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Under current law, the president has all the authority he needs to shut down the border. Indeed, in Trump v. Hawaii, the Supreme Court upheld the chief executive’s broad authority to suspend the entry of “covered aliens” into the United States, finding that the law “entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The relevant statute “exudes deference to the President in every clause,” the court declared, requiring him only to determine that the entry of aliens “would be detrimental to the interests of the United States.”
The court noted that “had Congress intended … to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end.” Well, if this deal is enacted into law, it could be read as doing exactly that.
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Under the proposed legislation, the president’s authority to shut down the border “may” be exercised if the 7-day average of border encounters exceeds 4,000 per day and “shall” be exercised if the 7-day average is above 5,000 per day. But the legislation explicitly states that this authority shall not be activated “during the first calendar year after the effective date, for more than 270 calendar days; during the second calendar year … for more than 225 days; and during the third calendar year, for more than 180 calendar days.”
And, as the chief Democratic negotiator, Sen. Chris Murphy (Conn.) explained, “even during these emergency times, the border never fully closes. The President is just better able to manage the border by moving asylum claim processing to the land ports.” That’s because the law mandates the continued processing of “a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry.”
As former federal prosecutor Andy McCarthy points out, if this legislation were to be enacted “it could be argued (and progressive judges appointed by [President] Biden would surely rule) that this new law superseded the old” — and that henceforth the president cannot shut down the border unless the 4,000 threshold is reached, and then for just three years, and for a limited, declining number of days each year — and that he cannot shut down processing at land ports.
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In other words, by “authorizing” powers the president already has with new conditions, the legislation is not really “authorizing” anything — it is simply placing restrictions on the president’s existing authority.
So, this bill is not better than nothing; it is worse than nothing. In the name of forcing the hand of a sitting president who is not serious about securing the border, it would tie the hands of a future president who is serious about securing the border.
And that is only the beginning of the problems with this legislation. For example, the bill authorizes funding for an additional 16,000 immigrant detention beds, up from the current 34,000. But Biden is not filling thousands of existing detention beds, which are sitting empty in facilities across the country. The problem is not a lack of detention beds, it is the lack of presidential will to detain illegal migrants.
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The bill would also provide $1.4 billion to nongovernmental organizations and municipalities struggling to handle the influx of migrants to pay “sheltering and related activities.” This would lift the pressure Republican governors such as Texas’s Greg Abbott have put on Democratic leaders of self-proclaimed “sanctuary cities” such as New York and Chicago. And it would provide federal funding to pay for housing, food and other support for migrants who entered this country illegally. Why would Republicans agree to that, when they believe these migrants should be deported? Let sanctuary cities bear the burden of providing sanctuary.
That does not mean the bill is not salvageable. There are some good elements as well. The bill rewrites the process for granting asylum, raising the low bar for claiming “credible fear” of persecution and expediting the review process. And it includes a modest expansion of legal visas for those who follow the rules.
But it cannot be fixed in a matter of days. The rationale for moving quickly was that the bill would trade strong border security measures for urgently needed aid to Ukraine. As someone who wants to secure the border and help Ukraine, I was hopeful that this deal would do both. But as it now stands, the bill would actually cost votes for Ukraine aid, because many pro-Ukraine Republicans who believe the border provisions are weak will vote against it.
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If Democrats are really serious about reaching a border security compromise, this legislation should go through regular order in the Senate. It should be referred to committee for hearings and a markup, and should be subject to amendment on the Senate floor. But there is no justification for jamming this nearly 400-page legislation through in a matter of days. If the bill is as good as its supporters say, then it can withstand scrutiny and amendment. If not, then it should not become law.
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Here is the best argument for why Republicans should vote for the bipartisan border deal:
Yes, it is imperfect, but it will never get better than this. Right now, Republicans have something Democrats want — Ukraine funding — and they are willing to pay a price to get it. But if a Republican is elected president, that will change. And if that Republican is Donald Trump, not only will Democrats have no incentive to make any border concessions, they will block many border policies he wants simply because he wants them (such as when they reversed their support for a border wall because Trump campaigned on building one). Even if Republicans win the White House and keep the House majority, unless they also win a 60-vote filibuster-proof majority in the Senate (which they won’t), there is zero chance they will ever pass H.R. 2, the House Republicans’ excellent border security bill.
