Congress Must Hold Biden’s Feet to the Fire on Immigration

December 21, 2023

By William Davis

As Congress considers a bargain with the Biden Administration on immigration, they must proceed with extreme caution.

Right now, a bipartisan group of senators are engaged in negotiations with the administration to enact border security policies in exchange for a foreign aid package. Joe Biden has said that he is willing to make “significant concessions” on border security in order to pass tens of billions of dollars in aid to war-torn countries Ukraine and Israel. Biden’s public willingness to concede that new security measures are needed at the southern border is a step forward, but the devil is in the details, and so far the reported details leave much to be desired. While no legislation has been officially proposed and no framework has been unveiled publicly, CBS News reported earlier this month on the concessions the White House apparently has in mind.

The administration is reportedly mulling a proposal that would reinstate the use of Title 42 at the border if daily illegal crossings at the border exceed a certain threshold, while also promising to ramp up the detention and deportation of illegal aliens. While no details have officially been proposed, one Senate negotiator floated an automatic reinstatement of the Title 42 order if illegal crossings exceed 3,000 a day. Earlier this month, more than 14,000 illegal aliens crossed the U.S. southern border, shattering a single-day record for illegal crossings. The ideas being considered are generally good ones, but they are inadequate to quell the historic crisis we are facing.

The major problem with these proposals is it still gives the administration too much discretion over enforcing immigration law. Giving the administration expanded authority to close the border and deport illegal aliens is fine if you have an executive willing to enforce these laws, but this administration has consistently demonstrated a willingness to disregard federal law and the constitution in order to facilitate the arrival of millions of illegal aliens. Enacting more laws that the administration can just brush aside will not do anything to fix the border. If Congress is serious about solving the crisis, they will have to essentially put Biden and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas in proverbial straightjackets, and enact new laws that limit the administration’s discretion.

Admittedly, this is a difficult thing to do considering how much enforcement authority is vested in the executive branch over border security. One idea that could be effective is allowing border states such as Texas and Arizona to deport aliens who cross into their territory illegally. This would remove significant authority from the Biden Administration and place it in the hands of state governments much more willing to enforce the law. Any deal must also restrict the administration’s parole authority, which they have abused to resettle large numbers of illegal aliens across the country in what can accurately be described as a stealth amnesty.

Another major problem with these ideas is the proposal to allow 3,000 illegal aliens to cross the border daily before triggering the Title 42 order. This would be a major decline from the 10-12,000 illegal aliens who are currently entering the country on a daily basis, but would still be unacceptably high. Former DHS Secretary Jeh Johnson, who served in the Obama Administration, once said that 1,000 apprehensions of illegal aliens at the border constituted a “bad” day. There is no reason Congress should tolerate or normalize 3,000 illegal border crossings on a daily basis, even if that would be a steep decline from the current numbers. The standard for border security should be much higher than that.

Of course, the House of Representatives has already passed legislation that would mostly solve the border crisis. This Spring, the House passed the Secure the Border Act, which would reinstate the Remain-in-Mexico program, mandate E-Verify at the national level, and require DHS to resume construction of the border wall, amongst other policies. These ideas should be the cornerstone of any effective border security legislation.  

The current negotiations may represent the last chance for a course correction at the border for the foreseeable future. The ultimate outcome will have high stakes for the trajectory of the country, which puts all of the pressure on the negotiators to secure a good deal. A token border security effort or simply creating new laws that the administration can ignore is insufficient. Congress must assert its authority and bring this unprecedented crisis to a conclusion.

William J. Davis is a communications associate for the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at American Thinker, December 21, 2023.