[Congressional Record Volume 170, Number 13 (Wednesday, January 24, 2024)]
[Senate]
[Pages S240-S246]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Border Security

  Mr. LEE. Madam President, we find ourselves in a situation in which 
every State in America is a border State.
  Now, it didn't used to be this way, and as one who has spent 2 years 
living along the U.S.-Mexico border, where I served as a missionary in 
my early twenties, I am familiar with border towns; I am familiar with 
what they go through. And I can tell you from that experience, where I 
lived and worked among the poorest of the poor along the border, among 
a lot of people who were recent immigrants themselves--some documented, 
others not documented--I can tell you that no one fears uncontrolled 
waves of illegal immigration more than people living along the border, 
including and especially those who are recent immigrants. It is, after 
all, their jobs, their neighborhoods, their children's schools, their 
communities that are placed at risk every time there is an uncontrolled 
wave of illegal immigration.
  Now, since I lived in border communities in the early 1990s in South 
Texas, things have gotten a lot worse, and they have gotten 
exponentially worse over the last 3 years. Things got so bad in the 
last month that we were setting all kinds of the wrong records. Day 
after day, we were exceeding the maximum number of daily migrant 
encounters our Border Patrol had ever observed in the history of our 
country. These are not the kinds of records that we want to break nor 
are they the kinds of records that, when broken, are without 
consequence--very real, very tangible consequences--to the American 
people, starting, of course, with those living in border communities, 
but extending through all 50 States as all 50 States are seeing, 
feeling, experiencing, and paying the cost--the high cost--of this wave 
of lawlessness. It is not a victimless crime.
  Just as the drug cartels are being enriched to the tune of many tens 
of billions of dollars a year--smuggling their human traffic across 
international boundaries--and just as the human traffic that they 
carry, it is bringing in enough fentanyl that it killed over 100,000 
Americans last year and enough fentanyl that, if distributed to enough 
people, would kill every American many times over.
  When that many people--we are talking somewhere in the range of 8 to 
10 million people; maybe it is even more--enter a country unlawfully in 
such a short period of time--in just 3 short years--there are all sorts 
of consequences to that. Among them happens to be the erosion of the 
rule of law. When that many people come into the country and their 
first experience with this country--their very entry into this 
country's borders--is itself an unlawful act, it doesn't bode well for 
the rule of law in America. It doesn't send a positive signal for what 
kind of country we are becoming.
  We have experienced that in every one of our States. We have seen 
crimes committed that should never have been committed because they 
were committed by people who should never have been in this country to 
begin with.
  All of this is before we even get to the question of who exactly is 
coming across our border. Our Border Patrol agents have observed all 
kinds of things in recent months and years but especially in the last 
few months. People are not just coming from Central America anymore--
and not just coming from Central and South America--but from all over 
the world, from all kinds of countries that you ordinarily wouldn't 
expect to be represented in large numbers crossing illegally across our 
southern border into the United States--countries like Afghanistan, 
like Syria, like China, and many, many others. We have seen many 
hundreds coming across who are on the Terrorist Watchlist--known 
terrorists. We have seen a whole lot of others--many hundreds by some 
measures, thousands who have likely entered--who are from countries, 
and otherwise entering under circumstances, that are cause for alarm.
  Yet this is going on with the acquiescence--some would say with the 
blessing--of a Presidential administration which appears to have 
ordained this very result--invited it and effectively guaranteed it.
  This has been really good for the drug cartels, which have been 
enriched to the tune of tens of billions of dollars every single year 
that Joe Biden has been in office--every year. But it has been really 
bad for the American people, especially America's poor and middle class 
and anyone living on or near a border or in any community where people 
have been displaced or where people have been ravaged by the effects of 
criminal activity carried out by those who should never have been in 
this country to begin with.

  The problem got so bad over the last few months that the State of 
Texas decided that it had to act. You see, Texas has a really long 
international border at the southern end of its State, and along that 
border, the State of Texas sought areas that were being traversed 
constantly--traversed constantly and yet, perhaps, were not patrolled 
as well as they would have liked. These were places where there were no 
adequate barriers, natural or otherwise, that could keep people out but 
that the State of Texas knew could be protected if barriers could be 
placed there. So the State of Texas started putting up barriers along 
some of these stretches of border and, in particular, along a 
particular 27-mile stretch of border.
  The Biden administration struggled to process these many thousands of 
illegal aliens crossing our border every single day, with all kinds of 
things to do to try to stop this or, at least, act like they are trying 
to stop it or, at least, process them or whatever it is that they have 
been ordered to do that day. Apparently, this was too much for the 
Biden administration, because President Biden directed the Department 
of Homeland Security and the personnel along the border in Texas to go 
in and start taking down these barriers. They were putting up ladders 
across some of the barriers, cutting holes in other barriers, cutting 
concertina wire in other circumstances.
  So the State of Texas said: Good heavens. That doesn't seem right. It 
doesn't seem right that, you know, we are besieged by these people who 
want to break our laws in order to enter our country.
  The President is the chief executive officer of the Federal 
Government, and it is the Federal Government that is responsible for 
protecting us from invasion. Remember, an invasion can occur either by 
an organized, armed military force or it can be a nonorganized, 
nonuniformed, nonmilitary force that is just entering another country 
en masse without authorization. That is the Federal Government's 
responsibility. It is one of the chief responsibilities, one of the 
most important responsibilities.
  But because the Federal Government wasn't carrying out that 
responsibility

