In early February, poor Senator James Lankford (R-OK), alongside two Democrats, released the text of a long-awaited border security bill, conceived to lure Republicans into voting for an immense amount of Ukraine funding. The project was bound to disappoint someone, if not everyone. Sure enough, well before the bill’s text was released on February 4, Republicans expressed disapproval after hearing early details. Former President Trump eventually weighed in, announcing that, “​​Only a fool, or a Radical Left Democrat, would vote for this horrendous Border Bill.” President Biden felt differently, describing the bill as the “toughest set of border security reforms we’ve ever seen,” and touting its endorsement by the Border Patrol union.

Biden seems intent on using opposition to the bill to pin border insecurity on Republicans. And Americans overwhelmingly do want a fix to the border. So passing something modestly helpful seems like a good idea. The question is: what’s in this thing?

The short answer is a bunch of stuff that sounds good but is deeply problematic.  

The border bill creates an “expedited removal” process for non-detained aliens. 

Our border has limited detention space (not helped by President Biden closing detention options and requesting that Congress decrease detention funding). For illegal border crossers who are detained, they can usually be processed and removed quickly under “expedited removal.” But once that bed space runs out, illegal border crossers are frequently, however unlawfully, released into the interior of the country, where they are given a far-off court date (if any court date at all) and generally remain in the country indefinitely. Moreover, “family units” are governed by a nationwide court order that prevents their detention for the time needed to process a removal, meaning essentially all individuals claiming to be a “family unit” are released and remain in the country indefinitely.

The border bill creates something that sounds reasonable: an expedited process for aliens who are released and would remain on “alternatives to detention” (usually ankle bracelets) during processing. There are a few big problems here. First, it incentivizes release. That is, it exacerbates catch-and-release. And released illegal border crossers are just that—roaming our communities. It’s easy to cut an ankle bracelet and disappear into the country. It’s easy not to show up to a court hearing. And if ICE wants to get you back, it’s incredibly burdensome and politically unpopular. (“ICE raids” are not a term of endearment.) 

In addition, the way the bill proposed to speed up this non-detained process is by making it non-adversarial. Basically, an asylum officer would first decide whether the illegal border crosser has a reasonably credible asylum claim, and if so, another asylum officer could affirm that decision, ushering that alien into the United States with lawful status. In contrast, under current law, immigration judges at the Department of Justice are supposed to adjudicate asylum claims with the migrant making his case, and DHS presenting any evidence to the contrary. That process is slower, but it’s vastly more trustworthy, prohibiting an army of social justice warriors from approving non-meritorious asylum claims right and left. 

It reforms the abused “parole” process. 

Federal law currently allows aliens to be “paroled” into the United States on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.” President Obama ignored the case-by-case requirement by letting in Central American minors, en masse, through a “parole” program. It worked. So President Biden did it bigger, allowing hundreds of thousands of migrants through the fig-leaf of “parole,” including by inventing the CBP One mobile app to usher migrants in more quickly.

The border bill purports to forbid parole. But, it leaves open six exceptions, including “urgent humanitarian reason directly pertaining to the individual alien, according to specific criteria determined by the Secretary.” That sounds a lot like a “case-by-case” determination of urgent humanitarian need, which has led to parole by the barrel. The problem with our parole system isn’t the language. It’s the President’s refusal to follow it. 

It creates “emergency closure” authority. 

Last fiscal year, the Border Patrol encountered an average of 5,600 aliens between ports of entry each day, a staggering number that does not include aliens at ports of entry, “paroled” migrants, or got-aways. This is too many aliens for the Border Patrol to manage. As agents process paperwork for thousands of these aliens, fentanyl traffickers and dangerous terrorists cross our border undetected. 

In response, the border bill creates a “border emergency authority,” creating a Title 42-like expulsion mechanism that kicks in once the border numbers hit a one-week average of 5,000 per day. Migrants would be required to use a port-of-entry to request asylum, where the ports must process at least 1,400 claims per day. The authority turns off within 14 days of the weekly average decreasing by 25% (which should be fairly immediate). 

The problem is, 5,000 illegal crossers per-day is an enormous amount, nearly the record-breaking 2023 levels. The daily average from 2007 through 2019 was 1,354, less than the mandatory number to be processed between ports. With the port-of-entry processing and the nonexistent closure of parole, this appears to be a cosmetic offering to team border security.

The remaining details.  

While the bill does dedicate $3.2 billion to create new detention capacity, each of these beds will be filled and refilled with individuals caught and released into the interior of the country without serious structural changes. We know this because, for example, the loophole remains demanding the release of “family units” into the country, as they cannot be processed within the 20-day court-ordered limit. In addition, aliens will continue to hurdle the first bar to seeking asylum, even though they have no valid claim. Once aliens cross this first hurdle, they are often released, meaning one real key to reducing asylum fraud is raising that first hurdle. The border bill purports to raise the initial threshold, but it doesn’t. It actually lowers the bar from assessing whether the alien has a “significant possibility” of proving asylum to a mere “reasonable possibility” of the same.

The only question is whether signing this bill will alleviate the crisis at all. If not, it just hands President Biden the right to say he fixed the border, throws an incredible amount of money at Ukraine, and perpetuates an open border while squelching Americans’ appetite for a border bill. Unfortunately, the provisions simply aren’t satisfactory to even modestly fix the border. And given that reality, it’s hard to blame Republicans for identifying the real problem: President Biden.