February 6, 2024
Permission to republish original opeds and cartoons granted.
Trump tells Congressional Republicans ‘only a fool… would vote for this horrendous border bill’. He’s right, it guarantees at least 1.1 million illegal immigrants a year.
By Robert Romano
“Only a fool, or a Radical Left Democrat, would vote for this horrendous Border Bill, which only gives Shutdown Authority after 5000 Encounters a day, when we already have the right to CLOSE THE BORDER NOW, which must be done.”
That was former President Donald Trump on Truth Social on Feb. 5 warning Senate and House Republicans against supporting legislation negotiated by Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. James Lankford (R-Okla.) providing $60 billion for Ukraine, $14.1 billion for Israel and $20 billion for additional border security.
Trump’s got a point. If existing authorities were adequate to curb the flow Congress wouldn’t even consider mandating such Title 42-like removals, allowing illegal immigrants to be quickly expelled instead of being allowed seek asylum. The way it’s being applied here is to limit their application by creating a maximum number of potential asylum applications before any emergency authority can kick in.
The bill sets it at 4,000 a day for discretionary application of the emergency authority, and 5,000 a day for mandatory application, but only to reduce the amount by 25 percent. But what about 5,000 a day makes it an “emergency” requiring summary Title 42-like removals be mandated? Why not 1,000 a day or 500 a day? And the authority ceases if the level reaches 3,000 a day (75% of the 4,000 a day discretionary level), resuming normal asylum proceedings once again.
That guarantees there can be up to 1.1 million asylum applications a year and there’s nothing a president can do to stop it via the emergency authority. Why so high?
Under the bill, Under Section 3301 of Division C, Title III of the legislation, entitled “Border Emergency Authority” for a Title 42-like emergency removal authority, the Secretary of Homeland Security would only have the power to activate the authority on a discretionary basis when there are at least 4,000 illegal entries a day: “The Secretary may activate the border emergency authority if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day.”
That works out to 1.46 million illegal entries a year if the average held. Any fewer than that, and the President and Secretary of Homeland Security would not have the ability to close the border.
The border emergency would only be activated on a mandatory basis when the seven-day rolling average of illegal entries did not hit 5,000 illegal aliens a day: “The Secretary shall activate the border emergency authority if… during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or… on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.”
That’s a threshold of 1.85 million illegal entries a year if the average held. Any fewer, and an administration would have no obligation to do anything.
And, the border emergency authority would be temporary, limiting the use of border emergency authority to just 270 days in the first year of implementation, 225 days in the second year and 180 days in the third year according to the bill’s language: “the Secretary shall not activate the border emergency authority… during the first calendar year after the effective date, for more than 270 calendar days; … during the second calendar year after the effective date, for more than 225 days; … and … during the third calendar year, for more than 180 calendar days.”
Finally, the border emergency authority would end if the daily rate fell below 75 percent of the activation of authority level: “The Secretary shall suspend activation of the border emergency authority… there is during a period of 7 consecutive calendar days an average of less than 75 percent of the encounter level used for activation…”
The idea is to resume Title 42 expulsions that were used during the Covid emergency rather than have illegal immigrants be expelled rather than be allowed to seek asylum. But like Title 42, the expulsion rate will not be 100 percent. Senator James Lankford (R-Okla.) who negotiated the deal told CBS News this will be like Title 42: “Yeah, this is similar to what we had to under Title 42…” So let’s look at those numbers.
In FY 2020 there were 400,000 southwest border encounters and even when Title 42 was being used, only 197,000 were expelled on that basis. In 2021, there were 1.734 million encounters of which, 1.06 million were Title 42 expelled. In 2022, there 2.38 million encounters, of which 1.1 million were Title 42 expelled.
That was an average 52 percent expulsion rate under Title 42, or 2.357 million were expelled on that basis out of 4.514 million during the Covid emergency for FY2020-2022. Like Title 42 expulsions during the emergency, under the new legislation there are limits to the usage, including for those coming to ports of entry and so-called credible fear claims that need to be adjudicated.
In FY 2023, there were 2.475 million encounters, and because Title 42 ended midway through the year, only 578,000 were expelled under Title 42, establishing what happens when the authority lapses, as is anticipated under the legislation.