[[Page S241]]

and because the State of Texas saw a particular 27-mile stretch of 
border where Texas could make a difference by putting up some barriers, 
they put it there. But that was not OK with the Biden administration. 
They had to go take it down. Who knows how many additional illegal 
immigrants came in as a result of the personnel who had to be deployed 
to start taking down these barriers and cutting the wire, but they did 
it.
  Now, the State of Texas stepped back for a minute and said: You know, 
it is really unfortunate that that is what the Biden administration 
wants to do with its scarce resources. It is really unfortunate that 
they want to make the State of Texas less safe and, with it, the rest 
of the country.
  But it also doesn't really seem--I don't know--constitutional. You 
know, there are a couple of provisions in the Constitution that deal 
specifically with protecting the country against an invasion. One of 
them can be found in article IV, section 4 of the Constitution, which 
says, when a State is being invaded--when it is under siege in some 
way--it should be able to appeal to the Federal Government for help in 
resisting that. Well, when Texas asked for help, it got quite the 
opposite.
  There is another provision--article I, section 10, clause 3. That 
provision says, in essence, after telling the States that there are a 
bunch of things that they cannot do--States are not allowed to wage 
war, for example; States are not allowed to enter into an international 
compact with a foreign country and do certain things like that that are 
akin to what the Federal Government is uniquely empowered to do--that 
there is an exception at the end, and it is an exception that applies 
when a State is being invaded; that States have the power to do that.
  So, perhaps informed by these and other provisions of the 
Constitution, the State of Texas filed suit in the U.S. district court 
in Texas, trying to seek an injunction. That is an order telling the 
Department of Homeland Security: Look, you can't mess with Texas. You 
can't mess with Texas's barriers. Don't take them down.
  After some initial back-and-forth litigation in the U.S. district 
court, the matter went to the U.S. Court of Appeals for the Fifth 
Circuit, which includes the State of Texas. On December 19, 2023, just 
a little over a month ago, the Fifth Circuit issued an injunction--a 
preliminary injunction--saying that, while this litigation is pending--
while we figure out once and for all whether, to what extent, and under 
what circumstances the Biden administration may or may not choose to go 
in and take down these barriers put up by the State of Texas--Homeland 
Security and the Biden administration just can't do that. Don't do it 
for now. It doesn't mean don't do it forever. It just means don't do it 
for now while this litigation is pending, while the courts are ironing 
this out.
  Well, that remained in effect for just over a month. Then this last 
Monday--just a couple of days ago--the Supreme Court of the United 
States issued a one-sentence order vacating that preliminary 
injunction.
  What does that mean? Well, that order doesn't do anything. It doesn't 
tell the State of Texas it can't put barriers in place. It doesn't tell 
the State of Texas it has to take it down. It doesn't require any 
action on the part of the State of Texas. All it does is it gets rid of 
the order that previously was in place telling the Department of 
Homeland Security and others within the Biden administration that they 
could not do anything to mess with the barriers put in place by Texas.
  Meanwhile, the case is set to be argued before the U.S. Court of 
Appeals for the Fifth Circuit on February 7. At that argument, the 
court will consider--the appellate court will consider the merits of 
the argument and, eventually, make a ruling.
  I hope, I expect, I would imagine that in a case of this import and 
urgency, the Court of Appeals for the Fifth Circuit will probably try 
to issue something within a few weeks; I would hope not much longer 
than that, maybe a month or 2. And at that point, if the State of Texas 
prevails, then there will be a permanent injunction and order telling 
the Biden administration it can't take that down. I am sure whoever 
loses will take that to the Supreme Court. That will take some 
additional time.
  But the point is this: Through all this litigation, we have seen one 
consistent theme through all stages of litigation. We have got the 
Biden administration going into court, making arguments like the 
following: pointing to provisions in title 8 of the United States Code 
dealing with immigration issues, provisions guaranteeing that the 
Border Patrol must have access to areas 25 miles inland from the border 
so that they can do their work; so that they can enforce the border; so 
they can do their jobs.
  This is one of the primary arguments they were making before the 
courts is that this barbed wire or these barriers put in place by the 
State of Texas interfere with our ability as Border Patrol officers to 
access the land and to do our jobs.
  What is their job? Well, to stop the illegal immigrants from coming 
across.
  So how, exactly, does this 27-mile stretch where these barriers have 
been put in place by the State of Texas, how exactly does that hinder 
the Border Patrol from doing the Border Patrol's job?
  Call me crazy, but I strongly suspect that if we could bring a 
handful of the Border Patrol agents up, they would tell us that quite 
the opposite is true; that the placement of these particular barriers 
probably makes their job easier.
  But do you know whose job this makes harder? It makes the job of the 
drug cartel, the human smuggler, the sex worker trafficker--remembering 
that a very substantial portion--estimates vary as to how many, but 
according to some, a majority of the women and girls trafficked through 
this network are subjected to sexual assault, many of them used as sex 
slaves, many of them forced to continue in that capacity even after 
they get into the United States, where they are working now as 
indentured servants, yes.
  Just a few weeks ago, I went to the border, down in the McAllen 
sector--not too far from the area where I lived and worked for 2 years 
as a missionary back in the early 1990s--and Border Patrol officers 
there informed me that for the first time--for the first time--since 
the adoption of the 13th Amendment, which got rid of things like 
slavery and indentured servitude, we have actually got a sizable number 
of indentured servants in this country--people smuggled in who haven't 
been able to afford the $4-, $5-, $6-, $7,000, sometimes more, 
depending on what country they are from and how many risk factors there 
are. If they can't afford the passage from the cartels, they have got 
to work it off. So many of them remain as indentured servants. And for 
many of the girls and women in particular, they remain in sex slavery.
  So why exactly is the Biden administration so concerned with all of 
this happening, with the barrier that could make the job of the Border 
Patrol more effective, that could lead to the apprehension of more 
individuals--knowing full well that by breaking up these barriers, all 
they are doing, the only people whose lives they are really making 
easier are those of the drug cartels, the people who are subjecting all 
these people to these horrible, deplorable conditions, and bringing in 
enough fentanyl into the United States every year to kill every 
American multiple times. Why are they so concerned about that? And on 
what planet--on what planet--can you maintain that it is making the job 
of the Border Patrol harder because you are making it harder for people 
to enter our country unlawfully? It really defies reason, wisdom, and 
logic.
  It is against this backdrop that we find ourselves today in a 
position in which we have got a war going on half a world away, a 
conflict involving Russia and Ukraine. It is a tragic conflict. You got 
a bad guy, Vladimir Putin, who is messing with Ukraine yet again. 
Without getting into all of the gory details--because this is not the 
focus of my speech today of how that war started, why it has been 
dragging on so long--there is renewed push to send more U.S. assistance 
to Ukraine, to send some additional aid to Israel. The votes aren't 
there to get it passed through both Houses of Congress. So for that 
reason, they have married up the project of getting more money to 
Ukraine--you know, it is a $106 billion aid package. We still don't 
know exactly who would get how much; we still