So, the choice is not between this and H.R. 2; it’s a choice between this and nothing. Take the deal.
Here is why that argument is wrong: The bill would actually restrict the next president’s power to secure the border.
Under current law, the president has all the authority he needs to shut down the border. Indeed, in Trump v. Hawaii, the Supreme Court upheld the chief executive’s broad authority to suspend the entry of “covered aliens” into the United States, finding that the law “entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The relevant statute “exudes deference to the President in every clause,” the court declared, requiring him only to determine that the entry of aliens “would be detrimental to the interests of the United States.”
The court noted that “had Congress intended … to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end.” Well, if this deal is enacted into law, it could be read as doing exactly that.
Under the proposed legislation, the president’s authority to shut down the border “may” be exercised if the 7-day average of border encounters exceeds 4,000 per day and “shall” be exercised if the 7-day average is above 5,000 per day. But the legislation explicitly states that this authority shall not be activated “during the first calendar year after the effective date, for more than 270 calendar days; during the second calendar year … for more than 225 days; and during the third calendar year, for more than 180 calendar days.”
And, as the chief Democratic negotiator, Sen. Chris Murphy (Conn.) explained, “even during these emergency times, the border never fully closes. The President is just better able to manage the border by moving asylum claim processing to the land ports.” That’s because the law mandates the continued processing of “a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry.”
As former federal prosecutor Andy McCarthy points out, if this legislation were to be enacted “it could be argued (and progressive judges appointed by [President] Biden would surely rule) that this new law superseded the old” — and that henceforth the president cannot shut down the border unless the 4,000 threshold is reached, and then for just three years, and for a limited, declining number of days each year — and that he cannot shut down processing at land ports.
In other words, by “authorizing” powers the president already has with new conditions, the legislation is not really “authorizing” anything — it is simply placing restrictions on the president’s existing authority.
So, this bill is not better than nothing; it is worse than nothing. In the name of forcing the hand of a sitting president who is not serious about securing the border, it would tie the hands of a future president who is serious about securing the border.
And that is only the beginning of the problems with this legislation. For example, the bill authorizes funding for an additional 16,000 immigrant detention beds, up from the current 34,000. But Biden is not filling thousands of existing detention beds, which are sitting empty in facilities across the country. The problem is not a lack of detention beds, it is the lack of presidential will to detain illegal migrants.
The bill would also provide $1.4 billion to nongovernmental organizations and municipalities struggling to handle the influx of migrants to pay “sheltering and related activities.” This would lift the pressure Republican governors such as Texas’s Greg Abbott have put on Democratic leaders of self-proclaimed “sanctuary cities” such as New York and Chicago. And it would provide federal funding to pay for housing, food and other support for migrants who entered this country illegally. Why would Republicans agree to that, when they believe these migrants should be deported? Let sanctuary cities bear the burden of providing sanctuary.
That does not mean the bill is not salvageable. There are some good elements as well. The bill rewrites the process for granting asylum, raising the low bar for claiming “credible fear” of persecution and expediting the review process. And it includes a modest expansion of legal visas for those who follow the rules.
But it cannot be fixed in a matter of days. The rationale for moving quickly was that the bill would trade strong border security measures for urgently needed aid to Ukraine. As someone who wants to secure the border and help Ukraine, I was hopeful that this deal would do both. But as it now stands, the bill would actually cost votes for Ukraine aid, because many pro-Ukraine Republicans who believe the border provisions are weak will vote against it.
If Democrats are really serious about reaching a border security compromise, this legislation should go through regular order in the Senate. It should be referred to committee for hearings and a markup, and should be subject to amendment on the Senate floor. But there is no justification for jamming this nearly 400-page legislation through in a matter of days. If the bill is as good as its supporters say, then it can withstand scrutiny and amendment. If not, then it should not become law.
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