Now in Charge, House Republicans Ante Up on Immigration with Two Bills; Action Expected Next Week

FAIR Take | January 2023

Although the leadership race has not been decided and committee membership is still in the works, House Republicans have already announced they will consider two immigration bills on the floor of the House next week.  The bills tackle two issues:  Title 42 expulsion authority and the law prohibiting illegal aliens from possessing firearms.

The first bill, entitled the “Border Safety and Security Act of 2023,” is almost a carbon copy of a bill authored and introduced by Texas Congressman Chip Roy in May 2022.  It is a short, 3-page bill that essentially replicates the Title 42 authority to expel illegal aliens in Title 8, which houses the Immigration and Nationality Act.  Specifically, it grants the Secretary of Homeland Security the authority to expel aliens who do not have proper documents if the Secretary determines in his/her discretion that doing so “is necessary to achieve operational control over such border.”

In addition, the bill requires the Secretary to expel aliens without proper documentation if the Secretary cannot: (1) detain the alien as required by law for expedited removal (INA 235(b)(1)(B)); or (2) place the alien in a program consistent with the Remain in Mexico program (pursuant to INA 235(b)(2)(C)).  With regard to the current flood of asylum seekers, this provision would require the Secretary to pick one of two options.  Either the Secretary would have to expel all aliens without documentation, which prevents them from claiming asylum (assuming that was indeed their intention), or detain all asylum-seekers until their claims are evaluated—as is already required by law, but is not being enforced.

The second bill scheduled for a floor vote next week is entitled the “Illegal Alien NICS Alert Act.”  This two-page bill—a revamped version of a bill introduced by Senator Tom Cotton in 2021—seeks to help enforce 18 USC 922(g)(5), which generally prohibits illegal aliens from possessing firearms.  The bill requires that the Department of Justice notify ICE and relevant state and local law enforcement agencies when the National Instant Criminal Background Check System (NICS) indicates that a prospective firearm transferee is illegally or unlawfully in the United States.

While the bills offer sound policy, they represent only a first step in the right direction. The new version of the Border Safety and Security Act would provide the Secretary of Homeland Security the useful power of expelling illegal aliens without the authority being predicated on a public health emergency.  However, that authority may be limited in practice if Mexico refuses to take back aliens who are expelled or to participate in a new Remain in Mexico program.  In addition, the current version leaves out a provision in the original bill that expressly allows the Attorney General from any state to enforce compliance with this legislation through lawsuits.

Because the expulsion authority is, by its very nature, a limited tool, a coalition of organizations, including FAIR, NumbersUSA, AFPI, and Heritage, asked Congressional Republicans last fall to support “flagship legislation” in the new session of Congress convening this week.  Together, we stressed the critical importance of addressing core problems in our system that have fueled the historic wave of illegal immigration and enabled the Biden Administration to maintain its open-borders policies. Key reforms, we argued, must include closing asylum loopholes, amending the TVPRA of 2008 with respect to the removal of unaccompanied alien children; terminating the Flores settlement agreement that limits the detention of children and family units; mandating appropriate resources for the border wall system and detention beds; and ending the abuse of parole authority, among other things.

House Republicans have promised multiple times that they will act on this agenda once in control of the House.  Indeed, their Commitment to America expressly included some of these reforms.  The question now is whether House Republicans will be satisfied with simple border security measures, or whether they intend to offer the American people real, overarching policy solutions to a complex problem that has challenged lawmakers for generations. We urge them to do the latter.