After much discussion and speculation, the Senate's bipartisan border bill was released last evening. The lead Republican negotiator, Oklahoma's James Lankford, published the full bill text, as well as an executive summary. Republican Leader Mitch McConnell put out a positive-sounding statement about the legislation, thanking Lankford for "working tirelessly to ensure that supplemental national security legislation begins with direct and immediate solutions to the crisis at our southern border." McConnell added, "the Senate must carefully consider the opportunity in front of us and prepare to act.” That's not necessarily a full embrace, but it's hardly a rejection. Reading through Lankford's summary document, it's clear that if this legislation were to become law -- and were to be properly enforced, as intended -- it would represent a significant improvement over the utterly chaotic and egregious Biden-caused status quo.
Unlike some other conservatives, I'm not livid with Lankford for undertaking this effort, and I'm sympathetic to the argument among some of its supporters that taking some improvement is preferable to doing nothing. There are some good components of the bill, some of which are explained in this useful post from Bill Melugin. That said, I believe the bill should be defeated, for two reasons, detailed below. I'm also open to the idea of supporting the bill if, and only if, its provisions are triggered by separate actions from President Biden. Let's start with the fatal flaws:
(1) The legislation effectively uses the new, scandalous Biden baseline as a jumping off point. The oft-cited '5,000 per day' item actually appears to be '5,000 per week' (update: or not?), which would be better than expected, and of course an improvement over 10,000 per day (a daily level we saw for weeks on end in the latter part of 2023). Here's how it's described:
- Changes the default when the border is overrun from releasing everyone into the country to deporting everyone out of the country. When the average number of crossings exceeds 5,000 people a week (which it has every week but one in the past four months) everyone crossing illegally everyday is rapidly deported out of the country without an asylum screening. In the past four months almost a million people have crossed our border. If this law had been in place four months ago, all of them would have been deported out of the country, rather than released into the country.
- When the border closes, it stays closed and everyone is deported every day until the number of people crossing illegally drops. Once the number of encounters drop, the border continues to stay closed for up to an additional two weeks to continue to drive the numbers down; It closes the border when we exceed our capacity to detain and deport so no one is released into the US because of the crowd.
Is the '5,000 a week' line a typo? I ask because the legislative language looks like it's 5,000 per day. This would basically amount to an advertisement to the cartels and their trafficking operation that throttling the flow at 4,999 illegal entries per week (or per day?) will prevent the implementation of harsher measures. Why is that number acceptable? President Obama's DHS chief famously assessed that 1,000 crossings per day constitutes a crisis level. This bill as written appears to allow over five times that number of illegal crossings per day before the border closure protocols are enacted. Again, why would any level of illegal immigration be tolerated or enshrined into law? Also, crucially, the federal government is admitting that they can close the border, once a certain threshold is met.
Lankford's team writes that if any when the border is shut down due to the 5,000 mark being breached, it "stays closed and everyone is deported every day" until the numbers are driven down, and may remain closed for "up to an additional two weeks." First of all, why "up to"? Whose discretion would that call fall under? Would that fall to, say, the currently-up-for-impeachment Homeland Security Secretary? It looks like there's way too much 'discretion' handed to Mayorkas and Biden. Secondly, and more importantly, if the government can shut down the border if a certain red line is crossed, why can't they just...shut down the border? Why make the baseline 5,000 per week, rather than zero? Why not pass a bill that gives the government the tools it needs to achieve the border shutdown it promises it can deliver, instruct them to do execute that, and call it a day?
(2) My broader objection, somewhat referenced in my first item, was articulated in a post I wrote late last month. Here was part of my argument:
Why should [Republicans] 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. 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...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.
Biden and his administration have just spent three years openly flouting the law and refusing to enforce laws that are already on the books. They've in fact gone out of their way to create new loopholes and exceptions on enforcement -- even to the point of officially deprioritizing deportations for illegal immigrants convicted of additional crimes, such as assault and DUI. They've smeared Border Patrol officers for nakedly political and identity-driven reasons. They've lied about the state of Texas, disgustingly and falsely trying to exploit migrant deaths for political gain (having inventivized the dangerous status quo that has led to record-setting deaths at the border, nearly all of which they simply ignore). There is no reason to trust these people to follow a new immigration law, given their demonstrated contempt for other existing immigration laws. Biden is not a good faith negotiating partner in this endeavor, and that matters a lot, considering that the executive branch he runs is tasked with enforcing any law that gets passed. See my point on discretion above. This is a crew that manifestly does not want to enforce the law and secure the border.
What happens if and when Biden starts skirting, undermining, or simply ignoring elements of the law that he doesn't like, or that his activist base opposes? Will Republicans be very angry and release angry statements professing their anger? Remember how the Democrats screwed over Joe Manchin in order to get the misnamed 'Inflation Reduction Act' across the finish line. Meanwhile, this failing president will have been handed a bipartisan 'solution' that he can tout during his re-election campaign, which also lets him off the political hook for the catastrophe he's unleashed across the vast majority of his term in office. What has he done to earn that 'working across the aisle' win from the opposition party?
Which brings us to my aforementioned proposal: Why not make the passage and implementation of this legislation contingent upon Biden reversing the foolish, reflexive executive policies he put into place at the very start of 2021? He wanted to total break from the Trump era, so he threw some very successful and effective policies into the trash can, to make that statement. The results have been historically disastrous. Biden must earn back the good faith that he's squandered with his actions. Let him unilaterally reimpose those strong Trump-era policies, starting with 'remain in Mexico,' and keep them in place for six months. Then, after he's actually used his power to help mitigate this problem in a major way, perhaps a bill like this should get more serious consideration. But right now, the president is intentionally refusing to use authority that he holds in order to help fix what he broke, and he's lying about it. Rewarding him for that, without forcing him to take meaningful and impactful actions that he can do on his own, would be a mind-boggling decision by Republicans. I'll leave you with this:
“The border never closes…”
— Guy Benson (@guypbenson) February 5, 2024
How Dems are trying to sell this to their pro-illegal-immigration activist class/base: https://t.co/7SqO2AAAEq
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