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Key provisions in Senate bill highlight Democrats' shifting immigration stance since Clinton

Clinton's calls for deportations and the enforcement of existing law present a stark contrast with the headline provisions of the border deal, including an illegal crossing threshold for enacting emergency border shutdowns, the provision of aid to organization assisting illegals, and the direct subsidizing of benefits for them.

Published: February 5, 2024 11:02pm

Updated: February 6, 2024 9:47am

When the Senate unveiled its long-awaited compromise bill pairing foreign aid to Israel and Ukraine with immigration law changes, it unleashed the ire of Republican border hawks while highlighting the dramatic shift in Democratic policies since the days when former President Bill Clinton declared deporting illegal aliens was the right thing to do.

"We are a nation of immigrants. But we are also a nation of laws,” Clinton declared in his 1995 State of the Union address. "It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it."

The Democratic president’s calls for deportations and the enforcement of existing law three decades ago present a stark contrast with the headline provisions of Sunday's border deal. Those included an illegal crossing threshold for enacting emergency border shutdowns, the provision of aid to organizations assisting illegals, and the direct subsidizing of benefits for them. Republicans, meanwhile, have excoriated the bill.

The package was negotiated by Oklahoma GOP Sen. James Lankford, Arizona independent Sen. Kyrsten Sinema, and Connecticut Democratic Sen. Chris Murphy.

Here are some of the most notable takeaways from the legislation:

Illegal entry thresholds to activate "border emergency authority"

The legislation grants the Secretary of Homeland Security the discretion to activate "border emergency authority" and "summarily remove" or "prohibit, in whole or in part, entry into the United States" of persons not subject to exemptions. To activate that authority, however, there must first be an average of at least 4,000 aliens encountered at the border for seven consecutive days. Activation of the authority does not become mandatory until such crossings average at least 5,000 per day for seven consecutive days or at least 8,500 aliens are encountered in a single day.

Accordingly, alien encounters at the border would need to reach a rate of roughly 120,000 per month (30 days X 4,000 aliens) to empower the DHS secretary to exercise his own discretion to activate the authority. It would not become mandatory until said crossings reached a rate of at least 150,000 per month. U.S. Customs and Border Protection reported 302,000 alien encounters in December alone.

This provision has attracted particular scrutiny from Republican lawmakers, including Wisconsin Rep. Glenn Grothman, who on Monday told the John Solomon Reports podcast that the bill would not prevent meaningfully higher levels of alien arrivals than occurred during the Trump administration.

"I don't really see what we got in this proposed agreement. They started with a premise that we're not going to kick people out until we get to 150,000 people a month coming here. I mean, under President Trump, depending on the month, you'd be between five and 20,000 a month crossing the border," he said. "Now we're saying we're satisfied, the President Biden can hold it at 150,000, which seems ridiculous. And even then, we're increasing other ways to legally come into the state and really come into the country as well. So it's such a disappointment. It is the type of thing that an open borders congressman would want."

National Border Patrol Council Vice President Art del Cueto, however, disputed that interpretation, saying on the "Just the News, No Noise" television show that the border authorities would not just permit 5,000 aliens to enter at their leisure, but would put them through a stricter system and impose a degree of limitation that does not presently exist.

"A lot of talk on the 5,000 cap, Okay, but what that is, right now, there is no cap. So everyone that's processed under this bill, everyone's going to get detained, they're not just going to release them," he said. "Why is it 5,000? Because they're saying, you know, they're going to hold up to 5,000, if they're going to go through the process, but the processes are more strict than they are now."

Declining duration/limitations for border shutdowns

The bill further would limit the authority of the DHS secretary to use the emergency border authority to a maximum of 270 days in the first year. That number declines to 225 days in the subsequent year, and falls to 180 days in the third.

If further grants the president the ability to "temporarily suspend the border emergency authority" for a maximum of 45 days should he determination such a move to be in the "national interest."

Speaking on the John Solomon Reports podcast, former Trump adviser John Zadrozny, of America First Legal, insisted the discretionary authority assigned to the president would be of minimal consequence and offer no meaningful expansion of border enforcement powers.

"There's been a lot of talk of how this will give the president new powers to enforce the border," he said. "It's nonsense. It actually doesn't do anything. The current law already gives much better authority to handle [this]. It funds sanctuary cities and these non-governmental organizations that are responsible for transporting illegal aliens across the country. 

"Catch and release"

The bill further would render an alien eligible for "noncustodial proceedings" should declare an intent to seek a "protection determination" or "express a credible fear of persecution."