[[Page S242]]

have yet to see bill text on any of that. But we are told that the 
majority of that money would go to Ukraine. About $12 billion of it 
would go to fund Ukraine's ongoing civilian government, pay the 
salaries of its civil servants, and pensions, things like that. A lot 
of it involves direct military assistance. Overall, we expect about $62 
billion or so of the $106 billion would go to Ukraine.
  The votes aren't there to get it, so some Members of Congress, some 
Members of the Senate, including both the Democratic leader and the 
Republican leader, have decided to try a somewhat innovative approach: 
combine the supplemental aid package with a border security package; 
marry them up, and then maybe you can get enough votes for both of 
them.

  I understand why they have come to the general conclusion. I 
understand that sometimes you have to pair one thing up with another 
thing in order to build a consensus necessary to get either passed. It 
is a common technique used, and I understand it. It is understandable, 
certainly, why they would want to use it here.
  But I believe there are some real problems with the manner in which 
we are going about that particular effort, starting with the fact that 
it presupposes on the border security front that the reason for the 
current border surge, for the absolute humanitarian crisis unfolding 
along our southern border over the last 3 years and over the last few 
months in particular, is somehow the product of inadequate legislative 
authority on the part of the President of the United States and those 
answerable to him and charged with enforcing Federal law.
  It is not. It is not for want of adequate legislative authority and 
the executive officials charged with administering those laws; it is 
not for lack of any legislative authority on their part that we have 
this border security crisis.
  The exact same statutes were in place when Donald Trump was President 
of the United States. Donald Trump faced, as we all recall, some rather 
significant border surges as the cartels were pushing people 
increasingly into this country and making a lot of money smuggling them 
into the country. He utilized existing law to bring that crisis under 
control. Those same laws are in effect today.
  President Biden could, should, and would be able to fix this if only 
he had the will, the willingness, to do it. In fact, if only he didn't 
have this defiant attitude that convinces him that he would rather help 
the drug cartels and poor middle-class Americans living in border 
communities and everywhere else in the United States. Shame on him for 
not using those.
  Now, the skeptic will immediately say: Oh, yes, yes. But that was 
title 42 authority. Title 42 authority kicked in only because of the 
COVID pandemic in 2020.
  That is not really true. Look, he did use title 42 authority, and 
that was pegged to the pandemic. But the crisis was mostly resolved. He 
was bringing it to a close by the time anyone had even heard the cursed 
word ``COVID'' or ``coronavirus'' in 2020. It was already well on its 
way to being a thing of the past, all without title 42. Sure, title 42 
didn't hurt, and it helped close the gap even further to the point 
where we had effectively ended illegal border crossings in 2020. We 
were well on our way in that direction.
  The biggest single step with that was not, in fact, title 42; it was 
the ``Remain in Mexico'' program, also known as the Migrant Protection 
Protocols--an international agreement whereby the United States 
effectively entered into a safe third-country agreement with Mexico. If 
you crossed into our southern border--into our country across our 
southern border by land--and thereafter claimed asylum, you were asked 
where you were from, and you were returned back to Mexico because you 
were deemed eligible to apply for asylum in the first safe country that 
you crossed into, or at least the country through which you were 
crossing before entering the United States. So they were returned to 
Mexico. Asylum applicants applying for asylum, appearing, crossing over 
land, were told that they would have to wait while their asylum 
application remained pending in Mexico.
  This worked like a dream. This dramatically reduced illegal border 
crossings. It took a significant amount of time by President Trump, by 
Secretary of State Mike Pompeo, by various Department of Homeland 
Security officials, and a number of other members of the President's 
team in order to negotiate the terms of the ``Remain in Mexico'' 
program. And once in place, it worked like a charm. It worked really, 
really well.
  You see, because this is where a lot of this migrant surge phenomenon 
comes from. We have laws in place that offer asylum. Asylum is 
something that we offer to people who are wanting or needing to come to 
the United States because they have been targeted for some type of 
persecution based on their status. You know, we are a nation of 
immigrants. We always have been. I hope we always will be a nation that 
welcomes immigrants. And we do. We welcome them a lot. We want them to 
come the legal way.
  One of the ways in which we welcome immigrants is through our asylum 
laws. Now, you do have to satisfy certain statutory criteria in order 
to even be deemed eligible for asylum.
  Over the last few years, the vast majority of the people who cross 
our borders without documentation and thereafter apply for asylum are, 
ultimately, deemed ineligible for it. I have heard numbers ranging from 
about 90 percent to 98 or 99 percent. I don't know where the actual 
numbers shake out. I think they vary from time to time. But we are 
talking about at least 9 out of 10--often more than that--who are not 
eligible.
  So when you have people come in and apply for asylum, the way that it 
is supposed to work is they are supposed to be detained until such time 
as their asylum claims can be adjudicated by an immigration judge. They 
can be found either eligible or not eligible for asylum. If they are 
eligible: Welcome to America. You are now a refugee. Come on in. And we 
welcome them.
  But if they are not, they are supposed to be removed--removed--sent 
outside the United States; typically, back to their country of origin.
  The problem has been that we have somehow gotten confused. We have 
gotten confused over the fact that we are, in fact, supposed to detain 
them until such time as their asylum application could be adjudicated.
  We have got it so confused that, over the years, it has morphed into 
this monster that the drafters of the asylum laws who put it in place 
would scarcely recognize. It has morphed into this weird thing where 
they come in, they say: I want asylum.
  And today they are told: OK. Fill out the paperwork. Tell us why you 
want asylum.
  Then they are told: OK. We are going to hold you for a few days.
  Then they are told: Oh, our bed space is all full so we can't detain 
you any longer.
  Then they are told not that they are going to be sent back to their 
own country, not that they are going to be sent back to Mexico, as they 
would have been, as they were being under the Trump administration, 
under the migrant protection protocols, also known as ``Remain in 
Mexico,'' but here is a plane ticket. We will fly you anywhere you want 
in the United States, on us.
  And unlike, amazingly, American citizens, all of whom have to produce 
a driver's license in order to board a plane, you don't have to worry 
about that. We don't really know who you are, whether you are who you 
say you are. But, yeah, go ahead. Here is the plane ticket. We will 
make sure you get on that plane, and we will fly you anywhere you want. 
And as for your asylum application, don't worry about that. We just 
humbly, politely, ask that--at some point, you are going to have an 
immigration hearing. We ask you to show up to it.
  And, by the way, if you enter the United States without documentation 
right now and apply for asylum and get one of these plane tickets and 
they tell you, ``We hope you will show up for your asylum hearing 
before the immigration judge someday,'' guess when that will occur? A 
week? No, longer. Six weeks? No, longer. Six months? Longer. Now it is 
in the mid-2030s. We are talking a decade or more away from today. So 
have fun. Enjoy the plane ticket on us. Go to wherever you want in the 
United States.

