Inside a Betrayal: Hill Reacts to Senate-negotiated Border and Ukraine Deal
A deal spearheaded by Senator James Lankford seemed to prioritize Ukraine’s security over the honeycombed U.S. Southern border.
A bipartisan group of Senators on Sunday released the text of a supplemental funding bill that purports to secure the southern border in exchange for Ukraine and Israel aid.
For months, the bipartisan group of senators have attempted to negotiate a border security deal that would also provide supplemental funding for Ukraine and Israel. Throughout the process, Republicans, especially members of the GOP-controlled House, have been skeptical of whatever the bipartisan group was cooking up behind closed doors. With the 370-page, $118.3 billion bill now public, it appears their skepticism was warranted. Shortly after the text’s release, GOP members of both chambers—including some who have been more sympathetic to providing more aid to Ukraine—tore apart the deal’s immigration provisions, which were shrouded in obscurity for months during Senate negotiations.
Yet perhaps the most shocking part of this so-called border deal is that a majority of the funding, $60 billion, is not directed towards the southern border, but to Ukraine. When it comes to supplemental funding bills, the main subject of a piece of legislation is the cause that gets the most cash, and not necessarily the subject that receives the most language.
Beyond the $60 billion for Ukraine and a measly $20 billion for the border, which will likely be wasted due to the Biden administration’s outright refusal to enforce the laws already on the books, another $14.1 billion is allocated for Israel and another $10 billion is directed towards humanitarian aid. Though the true intent of the Senate’s negotiated “border deal” is to provide $60 billion for Ukraine, it is certainly worth getting into the specifics of the “border security” provisions since they reveal just how low the establishment will stoop to fund its wars of choice.
One of the key provisions Senate negotiators are relying on to secure the border is providing the Department of Homeland Security (DHS) Secretary with a “border emergency authority” to prevent migrants from entering into the United States. The legislation mostly leaves the authority to the “sole and unreviewable discretion” of Department of Homeland Security Secretary Alejandro Mayorkas, whom the House is currently considering bringing articles of impeachment against for his unwillingness to enforce the law. It adds that the secretary, at his discretion, may declare an emergency if “there is an average of 4,000 or more aliens who are encountered each day” over a seven-day period.”
The only circumstances in which the secretary is forced to use the emergency authority is when there are on average 5,000 migrant encounters over a seven day period or 8,500 migrant encounters in a single day. For the border to re-open, encounters have to fall to 75 percent of the stated threshold over a seven-day period. Could the Biden administration direct its agents to simply stop encountering migrants to meet these thresholds? It need not come to that because, while the mandatory activation of the border emergency authority sits at about half of the average daily encounters of migrants, according to Customs and Border Patrol data, the bill provides language that ensures the Biden administration can always circumvent triggering the emergency authority.
First, the bill creates massive carve outs in the application of the emergency authority for large swaths of migrants. One exemption for example, is for migrants whom immigration officers determine “should be excepted from the border emergency authority” in consideration of the “totality of the circumstances” and “operational considerations.” If the Biden administration determines a migrant should be let in and let go, that’s that.
Even when the border emergency is in effect, DHS must “maintain the capacity to process, and continue processing…a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry in a safe and orderly process developed by the Secretary.” The bill also places a cap on the number of days the emergency border authority can be in effect during a calendar year. In the first calendar year, the cap is 270 days; in the second year, 225 days; and the third, 180 days.
In circumstances where Mayorkas either chooses or is compelled by law to use the border emergency authority, President Biden can simply overrule him. The president can order the DHS secretary “to suspend use of the border emergency authority on an emergency basis” if the president deems an open border “is in the national interest,” the bill states. If the president does so, “the Secretary shall suspend the border emergency authority for not more than 45 calendar days within a calendar year.” When that clock runs out, nothing prevents Biden from resetting it.
“The whole section about declaring a border emergency is intended to get Republicans to go along with something that is chock full of democratic wish list items and would almost certainly make the border situation worse,” Mark Krikorian, executive director of the Center for Immigration Studies, told The American Conservative in a phone interview.
In the words of Senator Chris Murphy of Connecticut, one of the Democratic Senate negotiators who discussed the bill in a Twitter thread Sunday, “the border never closes.”
The bill also expands the number of immigrant visas through 2030. For example, the family-sponsored immigrant visa cap is upped from 480,000 to 512,000 with an increased floor of 258,000 (the current figure is 226,000). The employment-based immigrant visa cap is increased from 140,000 to 158,000. In total, the bill would create at least over 250,000 new visas over the next five years.
Furthermore, all migrants allowed into the United States by the Biden administration via asylum claims “shall be issued employment authorization,” the bill states. To make matters worse, the bill does not compel the secretary to strip work permit privileges if the migrant fails to appear for status reviews. In a Twitter thread endorsing the deal, Mayorkas claimed the bill “would expedite protection and work authorization for those with legitimate claims.”
Senator Rick Scott of Florida put it simply in an email to TAC: “It also allows illegal aliens to take U.S. jobs that would otherwise be filled by Americans and funds lawyers for illegal aliens.”
The bill also stipulates certain migrants seeking entrance into the United States will be provided legal counsel paid for by the American taxpayer. These provisions do not only cover unaccompanied child migrants, but also adults deemed incompetent by an immigration judge. The bill allocates $36 million “for representation for certain incompetent adults,” and provides another $2.334 billion in grants to nongovernmental organizations that can provide migrants with legal and case management assistance among other services.
Krikorian told TAC that providing taxpayer funded lawyers for migrants is “currently prohibited by law.”
