Here’s Why the Senate Border Security Bill Was ‘Dead on Arrival’

Illegal immigrants by the millions are entering the United States, as Congress is unable to fix loopholes, and President Joe Biden refuses to do so.
Here’s Why the Senate Border Security Bill Was ‘Dead on Arrival’
Sen. James Lankford (R-Okla.) speaks on Capitol Hill in Washington on June 25, 2020. (Tom Williams/Pool/AFP via Getty Images)
Mark Tapscott
News Analysis
On Feb. 6, Speaker of the House Mike Johnson (R-La.) said that a border security bill created by a bipartisan group of senators was “dead on arrival.”
When Sen. James Lankford (R-Okla.) announced on Feb. 4 that he and two colleagues had agreed on a comprehensive border security bill, he lauded it as a “once-in-a-lifetime opportunity” to stop the flood of illegal immigrants entering the United States that began in 2021 at the beginning of President Joe Biden’s term.

Mr. Lankford said he thought that he, Sen. Chris Murphy (D-Conn.), and Sen. Kyrsten Sinema (I-Ariz.)—after four months of arduous closed-door negotiations—had done something that recalled the great compromises that once defined the Senate, pleasing conservatives and liberals alike.

But two days later, Mr. Johnson said the bill was even “worse than expected.”

Going by their comments, it was as if the Sooner State’s senior senator and Mr. Johnson were reading two entirely different bills.

“The border security bill will put a huge number of new enforcement tools in the hands of a future administration and push the current administration to finally stop the illegal flow,“ Mr. Lankford said. ”The bill provides funding to build the wall, increase technology at the border, and add more detention beds, more agents, and more deportation flights.”

He said the bill “ends the abuse of parole ... that has waived in over a million people.”

“It dramatically changes our ambiguous asylum laws by conducting fast screenings at a higher standard of evidence, limited appeals, and fast deportation,” he said.

“New bars to asylum eligibility will stop the criminal cartels from exploiting our currently weak immigration laws. The bill also has new emergency authorities to shut down the border when the border is overrun, new hiring authorities to quickly increase officers, and new hearing authorities to quickly apply consequences for illegal crossings. It changes our border from catch-and-release to detain and deport.”

Stating that immigration laws have been weak for years, Mr. Lankford called the bill “a once-in-a-generation opportunity to close our open border and give future administrations the effective tools they need to stop the border chaos and protect our nation.”

But the ink had hardly dried on Mr. Lankford’s statement when Sen. Mike Lee (R-Utah) and other conservatives in both chambers of Congress and in the advocacy community insisted that the proposal would do nothing of the sort.

Sen. Mike Lee (R-Utah) at the CPAC convention in National Harbor, Md., on Feb. 28, 2019. (Charlotte Cuthbertson/The Epoch Times)
Sen. Mike Lee (R-Utah) at the CPAC convention in National Harbor, Md., on Feb. 28, 2019. (Charlotte Cuthbertson/The Epoch Times)
Mr. Lee said the bill contained a “dirty dozen” fatal flaws. The most serious “codifies catch-and-release,” the process whereby an illegal immigrant is detained and interviewed by U.S. immigration officials, given a date to appear in immigration court, and then released into the country.

Former President Donald Trump effectively ended catch-and-release when he implemented the Remain in Mexico program, requiring illegal immigrants to wait in Mexico until their immigration cases had been adjudicated. President Biden halted the program the day he took office in 2021.

Pointing to the bill’s Section 235B, Mr. Lee explained that catch-and-release would be codified because the bill gives the Secretary of the Department of Homeland Security (DHS) “unchecked authority to release an alien into the United States under ineffective ‘alternatives to detention.’”

The second flaw highlighted by Mr. Lee involves the authority of the Secretary of Homeland Security and the president.

“The Secretary of Homeland Security is only required to shut down the border if there are 5,000 average illegal crossings over a consecutive seven-day period or 8,500 in a single day,” Mr. Lee said.

A caveat to that is that the president can “reopen the border any time it is in the ‘national interest to temporarily suspend the border emergency authority’ for up to 45 days.”

Further, the bill “creates a dangerous expansion of parole by saying it can now be granted for anyone the DHS secretary determines has an ‘urgent humanitarian reason,’” Mr. Lee said. The bill doesn’t require the DHS secretary or president to deport anyone.

The bill allows illegal immigrants to be given work permits as soon as they pass an initial screening by immigration authorities.

The number of available green cards is increased by 50,000 annually under the new bill.

The bill also includes a budgeting gimmick whereby $650 million of the funding for continuing to build the border wall begun by President Trump is rescinded, then restored in 2028. Not a single foot of new wall would be built as a result.

