A Myopic Border Security Bill

By Dan Cadman on August 21, 2017

In a recent opinion piece, Rep. Mark Meadows (R-N.C.) extols the virtues of a border security bill introduced into the House of Representatives by Rep. Mike McCaul (R-Texas), chairman the House Homeland Security Committee. Meadows is a co-sponsor of the draft legislation. He says, among other things:

As President Trump made clear on the campaign trail, and in the first six months of his presidency, we need to build a wall on the most porous parts of our southern border and I couldn't agree more. This legislation, introduced by Chairman Michael McCaul of Texas, provides $15 billion to build a wall and other necessary infrastructure and technology along our border with Mexico. This bill takes a historic, multi-layered approach that will make it nearly impossible for drug cartels, criminals, and potential terrorists to slip through the cracks. This is the type of security Americans have long demanded and deserve.

I wish I could be as upbeat as Meadows about the bill, but my descriptors for it are not nearly so flattering: anemic and short-sighted.

The bill is H.R. 3548, the "Border Security for America Act of 2017".

A few of my concerns with this bill are laid out below. It's worth noting at the outset, though, that contrary to Meadows's statement, the bill doesn't really "provide" $15 billion for a wall, infrastructure, and technology. The bill simply authorizes such funds to be appropriated. Actual money would have to flow from an appropriations bill, which this is not. And there is a vast difference, sometimes a chasm, between authorizing an appropriation and actually providing funding through an approved appropriations bill, especially given the ideological differences between Republicans and Democrats on matters of immigration generally, and "the wall" specifically.

One of my major objections to McCaul's draft legislation is that it's almost exclusively a borders-only bill. This is a huge problem, given the realities and complexities of illegal immigration in our country, because such an approach suffers from a serious case of myopia.

For example, H.R. 3548 has nothing whatever to say about interior immigration enforcement, even though roughly half of the illegal alien population in the interior of the United States overstayed or violated the terms of their status after admission at ports of entry; it doesn't tackle the thorny but important issues of immigration detainers, sanctuary jurisdictions, and federal grant monies; and it has nothing to say about mandatory use of E-verify at all U.S. employers to help deny jobs to unlawful workers. It also does nothing to amend the asylum and credible-fear regimen that is a close corollary to the ebb and flow of aliens illegally crossing our borders. When the asylum system is subject to abuse, it is abused and that abuse feeds on itself with ever growing numbers of aliens who are able to trot out pre-scripted stories to fend off attempts at prompt removal.

Failure to deal with these things, not to mention the other singularly important immigration enforcement and control matters that don't relate to the immediate border environment, is a major miscalculation because it will be all too tempting for Congress to pass a limited and marginally effective immigration enforcement bill — such as this one — and then dust their hands off, turn to the American public, and declare "mission accomplished" even if they know that isn't so.

Worse yet, it's easy to envision members of Congress dickering to gain support for a narrowly focused border bill such as this one in return for some kind of amnesty (for instance, for "Dreamers"), knowing that once the amnesty is enacted, nothing else enforcement-related can possibly be accomplished in a sharply divided Senate, where to get anything passed, 60 votes is the requisite, not a simple 51-vote majority, because of Majority Leader McConnell's insistence on retaining the rules governing filibuster and cloture.

In his position as the House Homeland Security Committee chairman, McCaul surely is politically astute enough to know all this.

One happy exception to the narrow focus is that the bill does mandate the requirement to systematically record aliens' exits from the United States so that the government can better control the millions of nonimmigrants who enter yearly as tourists, businessmen and women, students, exchange scholars, and "temporary" workers.

That our Department of Homeland Security (DHS) has not yet tackled this matter successfully is a national disgrace. We live in an age of technological wonders and suggesting that systems cannot be envisioned, developed, and implemented to handle alien exits is, to me, unfathomable. I need only hot-key away from this word processing software for a moment to log onto any number of internet programs that reaffirm to me how much can be done when talented programming is appropriately mated with operational experience; look at Google, look at Facebook, look at Amazon. But embedding the alien exit registration requirement in law — as has been done multiple times previously with mandated entry-exit legislation — neither guarantees that it will come to fruition, nor salvages this bill.

Even in the context of border-focused legislation, this bill just isn't very good. One of my colleagues has described it as a "nothing burger". I tend to think it's more like going into your favorite tavern, ordering a big fat burger with all the trimmings, and discovering it's made of tofu when it gets to the table. That is to say, it's legislative artifice where what you see won't be what you get.

Here are some more examples of things I question:

Metrics. Much of the bill seems to me to be a re-tread of the border-related stuff that was trotted out as part of the Gang of Eight's abysmal and ultimately failed 2013 "comprehensive" immigration reform bill. By way of example, we see markers for border security success embedded in language like "situational awareness" and "operational control". The truth is that such phrases lack substantive meaning without the rigor necessary to make them meaningful and measurable; in essence they can easily become weasel words right up the alley of the professional spinmeisters in Washington when they want to trot them out as proof that the border is finally secure.

