McCaul's Myopic Border Bill Revisited

The House Homeland Security Committee fiddles around the edges of H.R. 3548

By Dan Cadman on October 24, 2017

On August 21, the Center published a blog I wrote about H.R. 3548, the "Border Security for America Act of 2017", introduced by House Homeland Security Committee Chair Michael McCaul (R-Texas). The title of my blog post was "A Myopic Border Security Bill", and it laid out in some detail my views of the bill's many shortcomings.

On October 4, there was a mark-up of the bill, and several amendments were adopted, the first being one introduced by McCaul himself, which was an "amendment in the nature of a substitution" — that is to say, an amendment that would take the place of the original bill in its entirety. Following that, a series of amendments were introduced, most of which were rejected; however, an additional seven were accepted which in one form or another make changes to the substitution amendment. (They can be viewed here.)

In light of the numerous amendments approved via mark-up, I did a line-by-line comparison of the substitution with the original, as well as of the several follow-on amendments, to see exactly what had changed, and how. This is my assessment of the comparison. Readers are encouraged to review the earlier blog in conjunction with this analysis, since many items discussed in that blog are still applicable but not necessarily revisited here.

Spoiler alert: I found nothing redeeming in the changes to make the revised bill worth sending to the president, because it is not only inherently flawed, but singularly lopsided in that it addresses only immediate border concerns whereas, of course, the vast majority of the 11 or 12 million aliens living and working illegally in the United States are in the interior — not in regions directly proximate to the border.

Amendment #1, Amendment in the Nature of a Substitute (McCaul (R-Texas))

The amended bill follows a slightly different format that required a renumbering scheme — as a result of which the bill sections are different than the original — but such changes aren't in themselves substantive. Following is an analysis of the agreed-upon mark-up changes, beginning with the substitution amendment. When items mentioned in the first blog aren't discussed here, it is because they remain unchanged from the original bill. The sections enumerated here are those of the substitute.

Section 101. Adds some new definitions, such as "advanced unattended surveillance sensors" and "operational control".

Section 111. Amends the language of 8 U.S.C. 1103 relating to border fencing to require a multiplicity of consultations with various federal, state, tribal, and local governments before removing obstacles and proceeding to creation of border barriers — note that the phrase "construction of fencing" used in existing law is replaced with "construction of physical barriers". The substituting language relating to the consultations required is clumsy and somewhat redundant. The amendment would also require the secretary of the Department of Homeland Security (DHS) to submit a report to Congress after said consultations and before implementation, which advises of the decision(s) made as well as the "alternatives" considered. What things might constitute viable alternatives is unspecified.

The consultative and reporting procedures outlined seem unwieldy and unlikely to result in prompt forward motion on construction of the combination of physical barriers, and technical and human security layers apparently envisioned. One can envision it instead becoming mired in political or legal disagreements as soon as the report to Congress is made and inevitably gets leaked to the public.

Section 111 also modifies the definition of the kinds of "technology" needed for border security, and now include surveillance "towers", as well as advanced unattended surveillance systems, "deployable lighter than air ground surveillance systems" (presumably aerostat balloons).

Needless to say, the ubiquitous "unmanned aerial vehicles" (drones) — which have been repeatedly panned by government watchdogs as overpromised, ineffective, and expensive — are still present as a part of the required technology mix, and in fact play a larger role in this version of the bill, as discussed below. As our Center's Executive Director, Mark Krikorian, has more than once observed, beware of border bills that play up such devices in lieu of substantive measures.

Section 112. Requires the DHS secretary to "ensure that Air and Marine Operations operate unmanned aerial systems on the southern border of the United States for not less than 24 hours per day for five days per week".

It also specifies that the "Chief of the U.S. Border Patrol shall be the operational lead for U.S. Customs and Border Protection's use of small unmanned aerial vehicles [drones of 55 pounds or less] for the purpose of meeting the U.S. Border Patrol's unmet flight hour operational requirements and to achieve situational awareness and operational control" of the border, but must coordinate with the Customs and Border Protection (CBP) executive associate commissioner for air and marine operations to ensure the safety of other aircraft flying in the vicinity.

