Fred Bauer
Nourished in the seclusion of backroom negotiations, the long-rumored bipartisan Senate border bill soon wilted in the blazing sun of public attention. The border proposal had been intended to convince Republicans to vote for a bigger package that included military aid for Ukraine and Israel. Yet the measure was proclaimed dead within days of being unveiled by lead negotiators Chris Murphy (D-CT), James Lankford (R-OK), and Kyrsten Sinema (I-AZ).
The border bill has provoked considerable controversy. Its proponents say that it is a major step toward border control that delivers on the long-term goals of many conservatives. Some in the press claim that Republican opposition to the bill is a sign that the party is not serious about governing at all. The bill’s critics, however, have argued that the mechanics of the bill actually undermine the stated goal of restoring an orderly asylum process.
Even if the border bill is dead, there are still some lessons to be learned from an autopsy. Many House Republicans have indicated that they will oppose additional funding for Ukraine and Israel without legislative action on the border. Congress could therefore return to the issue soon. This bill also reveals fundamental drivers of the current border crisis, as well as some of the hurdles facing any future bill.
In part, the battle over this bill reflects broader legislative frustrations. The double-barreled deal of the 1986 amnesty and 1990 boost of legal immigration did not lead to the promised controls on unauthorized migration. Combined with disagreement about the size of migration flows, frustration with the lack of enforcement of immigration laws helped caused high-profile deals on immigration to flounder in 2007 and 2013.
Adding to long-standing conflicts, the current border crisis is also an asylum crisis. Recent years have seen a large influx of migrants coming to the border and then, if intercepted, claiming that they wish to apply for asylum. In many cases, they are given a court date for a later hearing and released. This unprecedented wave of asylum seekers has pushed the system to its breaking point. There were just over 400,000 interceptions at the border during the 2020 fiscal year. By the 2023 fiscal year, there were over 2 million Border Patrol encounters with migrants trying to cross the U.S.-Mexico border.
The bill is not just about asylum, however. It has a few different components, each of which faces different prospects for negotiation.
First, there’s funding. The proposal would devote more resources to staffing at the border and processing asylum seekers, including thousands of new border patrol personnel, Immigration and Customs Enforcement agents, and asylum officers. This funding could be relatively palatable to members on both sides of the aisle.
More controversial is the provision that would allow the Federal Emergency Management Agency to distribute $1.4 billion to local government agencies and nonprofits involved in resettling migrants in the U.S. interior. Such nonprofits often use their legal firepower to advance more lenient standards for enforcement. Conservative critics of the immigration bill have argued that this funding could operate as a slush-fund for legal efforts to gut enforcement, undermining the promise of tighter security at the border.
The expansions of legal immigration contained within the bill have also inspired opposition from some conservatives. This bill would add an additional 50,000 green cards annually for the next five years. It would also allow for the expedited migration of certain immigrants from Afghanistan and grant work permits to the spouses and children of H-1B guest workers. These proposals are obviously sweeteners for business interests and activist groups that support expanded legal migration, but they are fundamentally ancillary to the bigger policy question of controlling the border. While many Americans have turned against increasing rates of legal immigration during the Biden years, a targeted increase in visas is probably not be the tallest hurdle facing the bill.
Instead, the larger points of contention are its most prominent components: the border emergency powers and changes to asylum law. These headline items are simultaneously the biggest selling points for proponents of the bill as well as the targets of the fiercest attacks from its critics. Supporters argue that these measures are major wins for border control. Critics instead find that these measures seem to have more teeth than they actually do.
The bill would vest the Department of Homeland Security with the ability to invoke a “border emergency authority” once certain thresholds are met. If there are on average over 4,000 daily encounters with migrants over a 7-day period, DHS could immediately deport most immigrants encountered at the southern border. These migrants would not be able to apply for asylum and would immediately be expelled. If the average daily encounters rose to 5,000 per day, DHS would be mandated to invoke these emergency powers.
As James Lankford and other supporters of the bill have noted, this emergency authority would have meant the immediate expulsion of most border-crossers over the past year. On the other hand, 4,000 encounters a day would still translate to almost 1.5 million encounters a year. (By way of comparison, the Border Patrol registered only about 400,000 encounters in the 2018 fiscal year.) And that would be the minimum threshold for invoking this power. DHS would not be forced to act unless there were an average of 5,000 encounters a day—which would translate to over 1.8 million encounters a year.
At the same time, this legislation also sets real limits on this emergency authority. Once encounters over a 7-day period drop to 75% of the average that originally triggered the emergency authority, the border emergency is terminated (though DHS has the option of delaying that termination by up to 14 days). After that, DHS would have to start processing asylum-seekers at the border again. The expiration provision could send a signal to migrants to wait a few weeks for the emergency to be ended and make a another try at the border.