U.S. Rep. Bob Good (R-Va.) delivers remarks in the House Chamber during the third day of elections for Speaker of the House at the U.S. Capitol Building in Washington on Jan. 5, 2023. (Win McNamee/Getty Images)
U.S. Rep. Bob Good (R-Va.) delivers remarks in the House Chamber during the third day of elections for Speaker of the House at the U.S. Capitol Building in Washington on Jan. 5, 2023. (Win McNamee/Getty Images)

House Freedom Caucus Chairman Rep. Bob Good (R-Va.) enumerated to The Epoch Times a similar list of deal-killers in the bill.

“The Biden border invasion has turned every town into a border town, with thousands of illegal aliens pouring across the border every single day,” he said.

“[The bill] gives $1.4 billion to NGOs to pay for travel, shelter, and food to facilitate the invasion. Democrat mayors and governors in blue states will force taxpayers to foot the bill.”

Jessica Vaughan, policy director for the Center for Immigration Studies, told The Epoch Times: “This bill does not end the catch-and-release policies for illegal migrants; it codifies it. Not only that, it creates a new asylum process to result in faster issuance of work permits and faster approvals for asylum-based green cards.

“And it actually increases chain migration and employment green cards by 50,000 a year for five years—as if we haven’t had enough immigration. It effectively permits a president to wave in as many as 5,000 illegal border crossers every day, and it mandates that the government allow another 1,400 to be waved in every day at the legal entry points. It preserves the parole program for visa-less Cubans, Haitians, Nicaraguans, and Venezuelans, which is an audacious abuse of executive authority.”

Richard Manning, president of Americans for Limited Government, praised Mr. Johnson for his decisive response to the bill.

“As soon as members of Congress realized that the bill locked in unacceptably high illegal immigration rates while tying the hands of President Trump to fix the problem in 2025, the bill was dead,” he told The Epoch Times.

“Speaker Johnson deserves a great deal of credit in killing it due to his leadership in pushing a border solution which actually addresses the problem, and clearly declaring the Senate legislation dead in the water in the House.”

Mr. Lankford aggressively pushed back on such criticisms during a Feb. 5 appearance on Fox News’ “Fox and Friends,” insisting that the border security bill would ultimately reverse the current situation.

“This authority is a 5,000 authority to say, if you get to 5,000 [illegals crossing into the U.S.], which we’ve been there every single day except for seven in the last four months, that it completely closes the border down. It deports everyone. It changes the paradigm from right now what the Biden administration is doing is catching and releasing everyone to actually catching and deporting everyone. It literally flips the script on it,” Mr. Lankford said.

He didn’t mention the caveat by which the president can override that requirement.

Mr. Lankford’s pleas were to no avail, and on Feb. 7, a motion to end debate on the proposal fell 11 votes short of the needed 60 votes, thus, at least for the moment, killing the border bill. Several Democrats joined Republicans in killing the motion.

Senate Budget Committee Chairman Patty Murray (D-Wash.), like many of her Democratic colleagues in both chambers, accused Senate Republicans who opposed the bill of doing so because President Trump told them to do so.

“Republicans went from ‘we demand border policy changes’ to ’no policy is needed,‘” Ms. Murray said. “They went from ’we need time to look at this bill‘ to ’dead-on-arrival‘ in less than 24 hours. They went from ’the border is a crisis right now’ to ‘it can wait till November’ in the blink of an eye ... Donald Trump ordered Republicans to kill the bipartisan border bill.”

Similarly, Senate Majority Leader Chuck Schumer (D-N.Y.) said after the vote: “Donald Trump wants chaos. Donald Trump does not want success at the border.”

Mr. Lee responded to the Democrats’ charge, telling The Epoch Times: “Since December, the entire Senate Republican Conference has demanded real border security for America before sending another penny to Ukraine.

“After weeks of secret negotiations, we were handed a bill that not only fails to secure our border but would make the crisis of illegal immigration even worse.”

The Utah Republican said, “We oppose this fake deal because it is lousy policy, and our Democratic colleagues are simply mad that we didn’t fall for it.”

The reality facing both parties, according to GOP campaign strategist Jimmy Keady, is that Americans want the border fixed now, not later.

“Immigration is the topic of conversation at dinner tables across this country. Many see this legislation as not going far enough and one that prolongs the problem,” Mr. Keady told The Epoch Times.

“We are hearing this in races across the country up and down the ballot. Americans want solutions and they want accountability. Immigration is going to be the issue to campaign on this cycle, and any legislation that does not immediately address the problem is going to be tough to pass through.”

Mark Tapscott is an award-winning investigative editor and reporter who covers Congress, national politics, and policy for The Epoch Times. Mark was admitted to the National Freedom of Information Act (FOIA) Hall of Fame in 2006 and he was named Journalist of the Year by CPAC in 2008. He was a consulting editor on the Colorado Springs Gazette’s Pulitzer Prize-winning series “Other Than Honorable” in 2014.