Section 113. Retains the heavy-handed congressional micro-management evidenced in the original bill, levying sector-by-sector equipment and materiel requirements for the Border Patrol, and in fact levies additional new ones such as the tower-based surveillance mentioned earlier. In this regard, it's worth repeating what I said in the first blog: This is fundamentally a Christmas list that was developed by the Patrol itself, then handed over to McCaul's staffers to make real by inclusion in the draft bill. That just isn't the way to govern or to legislate.

Worse, under the misleading title heading "Tactical Flexibility", there is a new subsection (b) that actually restricts the DHS secretary's flexibility in reassigning sector-by-sector assets by specifying that the secretary may make no changes or redeployments until January 20, 2020, or after deployment of at least 25 percent of the items specified, whichever is later and only if needed to establish operational control. The subsection further requires the DHS secretary to notify Congress of such changes within 90 days.

Similarly, changes to transit zone asset deployments must be notified to Congress at least 30 days in advance, and can only be moved after such "consultation" by the DHS secretary.

Even the "exigent circumstances" of subsection (c) make clear that equipment, materiel, and deployment changes can only be made by the DHS secretary after the 25 percent deployment has been achieved.

Calling such things "tactical flexibility" is an absurd misnomer — it is clearly a case of egregious inflexibility that will prevent the DHS secretary, and all of his or her subordinates from the CBP commissioner to the Border Patrol chief, down to sector chiefs, from promptly and effectively responding to rapidly changing conditions in fragile border areas, such as the Rio Grande Valley that confronted such an unexpected and huge influx of Central American border crossers in 2014 and onward.

Section 114. Adds the phrase "consistent with border security enforcement priorities" to the requirement levied on the Borer Patrol in the original bill to patrol as close to the physical frontier as possible — perhaps in acknowledgement of the shortcoming I discussed in my earlier blog: that such language impedes the notion of a layered, in-depth strategy of border control that must recognize that smugglers often operate in areas that are not directly proximate to the border when staging loads of illegal aliens or contraband.

Section 116. Retains the disturbingly high $300 million purchasing threshold before the "major acquisition program" oversight requirements kick in, as found in the language of the original bill. It is difficult to imagine that multi-million dollar thresholds should be subject to lesser scrutiny, provided they don't amount to nearly a third of a billion dollars — but, one suspects, this language is a tacit method of establishing cost and acquisition controls over the border barriers, technology, equipment, and materiel that the bill is so profligate in providing to each sector in prior sections.

Section 117. Adds "intelligence analysis support" to the list of things National Guard units deployed to border may provide, in addition to those outlined in the prior version of the bill.

Section 119. Amends the terms of the Mérida Initiative by which the United States provides training, funding, and support to Mexican military and police units involved in counter-gang, counter-narcotics, counter-alien smuggling, and other contraband interdiction operations and continues to leave out the attorney general (AG) as a specified cabinet officer (the secretaries of DHS, State, and Defense are included), to be consulted in establishing program goals and outcomes, even though the AG supervises the FBI, DEA, and BATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) — as it did in the original version of the bill.

The Mérida Initiative is supposed to result in Mexican officials working with the U.S. government to curb illegal cross-border activities and unlawful incursions. Ironically, Mexican military and police have routinely engaged in unlawful incursions into the United States, often to provide cover and protection for cartels in their smuggling efforts. They have gone so far as to use helicopters in these incursions, and have even drawn pistols on, and shot at, U.S. Border Patrol agents (see here, here, and here). One wonders why the amended language doesn't take such activity into account, and levy funding and other penalties for each such documented incursion. This could be done in subsection (c), titled "Allocation of Funds; Report". After all, the new version of the bill requires inclusion of relevant assessments by "civil society and non-government organizations in Mexico relating to such matters". One would think reporting on Mexican government agency incursions would merit equal attention.

