The Battle Over the Border
The divide on the border bill. Links on health care, industrial capacity, and Taylor Swift.
Shortly after being announced, the long-rumored Senate bill on the border (along with funding for Ukraine and Israel) was put on life support. This bill would have laid out some new emergency powers on the border, expanded legal immigration, reformed asylum laws, and unleashed buckets of border-related spending. (A longer summary is here.) Many House Republicans immediately came out against it, followed shortly by a growing number of senators. Mitch McConnell, who had been a supporter of finding some deal, has said he does not expect the bill to pass.
The bill has provoked a debate among the political right—and what is this debate about? Let’s dig in.
The Wall Street Journal’s editorial board came out in favor of the bill:
This is almost entirely a border security bill, and its provisions include long-time GOP priorities that the party’s restrictionists could never have passed only a few months ago. Republicans demanded border measures last year as the price for passing military aid for Ukraine, Israel and Pacific allies. Democrats resisted at first but later agreed to negotiate and have made concessions that are infuriating the open-borders left. Will Republicans now abandon what they claimed to want?…
Most important, the bill rewrites the standard and process for granting asylum in the U.S.
Under current law and practice, migrants cross the border, turn themselves in to border patrol agents, and claim asylum. If they pass the deliberately low bar for claiming “credible fear” of persecution, they are given a date for a future asylum hearing and released into the U.S. The wait can take years, and many never show up. This is the policy that has become known as “catch and release.”
The new bill raises the bar for that initial border screening for credible fear to a “reasonable possibility” of persecution. Toughening the asylum standard was a priority of the Trump Administration, but a statutory change is needed to make it permanent. Migrants will have to show they couldn’t have moved elsewhere in their own country to avoid persecution before seeking refuge in the U.S.
The bill also includes an expedited review process for asylum with a stay-or-deport decision within 90-180 days. There is money for 50,000 detention beds while migrants are awaiting review. If there are more migrants arriving than can be detained, the overflow will be enrolled in mandatory alternatives-to-detention programs that use tools such as ankle bracelets or reporting curfews. No more catch and release without consequences.
David Frum also argues that this bill is a “win” for proponents of border controls. Nick Catoggio writes that it should be passed on to the House.
Proponents of the bill argue that it accomplishes important things for border control—it is a “half loaf” of immigration enforcement. For their part, critics of the bill ask, “Where’s the bread?” They have homed in on whether it does actually grant effective “emergency” powers on the border to the president and have raised doubts about the mechanics of its changes to asylum law.
In National Review, Andrew McCarthy argues that this bill could actually constrain the president on the border:
Put aside for a moment the fact — and it is a fact — that Biden could lawfully close the border now, without any such formula. The proposal sets forth several caveats the implication of which is that the senators are content with the entry of something close to 5,000 illegal aliens per day. (And note that 5,000 per day would be 1.825 million per year — i.e., more than the population of Phoenix, more than the population of all but four American cities, more than twelve American states and the District of Columbia — on top of the more than 6 million illegal aliens who have entered our country, straining city and state budgets to the breaking point, since Biden took office.)
The senators propose that the border could be closed at the discretion of the administration (via the Homeland Security secretary) if encounters are 4,000 per day. That is, if the illegal entries are “merely” happening at a rate of close to 1.5 million per year, the secretary need take no action. Moreover, if the border is closed under the mandatory 5,000-per-day formula, but then the average number of illegal aliens seeking entry dips to “only” 3,725 per day (a rate of about 1.4 million per year), then the border-closure authority is withdrawn.
Think about that. Right now — as I explained last week, citing Section 1182(f) of U.S. immigration law and recent Supreme Court precedent — Biden has the statutory authority to close the border. If the Senate proposal were signed into law, however, it could be argued (and progressive judges appointed by Biden would surely rule) that this new law superseded the old and that the president now lacks authority to shut the border unless illegal entries are averaging over 5,000 per day.
Why would we agree to that?
Moreover, the Senate proposal would restrict the president’s ability to close the border even if the magic 5,000-per-day average is surpassed. In the first year of the proposal, the shutdown authority would be available for only 270 days (i.e., nine months, not twelve). In the second year this drops to 225 days (about seven months), and in the third year 180 days (six months).
