Vice President (and Democratic presidential candidate) Kamala Harris continues to blast her opponent, former President Trump, for allegedly tanking a “bipartisan” Senate border bill that died in the upper chamber shortly after it was introduced, only to die again weeks later. As the Center has explained, the bill would only have made the border crisis worse, but the reason why Democrats have been pushing it so hard goes to a larger constitutional imbalance that a Wall Street Journal op-ed discussed over the Labor Day weekend — an imbalance that the Biden-Harris administration continues to exacerbate.
The Senate Border Bill, in Brief. Heading into the 2024 presidential election, the chaos at the Southwest border quickly became a major political liability for the then-candidate, President Joe Biden.
Then, late last fall, three senators — James Lankford (R-Okla.), Krysten Sinema (I-Ariz.), and Chris Murphy (D-Conn.) — convened behind closed doors with administration officials to craft a response to that crisis in exchange for $61 billion in war funding for Ukraine.
Those talks were so hush-hush that even seasoned politicos had no idea what the trio had in mind. DHS Secretary Alejandro Mayorkas and Biden himself plainly knew the terms, however, because on January 26, the White House issued the following statement:
What’s been negotiated would — if passed into law — be the toughest and fairest set of reforms to secure the border we’ve ever had in our country.
It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law.
Finally, on the night of Sunday, February 4, the bill language emerged from its cocoon and was rushed to the floor by Senate Majority Leader Chuck Schumer (D-N.Y.) for a test vote — without going through “regular order”, i.e., without being considered and marked-up in committee, which is the norm.
A vote on the 370-page bill was held three days later, where it failed with 49 yeas to 50 nays. Four Republicans voted in favor: Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), and Lankford himself. Aside from Sen. Cynthia Lummis (R-Wyo.), who was not available to vote, the rest of the GOP conference opposed the bill. That part you’ve likely heard.
Overlooked in most of these discussions is the fact that a number of leading Democrats voted against the bill as well, including Massachusetts Sens. Ed Markey and Elizabeth Warren, California Sen. Alex Padilla, and Sen. Bernie Sanders (Vt.) an independent who caucuses with Democrats in the Senate.
Sending the bill for committee markup in lieu of springing it on senators would have benefitted the process, because it would have allowed Republicans to fix parts they didn’t like (the Democrats who opposed it wanted an amnesty in there, too), but then passing the bill was never likely the point for Schumer — using its inevitable failure as a cudgel against Trump and his fellow Republicans was, as I explained at the time.
The Ukraine funding was lopped off and passed separately, but Schumer kept up his criticism of Republican opposition to a bill few had apparently read. A second vote on May 23 failed by an even larger margin, with 50 nays to only 43 yeas as even Lankford and Sinema jumped ship.
Why Biden-Harris Wanted the Bill — Win or Lose. Politics aside, there is a much more practical reason why the Biden-Harris administration wanted the bill: It would have codified their pre-existing border policies and allowed them to continue to release the vast majority of inadmissible aliens encountered at the Southwest border. Let me explain.
Section 235(b) of the Immigration and Nationality Act (INA) requires DHS to detain all inadmissible “applicants for admission”, a category that includes aliens stopped at the ports and migrants caught crossing illegally, from the time they’re encountered until they are either granted asylum or removed.
The administration’s failure to comply with that clear statutory detention mandate is the biggest reason why there has been a border crisis for the past three-plus years.
You don’t have to trust me on that, however. In his March 2023 order in Florida v. U.S., U.S. district court Judge T. Kent Wetherell II rejected the administration’s argument that “geopolitical factors” (better known these days as “root causes”) have been driving the Biden-Harris border surge.
He explained, instead, that this surge has occurred because administration officials have:
effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course.
In that order, Judge Wetherell barred the administration from releasing illegal entrants on “parole”, and also held that a separate provision of the INA — DHS’s general arrest and release authority in section 236(a) — didn’t give the department the authority to release them on their own recognizance, either.
For reasons that are unclear, however, Judge Wetherell didn’t bar those section 236(a) releases, but in any event the administration’s request that the 11th Circuit block Judge Wetherell’s order was denied in June (the government’s appeal of that order remains pending).
The CBP One App Port Interview Scheme. By the time Judge Wetherell issued that order, however, the administration had changed its tack — not by detaining illegal migrants, but instead by encouraging them to pre-schedule their illegal entries at the Southwest border ports of entry using the CBP One app, an innovation I’ve dubbed the “CBP One app interview scheme”.
That scheme launched in January 2023, and despite the fact that DHS currently makes 1,450 interview appointments available daily (roughly 43,500 per month), little is known about what occurs during those port interviews — aside from the fact that nearly all the migrants who show up for interviews (95.8 percent according to congressional disclosures) are then paroled from the ports into the United States.
The same detention mandates Judge Wetherell found DHS violated in releasing illegal entrants apply to those inadmissible port applicants as well (and have since 1903), though to be clear DHS does have limited authority to parole them.
That said, the department has the same limited authority to parole illegal entrants, too, as Judge Wetherell recognized. His problem with the earlier Biden-Harris release policies was that they failed to comply with the restrictions Congress had placed on parole.