Section 120. Prohibits impediments to border patrols of federal lands proximate to the frontier and expands prior language describing "authorized patrol activities" to include "motorized vehicles, horse, foot patrols" etc. Unfortunately, it doesn't alter the language in the original bill, which itself creates impediments to patrol of the border on state or private lands that edge the international border — something discussed in my prior blog post.

Section 123. Addresses the requirements for a southern border strategic plan, as well as a separate CBP strategic plan, and no longer requires consultation with the DHS office of Civil Rights and Civil Liberties before submission, as was required in the original bill.

Section 124. This is a new provision that did not appear in the original version of the bill. It amends that portion of the Homeland Security Act relating to CBP commissioner authorities by granting the commissioner authority to establish public-private partnerships. It also amends the methodology by which CBP reports border patrol and field inspection staffing levels and vacancies to Congress.

Sections 131 [Additional CBP Agents And Officers] and 132 [Retention Incentives]. These sections have few discernable changes, which is another way of saying that they have all of the same flaws that the original bill contained. One small difference is that, in the substitute bill, CBP's Air and Marine Operations Division is now required to provide a specified number of its overall increases to the southern border.

In my prior post, I discussed the fact that this bill provides for substantial increases throughout all divisions of CBP, and yet does nothing to address interior enforcement personnel needs. I also expressed my concern over the adverse impact the retention incentives would have on other DHS agencies' attempts to recruit and retain. The questionable retention pay language is retained. There are, however, some other issues plaguing the language.

The bill provides for an initial hiring bonus of $10,000 to a CBP agent or officer simply for graduating from basic training, provided he or she agrees to serve two years. What happens if the trainee washes out as a probationer — a status that generally lasts at least a year, sometimes two? Will he or she have to pay the bonus back? The statute doesn't say. And, given that it takes two to three years for trainees to gain full journey-level status (hired as a GS-5; promoted to a GS-7 after a satisfactory year; promoted again to GS-9 after another satisfactory year), why on top of these healthy yearly grade-and-pay increases, should the government also be adding a $10,000 bonus on top of all that? It is difficult to believe that CBP cannot achieve its hiring goals. The U.S. armed forces, which pay considerably less, are able to meet their recruitment targets. One would, in fact, imagine that soldiers and sailors being honorably separated from service would form a fertile ground from which to hire.

As mentioned, the substitute bill retains the retention bonus language for those who might otherwise transfer to another DHS agency or division, by luring them back with a promise of a retention bonus of $25,000 per year provided they sign on for another two years. (Note, in this regard, that the language appears to be flawed because it refers to awarding retention bonuses for "enter[ing] on duty" even though the provision only applies to agents or officers who have already been employed at least two years.) What's more, the retention bonus is specifically exempted from being tallied against the individual's basic pay and overtime cap. What this means is that an officer who receives such a bonus will also receive the pay commensurate to his GS level and step, and be eligible for additional law enforcement overtime pay.

Furthermore, the CBP commissioner is also permitted to establish a pilot "special rate of pay" for law enforcement officers and agents, which must be statutorily revisited after four years. This "special rate" permits a pay scale up to 125 percent of the usual rate of pay for border agents and field inspectors — and, by spillover effect, this also increases the amount paid for law enforcement overtime, which is 25 percent of the individual's pay, based on GS level. (It is not clear how this "special rate of pay" reconciles with the mandates to pay at GS-12 levels and above — see the narrative below.)

Note, also, that although the 25 percent law enforcement overtime pay is ordinarily capped by law at $25,000, once again, this has been tinkered with by the terms of the bill, and is adjusted to $45,000 for CBP agents and officers.

Finally, note that, even though CBP field inspectors and border agents may nominally be rated at the GS-5, 7, or 9 level, the bill requires that they must in fact be paid at the level of a GS-12/step 1 or above. If they are supervisory agents or officers, they will be paid at the GS-12/step 10 level. GS-11 supervisors or managers would be paid at the GS-14/step 1 level (although note that due to a drafting error, there is language in a follow-on paragraph that conflicts, by reducing supervisory pay to GS-12 step 10 for supervisors.