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  Oh, by the way, after 180 days, we will even send you a work permit 
allowing you to work while you are here, even though you are without 
documentation. We will fix that. We will just make you documented just 
because you have said you would like to apply for asylum.
  This is insane. Of course, we have had 10 million people come into 
this country illegally. When we run it like that, who wouldn't want to 
come to America? It is the greatest country on Earth. But the problem 
is, this is really dangerous. It is dangerous for those being human 
trafficked. It is dangerous for all the people in America who are being 
killed--100,000 last year killed by the fentanyl these guys are 
bringing across. It is dangerous for our communities. It is dangerous 
for people who are losing their jobs because their jobs are being 
replaced by people who shouldn't be here to begin with. It is dangerous 
for those who are the victims of crimes that those people who shouldn't 
be here in the first place commit while they are here--like 10 million 
people.
  Among 10 million people, you are going to have some bad ones. I am 
sure you will have a lot of good people, too, who are just trying to 
get by, just trying to make a living and not be in a country where they 
feel they can't get ahead, but it doesn't give them a right to be here. 
Our asylum laws sure don't.
  I will tell you why. It is because our asylum laws do not confer an 
individual right on anyone to asylum--no. This is a discretionary 
authority given to the Secretary of Homeland Security that he may--he 
may--grant asylum to those people who fit the criteria for asylum. He 
may.
  Remember, you are supposed to keep them locked up. You are supposed 
to detain them until such time as you can adjudicate the legitimacy of 
their asylum claims in an immigration hearing, and then you are 
supposed to deport them if they are not eligible and let them in only 
if they are.
  But, instead, we run out of bed space, processing capacity, and we 
say: Ah, forget it. Here you go. Come on in. We will send you a work 
permit in 180 days.
  So, of course, we are going to have this problem.
  Then, somehow, that wasn't even enough by itself. I don't know 
exactly why because the asylum track was working real well for the 
Biden administration to invite more and more drug cartel activity, 
enriching the drug cartels to the tune of tens of billions of dollars a 
year. But maybe it wasn't quite enough for the big guy. Maybe he wanted 
more to come in.
  So what did he do? Well, he looked for other loopholes to exploit in 
our immigration laws. So he turned to the parole provisions. Now, 
parole, when we use it in the immigration context, is typically not 
talking about what you think about when somebody is out on parole from 
prison.
  This is immigration parole. It involves a very specific type of 
relief that the President and those working under him in the area of 
homeland security may grant. Again, there is no right to parole any 
more than there is any right on the part of any individual to asylum. 
It is a discretionary grant of authority.
  But it is a narrow one. It is one pursuant to which the President or 
those answerable to him in the homeland security arena may allow 
someone in for two possible purposes: either for a discrete, distinct, 
individualized humanitarian need--now, the classic example of this, the 
longtime understanding of what that encompasses, it would involve 
someone outside the United States who doesn't have a visa to come into 
the United States but whose grandmother is dying or has just died, and 
he needs to attend the funeral. Parole authority can be granted for 
humanitarian purposes in that circumstance, with the understanding that 
he will leave in a few days after the funeral is over.
  It could maybe be somebody outside the United States who doesn't have 
a visa here who has a rare medical condition, treatment for which is 
available exclusively in the United States. He needs to come in for a 
few days to get that procedure, be treated, with the understanding he 
will leave soon after getting the treatment.
  The other prong of parole, immigration parole, exists in the public 
need, the public purpose arena, where, for example, someone speaks an 
obscure language not typically spoken in the United States and somebody 
is on trial in a court somewhere; they need an interpreter, someone who 
can speak that very rare language. They can't find one in the United 
States. They want to bring an interpreter in from another country who 
can speak that language so the person can be afforded due process and a 
fair trial. That is the type of public need that can be filled with the 
parole authority loophole.
  But it has always been understood, it has always been the law that 
parole is not to be granted en masse. It is to be granted on a case-by-
case, individualized basis with individualized findings in all 
circumstances, nor is it supposed to be open-ended. Parole is not a 
visa. It is a temporary grant of permission to enter the country for a 
brief period of time, with the understanding that when that need is 
over, in a finite period of time, the person will leave.
  So the Biden administration has now used parole--I believe, last 
year, last year alone, it was about 700,000 people, undocumented, who 
were brought into the United States specifically using this parole 
authority. Now, these were not individualized determinations. These 
were not 700,000 individual people saying: I have a specific need. My 
grandma is dying or I need a kidney transplant or whatever it was--or I 
speak this obscure language nobody else speaks, and I am going to 
provide interpretation services in a court, and I need to get in so I 
can get out after doing the job. No. These were massive-scale grants of 
authority--of permission to enter the United States under the parole 
authority.
  So it is against this backdrop that we have to get back to this 
supplemental aid package. The supplemental aid package promises, OK, 
let's make lemonade out of lemons. We have got a lemon in that the 
Ukraine aid can't pass by itself. So let's make lemonade out of it by 
getting those who want to make sure that we give lots of money to 
Ukraine--let's pair that up with votes from people who really want to 
make sure the border is secure.

