formula if there were 8,500 “encounters” in a single day. Ergo, as Melugin observes, because the Biden nonenforcement policies routinely result in over 5,000 illegal entries per day, with many days featuring over 8,500 (indeed, in December, 371,000 illegals entered in just 31 days), we are already at the threshold at which the senators’ formula would direct that the administration close the border. Thereafter, the border would not be reopened until the number of illegal aliens attempting to enter decreased significantly.
That’s the bait: Just enact this proposal, and the problem is solved, instantly.
Statutorily Restricting the President’s Authority to Close the Border
Put aside for a moment the fact — and it is a fact — that Biden could lawfully close the border now, without any such formula. The proposal sets forth several caveats the implication of which is that the senators are content with the entry of something close to 5,000 illegal aliens per day. (And note that 5,000 per day would be 1.825 million per year — i.e., more than the population of Phoenix, more than the population of all but four American cities, more than twelve American states and the District of Columbia — on top of the more than 6 million illegal aliens who have entered our country, straining city and state budgets to the breaking point, since Biden took office.)
The senators propose that the border could be closed at the discretion of the administration (via the Homeland Security secretary) if encounters are 4,000 per day. That is, if the illegal entries are “merely” happening at a rate of close to 1.5 million per year, the secretary need take no action. Moreover, if the border is closed under the mandatory 5,000-per-day formula, but then the average number of illegal aliens seeking entry dips to “only” 3,725 per day (a rate of about 1.4 million per year), then the border-closure authority is withdrawn.
Think about that. Right now — as I explained last week, citing Section 1182(f) of U.S. immigration law and recent Supreme Court precedent — Biden has the statutory authority to close the border. If the Senate proposal were signed into law, however, it could be argued (and progressive judges appointed by Biden would surely rule) that this new law superseded the old and that the president now lacks authority to shut the border unless illegal entries are averaging over 5,000 per day.
Why would we agree to that?
Moreover, the Senate proposal would restrict the president’s ability to close the border even if the magic 5,000-per-day average is surpassed. In the first year of the proposal, the shutdown authority would be available for only 270 days (i.e., nine months, not twelve). In the second year this drops to 225 days (about seven months), and in the third year 180 days (six months).
Now, the Republican senators involved in this negotiation claim they believe we should not be letting any illegal aliens in the country — they are just swallowing hard and doing what must be done to get their Democratic colleagues to deal with Biden’s crisis. I take them at their word. Therefore, I assume they would deny that, under their proposal as just described, the president would be deprived of border-shutdown authority for months at a time, even though thousands of illegal aliens would be pouring in (a situation that would encourage still more thousands to come). But if they would deny that this is what their proposal does, that can only be because they believe the president has authority under existing law to close the border. If that is the case, however, then why impose any formula? Why not just close the border under existing authority? Furthermore, why agree to a legislative formula that the courts could justifiably construe as divesting the president of his previously existing statutory authority to close the border? It’s obvious why post-sovereign, no-borders progressives would want that, but why would Republicans?
Undermining the Detention Mandate in Existing Law
As Melugin notes, the senators also protest that their proposal does not mean 5,000 illegal aliens would be “allowed in” before the border closure would mandatorily kick in (or 4,000 under the above-described discretionary authority). Rather, they insist, single adults would be detained — although, they grudgingly concede, family units would be released under the makeshift fraud known as “alternatives to detention” (ATD). And to supposedly demonstrate their seriousness, the senators propose funding 16,000 additional detention spaces, raising the total to 50,000.
Sheesh. As the senators well know, Biden is not using the 34,000 detention spaces Congress currently funds; in the Biden era, raising the number of spaces would just mean funding more unused detention resources.
Which brings us to the core point: Existing law mandates that illegal aliens entering the United States be detained. Rationally, this is as it should be, since the entry is illegal, and the aliens have no right to be at liberty. Yet, the senators’ proposal would undermine that existing law by codifying the release of vast categories of illegal aliens — family units and unaccompanied minors. The current government practice of releasing these aliens, in violation of law and common sense, is exactly what’s driving the border crisis. Illegal aliens are strategically arriving in family units — arriving with children or arriving as children who seek to join family already here — because Biden has let it be known that those aliens will get in; and once in, they have a very good chance of staying.
Why would we agree to a proposal that would carve into law huge exceptions to the statutory presumption that illegal aliens are supposed to be detained upon being “encountered”? Are the senators saying that because Biden is breaking the law, we should change the law to accommodate his lawlessness? I realize that Democrats see it that way, but, again, why would Republicans agree?
Alternatives to Detention: Ineffective and Prohibitively Costly
In addition, the proposal would give statutory support to ATD, a costly fraud that further undermines the law’s presumption of detention. Administrations of both parties started ignoring that presumption in the Bush-43 years, scaling up in the Obama years. Although relying on ATD flouts statutory law, these administrations rationalized that Congress was not sufficiently funding resources for detention and adjudication to deal with the growing number of illegal entries. (Only in Washington would this mean we somehow had to allow the overflow above detention resources to roam free in our country rather than close the border until detention resources were freed up and then admit only as many as could be detained.) Rather than substantially increasing detention and adjudication resources, Congress began funding ATD about 20 years ago. Under Obama and finally Biden, ATD inexorably evolved from a supposedly necessary evil into the preferred method for “processing” illegal aliens.