Moreover, the proposal includes a schedule to ratchet back emergency authority over time, from 270 days in the first year to 225 in the second to 180 days in the third. This means that, at a certain point in a calendar year, there could be no recourse to emergency powers. And the asylum process would not be fully suspended even during a border emergency. For instance, DHS would still be required to process up to 1,400 asylum applications per day at ports of entry.
Beyond emergency authority, the bill also transforms asylum more generally. It expedites certain parts of the process by giving asylum officers new powers of review, and it also raises the standards for claiming asylum (asylum applicants would have to demonstrate a “reasonable possibility” of persecution or torture). Proponents of border controls have long called for tightening standards, so this would seem like a significant win for them.
But some of the bill’s critics have argued that these changes could actually provide more incentives for unauthorized migration. Yes, asylum standards would be technically tightened. But DHS officials would also have more authority in applying those standards. Under the bill, a migrant who passed a screening by an asylum officer would immediately be granted a work permit. In fact, one of the architects of the bill, Chris Murphy, highlights this provision. Many critics of the bill fear this reform would mean that the Biden administration’s DHS could simply wave most migrants through the system.
Such fears might be less credible under an administration that had demonstrated a serious intention to control that border. That has not been President Biden’s approach. Upon entering office, Biden deconstructed the immigration policies of his predecessor, Donald Trump, with great fanfare. He terminated the “Remain in Mexico” protocol, which required some asylum seekers to wait in Mexico while petitioning for asylum. He first weakened and then ended the use of Title 42—which had been implemented during the pandemic—to expel immediately some migrants crossing the border.
More broadly, his administration has continually pushed executive discretion to its limits in order to dial back enforcement and expand migration pathways. In the fall of 2021, DHS issued a memo saying that it would exempt most illegal immigrants who arrived before November 2020 from deportation. While the administration has argued that this memo is simply the prioritization of more recent illegal immigrants, it also sends the signal to migrants that, if they can avoid deportation for little while, they could be exempted from future deportation proceedings. In an unprecedented flex of executive power, Biden used “humanitarian parole” policies to give legal status to over a million people. This record has stoked Republican fears that the Biden administration would use any loophole to widen migration pathways.
Many commentators have suggested that opponents of the bill don’t offer alternatives. But Congressional Republicans have given clear signals of what they are looking for. The “Secure the Border Act”—which passed the House last year—includes a number of asks. It would radically restrict the ability of migrants to claim asylum if they try to enter the United States outside official ports of entry. It would require many migrants at the southern border to first petition for asylum in Mexico. Work authorization granted during the asylum process would be of more limited duration. The House bill also mandates E-Verify as a further deterrent to illegal immigration. When proposed as a failed amendment to the debt-ceiling bill last June, this bill also got near-unanimous support from Senate Republicans.
The policy and political calculations are complicated for both parties. The Biden administration has staked its foreign-policy program on funding for Ukraine, so it has considerable incentive to try to pass a Ukraine bill in some way, even as part of a bigger compromise package. Likewise, Biden’s approval ratings on immigration are very low. From a strictly political perspective, he has good reason to try to show that he can get something done on the border—and some progressive analysts (such as Ruy Teixeira) have argued that he should take a more assertive stance on immigration enforcement. Some Republicans on the Hill fear that they could be made co-partners in the border crisis if they pass a “border bill” that does not address its fundamental drivers. Securing Republican support for a border bill would likely require Biden to demonstrate more credibility on enforcement. It would also require substantive legislative reforms.
Immigration sits at the heart of battles between the branches of government as well as between political parties. One president after another has used alleged congressional inaction as a pretext for new claims of executive authority. At times, the president might even take action in order to forestall legislative compromise. For instance, in 2012 Barack Obama announced executive action to spare from deportation certain illegal immigrants who entered the county as children in part to get ahead of a version of the “DREAM Act” that Florida Republican Marco Rubio was set to roll out. That move predictably killed legislative momentum for Rubio’s proposal and gave Obama a high-stakes issue for his reelection campaign. Congress is in many ways structured to defer action on polarizing issues, and immigration remains one of the most polarizing topics in American politics. Many members (of both parties) are often more comfortable blaming the executive branch for immigration policy than having to put down a policy marker themselves.
The problem is bigger than one failed bill. The influx at the border has raised new anxieties about security while also straining the post-World War II asylum system. A failure to achieve order could set the stage for a more dramatic transformation of the American immigration system. The failure of the recent deal is isn’t the end of the story.
Fred Bauer is a writer in New England.