  It is really sad, if you think about it, that we are not all in that 
boat. I mean, look, people can reach different conclusions. Reasonable 
people can take a different conclusion as to whether, to what extent, 
in what way we are going to help Ukraine enforce Ukraine's border. That 
part is considered sort of optional in that it is not our border.
  Our border shouldn't be optional. That is not an extracurricular 
activity for us. That is the core of what we are supposed to be doing. 
Article I, section 10, clause 3 and article IV, section 4 will make 
that clear, as will a number of other provisions of the Constitution 
and in Federal statute. This is not optional.
  But getting back to that compromise: So the idea is to marry up those 
who really want border security--unfortunately, it is not all of us--
with those who want to make sure that we get money to Ukraine so that 
Ukraine's border can be protected. It is against that backdrop that I 
have just been describing that we are faced with that set of issues.
  So we are told that what we are going to do is negotiate our way into 
passing new border security statutes and that those statutes will then 
end the border security crisis created willfully by the Biden 
administration's vehement, defiant refusal to enforce the law.
  Wait a minute. Why would we expect them to enforce a new law when 
they are not enforcing the old law? I am confused. Moreover, if we are 
going to negotiate this, doesn't that send the message to the rest of 
the country--the incorrect message--that if this project fails, that 
President Biden is somehow justified in not doing it because, oh, well, 
Congress didn't pass the law. I would have enforced the law. I haven't 
enforced the border for years, the whole 3 years I have been President 
of the United States, so I guess I can't enforce it now, but I would 
have under a new law, but I won't under existing law.
  Why should we take that seriously? Heck, there are a lot of Americans 
who are looking at this, asking: Why we are willing to spend so much 
money on other countries and securing their borders but not our own? 
How can we look

[[Page S244]]

