Illegal Border Crossings Today:

The Ghost of the Senate Immigration Bill Continues to Haunt the 2024 Campaign

U.S. Capitol Building Senate Chamber

FAIR Take | September 2024

After three and a half years of utter chaos at our borders and historic levels of illegal immigration, the border crisis is top of mind for voters as they get set to go to the polls in November. The architects of these disastrous policies – the Biden-Harris administration and their handpicked point man, Homeland Security Secretary Alejandro Mayorkas – would have the American public believe that the only thing standing in the way of a solution to the crisis is the failure to approve a bill that was introduced in the Senate late last year.

Vice President Kamala Harris, who was handed the portfolio of “Border Czar” in March 2021, repeatedly points to that so-called “bipartisan” Senate bill as the panacea to porous borders and rampant illegal immigration. She accuses her opponent, former President Donald Trump, of killing it for political reasons. It is a point she has made repeatedly, including during her September 10 debate with the former president, her MSNBC interview last week, and her campaign speech last Friday during her visit to Douglas, Arizona.

“Months ago, some of the most conservative members of the United States Congress came together with others and proposed a border security bill that would have put 1,500 new border agents on the border…Would have put more money into stemming the flow of fentanyl, which is killing Americans around our country and devastating communities…Donald Trump got word of the bill, realized it was going to fix a problem he wanted to run on, and told [Senate Republicans] to kill the bill…He killed a bill that would have actually been a solution because he wants to run on a problem instead of fixing a problem,” Vice President Harris stated in her MSNBC appearance.

Despite her rhetoric, the Senate bill would have “solved” the border crisis much like raising speed limits to 200 miles per hour would cure the problem of people speeding on our highways. The Senate bill would have codified the Biden Administration’s existing policies while giving our immigration agencies (and NGOs across the country) significantly more money to implement them. It would have required the release of all asylum seekers who are encountered. The Senate bill would have done nothing to reduce the flows, but instead was designed to more quickly process and release the historic number of illegal aliens crossing our borders, regardless of how it impacts the rule of law or Americans – their safety, national security, budgets, and overall quality of life. 

In other words, the bill was never a serious effort to stop mass illegal immigration, but rather a transparent effort to support illegal migrants who come. When the bill was first introduced last winter, FAIR highlighted its key flaws that bear reiteration, given that it is now being raised as an election issue.

  • The bill fails to end or even meaningfully restrict catch-and-release policies. That shortcoming became all the more salient with last week’s release of ICE data indicating that more than 425,431 convicted criminal aliens have been released into the country (some who had criminal records upon arrival and others who committed crimes after entering the U.S.). These include 13,099 who have murder convictions and 15,811 sex offenders. Another 222,141 aliens released have pending criminal charges against them.
  • The bill fails to rein in the rampant abuse of parole authority, under which the current administration is allowing hundreds of thousands of illegal aliens to enter the country each year. The Biden-Harris has abused parole to such an extent that it is now granting more aliens parole than it grants green cards to aliens who apply to enter the U.S. legally.
  • The Senate bill would create greater incentive for people to abuse our asylum system by requiring the release of all claimants before they are even screened by an asylum officer.
  • The Senate bill offers false promises of speedy asylum hearings. While the bill aims to have all asylum claimants screened within 90 days, it does not require it. Rather the 90-day timeframe is a goal that should be carried out “to the greatest extent practicable.” If the 90-day timeframe proves not to be practicable, asylum-seekers must be granted work authorization anyway.
  • The Senate bill claims to create an expulsion authority for illegal aliens at the southern border, but this is a charade. We now know from President Biden’s June executive action (modeled on the Senate legislation) that the Biden-Harris Administration never had any intent to expel migrants. The “expulsion” authority is merely being used to reinforce the Administration’s 2023 asylum rule, which steers illegal aliens to ports of entry where they are released.
  • Even if the expulsion authority truly expelled migrants, it only kicks in when the number of illegal aliens apprehended by the Border Patrol reaches 5,000 a day over a seven-day period, essentially sanctioning the entry of more than 1.8 million illegal aliens a year. This is double the 2,500 threshold set by Biden’s June executive action – thus, a step backward if the Senate bill became law. The bill further limits the number of days per year when the government can implement the expulsion authority and that authority would sunset after three years.
  • The bill provides hundreds of millions of taxpayer dollars to NGOs and sanctuary jurisdictions that facilitate illegal immigration. These dollars could be used to shelter, transport, and assist illegal aliens as they resettle in American communities.

Far from being a solution to the problem of mass illegal immigration, the Biden-Harris-Mayorkas bill would exacerbate it. That is the reason most Republicans in the Senate opposed it, and would have preferred that the Senate take up a much better bill, namely H.R. 2, that was passed by the House of Representatives in May 2023.

Another misleading assertion about the bill is that it had broad bipartisan support. And it certainly never had the support of “some of the most Conservative members of Congress.” The bill twice failed to clear a procedural vote necessary to bring it to the floor of the Senate for final consideration, both times falling short of even a simple majority. On the first vote in February, the legislation garnered support from only four Republican members, Lisa Murkowski (Alaska), Mitt Romney (Utah), Susan Collins (Maine) and James Lankford (Okla.), who was one of the bill’s authors. Of the four, only Lankford could remotely be described as conservative, and he was condemned and censured by the Oklahoma GOP for his role.

A second attempt to advance the bill was made in May, when it failed by a 43-50 vote with the support of only one Republican, Sen. Murkowski. Notably, two of its sponsors, Lankford and Kyrsten Sinema (I-Ariz.), voted against it. If anyone was guilty of putting politics ahead of addressing a serious problem, it was Majority Leader Chuck Schumer. Schumer twice put the bill to a vote so that he could blame Republicans for killing it, while adamantly refusing to bring H.R. 2 to the floor of the Senate and having Democratic members take the heat for killing it.

The real question that should be asked is not why the Senate bill failed, but why H.R. 2, which provides real border enforcement, ends asylum abuse and reins in the Executive Branch’s ability to parole unlimited numbers of illegal aliens into the country, cannot get a vote in the Senate.