The Border Security and Enforcement Act of 2023

A brief summary and analysis

By George Fishman on April 19, 2023

9/14/2023 UPDATE: U.S. Sen. Ted Cruz (R-Texas), a member of the Senate Judiciary Committee, introduced the Secure the Border Act of 2023 in the Senate, a companion bill to the Secure the Border Act (H.R. 2), which incorporated H.R. 2640, outlined below, and which was passed by the House of Representatives on May 11, 2023.

Co-sponsors: Leader Mitch McConnell (R- Ky.), Senator Chuck Grassley (R-Iowa), Senator Marsha Blackburn (R-Tenn.), Senator Tom Cotton (R-Ark.), Senator JD Vance (R-Ohio), Senator Roger Marshall (R-Kan.), Senator Deb Fischer (R-Neb.), Senator Eric Schmitt (R-Mo.), Senator Tommy Tuberville (R-Ala.), Senator Bill Hagerty (R-Tenn.), Senator John Kennedy (R-La.), Senator Lindsey Graham (R-S.C.), Senator John Thune (R-S.D.), Senator John Hoeven (R-N.D.), Senator Katie Britt (R-Ala.), Senator Mike Lee (R-Utah), Senator Ted Budd (R-N.C.), Senator Steve Daines (R-Mont.), Senator Tim Scott (R-S.C.), Senator Cynthia Lummis (R-Wyo.), Senator Thom Tillis (R-N.C.), Senator Todd Young (R-Ind.), Senator John Barrasso (R-Wyo.), Senator Mike Braun (R-Ind.), Senator Kevin Cramer (R-N.D.), and Senator Ron Johnson (R-Wis.).

On Wednesday the House Judiciary Committee is set to “mark up” (debate, consider amendments to and most likely pass) H.R. 2640, the “Border Security and Enforcement Act of 2023”. U.S. Rep. Tom McClintock (R-Calif.), the Chairman of the Judiciary Committee’s Immigration Subcommittee, and subcommittee member Rep. Andy Biggs (R-Ariz.), have introduced this legislation in an audacious attempt to bring to a close the current border mega-crisis, which is the all-too-predictable result of the Biden-Mayorkas malpractice (bordering on malfeasance) at the border.

The McClintock-Biggs bill, if enacted into law (which isn’t likely, at least so long as  Democrats control the Senate) would provide the Department of Homeland Security with the industrial-strength cleaning supplies it needs to mop up the Biden administration’s mess at the border. It would also, again if enacted during the present administration, force the administration to clean up its own mess. Let me outline some of the bill’s most important provisions:

  • The bill would once and for all end the Executive Branch’s – and especially, the Biden administration’s -- abuse of the statutory parole power. As I have written, “[t]he Biden administration has granted parole to over one million aliens in just over two years, including over 800,000 inadmissible aliens the administration invited into the U.S. or apprehended at the border and released – and it’s just getting started.” The bill would in general limit the allowable exercise of parole to those rare emergency circumstances as contemplated by Congress when creating this power in 1952.

  • The bill would replace DHS’s soon-to-expire Title 42 authority/responsibility to expel aliens during the COVID pandemic with something even more powerful. Instead of  linking border expulsions to a CDC declaration of a pandemic-related public health emergency, the bill would allow DHS to prohibit the introduction of aliens as necessary to achieve operational control of the border. As my colleague Andrew Arthur points out, “Congress . . . carefully and explicitly defined the term ‘operational control’ as ‘the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband’” (emphasis added). As a result, as I have written, “DHS would not be encumbered by the flawed expedited removal/credible fear process. . . . [A]liens subject to the prohibition on introduction would generally be immediately expelled”.

  • The bill would end the Biden administration’s flagrant disregard of its statutory mandate to detain aliens apprehended at the border.  It would require DHS to either remove aliens it cannot detain (as required by law) to a safe third country or “without exception . . . [except] as expressly authorized” in the reformed parole statute, return the alien to the “foreign territory contiguous to the United States” from which they arrived pending their removal proceeding in immigration court. Of course, this would mandate the return of the Trump administration’s statutorily authorized “Remain in Mexico”/“Migrant Protection Protocols” program. As I have written, the Protocols were  “wildly successful . . . the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic . . . [and] Title 42[),] truly the MVP of border enforcement.”

  • The bill would in large measure terminate the disastrous “Flores Settlement Agreement” bestowed upon us by the Clinton administration and an out-of-control federal judge, especially with regard to the detention of alien minors who were accompanied by a parent or other guardian when they come across the border. The bill would allow DHS to safely and expeditiously return unaccompanied alien minors from noncontiguous countries who have not been trafficked and who don’t have asylum claims home, just as DHS already can do with unaccompanied minors from Canada and Mexico.

    The explosion in the number of unaccompanied minors who have come to, and been released into, the U.S. under the Biden administration has resulted in a humanitarian nightmare. As the bill reports, the New York Times “found that unaccompanied alien children are being exploited in the labor market and ‘are ending up in some of the most punishing jobs in the country.’ . . . ‘under intense pressure to earn money’ in order to ‘send cash back to their families[’]”. As the Times most recently revealed, “[a]s the [Biden] administration scrambled to clear shelters that were strained beyond capacity, children were released with little support to sponsors who expected them to take on grueling, dangerous jobs. . . .  [O]fficials expressed concern for migrant children but shifted blame for failing to protect them.”

  • The legislation proposes badly needed reforms to our asylum system based upon reforms included in the Trump administration’s “global asylum rule” (promulgated by DOJ and DHS in December 2020), and “third country transit asylum bar rule”, promulgated on the same month (and in an earlier version in July 2019), but then eviscerated by misguided federal courts and the Biden administration.