Under the terms of the bill, even secretaries and administrative assistants get paid way above their GS grade and step level. It is a veritable shower of greenbacks for CBP employees.

To take a hypothetical example, let us assume we were examining the grade and pay scale for a Border Patrol agent (BPA) who has reached the journey-level of GS-9/step 5, assigned to the Tucson/Nogales, Arizona area. With locality pay differentials, that BPA would ordinarily earn $56,695, exclusive of law enforcement overtime pay. Under the new rules, the BPA would get paid as, at minimum, a GS-12/step 1, which is $72,544. If we were to add the law enforcement pay (25 percent of salary), that adds $18,136 to the pay kitty, bringing the total to $90,680. Now if we add a retention bonus of $25,000, because the agent indicates his intention to transfer from the Border Patrol to ICE, he is now earning $115,680 for that year alone This figure is more than a GS-15/step 4 in any other government agency earns at normal pay grades. What is more, the $115,680 figure doesn't include any "hardship" pay that might be warranted under the terms of the bill for BPAs assigned to more remote stations within the Tucson/Nogales duty area.

Being a retired law enforcement agent, I do not begrudge other law enforcement officers a good — even an excellent — salary, but the terms of the bill are overly generous, and in the end will result in an inflated budget that may come back to bite CBP when a future less-generous Congress or administration becomes unwilling to provide funding sufficient to fully staff over 27,000 BPAs and another 27,000 OFO inspectors, at which time the agency will be obliged to engage in reductions-in-force through attrition. The result would, of course, diminish border security, to the loss of the American people. I do not think that our legislators have carefully thought through the implications of what they have done in their zeal to show their unqualified support for border enforcement (although, speaking cynically, where are all those salary dollars going to be spent? In the home states of many of the legislators who are on the committee.)

Section 141. Authorizes the Border Patrol's Operation Stonegarden program, as in the original bill, and still provides for grants to participating state, local, and tribal law enforcement agencies without regard to whether they cooperate with other DHS enforcement efforts, such as honoring immigration detainers. This lapse is unfathomable.

Section 205 in the substitute bill continues the exit system mandate found in the original bill, although the language tinkers with time frames and coverage. The substitute requires that, within two years, the 15 highest-volume air and land ports of entry, and 10 highest-volume seaports, must be covered by an exit system, with a pilot program to commence within six months after enactment. (The original bill mandated something similar, but qualified that within 18 months, a six-month pilot for three non-pedestrian "significant volume" land ports (two southern, and one northern border) would be required to be covered by the exit system.

Both original and substitute versions of the bill require(d) full implementation within five years, including pedestrian land crossings, unless the DHS secretary were to certify to Congress that the department needed another two years to test pilot platforms (although only one such extension would be permitted).

I cannot help but contemplate that neither version of the bill leaves much time for test platforms at low or mid-volume ports, which seems a better way to determine viability and accuracy since failed test systems at high-volume ports will likely result in massive snarls and confusion, not to mention public outrage. Note also that pedestrian arrivals account for a huge volume on southern border, yet testing platforms for pedestrian port traffic aren't discussed except in the context of the final five-year mandated outcome. This is, or should be, of considerable concern.

Finally, it's worth nothing that both original and substitute versions of the bill require cessation of the US-VISIT exit processing system upon enactment — leaving nothing in its place, even though there will be an extended period required to determine how to find a replacement, and what that replacement should be. Terminating US-VISIT in favor of nothing bodes ill for the already sketchy methodology used by DHS for determining how many nonimmigrants are overstaying or otherwise violating the terms of their admission, even though by its own calculations, DHS acknowledges that visa violators may constitute nearly half of the population of aliens now working and residing illegally in the United States.

Amendment #11 (McCaul (R-Texas))

This technical amendment modifies the definitions provided for at the outset of the bill, by adding such phrases as "achieve operational control" and "situational awareness". It also takes the phrases "tactical infrastructure" and "technology" out of the initial definitions and repositions them later within the text of the bill.

