Reports indicate that a forthcoming bipartisan border deal in the Senate may be dead on arrival -- perhaps in its chamber of origin, and almost certainly in the narrowly-GOP-controlled House of Representatives. The specifics of the bill itself, chiefly negotiated by Oklahoma Republican James Lankford and Democratic Senate Majority Leader Chuck Schumer, are not yet public. Fox News correspondent Bill Melugin reported these alleged elements within the emerging deal over the weekend. Take these bullet points with a grain of salt, as we still don't know exactly what would be finalized in the proposed legislation. For what it's worth, some sources of mine are pushing back on certain pieces of the account as lacking some context.
The Melugin-relayed summary:
BREAKING: Senate border deal details, per source familiar I just had a call with.
— Bill Melugin (@BillMelugin_) January 27, 2024
- Mandatory detention of all single adults.
- Mandatory “shut down” of border once average daily migrant encounters hits 5,000. Importantly, this 5,000 number includes 1,400 CBP One app…
- Mandatory detention of all single adults.
- Mandatory “shut down” of border once average daily migrant encounters hits 5,000. Importantly, this 5,000 number includes 1,400 CBP One app entries at ports of entry per day, and roughly 3,600 illegal crossings per day.
- How is that enforced? Once the 5,000 threshold is hit, a new authority is codified into law that requires Border Patrol to immediately remove illegal immigrants they catch without processing. They would not get to request asylum, they would immediately be removed. This includes removals back to Mexico, and deportations to home countries. This would be a *massive* change from current policy, which is that once an illegal immigrant reaches US soil, they must be processed via Title 8 and allowed to claim asylum. Under this new authority – they are not processed, and they are mandatorily immediately removed once the “shut down” threshold is reached.
- This “shut down” also takes effect is there are 8,500 migrant encounters in a single day
- The “shut down” would not lift the next day. It wouldn’t lift until daily encounters are reduced to under 75% of the 5,000 threshold for at least two weeks. This means the “shut down” authority would not lift until two weeks of an average of less than 3,750 migrant encounters per day.
- Some family units will be released with ATD (Alternatives to Detention, ankle monitors etc).- New removal authority to immediately remove all migrants who do not have valid asylum claims, which will be determined within 6 months rather than the years long process we have right now.
- Any migrant caught trying to cross twice during “shut down” phase would be banned from entering US for one year.
- US will need agreement with Mexico for MX to take back non Mexican illegal immigrants. This hasn't been ironed out yet.
- President Biden approves of the deal and is ready to sign it as is, right now, and implement the new authority it would give him.
Before we go any further, a few points: First, let's wait and see what the finalized version looks like. Second, I respect Sen. Lankford, and I think some of the performative purging and shaming of him is counter-productive. Third, I understand why well-meaning conservatives, operating in good faith, might argue that working to mitigate the crisis is preferable to letting the chaos and dysfunction continue to play out for another year. I also understand that because additional US assistance to Ukraine and Israel have been linked to the border battle by Republicans, urgent foreign policy priorities are now tied into these negotiations. The Wall Street Journal editorial board, giving voice to this perspective, scolded recalciatrant conservatives late last week:
Public frustration over border failures is coming to a boil, and Mr. Trump is hoping to ride this back into the White House. Meanwhile, Speaker Mike Johnson is down to a hairline majority in the House, and he lives under daily threat of defenestration by members of his own party. Some House Republicans are demanding nothing less than their own preferred border bill, known as H.R. 2. That measure commanded no Democratic support in the House, and it won’t miraculously win over the Democrats needed to clear the Senate. Yet giving up on a border security bill would be a self-inflicted GOP wound. President Biden would claim, with cause, that Republicans want border chaos as an election issue rather than solving the problem. Voter anger may over time move from Mr. Biden to the GOP, and the public will have a point. Cynical is the only word that fits Republicans panning a border deal whose details aren’t even known. The GOP would also abandon the best chance in years to fix asylum law and the parole loophole that Mr. Biden has exploited. Mr. Trump while President in 2018 complained that such dysfunctions precluded him from fully restoring order to the border...Mr. Trump may imagine he can strike his own border deal if he wins, but that’s highly unlikely. Democrats are willing to discuss asylum and parole changes now because President Biden and Democrats are suffering in the polls from the ugly scenes on television. If Mr. Trump returns to Washington, the left will revert to its factory settings of opposing all Trump priorities. Especially if Mr. Trump sabotages a bipartisan deal now.
