There’s high drama unfolding on the southern border. Even as undocumented immigrants are flooding across at an extraordinary pace, the governor of Texas is pretending to defy the Supreme Court, and other Republican governors are threatening to call National Guard units to help bring the border under control. But as dramatic as all that is, for the moment it’s a sideshow. The main event is in Washington, D.C., and the players belong to the only body that can truly fix our immigration system: the United States Congress.
Concerns over immigration gave us a President Donald Trump once, and those same concerns could give us a President Trump again. And while the actions by Gov. Greg Abbott of Texas and other Republican governors are mostly theatrics at this point, they could tip into a direct confrontation between state and federal authority of a kind not seen since the Civil War. Congress must address the immigration issue before we reach such a tipping point, and it should do so by passing what could be the first meaningful legislative border deal in more than a generation.
And make no mistake, there is reason for concern. Our nation is experiencing a wave of immigration that is straining the system. During Trump’s four years as president, total border encounters varied from a low of 310,531 in fiscal year 2017 to a high of 859,501 in fiscal year 2019. But the number of encounters has soared under President Biden. In fiscal year 2021, there were 1,662,167 encounters at the border. In 2022, that number exceeded two million.
Nothing justifies the G.O.P. governors’ ham-handed efforts to defy federal authority, let alone the bigotry, racism and conspiracy theories of some immigration opponents. But the border-crossing numbers do justify alarm. Migration at this scale makes it extremely difficult for even a wealthy and generous nation to humanely absorb asylum seekers, fosters horrific cartel activity (smuggling immigrants is a lucrative business) and poses obvious security risks, including drug trafficking.
Immigration is an almost impossibly complex subject, but when you peel back the layers of the onion, you get to a core truth: America’s broken asylum system is the most important legal and political factor in the immigration debate, and only Congress can fix it.
To understand what’s happening, think of migrants as being pulled to our borders by two giant magnets. The first magnet is simply the nation itself. The United States still offers vastly greater opportunities, more liberty, more safety and greater access to justice than the nations that migrants are fleeing. We want America to retain its prosperity, liberty and security. We should want it to be a beacon to the oppressed.
The second magnet, however, is an asylum system that is overwhelmed and too easy for bad-faith actors to exploit. As Julia Preston wrote in an outstanding and comprehensive report for Foreign Affairs: “After years of stalemate in Washington on immigration reform, the asylum bureaucracy has become its own de facto immigration system.” Worse, “It no longer serves people escaping danger that it was designed to protect; nor does it bring any order to the challenges of securing the border and integrating newcomers into the U.S. economy.”
Asylum law has its roots in profound national and international shame. One of the factors that enabled the Holocaust was the refusal of foreign governments to accept Jewish refugees. Part of the promise “never again” means actively sheltering people who are fleeing terrible persecution. So to comply with international humanitarian norms and laws, the United States accepts a set number of refugees per year — refugees come to the country through a separate process and aren’t as relevant to the border conversation — and it accepts claims for asylum.
To trigger the asylum process, a person need only set foot in the United States and assert to border officials that his life or freedom is under threat because of his “race, religion, nationality, membership in a particular social group or political opinion.” As my colleague Miriam Jordan vividly reported, the result is a system where undocumented immigrants often want to be caught by Border Patrol so that they can immediately claim asylum.
Federal law requires detaining asylum applicants while their applications are pending, but as the Supreme Court recently observed, Congress has never provided sufficient funds to build the necessary detention capacity. In other words, Congress has not provided the executive branch with the funds necessary to comply with the laws that Congress has passed.
Absent sufficient detention facilities, the government’s options narrow considerably. It can’t simply expel an asylum seeker while her claim is pending, so hundreds of thousands are simply paroled into the interior of the country. The system is so backlogged that asylum seekers with pending claims can stay inside the country for years. And even if they ultimately lose their claims, they’re typically given low priority for deportation if they haven’t broken the law.
In 2019, the Trump administration attempted to address this challenge by enacting what it called the Migrant Protection Protocols — also called the Remain in Mexico policy — which required asylum applicants who came from third countries to remain in Mexico while their asylum applications were pending.
Remain in Mexico suffered from two major deficiencies, however. The first is that it requires the participation and cooperation of the Mexican government, something that no administration can guarantee. The second is that it may be unlawful. Before Biden took office, the Ninth Circuit Court of Appeals struck down the Migrant Protection Protocols, holding that they violated federal immigration law, in part because they exposed asylum applicants to additional abuse and exploitation in Mexico, a practice called refoulement.
President Biden repealed the policy shortly after he took office. The state of Texas sued the administration and obtained an injunction requiring him to keep the protocols in place, but on June 30, 2022, the Supreme Court ruled that Biden had the legal authority to end the program.
The repeal of the Migrant Protection Protocols is at the heart of the claim that the present border crisis is exclusively Biden’s fault. And indeed, the Biden administration has acknowledged in litigation that there was a “significant decrease in border encounters” after Trump implemented his policy. This has led many Republicans to argue that there is no need for a legislative deal at all. Biden can simply reimpose the Migrant Protection Protocols and vastly improve the situation at the border.
But that’s a deeply problematic argument. Remain in Mexico could never be a permanent solution. For starters, Mexico has already said it won’t agree to reinstate the policy. And that’s before we even address the question of whether the policy is legal. The Ninth Circuit said it violated federal law, and the Supreme Court hasn’t settled the dispute. It originally agreed to hear the government’s appeal of the Ninth Circuit’s order, but it dismissed the case as moot after the Biden administration’s repeal.
Which brings us to the tripartisan border compromise. Senator James Lankford of Oklahoma, Senator Kyrsten Sinema of Arizona and Senator Chris Murphy of Connecticut (for those keeping score at home, that’s a Republican, an independent and a Democrat) have hammered out a deal that would dramatically alter federal immigration law.
The bill’s text hasn’t yet been released, but its outline is promising. Among other elements, it would grant the Department of Homeland Security the authority to shut down the border “if daily average migrant encounters reach 4,000 over a one-week span.” If the daily average for the week hits 5,000, or if the encounters top 8,500 in a single day, the law would require a shutdown. To put those numbers into perspective, in December there were 302,034 encounters, or almost 10,000 every day.
Additionally, the compromise would provide the resources for a vastly expedited asylum process, one designed to reach final decisions in six months, as opposed to the yearslong process that exists today. It would also provide for the mandatory detention of single adults. President Biden has signaled that he’s ready to sign the bill the instant it hits his desk.
The political prospects for the bill are at best deeply uncertain. House Republicans have tied the border compromise to Ukraine aid, and the speaker of the House has signaled that the compromise is dead on arrival. That would be a terrible failure of governance. Both of these measures meaningfully advance American security and prosperity. It’s time for reasonable Americans — including reasonable Republicans — to summon up sufficient courage to defy the radicals, bigots and political cynics. Congress has before it an exceptional opportunity to ease the crisis on the border and start reforming the immigration system to be more rational and humane.
MAGA hates the immigration compromise, but MAGA doesn’t run America. It’s time for the adults to take charge. Address the crisis on the border. Address the crisis in Ukraine. Pass the bill.
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