Infrastructure. Subtitle A of Title I of the bill, dealing with infrastructure and equipment, is a classic example of congressional micromanagement. Look specifically at Section 104, which lays out a sector-by-sector list of items to be provided to the Border Patrol. I've been around long enough, both inside and outside government, to know that 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. What's more, some of the items laid out, such as the Patrol's unmanned aerial vehicle program, have been the subject of repeated critical audits by the Department of Homeland Security's Inspector General.

Access for Land Patrols. One bright spot in Subtitle A is Section 112, which prohibits other federal agencies from preventing Border Patrol agents from physical access to lands, such as national parks, forests, and the like. Yes, believe it or not, other federal agencies such as the Interior Department did refuse to provide agents permission to patrol some their lands, arguing that they were too ecologically fragile, even though smugglers were routinely leading alien loads and trekking drugs through those same areas, and trashing them as they went. In fact, use of such lands for illegal purposes was actually driven in part by the fact that they had become official "no go" zones placed off-limits by the U.S. government to itself: What better place to do your drug or alien smuggling?

Unfortunately, subsection (e) of that very same section then mitigates the importance of the new right to patrol public lands by asserting that "This section shall ... have no force or effect on State lands or private lands; and ... not provide authority on or access to State lands or private lands." In fact, it's important to understand that this subsection can easily be construed as actually diminishing existing legal authorities of agents who at present can enter all federal, state, and private lands for purposes of patrolling within 25 miles of the border. The draft language appears to vitiate that longstanding and important prerogative by establishing what appears to be a blanket prohibition for state or private lands without preserving the existing 25-mile patrol rights.

Let me point out two more instances of questionable language, found in Subtitle B of Title I of the bill, which deals with personnel:

Additional Officers and Agents. Section 131 provides authorization (again, without appropriated monies) for the hire of additional Customs and Border Protection (CBP) officers, which includes both Border Patrol agents and port of entry inspectors in the Office of Field Operations. In the words of Meadows, "McCaul's legislation calls for a boost in personnel by 5,000 Border Patrol Agents and 5,000 U.S. Customs and Border Protection (CBP) Officers."

That's all well and good, but what happened to the additional 10,000 interior enforcement agents that President Trump called for in his executive orders, all of whom are desperately needed to bring their officer corps levels up to a par with those of the Border Patrol, and whose geographic and demographic areas of responsibility are vast? You won't find them in this bill, even though for all intents and purposes the 11 or 12 million people residing illegally in the United States are to be found in the interior. It's as if, once an alien has managed to evade Border Patrol agents, or simply overstays his tourist or student visa, the federal government is just supposed to pretend he doesn't exist because there certainly won't be enough interior agents to effectively handle their responsibilities.

Retention Pay Incentives. Section 132 in that same subtitle of the bill provides retention incentives for "covered" CBP employees (again, Border Patrol agents and inspectors). Subsection (c) of that section permits the Commissioner of CBP to offer a bonus of up to $10,000 over and above the recipient's ordinary pay if, without the incentive, the covered CBP officer would "likely leave the Federal service ... or transfer to, or be hired into, a different position within the Department (other than another position in CBP)." (Emphasis added.)

What this means is that if, for instance, a Border Patrol agent were to be offered a job as an agent in Immigration and Customs Enforcement (ICE), then the Patrol could lure that agent to stay with the $10,000 bonus. Sounds simple enough, right? But what about the time, money, and effort that ICE is going to expend getting that potential new (and experienced) employee right up to the point of hiring, only to have the rug pulled out from under them? To my ears, this sounds shockingly counterproductive to good governance.

Thinking cynically, there may even be some Border Patrol agents who might consider filing for such jobs solely for the purpose of ensuring that they get the bonus while having no real intention to transfer to other organizations within DHS — certainly it would be a temptation. While the Patrol's interest in hiring and retaining trained agents is understandable, schemes like the one embedded subsection (c) serve no good purpose as drafted.

State-Local-Tribal Grants. Subtitle C of Title I deals with providing grants to state, local, and tribal agencies under the umbrella Operation Stonegarden program administered by the Border Patrol. Section 141 lays out the eligible agencies as those in "State[s] bordering Canada or Mexico ... [or a] State or territory with a maritime border; and [which are] involved in an active, ongoing, U.S. Customs and Border Protection operation coordinated through a [Border Patrol] sector office." Recipients can then use any money apportioned for such things as equipment, personnel, and overtime.

Sounds simple enough, right? So where's the flaw? Quite simply, McCaul has inserted absolutely no language in here limiting recipients of Stonegarden funds to those agencies that also fully cooperate with all DHS immigration enforcement entities, including through honoring of detainers. How could this bill not include such language? It's beyond comprehension.

All in all, as much as I want to see some important immigration enforcement initiatives enacted into law, this is a bill that deserves to go nowhere. It is just too flawed, too narrow, and too poorly crafted.