The Senate border bill is dead. Not even Sens. Mitch McConnell (R-KY) or Thom Tillis (R-NC), who were both key architects of the legislation, are voting for it.
But that hasn’t stopped the Wall Street Journal editorial board from making one last valiant attempt to put lipstick on this pig.
The Wall Street Journal claims the bill is “the most restrictive migrant legislation in decades,” which is an odd thing to claim since the first bill passed by the House this Congress was the Secure the Border Act of 2023. Any honest and informed person would tell you the Secure the Border Act, which mandated a return of the popular and successful “Remain in Mexico” policy, was far more restrictive than the legislation produced by the Senate.
Turning to the specifics of how the Senate border bill would supposedly secure the border, the Wall Street Journal makes four specific claims, all of which completely fall apart after even a modicum of examination.
First, the Wall Street Journal claims the legislation toughens the asylum process by raising the standard of an asylum officer’s initial “credible fear” standard to a “reasonable possibility” of persecution. But is this really a tougher standard? The old standard was “significant possibility” of persecution. Is “reasonable” really tougher than “significant”?
More importantly, migrants no longer have to even claim “credible fear” to gain access to the United States. According to the legislation, all migrants have to do is indicate “an intention to apply for a protection determination” and they are placed in a brand-new “noncustodial removal proceeding.”
The Wall Street Journal makes sure to mention that the legislation has money for 50,000 detention beds, but nothing in the legislation actually requires DHS use those beds. Instead, the legislation codifies catch and release policies by giving the secretary of homeland security an explicit new power to place all migrants who apply for “protection determination” into Immigration and Customs Enforcement’s existing “Alternatives to Detention” program.
As the Wall Street Journal notes, the “Alternatives to Detention” program already uses “tools such as ankle bracelets or reporting curfews” to keep track of migrants released from custody. In other words, under the new system, migrants will be caught and then released just like under the current system. But then the Wall Street Journal has the audacity to claim in the very next sentence, “No more catch and release without consequences.”
What consequences? ICE does not track down migrants who violate the terms of their Alternatives to Detention agreements now. And nothing in this legislation forces them to do so going forward. All this legislation does is give Biden new legal tools to release as many migrants into the United States as possible.
Next, the Wall Street Journal claims that the legislation “reforms humanitarian parole” and there is some new language in the bill that nominally prohibits parole for migrants coming from contiguous-country land-border entries. But then the legislation gives the DHS secretary the power to ignore this ban on parole for any “humanitarian reason” he deems sufficient. This is the exact same loophole Biden is already using to abuse the parole system. As predicted before the legislation came out, Democrats ensured no substantive changes were made to Biden’s parole powers.
Finally, the Wall Street Journal turns to the “emergency provision” in the bill that would “shut down” the border if 5,000 migrants are apprehended a day for a week. What the Wall Street Journal does not mention is that this shutdown does not apply to unaccompanied minors, the shutdown authority expires completely in just three years, and most importantly the legislation gives Biden the power to ignore the shutdown provisions at any time for any reason.
In other words, it doesn’t “mandate” that Biden shut down the border in any real way whatsoever. In fact, the legislation makes it explicitly clear that Biden can ignore the shutdown provision entirely.
One last note on the Alternatives to Detention program that the Wall Street Journal is determined to convince people is just the same as detention, GAO conducted a study of the program back in 2022 and found that 79% of all enrollees had unenrolled from the program before their proceedings concluded. GAO went on to say that “ICE does not track whether the majority of unenrolled participants continue to comply with the requirements of their release, or, for example, become fugitives. As a result, ICE has an incomplete picture of the performance of its program and doesn’t know if it needs improvements.”
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So not only is ICE not tracking down migrants who are noncompliant with the Alternatives to Detention program, ICE doesn’t even know where they are.
For some reason the Wall Street Journal forgot to mention that.