Now, let’s say the president doesn’t care if it hits 4,000 a day, and waits for it to hit 5,000 a day for a week before doing anything. Now, the authority is mandated to be kicked in. And let’s be generous and say the amount of encounters remains steady despite the expulsions as in FY 2020-2022, in fact they accelerated but let’s just keep them steady for the example, at 5,000 a day, leaving the authority invoked for its maximum allowed 270 days for the first year, adding up to 1.35 million encounters.
Like Title 42, 52 percent of those encountered are immediately expelled, or 702,000, and 648,000 get to seek asylum. Now we’ve hit the 270-day limit, and so no more Title 42-like expulsions. Now for the other 95 days of the year, all 5,000 a day get to seek asylum, another 475,000. That still adds up to 1.123 million!
By design, the law envisions a scenario where in the first year 3,000 get to come every day on average — 75 percent of the 4,000 a day discretionary threshold — to seek asylum without the possibility of emergency removal.
In the second year, with only 225 days of emergency removals, at 5,000 a day average, the number who get to seek asylum rises to 1.24 million. In the third year, with only 180 days of emergency removals, it rises to 1.357 million.
That’s more than if the caravan somehow limited itself to, say, 3,500 average a day each week, thereby never allowing the emergency provisions to be invoked, which would only add to 1.277 million a year. It would pay off to rush the border and overwhelm the system, just as it does now.
Now, that’s being generous and saying there will only be 5,000 a day. Right now, the current rate for FY 2023 was 6,782 per day. So, if that’s the rate, 1.865 million will be encountered in the 270-day period, 52 percent will be removed, or 969,800. 880,000 get to seek asylum. The other 95 days of the year, all 6,782 a day get to seek asylum, or another 644,290. That’s 1.524 million!
The second year it rises to 1.68 million. The third year it’s 1.84 million. And that’s assuming the numbers do not continue accelerating as they did during and after Title 42 expulsions during the Covid emergency, which appeared to provide no deterrent. Got expelled today? Just try again tomorrow.
Under no circumstance other than the caravan ceasing itself to numbers less than 3,000 a day could a president prevent 1.1 million minimum being allowed to seek asylum as a matter of law because he wouldn’t be allowed to. In fact, the more encounters, the more who will slip through.
The Title 42 expulsion rate will be similar to what we see under this new law because Sen. Lankford told us it would be.
Unfortunately, we would have to pass the law to find out what the expulsion rate would actually be. It is proper for the House to step in now and say we can do better, with House Speaker Mike Johnson (R-La.) declaring the bill dead on arrival.
It also appears designed to simply help keep up with the federal government’s ability to process the flow, rather than the country’s ability to absorb that many immigrants, per Lankford: “Yeah, this is similar to what we had to under Title 42, during the pandemic time period, where we reach a crisis point to say we can't actually operate. So we don't have that authority. Right now, as the United States, we've reached crisis points. For instance, when we got four or 5,000 people crossing the border, we can no longer process those individuals.”
Why must the House accept these 4,000 and 5,000 a day thresholds and then make that the permanent law of the land? The issue isn’t about processing, it’s about assimilation and being able to control how many immigrants get to come every year.
It might be more efficient to just bet on Trump winning and then use 8 U.S.C. 1182(f) to close the border using country bans, rather than locking in 1.68 million illegal immigrants for 2025 and 1.84 million for 2026 as the emergency authority winds down.
President Joe Biden is saying he needs more authority but that’s not true, the above stated provision gives him discretion: “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 as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This was the same authority used for the travel bans in 2017.
As Trump noted, “This Bill is a great gift to the Democrats, and a Death Wish for The Republican Party. It takes the HORRIBLE JOB the Democrats have done on Immigration and the Border, absolves them, and puts it all squarely on the shoulders of Republicans. Don’t be STUPID!!!”
Trump is right.
If the bill only applied to 2024, and then there would be some more expulsions than otherwise there would be, proponents might have a better argument to make, but this locks in asylum seeking levels for 2025 and 2026 and makes it more difficult to use the authority going forward. And there’s no telling how courts might rule on the new law versus an attempt to get around it using 8 U.S.C. 1182(f). Likely better not to find out.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
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