Bipartisan Border Failure

The Progressive-Democrats running the Senate offered, in return for funding for Ukraine, Israel, and the Republic of China, money for border “security.” Disappointingly, too many Republican Senators agreed to this sucker deal, and Senate Majority Leader Chuck Schumer (D, NY) has committed to a cloture vote on the thing this week. Hopefully (forlornly), the bill will fail the cloture vote.

Senator James Lankford (R, OK), the lead Republican negotiator for this bill, is especially disappointing in his failure to negotiate effectively and his subsequent meek acquiescence to it.

This is part of what’s in the bill:

(B) MANDATORY ACTIVATION.—The Secretary shall activate the border emergency authority if
(i) during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or
(ii) on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.

Seems OK, so far. However.

(A) DISCRETIONARY ACTIVATION.—The Secretary may activate the border emergency authority if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day.


(A) IN GENERAL.—For purposes of paragraph (3), the Secretary shall not activate the border emergency authority—
(i) during the first calendar year after the effective date, for more than 270 calendar days;
(ii) during the second calendar year after the effective date, for more than 225 days; and
(iii) during the third calendar year, for more than 180 calendar days.

And these provisions are only a three year “requirement.” For significant fractions of each of those years, the border is explicitly wide open—just as it is now.


(5) SUSPENSIONS OF AUTHORITY.—The Secretary shall suspend activation of the border emergency authority, and the procedures under subsections (a), (b), (c), and (d), not later than 14 calendar days after the date on which the following occurs, as applicable:

“As applicable” consists of those criteria under the MANDATORY and DISCRETIONARY paragraphs cited above. Whenever the illegal alien influx falls to a merely large number (4,000 per day works out to 120,000 per 30-day month or 1.46 million per year as being an acceptable flood). This is the case, even without that SUSPENSION, for those significant fractions of each year when the Secretary shall not activate the border emergency authority.

And this phrasing, which is repeated throughout (6) WAIVERS OF ACTIVATION OF AUTHORITY:

…the Secretary may, in the sole, unreviewable, and exclusive discretion of the Secretary, determine whether to activate the requirements of the border emergency authority….

This is an attempt to prevent Congressional and Judicial constitutionally mandated oversight, here of the Executive Branch, and worse, it seeks to subordinate those to branches’ authorities to the sole discretion of an unelected bureaucrat subordinate to the President. This is Lankford’s abject surrender to the administrative state.

Any one of these provisions, with the possible exception of the MANDATORY ACTIVATION section cited above (though its context deprecates even this much), should be a deal breaker. Overarching that, though is this. Progressive-Democrat President Joe Biden and his DHS Secretary Alejandro Mayorkas have, from the beginning, determinedly refused to enforce our existing immigration and border control laws. On what planet can anyone (Lankford? Anyone?) believe that either of these would exercise the expulsion authority that is merely authorized in this latest bill, much less exercise the authority this bill mandates under higher illegal alien influx?

Better to require Biden to enforce those existing laws and close the border first. Only subsequently could the sort of border control tenets in this bill be discussed. But, if Biden actually did that, these tenets would be unnecessary.

The Senate’s proposed bill can be read here.

Ukraine, Israel, and the RoC absolutely need funding and arms, but that should be brought up as three separate, stand-alone bills, just as any legitimate legislative proposal should be. House Speaker Mike Johnson (R, LA) has come close with his proposal for funding Israel in a stand-alone bill, but his proposal is a supplemental bill with no means of paying for the funding—just more deficit and associated debt. That bill should be a failure in committee.

Update: Corrected an originally bad number for the number of illegal aliens crossing our border per month before there’s any sort of trigger to start closing our border. My third-grade arithmetic notes need reviewing.

One thought on “Bipartisan Border Failure

  1. There is also the requirement that all – ALL – cases brought to the courts about activities governed by this bill must be brought only to the D.C. Circuit. So a border state like Texas, New Mexico, Arizona, California, Montana, etc. may not bring a challenge to their regional federal courts, which may be more conversant with the situation. And that elides the D.C. Circuit’s notorious liberality …

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