The case for the Senate border deal

It's far from perfect, but if my understanding of the likely final product is correct, it's considerably better than no deal

Joe Biden is desperate to obtain more funding for Ukraine’s war effort (which I would like him to get). Speaker Mike Johnson has made such funding dependent on passage of strong measures to deal with the crisis at our Southern border.

Logically, the two issues are independent. Sure, the word “border” appears in both discussions, but such punning doesn’t support tying the issues together.

No rational conservative supporter of aid to Ukraine would vote against an effective measure to curb illegal immigration that didn’t include Ukraine aid. Why, then, oppose aid to Ukraine because it doesn’t come with a U.S. border fix?

The answer might be that because the situation at the border constitutes such a massive crisis, it’s necessary to use the special opportunity presented by the war in Ukraine to force Democrats to make major concessions on the border. This answer makes sense, if a worthwhile border deal can be had.

If this “double” — aid to Ukraine and a good border deal — is pulled off, it will be a big victory for America and a feather in the cap of the Speaker (as Colonel Cathcart might say). But in my view, if we end up with neither aid to Ukraine nor good border legislation, it will be a sad day for America and an ugly black eye for the Speaker.

In the Senate, members of both parties are working on border legislation. The two sides are still negotiating, but thanks to leaks, we have a good idea of what the essential features of the deal will be.

Many conservatives think they know enough to be lining up solidly against the deal — so solidly that the Oklahoma GOP has censured Sen. Lankford for his role in negotiating it. I think I know enough to say that, although the legislation will have its flaws, it’s very likely going to be good enough to warrant conservative support. (This is all the more true if one favors additional aid for Ukraine, as I do. But even without Ukraine aid, I would favor the immigration deal, if the final bill pans out the way I understand it’s likely to.)

The main feature of the immigration deal is asylum reform. This makes sense because the ability of illegal immigrants (often coached by drug cartels) to manipulate the asylum process is at the heart of the immigration crisis.

The idea behind the proposal is to speed up asylum processing, raise the standard for sustaining asylum claims, and close the litigation loophole in the status quo. The plan is to knock out most asylum claims at the front-end and, in all events, to knock out all meritless claims within half a year.

As I understand it, the first step would be expedited removal at the front-end. If asylum seekers survive that process, they get a ruling on their claim within 90 days, with electronic monitoring in the interim. If they pass that stage, they get a work permit and a final adjudication within another 90 days.

Thus, for those who make it to the end, the entire process will take half a year, maximum, Now, it usually takes several years. And, importantly, there will be no appeal to federal court, as I understand it.

To make this system work requires a beefing up of adjudicatory personnel. The legislation would provide for this. Under current staffing, only about 500 claims per day can be processed. Under the proposed legislation, the number is expected to reach 3,500 per day.

One objection to this part of the deal is that the Biden administration would refuse to enforce the reformed asylum procedure. I believe that, in an election year with the immigration crisis at the forefront, Biden would largely follow and tout this system, rather than evade it. To support this legislation and then ignore it would pose far too great a political risk.

Donald Trump probably views it the same way which, I believe, is why he opposes the legislation. He doesn’t want Biden to be able to claim success in dealing with the crisis at the border.

In any case, critics should think beyond the next 11 months and consider what Trump, if elected, could do with this legislation. He would have many of the tools he needs to stem illegal immigration and that he sought during his first term.

By contrast, without this kind of legislation, Trump might well be stymied. Congress won’t reform the asylum process — not unless you think Republicans will (1) retain control of the House and (2) end up with something like 60 Senate seats (right now the over-under is probably 50 or 51).

Of course, Trump could try to give himself these tools by becoming “a dictator on day one” when it comes to the border. If so, he would very likely be stymied by the courts. If he ignores the courts, the country plunges into a constitutional crisis.

Now, let’s look at the second, and related, major thing the proposed legislation would do. It would require the president to close the border after average daily migrant crossings average 5,000 over seven days, or hit 8,500 in a single day. And it would authorize him to close the border after average daily crossings surpass 4,000 in a week

I’m told that the 5,000 mark has been reached every day of 2024 so far. According to Sen. Lankford it’s been reached every day except for seven in the past four months. And keep in mind that, as Election Day nears, the per day number is likely to increase. Indeed, it’s all but certain to increase if it continues to look like Trump has a good chance of winning the election.

Even so, this provision has drawn criticism. Why 5,000 (or even 4,000) per day? Why not close the border right now, regardless of a per-day average number?

I, too, would like to see the border closed unconditionally or else impose lower border closure trigger numbers. However, Biden isn’t going to close the border. And even if he tried to, he would likely be thwarted by the judiciary because the most likely basis for doing so, a response to a genuine threat of communicable disease under Title 42, would lack a factual basis.

As for the numbers said to be in the proposed bill, it’s important to understand that the bill isn’t permitting up to 4,000 or 5,000 illegal entries per day. It’s fixing the asylum process and adding the staff necessary to process (and in most cases deport) undocumented migrants.

If 4,999 immigrants show up in a day, they won’t be granted entry. They will go into the toughened, expedited, and beefed up removal process. And if more than that number show up — as they do virtually every day — making it impossible to conduct the new removal process, that process shuts down at the border until the daily number of crossings dips below a manageable number — 3,750.

In other words, the border closing provision is a backstop — a circuit breaker. As Sen. Lankford has explained, “this is a new authority to say, when we can no longer detain and deport, when we can't process the people and actually make a decision right there at the border, then we'll actually turn those folks back around to Mexico.” (Emphasis added)

Is this system foolproof? No. Would it greatly improve the current situation? Yes, if the bill that emerges is the one I expect.

The other main feature of the proposed legislation is a fix of the “parole” system. Current law permits the administration to grant entry to undocumented aliens under narrowly prescribed conditions. The Biden administration has abused this process to admit more than 1.5 million immigrants.

The proposed legislation would put an end to this. Those who now get paroled into America would be funneled to the system discussed above.

Biden’s abusive use of parole is being challenged in federal district court in Texas. There’s a good chance the judge handling that matter will agree with the challenge and enjoin the administration. However, there is no guarantee that his ruling will be upheld on appeal. Thus, Republicans are getting something of potential importance with the end-parole provision.

The final legislation that emerges in the Senate will very likely have the votes needed for passage by that body. But what about the House?

Speaker Johnson’s early pronouncements on the negotiations were negative. However, they were phrased in a way that left him room to support a final product.

Now, he’s saying “no” more categorically. Maybe this is a way to give Senate Republicans more leverage in negotiations. If so, good work.

More likely, though, it’s the result of pressure from Trump who thinks passage of legislation will hurt his election prospects. If so, then the final product, whatever its exact contours, may indeed be “dead on arrival” in the House.

Thus, the opportunity to significantly improve the current situation might well slip away. Thanks to Donald Trump and those who defer to him.