those constituents in the eye, knowing full well that, so far, 
according to the Heritage Foundation's estimates, this war, our support 
of this war, of Ukraine since this war started, the $113 billion that 
we have provided, more than any other country on Earth by far, $113 
billion of hard-earned American taxpayer dollars--that is real stuff. 
According to the Heritage Foundation, that amounts to about--it is over 
$900 per American taxpayer on that conflict.
  Even at the height of the multiple wars that we were facing in 2008, 
where we were fighting wars not through a proxy, not just by providing 
military aid, but we ourselves were fighting wars, in Iraq, in 
Afghanistan, and to a degree in Syria--even that year, at the height of 
that conflict, the cost per taxpayer was more in the range of $700 or 
so.
  But just so far, in the existence of this conflict, we have spent 
$113 billion already on Ukraine. The American taxpayer is now being 
asked to spend another $62 billion on Ukraine when we still haven't 
secured our own border. And it is against that backdrop that we are 
saying: OK, then we will negotiate into this new border security laws.
  Now, look, I would imagine there are a few of us who wouldn't vote 
for all kinds of things, wouldn't at least consider voting for all 
kinds of things if we were assured, if we really were certain, if we 
could see the future and predict with a high degree of certainty that 
if we voted for x, y, or z, whether it is Ukraine funding or something 
else, that the border would be secure and that it wouldn't be secure if 
we didn't vote for that thing.
  But I don't know how I can look my constituents in the face and tell 
them: Yes, we have got to spend this additional money here in order to 
get new laws so that President Biden can now enforce the border when I 
know full well and many of them know full well that he could enforce 
the border now if he chose to do so.
  So I struggle with the premise of this at the outset, and I think it 
does send the wrong message. But the wrong message is only the 
beginning of my concern with this. The next step: We have got language 
that has been under negotiation I believe since October. October, 
November, December, and we are most of the way through the month of 
January. So we are like 4 months into this thing, into this 
negotiation. Yet we still have yet to see legislative text. It is a 
little frustrating.
  But what little we do know about it, what little we have been told, 
what little we have been allowed to see--I mean, I feel like a 
character in ``Oliver Twist,'' asking, ``Please, sir, may I have some 
more?'' when I am told just crumbs of details about what is in this 
legislation.
  What we do know is a little concerning; I will be honest. So we have 
the asylum problem. We have the parole problem. As far as I can tell, 
there is no agreement at all. There is not even hope of an agreement on 
the immigration parole issues, such that we would shut down the 700,000 
or so people who were unlawfully brought in under parole authority in 
the last year alone. From my understanding, there is no agreement at 
all that would shut that down.
  And what discussions have occurred around parole deal with custodial 
parole issues, involving some of these illegal immigrants, which is 
different than the immigration parole provisions that we are 
describing. It doesn't deal with that.
  It does, apparently, tighten the asylum standards in ways that I am 
told will be helpful but in ways that I have yet to be able to evaluate 
because I haven't seen the text of the language. It tightens the asylum 
standard. That might prove to be a nice thing to have. I don't dispute 
that.
  But is that what is going to make the difference between the utter 
defiant nonenforcement of our border and the laws that govern our 
border and the admissibility of individuals outside of the United 
States who want to come into the United States? No. No, it doesn't 
because it remains the case today that asylum is a permissive grant of 
authority to the Secretary of Homeland Security and not a right--not a 
right on the part of any individual.
  And when the system is overwhelmed, the proper remedy should, in 
fact, be: You are not coming in. We are shutting this down. I, the 
Secretary of Homeland Security, am declining to grant or process any 
more asylum applications until we can get this under control. So it is 
shut down.
  That leads me to another feature that we have been told just a little 
bit about as to the new proposal: that it creates a new authority 
whereby the President and the Homeland Security Secretary can just shut 
down illegal crossings along the southern border; that they can do it, 
if they choose, once we have 4,000 migrant crossing encounters per day. 
And they shall do it once we have at least 5,000 migrant crossing 
encounters per day.
  It sounds intriguing. I really want to see this language. There are a 
thousand different ways that could be written. And that, too, could be 
helpful, but there are things about it that also scare me to death--
things that, if they are written just a little bit wrong, could 
actually make matters worse. Let me explain.
  Let's suppose, for example, maybe--just maybe--this is written in 
such a way as to say that, once we have reached 5,000 migrant 
encounters per day, the requirement is perhaps--I don't know this; 
again, I am having to speculate because they won't share the language 
with me or with anyone else--we will not process any more asylum 
applications once we have more than 5,000 migrant encounters per day.
  Let's suppose that that is what it says. If that is what it says--and 
that is a change compared to existing law--that would seem, perhaps, a 
change in the assumption--not just the assumption but the reality--that 
this is a permissive grant of authority. And once you say, ``You may 
shut that down only after you have reached that level,'' then, at that 
point, you have changed the ``may-shall'' nature of asylum, and the 
government is not required to stop processing them, if that is how it 
is written, until we achieve that ``5,000 migrant encounter per day'' 
number.
  By the way, that is a lot of people. That is a lot of people. A lot 
of people live in communities that are a fraction of that size, cities 
or towns that are smaller than that. And when you multiply 5,000 people 
by 365 days, it comes up to 1.825 million people a year. That is a lot 
of people. Is this just resetting the norm, saying that, until that 
point, it is not really a problem? I don't know because I can't see the 
text, but it certainly could mean that.

  And, by the way, even once this authority kicks in--this authority to 
supposedly shut down the border in whatever capacity, whether through 
asylum, parole, or whatever other means they throw in there--they limit 
the number of days in which that can remain in effect.
  I believe the authority, as it was explained to me, would apply for 
up to 14 consecutive days. And what, then they have to reopen it, 
regardless of whether the number of migrant encounters has dipped 
meaningfully? I don't know. But it gets even worse than that.
  They set a maximum number of days in every year that the border can 
remain shut down, under whatever weird instruction they have adopted. 
Initially, I am told, it is 275 days per year. That is at the end. At 
that point, let's suppose you have made it through 275 days total in a 
particular year of the border being ``shut down,'' not being able to 
process more asylum applications or parole, or exercise parole 
authority or whatever it is. But on the 276th day, all the way through 
the end of day 365, it is immigration Mardi Gras. It is a carnival 
ride. It is everybody onboard the fun train; this is going to be great. 
And the cartels are going to make even more money.
  And they say: Well, the cartels won't put up with that.
  Nonsense, the cartels are sophisticated enterprises that make tens of 
billions of dollars a year just on Joe Biden alone. You are telling me 
they are not going to counter around this thing to make even more 
money? I have a bridge to sell you if you think they are not.
  It gets even worse than that. You see, 275 days per year is only the 
limit in year one. From there, it ratchets down. By the second or third 
year, it ratchets down to a maximum of 180 days a year that the border 
can be deemed shut down under this new authority.
  Why in the Sam Hill would we agree to that? Why would we do that? Why