Amendment #1-J (Hurd (R-Texas))

This amendment creates a "tactical infrastructure exception" within Section 111 of the bill:

The deployment of tactical infrastructure under this subparagraph shall not apply in areas along the border where natural terrain features, natural barriers, or the remoteness of such area would make deployment ineffective.

Given the breadth of the definition of "tactical infrastructure", which can include many different permutations of physical, electronic, technical, and human controls — which is allegedly the "multilayered dimension" that gives it strength — this language seems short-sighted and self-defeating, since it seems to suggest that doing nothing is an acceptable substitute to human ingenuity where the terrain is rough. Where the terrain is unsuitable for one kind of border security infrastructure, then the challenge is to find another that establishes the kind of coverage needed if the United States is ever truly to achieve "operational control" of the border; else, the phrase is meaningless.

Amendment #1-K (McSally (R-Ariz.))

This amendment eliminates "forward operating bases" (FOBs) as one kind of acceptable permutation within the definition of "tactical infrastructure". The reason for eliminating FOBs is unknown.

The amendment adds a new Section 125 to the end of subtitle A of the bill: "[T]he Secretary shall, to the greatest extent practicable, ensure that technology deployed to gain situational awareness and operational control of the border be provided to front-line officers and agents of the Department of Homeland Security."

The amendment also adds a new subsection within the CBP Personnel Increases subtitle to increase Office of Professional Responsibility (OPR) resources to no less than 550 agents by September 30, 2021.

Amendment 1-K additionally provides a new Section 134 provision to the end of Subtitle B, which mandates a minimum of 21 weeks basic training "directly related to the mission of the U.S. Border Patrol, Air and Marine, and the Office of Field Operations" (OFO) before officers and agents may graduate and join field operations. It further requires a minimum of eight hours continuing education training per year, as well as "leadership training" for new managers and supervisors. The new Section 134 requires the CBP commissioner to submit an initial report to Congress on plans for implementation within 180 days; and within four years, requires the Government Accountability Office to conduct an audit and analysis of the CBP training program(s).

Finally, the amendment inserts a new Section 205, which requires a renumbering of the existing Section 205 and all those that follow. This new provision requires, within six months of enactment, initiation of a pilot program, of six months duration, to test a

non-intrusive passenger vehicle inspection system at not fewer than three land ports of entry along the United States-Mexico border with significant cross-border traffic...within the pre-primary traffic flow ... scalable to span up to 26 contiguous in-bound traffic lanes without re-configuration of existing lanes.

The provision requires a report to Congress within 90 days after the end of pilot. The strictures placed on the pilot seem daunting, but may confront the reality that many ports of entry cannot be easily reconfigured, and therefore the pilot must adapt to this ground truth. One imagines cutting edge scanning technology being used to see if there are hidden vehicle compartments containing smuggled bodies, drugs, contraband, or the like — but, of course, such technology doesn't help with detection of imposters, malafide entrants, aliens with criminal histories, or the like. Even so, positioning the technology in the pre-primary area is an excellent way to pick off what can be found using technological methodology. One suspects, though, that any pilot program will be dogged with questions surrounding the health and safety of those being scanned, such as has happened to the Transportation Security Administration with its use of airport scanning technologies.

Amendment #1-U (Katko (R-N.Y.))

This amendment also adds another new Section 125 to the end of subtitle A, which is different than the one offered by McSally in Amendment #1-K. The numbering sequence of the two would therefore need to be reconciled.

This new Section 125 requires establishment of integrated border enforcement teams (IBETs) under the control of the U.S. Border Patrol consisting of agents and officers from the Patrol, from CBP's Office of Field Operations, from Immigration and Customs Enforcement (ICE), from the U.S. Coast Guard (USCG); other DHS personnel; other federal agencies; other state, local, and tribal agencies; and even "foreign agencies" as appropriate, by use of memoranda of agreement.