The same is almost definitely true of the vast majority of those Biden-Harris CBP One app interview scheme paroles, which makes them legally assailable.
Though two separate state challenges to the scheme (Indiana v. Mayorkas and Texas v. Mayorkas) have thus far been unsuccessful at the district-court level, expect the states to keep plugging away all the way up to the Supreme Court to end this key Biden-Harris border policy.
Back to the Senate Border Bill. Which brings me back to two key provisions in the Senate border bill, sections 3141 and 3146(b).
Nearly all aliens encountered at the Southwest border are referred by DHS to removal proceedings before immigration judges (IJs) at which they can make their asylum claims, but in March 2022 the Biden-Harris administration issued a rule allowing USCIS asylum officers (AOs) to adjudicate such claims.
A group of states led by Louisiana challenged that rule (Arizona v. Garland), claiming that the rule violated various federal laws, including the INA and the Homeland Security Act of 2002 (HSA).
In April, a federal district court judge dismissed that complaint, finding the states lacked standing to sue, but it, too, is currently on appeal to a Fifth Circuit that has expanded state standing in immigration cases.
Section 3141 would amend the INA to permit AO adjudication of asylum claims made by inadmissible applicants for admission at the borders and the ports (short-circuiting the appeal in Arizona), but more importantly it would mandate that aliens subject to this new adjudication protocol all be released, which would shut down the states’ claims in Texas and Indiana, too.
As if that weren’t sufficient, section 3146(b) would amend section 236(a) of the INA to enable DHS to release both aliens subject to that AO adjudication process in section 3141 as well as aliens placed into removal proceedings before IJs — reversing 121 years of statutory detention mandates for aliens at the ports and a more recent 28-year statutory mandate for illegal entrants.
Somehow, in analyses of the overheated claims made by this bill’s proponents (and by Harris and her campaign surrogates) that the Senate bill includes “the toughest border restrictions in a generation”, the fact that the bill mandates the very Biden-Harris border releases that Judge Wetherell has concluded are driving the border crisis rarely if ever comes up, even on many outlets critical of the administration.
“The Biden-Harris Paradox: A Strong Presidency, No President”. Which brings me to an August 28 opinion piece by Prof. F.H. Buckley in the Wall Street Journal, headlined “The Biden-Harris Paradox: A Strong Presidency, No President”.
It’s actually two opinion pieces in one, the first of which argues that “the real locus of” executive-branch power under the current administration has not been President Biden, but instead “a shadowy group of party apparatchiks” — which Buckley argues is unlikely to change if Harris is elected president.
That’s an important point worthy of debate, but more critical is his argument that our very constitutional order of checks and balances between the executive and legislative branches is wildly out of whack.
While Buckley admits “senators and representatives give speeches and hold hearings” and “propose bills and on occasion enact laws that someone else prepared and nobody has read in full”, he complains that: “real power resides in the executive branch and almost the only time Congress matters is when the Senate is asked to confirm a judicial appointment”.
Nothing proves the professor’s points more clearly than the Biden-Harris border releases and the Senate border bill.
Again, section 235(b) of the INA is as clear in mandating the detention of aliens encountered by CBP at the border and the ports, but with very limited exceptions like Judge Wetherell’s March 2023 order, the administration gets away with ignoring that text of the law and releasing any and all aliens it desires.
Simply put, that provision and much of the INA over the past three-plus years might as well be written on toilet paper or be palimpsest for all that the White House cares.
And Congress hasn’t put up much of a fight for its prerogatives, and especially for the almost absolute authority the Supreme Court has recognized it has over immigration.
Though the House has passed various border resolutions condemning what Biden and Harris are doing (or not doing) in ignoring the laws, and has also passed truly tough border bills like H.R. 2, the resolutions have no real effect (aside from political advantage) and the bills come with no strategy for success, i.e., passage through the Senate and signing by the president.
Worse, Congress continues to fund the border releases that Judge Wetherell concluded are driving the migrant crisis. The states don’t need to sue in the faint hope courts will shut down the various Biden-Harris policies they claim are costing them billions and endangering their communities — Congress simply needs to turn off the spigot of cash they rely on.
The complexity of those policies, however, impedes any congressional effort to do so — and stymies any real scrutiny of the Senate border bill.
As a congressional staffer, I’ve drafted many bills, and if my bosses or leadership wanted to hide the implications of their proposals, I’d have sent them something written in the style of the Senate border bill.
As noted, it’s 370 pages long, but worse it references innumerable provisions already in the INA. Thus, understanding it requires review of hundreds — if not thousands — of provisions in current statute, and unless those members (or their staffs) have decades of immigration experience, they’d have no idea what it actually does. Few do.
The same is doubly true for the media. As then-Obama advisor Ben Rhodes once famously claimed in May 2016: “The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns . . . They literally know nothing”.
Ukraine funding gave opponents of the administration’s border policies a chance to restore balance to an issue that, constitutionally, Congress is supposed to call all the shots on. Not only was that opportunity lost, but the resulting product would have codified migrant releases, allowing the administration to dodge any number of legal bullets. Now Congress's refusal to play along is being used against the GOP, aided and abetted by a credulous press.