After three years of waving millions of illegal aliens into the United States, the White House on Friday issued a statement from the president finally calling the situation at the border a “crisis.” The statement is intended to support “negotiations with a bipartisan group of senators” on legislation to address the crisis. Those who follow this issue will know that “bipartisanship” in congressional immigration negotiations tracks the old joke about the Stupid Party and the Evil Party getting together to do something both stupid and evil. Although no actual legislative language has been released, the measures that have been leaked to the media wouldn’t solve anything and would likely make things worse.
“The border crisis is entirely Joe Biden’s doing.”
But before addressing the shortcomings of a possible deal, we need to step back and ask a more basic question: Why does Congress need to act at all? The border crisis is entirely President Biden’s doing. It is an executive problem, not a legislative one, and requires a change in the administration’s policies, not new laws.
Candidate Joe Biden promised to roll back all of Donald Trump’s immigration measures, decrying them as “an unrelenting assault on our values and our history as a nation of immigrants.” Once in the Oval Office, he made good on those promises, starting just hours after he was sworn in.
Biden suspended Trump’s highly successful “Remain in Mexico” program, which required border-jumping asylum applicants to await their hearings on the other side of the US frontier. He repealed Trump’s rule requiring asylum-seekers to apply in countries they passed through before reaching the US border. He has dramatically slashed deportations of illegal and criminal aliens. He has abused the narrow emergency “parole” power to release (and give work permits to) more than 1 million illegal aliens. He has converted a border-traffic-management app into a tool for foreigners to schedule their illegal immigration through ports of entry. And more.
The result is precisely what the outgoing Team Trump warned the incoming Biden appointees about during the transition: an unprecedented wave of illegal immigration. Under this administration, there have been about 8.5 million “encounters” (to use the euphemism du jour) of inadmissible aliens at US borders. Some of those are repeat crossers, and not all got in. For a time, Biden partially kept in place the Trump-era Title 42 public-health order allowing the immediate expulsion of border jumpers. But more than 3 million illegal aliens have been taken into custody and then released into the homeland under Biden. In addition, another 2 million or more “gotaways” were detected but not captured by Border Patrol, mainly because overwhelmed agents have been reassigned from patrolling the border to “processing” illegal aliens into the country.
Through all of this, the administration has claimed that all is well. Early on, the president confidently asserted that “it happens every single, solitary year.” Since then, Vice President Kamala Harris, Secretary of Homeland Security Alejandro Mayorkas, and White House Press Secretary Karine Jean-Pierre have all taken turns going before the cameras and professing the border to be secure. But in December, someone in the White House noticed that there is an election coming up. Polls show that immigration is one of voters’ top concerns—and Biden’s worst issue.
So in a supplement funding bill for Ukraine aid, the administration added a request for more border “enforcement” money. Critics rightly responded that more money, without changes in policy, would simply allow the administration to wave even more illegal aliens into the country even more quickly.
House Republicans were open to a deal and pointed to an enforcement bill they had enacted in May, H.R. 2, which would not only give the executive new enforcement powers, but also restrict the president’s ability to admit more illegal aliens.
The Senate companion bill was cosponsored by the majority of Republicans, but the GOP leadership preemptively decided that, since Democrats said they wouldn’t accept H.R. 2, they should negotiate a deal to try to cajole the president to do what he has been obliged to do since taking his Oath of Office. Supporters of negotiations—including Minority Leader Mitch McConnell and the likes of Sens. James Lankford, Lindsey Graham, and Mitt Romney, among others—are akin to the homeowner negotiating with a burglar over which things to steal.
The absurdity of the exercise is clear from the president’s statement last week that a Senate deal would give him “a new emergency authority to shut down the border when it becomes overwhelmed.” But he already has such power. Section 212(f) of the Immigration and Nationality Act provides, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens.” Biden simply chooses not to use it.
And the new emergency power the president touts in his statement would only kick in after the arrival of more than 5,000 illegal aliens a day. That’s more than 1.8 million illegal aliens a year, something this administration would treat as a target, rather than a trigger. And it includes aliens admitted through the (unlawful) cell-phone-app system, thus effectively granting a congressional blessing to the administration’s abuse of the parole authority.
Another provision of the deal (as reported by Bill Melugin of Fox News): “Mandatory detention of all single adults.” Again, detention of all border-jumpers is already mandated by current law, which says that any alien who is “not clearly and beyond a doubt entitled to be admitted … shall be detained.” What’s more, this administration has asked for progressively less money each year for detention, has terminated contracts with private firms and local governments to provide detention space, and is closing a 2,000-bed detention center in California that’s virtually empty.
Other measures reportedly considered include green cards for certain illegal aliens, shortening the time illegal asylum applicants have to wait before getting work permits, and funding for sanctuary cities like New York, which have been burdened by the arrival of thousands of migrants. It would appear to do nothing to rein in the president’s abuse of asylum, mandate deportation of illegal migrants already here, crack down on fraud, or penalize countries that won’t take back their own citizens (a problem even for a border-hawk administration).
But even reported provisions that would be beneficial, such as raising the “credible-fear” screening standard for people to even be allowed to apply for asylum, are meaningless in the hands of this administration, which for three years has engineered the greatest flood of illegal immigration in world history—and which, by the way, is suing Texas to prevent it from stopping illegal immigration across the Rio Grande. Only after the Biden administration proves that it is willing to use the authorities it already has to stop illegal immigration should any new measures be considered.
Ending the border crisis is entirely within Biden’s power. Only when he shows that he knows that, and starts acting accordingly, should there be any discussion of additional funding or legislative changes.