Before an IBET may be established, the section requires assessment of whether it would be at cross-purposes with other ongoing federal or DHS efforts, and emphasizes that USCG personnel may only be used in maritime endeavors. The section permits the DHS secretary to provide financial incentives to participants, but, as with Operation Stonegarden, includes absolutely no language restricting these incentives only to agencies that fully cooperate with all other DHS efforts such as honoring of ICE detainers and advising ICE agents of release dates of incarcerated alien criminals. The section also requires a report to Congress within 180 days after establishment of an IBET, plus biannual reports for six additional years.

One imagines that the statutory requirement of putting IBET teams directly under the operational control of the chief of the Border Patrol will cause significant inter-agency difficulties, and may ultimately impede, or even undermine their success, since which agency obtains operational control of an IBET might better be considered on a case-by-case basis.

Amendment #1-V (Ratcliffe (R-Texas))

Once again, we have an amendment adding a(nother) new Section 125 to the end of Subtitle A, which would need reconciled with the Sections 125 contained in Amendments #1-K and 1-U. This section authorizes the DHS secretary to establish "tunnel task forces" (not further defined) whose purpose is to "detect and remediate tunnels that breach the international borders."

Amendment #10-Y (Hurd (R-Texas))

Amends Section 120 of the bill, which establishes unfettered access to federal lands for the purpose of patrolling the country's international borders: "The requirements of this section shall not apply to the extent that such requirements are incompatible with any memorandum of understanding [MOU] or similar agreement entered into between the Commissioner of U.S. Customs and Border Protection and a National Park Unit." Note that this restriction applies to MOUs whether they were signed before, on, or after enactment.

In this writer's view, this language could actually redound to the deficit of the Border Patrol's ability to conduct patrols and enforcement operations. That is because, right now, the only access the Patrol could obtain in some instances was via MOU — even if the MOU was restrictive, but the best that BP could get in the absence of a law permitting unfettered access. This section would completely undercut the whole purpose of precluding the National Park Service or any other entity from inhibiting access for the purpose of patrolling our international boundaries.

Amendment #1-AA (McSally (R-Ariz.))

This amendment adds a new proviso to the end of Section 120(c) that establishes the unfettered right to access federal lands for purposes of patrolling the border. It does so by stipulating that the waivers of federal law don't apply to the Freedom of Information Act (FOIA). But this is odd since none of the federal laws that are specifically enumerated as being inapplicable where patrol of lands is concerned have anything to do with FOIA — being, instead, things like the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, etc. Consequently, the amendment stands as a kind of nonsequitur. One cannot imagine that anyone ever contemplated that Section 120(c) was ever intended to waive FOIA.


Readers may be wondering why so much time has been spent analyzing and re-analyzing the same bill. There are a few cogent reasons for that:

First, there has been a great deal of discussion about the possibility, perhaps even likelihood, of marrying a "Dreamers" amnesty with some kind of immigration enforcement measure. Any balanced immigration enforcement bill must focus as much attention on the significant problem attending the interior of the United States as it does on the border. A Dreamer bill, by itself, is unambiguously not the answer, because such an approach only pushes the reset button for illegal aliens to aggregate again for the next decade or two. It is increasingly obvious that such an answer will not satisfy the American people. For this reason, a marriage of bills must attend to more than the border, and McCaul's bill fails on that count alone.

Second, it's worth noting that the McCaul bill has been embedded as the first portion of a piece of legislation introduced by Sen. Cornyn (R-Texas) into the upper chamber, S. 1757, the "Building America's Trust Act". (A separate analysis of that bill is forthcoming.) As such, McCaul's measure merited close examination, given that Cornyn decided to fold it into his larger, broader immigration bill.

Third, even in the context of a border bill, both the original and the substitute exhibit significant failings that would likely undermine its effectiveness in the long term — in no small measure because it is a classic example of legislative micro-management across the spectrum, ranging from apportionment of equipment, material, and resources to the egregiously over-generous pay provisions relating to hiring and retention.