“If this bill reaches the House, it will be dead on arrival.”
That was House Speaker Mike Johnson (R-La.) on X.com (formerly Twitter) on Feb. 4 calling newly unveiled Senate legislation providing $60 billion for Ukraine, $14.1 billion for Israel and $20 billion for additional border security negotiated between Senate Democrats and Republicans unacceptable.
Johnson added, “I’ve seen enough. This bill is even worse than we expected, and won’t come close to ending the border catastrophe the President has created. As the lead Democrat negotiator proclaimed: Under this legislation, ‘the border never closes.’”
House Majority Leader Steve Scalise (R-La.) on Feb.4 on X for his part said the legislation would not even get to the floor of the House: “Let me be clear: The Senate Border Bill will NOT receive a vote in the House.”
The key provision that has House Republicans upset, Scalise wrote, would allow 5,000 illegal immigrants a day: “Here’s what the people pushing this ‘deal’ aren’t telling you: It accepts 5,000 illegal immigrants a day and gives automatic work permits to asylum recipients — a magnet for more illegal immigration.”
Senator James Lankford (R-Okla.), who negotiated this deal with Senate Majority Leader Chuck Schumer (D-N.Y.), expressed “confusion” over the provision, telling reporters, “…I’m a little confused… I’ll have to get with the Speaker’s team on that and find out what part would be ‘worse than what we expected’ based on the actual text and hopefully they will all have had an opportunity to read through the text.”
Lankford also told Fox News Sunday as recently as Jan. 28 that “It would be absolutely absurd for me to agree to 5,000 people a day. This bill focuses on getting us to zero illegal crossings a day.”
Let’s just clear this up right away. Scalise is right, 100 percent accurate. There is no confusion. It’s 5,000 a day. We always say, “read the bill.” Well, you all really need to read the bill!
“[B]ased on the actual text” of the legislation that Lankford negotiated, under Section 3301 of Division C, Title III of the legislation, entitled “Border Emergency Authority” for a Title 42-like emergency removal authority, the Secretary of Homeland Security would only have the power to activate the authority on a discretionary basis when there are at least 4,000 illegal entries a day: “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.”
That would be an annualized rate of 1.46 million illegal entries a year. Anything less, and the authority could not be activated on a discretionary basis.
And the border emergency authority would not be activated on a mandatory basis unless the seven-day rolling average of illegal entries did not hit 5,000 illegal aliens a day: “The Secretary shall activate the border emergency authority if… during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or… on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.”
That would be an annualized rate of 1.85 million illegal entries a year. Any less, and President Joe Biden and Homeland Security Secretary Alejandro Mayorkas would not have to do anything under the bill.
For reference, according to U.S. Customs and Border Patrol data, in fiscal year 2021, there were 1.73 million land border encounters with illegal immigrants; in fiscal year 2022, there were 2.38 million; and in 2023, there were 2.48 million. These numbers are unprecedented.
Prior to that, the number had never reached more than a million. In fiscal year 2020, it was 400,651; in 2019, it was 977,509; in 2018, it was 521,090; in 2017, 415,517; and in 2016 it was 533,578.
Meaning, at no point during the Trump administration, even when border crossings were spiking up to close to 1 million in 2019—a rate of 2,678 a day on average—the border emergency authority could not be invoked. What good is the authority if it can only be used when there’s between 1.46 million and 1.85 million illegal immigrants, record numbers?
Making matters worse, the border emergency authority would be temporary, limiting the use of border emergency authority to just 8.8 months in the first year of implementation, 7.4 months in the second year and six months in the third year, creating open borders corridors for the periods of time when the authority was not in effect, again “based on the actual text”: “the Secretary shall not activate the border emergency authority… during the first calendar year after the effective date, for more than 270 calendar days; … during the second calendar year after the effective date, for more than 225 days; … and … during the third calendar year, for more than 180 calendar days.”
Finally, the border emergency authority would end if the daily rate fell below 75 percent of the activation of authority level, again, “based on the actual text” of the bill: “The Secretary shall suspend activation of the border emergency authority… there is during a period of 7 consecutive calendar days an average of less than 75 percent of the encounter level used for activation…”
So, if the emergency authority was activated on a discretionary basis of 4,000 illegal entries a day, a rate of 1.46 million a year, it would go out of effect when the rate slowed to 3,000 a day, or 1.095 million a year.
And if the emergency authority had begun on a mandatory basis at 5,000 illegal aliens a day, a rate of 1.85 million a year, it would go out of effect when it had slowed to 3,750 a day, or 1.37 million a year.
Therefore, under border emergency authority, a sitting president like Biden, or say former President Donald Trump is elected this year, would be required to allow almost 1.1 million illegal entries a year for asylum consideration legally as a matter of law.
You can’t make this stuff up — because it’s in the bill!
Again, that is all “based on the actual text” of the now-proposed legislation. But Lankford was right about one thing, “It would be absolutely absurd for me to agree to 5,000 people a day.” Yes, it is absolutely absurd, unreasonable and illogical, wildly so, that he or any Senate Republican would agree to allowing 4,999 illegal immigrants a day, and requiring a minimum of 3,000 illegal entries a day, or almost 1.1 million a year, under the law. Kill the bill.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