The idea is that most illegal aliens are “economic migrants” — i.e., here in search of a better life, not to become permanent dependents or break our laws (except for the little matter of breaking our laws to get in). Hence, the thinking goes, such economic migrants needn’t be incarcerated, which is expensive and harsh. Instead, we can use alternatives, such as those the criminal-justice system uses in the bail context — release on bond, required check-ins with federal authorities, electronic monitoring, etc. With these safeguards in place, we tell ourselves, surely the illegal aliens will show up for their required appearances in removal or asylum proceedings.
But, as the Center for Immigration Studies’ invaluable Andrew R. Arthur explains, ATD is a bad deal for American taxpayers. First, in the justice system, bail works (at least much of the time) because we’re dealing mostly with American citizens and resident aliens (lawful or otherwise) who can easily be vetted by law enforcement to determine whether they are flight risks or pose other dangers. To the contrary, we have no comparable way of vetting illegal aliens. Many of them come from countries with dysfunctional or hostile governments, whose background records are unavailable or at best unreliable. In the most ideal circumstances, ATD might be effective with a finite number of aliens whom our scant monitoring resources could effectively handle — maybe a few hundred; maybe a thousand or two? But ATD is utterly ineffective, and has no possibility of becoming effective, when you’re talking about hundreds of thousands of aliens per year — for which the Biden administration asks Congress to appropriate funds.
Beyond that, ATD is a bad deal for the public fisc. On the whole, it is far less expensive to detain illegal aliens than release them on ATD. Arthur and his CIS colleague Dan Cadman have run the numbers. Detention cases are processed rapidly. The majority of cases take a bit over a month, virtually all take less than six months, and the cost is modest (in DHS’s 2022 budget request, it was estimated at $152 per day). And critically, if an administration demonstrates that aliens who enter illegally will be detained and rapidly removed, then hordes of illegal aliens stop making the perilous trek to our country. When the borders are enforced, there is no crisis.
By contrast, cases in which aliens are released on ATD, or even without any conditions at all (“on their own recognizance,” in justice-system lingo), take much longer to adjudicate. Even though the per-day cost of ATD monitoring is much less than detention, the monitoring goes on for years, not just a few weeks. It ends up being significantly costlier than detention.
More importantly, the ATD system conveys the signal that if illegal aliens can get here as a real or ostensible family unit, they will get to stay — they will have plenty of time to settle and put down roots that will make it practically impossible to deport them years down the road. That encourages millions more to make the dangerous trip — in what perversely turns out to be the hope that they will be “encountered” by American border authorities (whose job has become to “process” them, not detain them).
In short, ATD should not be legal at all. It is an artifice fabricated by executive officials as an excuse not to comply with the mandatory-detention law, and Congress has winked at it. Now, the Senate negotiators propose normalizing ATD by prescribing it to rationalize releasing family units (in addition to the unavoidably vexing category of unaccompanied minors). The senators tell us this would be done only in conjunction with a commitment to speed up removal and asylum proceedings, and Biden’s parole scam would largely be shut down.
Again, looking at the big picture, we have to ask, how is this an improvement? It would undermine the detention mandate, which would be bad enough in principle but is indefensible when it is crystal clear that detention is more conducive to national security, more economical than release, and ultimately more humane because it reduces the aliens’ incentives to bear the perilous risks of death, rape, trafficking, and other horrors attendant to the trip to our border.
Furthermore, Biden’s parole scam is already illegal. While it’s good that the senators would end the app scheme designed to camouflage illegal entries, they would leave in place Biden’s paroling of hundreds of thousands of Cuban, Haitian, Nicaraguan, and Venezuelan aliens (despite the obvious national-security issues and the inconvenient fact that Biden’s parole initiative has not had the promised effect of stopping massive illegal entries by nationals of these countries).
National Security, Not Election-Year Politics
A simple question: If Congress can ameliorate the border crisis by tightening up the removal process, toughening asylum standards, and increasing detention resources, why not just do that? Border security is, after all, Congress’s duty, too. Why, when we already have a crisis, should we have to accept millions more illegal-alien entries as the price for having Congress doing what it is obligated to do anyway — and as the price for having the president do what he could do now with no additional legal authority?
To repeat what I’ve said before, I don’t support Donald Trump for president, and it is of no moment to me that he may oppose the senators’ proposal for political reasons — i.e., he wants to deny Biden the public perception of a legislative victory on a major campaign issue. This is about national security; it shouldn’t be reduced to partisan politics, even in an election year. The bipartisan senators’ proposal is counterproductive on the merits.
Congress should pressure Biden to use his existing authority to secure the border and end the crisis. The most notable thing about the senators’ proposal is that it would undermine the existing presumptions in the law that illegal aliens should be apprehended, detained, and rapidly removed and that the United States is not required to provide asylum — which, to repeat, is a discretionary act of clemency, regarding which an alien has no due-process right triggered by illegally touching his toe on our territory.