    • The bill would bar aliens from being eligible for asylum  if they had travelled through third countries in which they failed to apply for protection on their way here (because their real motivation was access to the U.S. economy), with limited exceptions. It would also bar aliens from eligibility who voluntarily resided -- without suffering persecution or torture -- in any one country for a year or more after departing from home.
    • The bill would prevent aliens from basing asylum claims on factors not relevant to the statutory standard of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”, such as an alien’s gang membership, past or present terrorist activity or association, presence in a country with a high crime rate, or having been a victim of a private criminal act. (Does Congress really need to specify that an alien can’t receive asylum because of being a gang member? Well, tell that to some of our federal courts.)
    • The bill would bar asylum officers from finding aliens have a credible fear of persecution unless finding their statements more likely than not to be truthful. This seems like common sense, but . . .
  • The bill also takes the single most important step necessary towards removing the jobs magnet enticing most illegal aliens to the U.S. by making the E-Verify electronic employment eligibility verification system mandatory for all employers. As former House Judiciary Committee Chairman Lamar Smith (R-Tex.) explained, “the easy availability of counterfeit documents . . . has made a mockery” of the employer sanctions that President Reagan signed into law in 1986. Making E-Verify mandatory would “fulfill the promise of [sanctions] and significantly weaken the job magnet. . . . [by] mak[ing] fraudulent documents useless.”[1]

Every indication is that the House Republican Leadership will bring the McClintock-Biggs bill to the House floor if it emerges from Committee. Should that happen, it would be the most significant immigration enforcement legislation to reach the floor since then-Committee Chairman Bob Goodlatte’s (R-Va.) and Immigration Subcommittee Chairman Raul Labrador’s (R-Idaho, now that state’s Attorney General) H.R. 4760 in 2018 and then-Committee Chairman F. James Sensenbrenner, Jr.’s (R-Wisc.) H.R. 4437 in 2005. H.R. 4437 did lead to the largest mass protests in U.S. history, but it also “proved to be precisely the immovable object that sank the Senate-[George W. Bush] White House amnesty bill”, per the editors of Human Events when naming Mr. Sensenbrenner Man of the Year for 2006.

The McClintock-Biggs bill to a large extent follows in the tradition of the great omnibus immigration enforcement legislation of the last quarter century, the two bills mentioned above and Rep. Smith’s and Senator Alan Simpson’s (R-Wyo.) Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which, per Dara Lind, “essentially invented immigration enforcement as we know it today [well, as we knew it until January 20, 2021] . . . with a single goal: to increase penalties on immigrants who had violated US law in some way (whether they . . . violated immigration law or . . . committed other crimes).” 

Of course, the political environment is quite different today from what it was in 1996, or even in 2005. Rep. Smith’s H.R. 2202, the House foundation for IIRIRA, passed with the support of a majority of both Republican and Democratic members by a vote of 333 to 87 (Republicans 228 to 6, Democrats 105 to 80), with the conference report passing by a vote of 305 to 123 (Republicans 229 to 5, Democrats 76 to 117). A decade later, the House passed Rep. Sensenbrenner’s H.R. 4437 by a vote of 239 to 182, but with only 18 percent of Democrats in support (Republicans 203 to 17, Democrats 36 to 164). A decade later, H.R. 4760 failed by a vote of 193 to 231, garnering no Democratic votes (Republicans 193 to 41, Democrats 0 to 190), a result of the extinction of Blue Dog Democrats and the radicalization of the Democrats’ political base.

What chances would the McClintock-Biggs bill have on the House floor? It is important to keep in mind that the 2018 Goodlatte-Labrador bill suffered from the defection of 41 Republicans (only 13 of whom are still in Congress, a cautionary tale all by itself). Now, a few of those Republicans, such as Rep. Biggs himself, voted against the bill because it would have legalized many DACA recipients through a temporary but renewable legal status. The majority of the Republican “nay” sayers, however, voted against the bill because they couldn’t stomach stronger enforcement and/or worried that the bill would strip their farming  constituents of a steady supply of illegal alien farmworkers. The bill failed to pass because 1) House Republican Leadership insisted that these “moderates” be given a watered-down alternative bill (H.R. 6136) to vote for as political cover and 2) the Trump administration provided tepid support. In fact, 30 of the Republican “no” votes on H.R. 4760 voted for the alternative. If 20 of them had been forced to swallow hard and vote for H.R. 4760 (without the cover of an alternative), the bill would have passed.

In the current House, Republicans have a 222-213 majority. Assuming zero Democrat support for the McClintock-Biggs bill, the Republicans could only afford to lose the votes of four of their Members on the floor. So, it would take Tom DeLay-level arm-twisting for the Republican Leadership to pull off a win here. But, if Leadership were able to do so, it would send an incredibly powerful message to the Senate, to the White House, and to the country: look out, House Republicans will be willing and able to muscle through sovereignty-saving immigration enforcement legislation at the first real opportunity. House Republicans would become the juggernaut that Rep. Sensenbrenner was renowned for being. As former House member Ric Keller (R-Fla.) once quipped, “Sensenbrenner is a pit bull . . . . [a]nd the Senate negotiators he’s up against are wearing Milk-Bone underwear.” Milk-Bones, anyone?


[1] Lamar Smith and Edward Grant, Immigration Reform: Seeking the Right Reasons, 28 St. Mary's L.J. 883, 923-24 (1996-1997).