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would you want to limit to less than half of the total number of days 
in a year, regardless of what is happening along the southern border, 
the time in which that border authority can be deemed shut down? I 
don't understand it. And it gets even worse than that.
  With regard to parole authority, the number ``180`` appears, 
apparently, in this legislation not once but twice--once in the one 
that I just mentioned, a maximum of 180 days that the border can be 
shut down under this new authority that, apparently, allows them to 
stop processing asylum applications, which they already have the power 
to do, but it appears a second time. You see, currently, there is a 
180-day wait between the time an asylum application is processed and 
then given a plane ticket to the destination of their choice in the 
United States. On the plane, they can board without providing any 
documentation of their identity--not even a driver's license from their 
home country. They just get onboard. There is a 180-day wait from the 
time that they board that plane until the moment they receive their 
work permit, which they really shouldn't have because we shouldn't be 
processing them and letting them in unless or until such time as they 
have been deemed eligible for asylum and granted asylum--but whatever.
  They are at least given this 180-day mandatory wait period under 
current practice. They get rid of that in this proposal--no 180-day 
wait. You show up, and, as long as you are not in one of those 180 days 
of the year when it is going to be shut down, we will get you 
processed, and we will send you away from that detention facility, 
before you board the plane, with your work permit already in hand.
  This is nuts--absolutely nuts.
  Now, look, I have great respect for my colleagues who are trying in 
good faith to work through this. I love my colleague, the senior 
Senator from Oklahoma, Senator Lankford. He is one of my favorite 
people, not just in the Senate but one of my favorite people, period. I 
know he is doing the best job he can, and he is working under strict 
orders, not of his own choosing. I have deep respect for him, and that 
remains despite any differences we may end up having on how we vote on 
this legislation.

  Nonetheless, I don't understand. I don't understand, in part, because 
they haven't been willing to share the text with me when I ask why we 
can't see the text. It is typically something we do because we make 
laws here. That is our job. We make laws. Laws consist of words. Words 
have meaning. We need to see the words well in advance of the time when 
we plan to pass them. But when I have asked for legislative text on 
this one, I am told: Well, it is not all in one place. It is in lots of 
different documents.
  Well, that is fine. Look, for many years, as a lawyer, I was 
constantly dealing with documents that we were putting together that 
contained input for many, many lawyers. And I had to deal with 5, 10, 
15 different documents at one time and try to synthesize them all. I 
can handle that. Everyone here can. Those who have practiced law or 
engaged in some other occupation have had training that allows us to 
read and understand things. And we have smart people who work for us 
who can help us put it all together. But, no, we still can't see it.
  So, anyway, my point is, I have great respect for Senator Lankford, 
and I absolutely love the guy. But I have deep concerns with what 
little I know about this, and this is all I have to go on.
  I hope he can understand my frustration with the process that tells 
me I can't see it, even though I know darn well the day is going to 
come when, if they get a deal, we may not have much time to review this 
thing--it happens from time to time--when the law firm of Schumer, 
McConnell, Johnson, and Jeffries, as it is currently comprised, spits 
out legislation, and we are given hours, or maybe a couple of days, to 
read it.
  That is not cool. It happens all the time with spending legislation. 
It shouldn't. It is a barbaric practice. It is exactly why we are $34 
trillion in debt. It should never happen when we are dealing with 
something as fundamental to our safety and security as this 
legislation.
  To put it in context, the last time we undertook a major border 
security or immigration law overhaul, about a decade ago, we had that 
pending before the Senate Judiciary Committee in markup for an entire 
month. A Judiciary Committee markup usually takes an hour or 2, 
sometimes 3 or 4, for a really long one. This one took a month because 
this stuff is really complicated. And so it is staggering to me that 
they would even consider rushing this through if and when they have a 
deal.
  Other things that concern me within what little we know about the 
legislation: I am told that there will be 50,000 additional new 
immigrant visas granted in this provision and then an additional number 
of people--some have estimated in the tens of thousands and others have 
estimated in the hundreds of thousands--of work permits that will be 
issued, attached to other nonpermanent visa holders who are members of 
the nonpermanent visa holders' family, who are adults but not 
authorized to work. This would allow them to work. Some may have 
concerns with that.
  I remember, over the years, one of the many things that I have tried 
to fix in the immigration system. It has long been my belief that you 
can fix our immigration code best if you target each particular issue 
as narrowly as possible and don't load everything up all in one bill or 
else the thing is going to fail.
  I have tried for many years to end a discriminatory provision in our 
immigration laws that is strongly biased against people born in heavily 
populated countries, like India, for example. If you have two 
immigrants who were eligible for an immigrant visa, whether work-based 
or otherwise--but, for the work-based immigrant visas, you have two 
people equally eligible for a visa. One was born in Luxembourg and the 
other in India. The person born in Luxembourg, just by virtue of the 
fact that that immigrant came from a small country, with a small 
population, might have that visa application processed and be in the 
United States in under a year. The person from India might be on a 
waiting list for 80 years simply because of this discriminatory feature 
put in place, most likely for racist reasons many decades ago, to keep 
certain people that perhaps race-minded lawmakers--the racist lawmakers 
at the time--might have considered undesirable. I have been trying to 
fix that for a long time.