“Every illegal alien in proceedings has the right to bring a lawyer,” Krikorian explained, “but it specifically says it must be at no expense to the government. This [bill] changes that.”
It’s quite surprising, then, that the New York Times and other corporate media outlets have claimed the bill makes it more difficult to obtain asylum. While the legislation does change the credible-fear standard from “significant possibility,” which is left up to the executive branch to determine, to a “reasonable possibility,” which is statutorily linked to a well-founded fear, it essentially decentralizes asylum authority and informalizes asylum legal proceedings. In what should come as a relief to the New York Times, the combined effect of the bill’s asylum provisions is that it “creates a whole new parallel asylum system,” that heavily advantages the migrant seeking asylum, Krikorian told TAC.
“In effect, [the bill] codifies what is called the asylum officer rule that this administration did by regulation,” Krikorian said. “What that means is, asylum officers, who are the initial screeners under the current system, can now just give asylum to people. They can actually make the grant of asylum, which is illegal, but this administration is already doing it by regulation.”
“The reason that’s bad—and the reason the administration’s current asylum officer rule, which this is basically based on, is bad—is that there's no cross-examination,” Krikorian continued. “There’s nobody representing the United States trying to poke holes in an asylum claimants story. It’s just an interview with a guy who, odds are, was a social worker before he came to work for the government.” The predictable consequence of this system, Krikorian claimed, is that “without an ICE lawyer there to try to poke holes in a story and without an impartial judge to assess what's going on, you're going to have much higher rates of asylum grants.”
The creation of this parallel asylum system, combined with automatic work permits and expanded visa system, plus the lack of any measures to ensure the Biden administration enforces laws already on the books have led Republicans to claim the bill is, in effect, an amnesty.
“While the language does not officially declare an amnesty in so many words, it continues to leave countless enforcement questions up to the discretion of President Biden, who can invoke ‘emergency’ exceptions any time he wants,” Senator Mike Lee of Utah told TAC in a statement. “His non-enforcement of our border and immigration laws are simply open borders and amnesty by another name, and this bill expands his ability to skirt existing law.”
“This bill is worse than I could have imagined,” Scott told TAC. “Nearly two million people will still illegally enter the United States every year if this becomes law,” Scott continued. “THAT IS NOT BORDER SECURITY,” Scott wrote in all caps.
“The Biden-Schumer-McConnell supplemental bill not only fails to secure our southern border, but it makes the Biden border invasion policies like catch and release the law of the land,” Rep. Bob Good of Virginia told TAC in a written statement. “It also incentivizes ongoing illegal entry by handing out immediate work permits upon release.”
“Meanwhile, Secretary Mayorkas is being impeached for intentionally facilitating the border invasion,” Good continued. “Senate Republicans should not hand him a ‘get out of jail free card’ by voting to weaken our immigration laws and provide a rubber stamp for his failure to keep Americans safe.”
Beyond the policy particulars, the overarching problem with the legislation is that Senate Republican negotiators decided to fully embrace the Democrats’ framing of the border crisis. “The whole bill is based on not just Democratic agenda items but the democratic perception of the problem,” Krikorian said. Democrats and the Biden administration believe the problems at the southern border are merely a matter of optics.
“They don't see the problem as huge numbers, potentially unlimited numbers, of people using asylum as a gambit to enter the United States,” Krikorian explained. “The issue for the Democrats is to try to manage the optics so that people don’t get pissed off.”
Senate Republicans played right into Democrats’ hands. Senate Minority Leader Mitch McConnell of Kentucky and Oklahoma’s Senator James Lankford, who headed up the Republican side of negotiators, “want the Ukraine money so bad” that they are “like the guy walking into a car dealership who has his eyes so set on getting a sports car that he gets suckered into all sorts of add-ons,” said Krikorian.
There is certainly plenty for Ukraine in the bill. Not only will the $60 billion go towards providing Ukraine with weapons in a multi-year campaign to “hasten Ukrainian victory against Russia’s invasion forces,” nearly $8 billion is direct budgetary support for the Ukrainian government to prevent it from going bankrupt. Ironically, $300 million will go towards the Ukrainian State Border Guard Service and the National Police of Ukraine. Only $8 million is directed towards the inspector generals tasked with ensuring American taxpayer dollars are used appropriately in Ukraine.
“Mitch McConnell’s weak caving to Democrats has created a bill that spends Americans’ tax dollars to hand Ukraine $60 BILLION – not just for weapons but so it can pay its government workers and run government programs,” Scott claimed.
In a statement released Sunday night, McConnell did not seem confident in the deal. Nevertheless, the Senate minority leader said “the Senate must carefully consider the opportunity in front of us and prepare to act.”
“This bill would completely fail to stop the crisis at our southern border,” Senator J.D. Vance of Ohio told TAC. “Throughout this process, the Republican establishment has been more focused on securing tens of billions in aid for Ukraine than on reducing illegal immigration. Their foreign policy goals have clouded this entire debate, and because of that the border bill is a total disaster that no Republican should support.”
Senator Rand Paul of Kentucky tweeted that “from the squandering of your money to the fake border reforms, it’s safe to declare this bill as anti-American. I’m a NO.”
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While Senate Majority Leader Chuck Schumer is moving towards having the Senate consider the legislation later this week, it seems to have no path forward in the Republican House.
“I’ve seen enough,” House Speaker Mike Johnson tweeted Sunday night. “This bill is even worse than we expected, and won’t come close to ending the border catastrophe the President has created.”
“America’s sovereignty is at stake,” a later statement from Johnson and the rest of House GOP leadership read. “Any consideration of this Senate bill in its current form is a waste of time. It is DEAD on arrival in the House. We encourage the U.S. Senate to reject it.”