Theoretically, I might agree with any number of these points, but I think these arguments are missing the larger challenge: While some Republicans are engaged in this process out of a sense of duty to governance and a desire to improve the disaster zone that is the southern border, they are in talks with opponents who have been bad-faith operators on immigration and border issues for years. Democrats reflexively opposed everything Donald Trump did (or tried to do), even if it was successful. When Biden came in, he immediately terminated Trump orders and eliminated policies that had dramatically improved the border problem. Biden does not need any 'bipartisan deal' from Congress, as he claims, to simply reverse course on these devastating unilateral actions he's taken that uprooted what was working well. He has steadfastly refused to do so for years, even as the situation deteriorated terribly -- resulting in record-shattering illegal immigrant encounters, got-aways, and deaths.
Until and unless Biden takes these available executive actions and drastically curtails the crisis using the authority he has right now, why should Republicans help bail him out politically with a "bipartisan" plan that represents, at best, a partial fix? More important than handing Biden the gift of deeply undeserved political cover, why should they trust this administration to faithfully execute any new enforcement mechanism, given their outrageous and shameless disregard for the rule of law in this realm over the past three years? This crew has presided over up to 10 million illegal crossings since January of 2021. They are pro-illegal immigration. Conservatives do not trust the Biden administration on this front because the Biden administration has thoroughly and ostentatiously shown themselves to be unworthy of trust. This is the key objection being advanced by Sen. Mike Lee:
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2. If this yet-to-be seen deal became law, we have every reason to believe that Biden would ignore the restrictive provisions and exploit the permissive ones, resulting in even more illegal immigration. Past is prologue.
— Mike Lee (@BasedMikeLee) January 28, 2024
Also, inherent in the description furnished by Melugin's sources is an apparent acknowledgment that the border can be 'shut down' with aggressive enforcement. Why only trigger this desperately-needed action after some seemingly-arbitrary number of thousands of illegal immigrants cross the border first? If they're admitting they can basically seal the border and quickly expel illegal entrants once they flip a proverbial switch, after certain conditions are met, they're admitting they could execute these enforcement maneuvers if they really wanted to. After the dangerous national disgrace we've seen playing out since 2021, why would any sane path forward include the continued arrival of thousands of illegal entries every day? Recall that Barack Obama's DHS chief said even 1,000 border crossings per day rises to a 'crisis' level what would overwhelm the system. Republicans should not accept anything about the new, catastrophic Biden-era baseline -- especially because Biden could undo his terrible decisions that created that new, catastrophic baseline overnight. He's choosing not to. Rewarding him for that choice, and preemptively worrying about Democrats' continuation of their bad faith and derelict behavior on this issue if Republicans win the next election, would reinforce terrible incentives.
For years, I was an immigration moderate, supporting enhanced enforcement in exchange for some combination of a DREAM Act, or even a path to legal status for some number of illegal immigrants living inside the United States. The appalling border crisis of the Biden years has somewhat radicalized me. I'm now opposed to anything that goes beyond an immediate restoration of sovereignty, operational control, and robust enforcement. Perhaps I'll regain my appetite for other compromises and changes down the line, but not until the federal government first demonstrates a sustained, competent commitment to stopping the current flood of illegal immigration. I have zero faith that the Biden administration has any desire to do that because they have actively done the opposite throughout their entire time in power. We shall see what these ongoing talks actually produce, but as we await that official policy reveal, count me as extremely skeptical. Texas is in a dramatic stand-off with the administration, and it's not because the feds are doing the job they're supposed to be doing. Quite the opposite, as Border Patrol is essentially admitting, as its union sides with the state over their federal bosses. And House Republicans are moving to impeach the Homeland Security Secretary for a reason -- and it's not his scrupulous, faithful adherence to immigration laws already passed by Congress. I'll leave you with this, which strikes me as broadly correct:
Stopping the invasion at our border is a matter of will. It doesn’t require a so-called deal that codifies into law illegal entries in excess of 1.8 million per year and provides incentives for future illegal immigration. pic.twitter.com/ClQToc7nVi
— Ron DeSantis (@GovRonDeSantis) January 27, 2024
