". . . and having done all . . . stand firm." Eph. 6:13


8 Items in the Senate Border Bill

February 6, 2024

The Senate Appropriations Committee on Sunday released long-awaited text for a compromise bill to address the crisis at the southern border. Senate President Pro Tempore Patty Murray (D-Wash.) filed an “amendment in the nature of a substitute” to H.R. 815, a bill that had dealt with veterans’ health care. In addition to border issues, the 370-page bill also authorizes additional funding for Ukraine, Israel, the military, and other issues. A Washington Stand analysis found the bill’s contents to include the following items.

1. Border Emergency Authority Created

The bill would create a new “border emergency authority” that, when activated, would give the Secretary of Homeland Security (DHS Secretary) “authority, in the Secretary’s sole and unreviewable discretion, to summarily remove from and prohibit, in whole or in part, entry into the United States of any alien identified in subsection (a)(3) who is subject to such authority.”

The authority must be activated if “during a period of seven consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day” or, “on any one calendar day, a combined total of 8,500 or more aliens are encountered.” The DHS Secretary must “implement the authority within 24 hours of such activation” and may keep it in operation for weeks. If average encounters over a seven-day period fall below 75% of the activation threshold, the DHS Secretary must suspend the activation within 14 days.

The bill would gradually reduce the amount of time the border authority can be implemented, from three-quarters of the year to one-half, over a three-year period. The DHS Secretary is allotted 270 calendar days in the first calendar year, 225 days in the second year, and 180 days in the third year, in which he can implement the border authority.

The DHS Secretary has discretion to activate the emergency authority at a slightly lower threshold, “if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day.”

The border authority is automatically triggered at this lower threshold (average 4,000 daily encounters) for the first third of the DHS Secretary’s allotted days for the year (90 days in the first year, 75 days in the second year, 60 days in the third year). The border authority is also automatically triggered at this lower threshold if the number of days left in the year equals the number of used days left of the DHS Secretary’s allotment.

Three provisions in the bill limit the scope of this border emergency authority. First, the bill excepts certain categories of persons without proper documentation, including unaccompanied alien children, human trafficking victims, “alien[s] who present[] at a port of entry,” or aliens whom two immigration officers “determine[] … should be excepted from the border emergency authority based on the totality of the circumstances” or “due to operational considerations.” Second, the president may temporarily suspend the border emergency authority for up to 45 days if he “finds that it is in the national interest.” Third, even while the authority is activated, “the Secretary shall maintain the capacity to process, and continue processing … a minimum of 1,400 inadmissible aliens each calendar day.”

Jeh Johnson, DHS Secretary under President Obama, said that when illegal border crossings exceeded 1,000 per day, that number “overwhelms the system.”

2. Catch-and-Release Codified

One of the largest sections of the bill legislated new procedures for “noncustodial removal proceedings.” Under these new rules, migrants who show up at the southern border and claim asylum are “release[d] from physical custody” until their “protection determination.” The bill also adopted lengthy rules whereby a migrant could voluntarily withdraw an asylum claim and/or depart the country.

Under current law, any alien seeking asylum “shall be detained pending a final determination.”

The bill spells out detailed procedures for what constitutes due process at these hearings. If denied asylum, migrants can petition the DHS Secretary to have their case re-tried. The bill would prevent the DHS Secretary from “impos[ing] restrictions on an asylum officer’s ability to grant or deny relief sought by an alien in a protection determination or protection merits interview based on a numerical limitation.”

The protection determination would take place at a hearing scheduled within 90 days of a migrant’s release from custody. As part of the due process included in the bill, migrants would have access to information about the proceedings and to legal counsel. “The protection determination of an alien shall not occur earlier than 72 hours” after they receive that information, to give them time to confer with immigration lawyers.

3. Appellate Jurisdiction Reassigned

Under the bill, the United States District Court for the District of Columbia would “have sole and original jurisdiction to hear challenges, whether constitutional or otherwise, to the validity” of the new asylum hearing rules “or any written policy directive, written policy guideline, written procedure, or the implementation thereof.”

Instead of appeals rising in the local appellate jurisdiction, such as the conservative Fifth Circuit, which covers Texas, disputes about immigration law would be centralized in the D.C. District Court, which is far removed from the border and is among the country’s most liberal.

4. Migrant Work Authorization Granted

If a migrant’s asylum claim is approved, he or she would automatically “be issued employment authorization,” renewable at two-year intervals. If the migrant appeals a denied claim, he or she can receive work authorization “while the outcome of the protection merits interview is under administrative or judicial review.”

Before the migrant’s hearing, the bill allows the DHS Secretary to grant work authorization but does not require it. “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided by the Secretary of Homeland Security by regulation.”

5. Limited Legal Representation Provided

The bill would generally require migrants to obtain their own legal counsel or represent themselves; however, it would authorize immigration judges to appoint legal representation in limited circumstances. Judges can appoint counsel for an alien minor or a migrant deemed “incompetent,” which means they can’t reasonably understand the proceedings or represent themselves, due to a language barrier, illiteracy, or other factors. The bill required this legal representation to be “pro bono” where possible, but the federal government would cover the legal costs in some cases.

6. Miscellaneous Immigration Policies Proposed

In addition to the policies described above, the Senate’s bill includes more than 100 pages of other border policies. These include slashing red tape to allow America’s Afghan allies to immigrate, authorizing financial sanctions of fentanyl trafficking and related money-laundering, streamlining hiring and training, approving work authorization for persons married or engaged to a U.S. citizen, and various reporting requirements.

7. $21 Billion for Border Allocated

The bill would allocate approximately $21 billion for the border and other immigration-related policies. However, not all this money would go directly to border security. Approximately $13.9 billion would be for to Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), border infrastructure, deportation, and law enforcement. Nearly $1.3 billion of that money would go to the State Department, for projects in the Western Hemisphere. More than $4.6 billion would go to housing migrants. Other accounts would go to legal fees, oversight, and other types of processing.

However, it’s not clear that every spending account in this bill would necessarily be enacted. The bill explicitly ignores the budgetary effects, invoking an emergency requirement in “the Balanced Budget and Emergency Deficit Control Act of 1985.” Therefore, it stipulates, “Each amount designated in this Act by the Congress as being for an emergency … shall be available (or repurposed or rescinded, if applicable) only if the President subsequently so designates all such amounts and transmits such designations to the Congress.”

8. $96 Billion Otherwise Allocated

Although pitched as a border bill, the Senate text would allocate nearly five times as much money in other areas, mostly dealing with defense and foreign aid. The bill would allocate more than $59.4 billion in aid to Ukraine, $14.0 billion in aid to Israel, and $1.9 billion in aid to Taiwan. It also allocated $6.6 billion to U.S. military, beefing up U.S. Central Command (which covers the Middle East) and U.S. Indo-Pacific Command (which covers Taiwan). It also distributed roughly $14.2 billion in other foreign aid and security programs, including another $3.5 billion for refugees in and around Ukraine and Israel and $2 billion for the Indo-Pacific.

Notably, the bill affixed accountability requirements to this money, demanding an accounting of all money spent in Ukraine and ongoing monthly reports, as well as a strategy for Ukraine that would “establish specific and achievable objectives define and prioritize United States national security interests, and include the metrics to be used to measure progress in achieving such objectives.” The bill would also require the State Department to brief Congress on the status and welfare of hostages in Gaza and formulate policies to “prevent the diversion, misuse, or destruction of assistance” to terrorists in Gaza.

Joshua Arnold is a senior writer at The Washington Stand.