"Aliens referred for proceedings under this section shall be released from physical custody and processed in accordance with the procedures described in the section," the bill states, before addressing "alternatives to detention."

Zadrozny described the provisions as "codified catch and release, which is something that is not even in laws. Everyone in the past thought it was law. It's not, they're trying to basically codify that you have to catch a release."

"The problem with it is: it is ignoring a lot of the problems that are already existing, and let's just have a codified catch and release right off the bat," New York GOP Rep. Claudia Tenney said on Just the News, No Noise.

"That's a nonstarter. That's a huge problem,” she added. “We have people running amok throughout our country that we can do nothing about. And we're going to just let that happen."

Provision of legal counsel to unaccompanied alien children

The border bill would further require the Secretary of Health and Human Services to ensure that unaccompanied alien children who have been in his department's custody "have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking."

The provision does require that HHS attempt to secure pro bono counsel “to the greatest extent practicable." It does provide limited exceptions in which an immigration judge may appoint representation for aliens found to be incompetent.

"Legal Services, we're going to pay the taxpayers are going to pay for the Legal Services of illegal immigrants who got here somehow finding some kind of resource to pay a cartel person, and the cartels are going to get paid, and then the taxpayers are going to pay on top of that. I mean, that's just a really bad idea," Tenney said.

Grothman echoed Tenney's concerns, lamenting the provision amounted to "more taxpayer funded lawyers for illegal immigrants."

"Well, we all know the way lawyers operate. You give lawyers money, they'll they'll come up with motions, this or that, to keep people here. I mean, really, we have American citizens who they do something bad, they can't afford a lawyer," he said. "But now the government's gonna give lawyers to people are trying to get here illegally. I mean, who agrees to this stuff?

Funding for NGOs and charities providing housing, medical care, case management, and other services to illegals

The proposed legislation would allocate $2,334,000,000 to be used for "grants or contracts with qualified organizations, including nonprofit entities, to provide culturally and linguistically appropriate services, including wraparound services, housing assistance, medical assistance, legal assistance, and case management assistance."

It further allocates $1.4 billion to the Federal Emergency Management Agency to "support sheltering and related activities provided by non-Federal entities through the Shelter and Services Program."

House GOP members said such assistance was a nonstarter in their chamber.

"You're telling me about a $2.3 billion upper for NGOs who are going to take care of these people. So a further inducement to people who come here, because they will get them much more lavish treatment, as we give that much money for the non governmental organizations," Grothman lamented.

Zadrozny argued the NGOs had effectively worked to aid the drug cartel-led trafficking operations by acting as a delivery system.

"The way I usually put it is the cartels couldn't really achieve their results. You know, think of them as like a company shipping a good to a customer, without UPS or FedEx," he said. "And guess what the NGOs are taxpayer subsidized human smuggling and trafficking, FedEx or UPS, they are moving these people to their points of destination and helping the business transaction get completed."

Delay of border wall construction

Another of the legislation’s provision effectively freezes border wall funds that have yet to be used and pushes their availability to be used by 2028. The measure further requires "[t]hat none of the funds allocated for pedestrian physical barriers pursuant to this section may be made available for any purpose other than the construction of steel bollard pedestrian barrier built at least 18 to 30 feet in effective height and augmented with anti-climb and anti-dig features."

Effectively, existing border wall funding Congress has approved but the government has yet to spend, would get diverted to the next administration. 

"All this does is give the administration the ability to punt responsibility for border wall construction up to four years," America First Policy Institute Center for Homeland Security and Immigration Director Robert Law told The Washington Times. 

"When [Lankford] says there’s money in there to build the wall, he’s misleading the American people. When he says it ends catch-and-release, he’s misleading the American people," former acting CBP Commissioner Mark Morgan told the outlet.

Morgan further said the legislation amounted to Congress telling Biden that "not only are we absolving you of the violation, we’re not requiring you to actually build the wall, we’re just kicking it down the line if some president in the future actually wants to secure the border."

Republicans irate

While the above represent the some of the most notable provisions of the agreement pursuant to border enforcement, they are far from the only immigration provisions in the legislation. The bill also includes changes to the green card and work permitting regulations.

Utah Republican Sen. Mike Lee outlined his primary objections to the bill, highlighting what he deemed the "Dirty Dozen" of the most odious provisions. He has further suggested the bill highlighted the need for new Republican leadership.

Grothman, for his part, insisted the bill showed that "America is not serious about our immigration laws" and called for a return to Trump-era border policies such as the Remain in Mexico directive that kept aliens south of the US border until an asylum claim was determined.

Ben Whedon is an editor and reporter for Just the News. Follow him on X, formerly Twitter.

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