Writing at the Center for Immigration Studies, Andrew Arthur says that, while this bill might theoretically have tightened standards for asylum, it also gives DHS more leeway in applying those standards (as the asylum process would now be routed through DHS rather than the courts).
First, those asylum officers and their supervisors are all within USCIS, meaning DHS Secretary Alejandro Mayorkas will write the rules under which this process operates. The regulations implementing this process must be published, but there are no guarantees that anyone outside the agency will ever see the standards asylum officers will actually apply, so you will have to trust Mayorkas.
Second, there is a difference between whether an asylum “grant is warranted” — which has no legal meaning — and whether the alien merits asylum. I explained the issues with the current asylum officer “affirmative asylum” adjudication process in that January 26 piece, and they are likely to be replicated in this new process. That’s a broad avenue for Biden administration mischief.
Once the supervisor blesses the asylum officer’s decision, the alien automatically receives work authorization and — as noted — the alien can simply be granted asylum and placed on a path to citizenship.
Many of the critics of the bill have echoed Arthur’s points, warning that it could essentially give DHS a license to print work visas.
In the wake of the seeming failure of this proposal, Democrats have begun a concerted messaging campaign to the effect that Republicans now “own” the border crisis. On one hand, this sudden pivot may suggest that some Democrats were perhaps hoping the border bill would fail from the outset—that it was offered merely to try to reset the narrative around the border.
On the other, this attack line is clearly an effort to distract from Biden’s culpability in the border crisis and the lack of trust that has made a deal even harder to come by. Biden quite deliberately ratcheted back the immigration policies of his predecessor and has rolled back the enforcement of immigration laws more broadly. DHS memos under Biden have categorically exempted the vast majority of illegal immigrants from enforcement provisions. This creates a massive incentive for unauthorized migration and has helped compound the crisis at the border.
In the United States and elsewhere, migration politics are a major challenge for some center-left parties, threatening their standing with working-class voters. A longtime analyst of the American left, Ruy Teixeira finds that a small subset of ideological, college-degreed voters have disproportionate influence over the Democratic Party; this group keeps the party from moving to the center on social issues. And he thinks that Biden should send a strong signal on immigration enforcement:
That said, it's still worth striking a tougher stance on border security even if it can't quite function as a Sister Souljah moment (at least as far as Biden appears to be willing to take it). It's the beginning of a move in the right direction and could help Biden modestly even though a big liability on the issue is likely to remain. Given that the impending bipartisan deal on the issue is unlikely to get through Congress, Biden should consider what executive actions he could take to strongly signal a new, tougher approach to border security, which I suspect would be more convincing to voters than the apparent plan to pillory the Republicans for tanking the deal, which is bound to come off as the typical Capitol Hill blame game.
(Note: Teixeira wrote this before the deal was unveiled and the blame game commenced.)
Speaking of immigration: See also John Judis and Dave Seminara on E-Verify.
Other links:
Henry Storey argues that the structural overcapacity of industry in the PRC could lead to further trade tensions.
Instead, a political decision has been made to divert capital into manufacturing – another pillar of China’s traditional growth model. The likely result is more industrial overcapacity and the ratcheting up of trade tensions. In strategic sectors favored by Beijing, China’s trading partners will view protective trade measures as being necessary to shield their industrial bases against Chinese overcapacity.
Damon Linker on Lionel Trilling and the “liberal” tradition.
Matt Stoller on medical consolidation: “The reason for the dysfunctional care is that since the passage of Obamacare, the firms who control our health care system have become far bigger, and much more powerful.”
What a new lithium discovery means for American energy policy.
ICYMI: For the Telegraph, I ventured into the realm of Taylor Swift discourse.
Fixating on Taylor Swift rather than laying out an agenda that speaks to the worries of young people would be a missed electoral opportunity. It might also be counterproductive. While Swift is not as non-aligned as in the past, she has so far avoided being defined by her politics. She may understand how limiting it can be for an artist to be pigeonholed as a political brand. Because Swift remains broadly popular with the American public, an anti-Swift crusade could further isolate the right from the cultural mainstream.
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