On Oct. 6, Vice President Kamala Harris did an interview with CBS News’ 60 Minutes once again renewing her plea for Congress to bring back legislation it already rejected that would have allowed more than 1.4 million illegal alien entries per year while limiting the President’s authority to close the border, declaring, “we need Congress to be able to act to actually fix the problem…”
As if the President under current law needed Congress to act, when the administration is already authorized at the Border Patrol and Immigration and Customs Enforcement (ICE) level to police the border and expedite removals of illegal immigrants, and Trump had otherwise repurposed military spending to build the southern border wall under his national emergency declaration.
As for closing the border, that’s easy, all the President has to do is restore title 42 removals that former President Donald Trump utilized during Covid—President Joe Biden ended it May 2023 — and by finishing the wall by restoring the national emergency Trump declared in 2019, which Biden also ended.
And then, renegotiate Remain in Mexico with Mexico via an executive agreement the way Trump did it in 2019. Only a president can make agreements including treaties with other countries. Congress cannot act alone. Threaten massive tariffs. That’s what Trump did in 2019 — and it worked.
All without any action by Congress per se, instead, by utilizing laws Congress already passed and the President’s Article II executive power to engage in foreign policy with other nations, Trump was able to deftly put in place policies that address the crisis in its proper context as a national emergency including by building the wall out of military necessity. Why wait?
Despite CBS News’ pressing Harris, she refused to answer why the Biden administration had ended the Trump border policies — namely, build the wall, Remain in Mexico and Title 42 — that were working. Instead, in Harris’ world, only Congress could possibly address this, referring to a Senate legislative proposal negotiated by Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. James Lankford (R-Okla.).
But it would have enacted none of the Trump policies including finishing the wall, Remain in Mexico and bringing back Title 42 that was responsible for expelling 2.7 million illegal aliens from FY 2021 through much of FY 2023.
Instead, the bill set 4,000 illegal entries a day for discretionary application of the emergency border authority, and 5,000 a day for mandatory application, to then engage in Title 42-like expulsions. And the authority ceased if the level reached 3,000 a day (75 percent of the 4,000 a day discretionary level if the application occurred then), or at 3,750 a day (75 percent of the 5,000 a day mandatory application if it occurred on that basis), resuming normal asylum proceedings afterward.
Under the bill, 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 have been 1.46 million illegal entries a year if the average held. Any fewer than that, and the President and Secretary of Homeland Security would not have the authority to close the border.
The border emergency would only be activated on a mandatory basis when 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.”
And, at the 3,000 a day level, under which the President would have been prohibited from closing the border, that would have guaranteed at least 1.1 million illegal entries every year, even if former President Donald Trump is elected this year. The bill was deliberately seeking to lock in 2025 and 2026, which would have allowed even greater numbers of illegal entries than in 2024.
Overall, that’s a threshold of 1.85 million illegal entries a year if the average held. Any fewer, and an administration would have no obligation to do anything.
Or President Biden could just re-declare the national emergency and act accordingly. Or maybe the American people will just re-elect Donald Trump to do it for them.
As it is, the President needs no additional authority to secure the border on an emergency basis, that’s what the National Emergencies Act is for. That’s what Trump used to build the wall and expedite removals using Title 42. Just bring back the Trump policies, Madam Vice President, they were working.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