  We finally passed something out of the Senate a couple of years ago 
that fixed this. It was a miracle. It took forever to get this done. I 
have been working on it for about a decade. It should have been a real 
layup to pass in the House because there were 350 cosponsors of the 
same legislation in the House, and they couldn't and wouldn't get it 
done.
  Anyway, I bring all that up to say that we moved Heaven and Earth to 
get that fixed without adding a single new visa--not a single new 
visa--to the visas allocated under existing law. Why? Because a lot of 
people were opposed to that.
  I was falsely accused at the time by people who misinterpreted it as 
granting all kinds of new visas. It didn't grant a single visa because 
we knew that would be very controversial. But to add 50,000 immigrant 
visas and perhaps tens to hundreds of thousands of additional work 
permits on top of that is not going to be noncontroversial.
  You add to all of that the fundamental fact that Joe Biden could end 
this border security crisis right now. He could do it.
  First, stop taking down the barrier in Texas. You are embarrassing 
yourself, and you are endangering our country. Don't do that. You know 
better. Shame on you, sir.
  Secondly, after he does that, he could and he should restore the 
migrant protection protocol, the ``Remain in Mexico'' program. This was 
in place the day Joe Biden was sworn into office back in January of 
2021. It was doing great. President Trump handed over the cleanest 
border we have had in many decades to Joe Biden, and he messed it all 
up with the stroke of a pen. He backed out of the ``Remain in Mexico'' 
program. He canceled it. He was later ordered to reinstate it after 
lengthy litigation concluded that he acted unlawfully in getting rid of 
it. He continued to drag his feet. To this day, he hasn't done it. He 
could do it. He won't, but he should. I ask him to reconsider today.

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  The fact that he is not doing this indicates that he and those who 
stand with him in this body are not acting in good faith. They are not 
negotiating in good faith. They cannot--must not--be deemed to be good-
faith negotiators on this issue. Why? Because he refuses to enforce the 
laws that he has.
  If for the sake of tightening some language here or there in yet-to-
be-seen, yet-to-be-understood ways--in ways some have described as 
ambiguous and uncertain--if that is the primary thing we are getting, 
is the tightening of the asylum standard, but we might also be limiting 
the ability of the current or a future President to halt the abuse of 
asylum and parole, then we can't do this. We shouldn't be doing this at 
all. It sends the wrong message.
  Look, the bottom line is this: I think we are back to the point where 
maybe we ought to just try to pass these separately. If you can get 
Ukraine supplemental aid passed, fine. Go at it. If you can somehow 
come up with a deal that actually closes the border security gaps and 
actually forces the President's hand and places some accountability on 
him, then I will consider that, too. I may even vote for it if it does 
the job, notwithstanding the fact I have concerns about sending another 
$62 billion to a country where we have already spent $113 billion--$900 
per U.S. taxpayer. But I would consider it if it actually fixed the 
problem.
  I think there are ways to do it. One good way to start as a starting 
point is to take border security language already passed by the House 
of Representatives. I know people have said: Well, that can't pass 
here. Well, we don't know that because we never tried attaching that to 
other legislation, like the Ukraine-Israel supplemental aid package. 
Then add to that border security measures that would tie the 
expenditure of this $62 billion that is supposed to go to Ukraine--tie 
the release of that in phased packages over the next year--or whatever 
the increment is--to the achievement of certain border security 
metrics, goals. They can bring that down to what they themselves have 
said is tolerable.
  I believe the Border Patrol has said they maxed out when they get 
about 500 daily migrant encounters. If we could reduce it down to that 
and the administration starts enforcing the law and actually starts 
refusing to let people in after they can no longer process them and 
reinstates the migrate protection protocols--the ``Remain in Mexico'' 
program--that will help bring this down to less than 500 migrant 
encounters per day. If you phased the release of the Ukraine funding 
under the legislation that way, then Members of both parties could have 
some assurance that this might make a difference.
  But, alas, there is no provision in this, no provision being 
negotiated. It is stunning to me that there isn't. There should be. The 
reason I say that is because we have had countless conversations within 
the Senate Republican conference where Member after Member after Member 
will propose something like that.
  My friend and colleague, the senior Senator from North Dakota, John 
Hoeven, is one of the first to raise the idea and has been among the 
most impassioned advocates for it, saying: Let's tie the Ukraine 
funding to the achievement of certain border security metrics and other 
border security measures we might add to it. That will give everybody 
the confidence that we need that this will make an actual difference.
  I believe he was the first one to suggest it. He has probably made 
that argument as often as or more often than any other Member of the 
conference, but he is not alone. I think I have heard dozens of 
Republican Senators say something similar. It is true. I have heard 
maybe one or two--three at the most--Republican Senators 
express reservations with that, but many multiples of that speak out, 
saying: Yes, this would be a good thing. Yes, this could bring a lot of 
us on board.

  Yet, regrettably, my friend from Oklahoma was instructed not to even 
seek that. Why? Why do that? If we can't even tie the expenditure of 
the Ukraine funds, which we know the administration cares about dearly 
for reasons I cannot comprehend. He cares so much more about Ukraine's 
border security than ours. I understand his desire to stop Vladimir 
Putin. Vladimir Putin is a bad guy.
  I wish he would recognize, by the way, the things we could do with 
energy policy that might help in that direction. If the United States 
had been exporting this whole time large quantities of LNG, maybe that 
would help, because Russia is funding this war and so many other things 
through its hegemony of the European energy market. There are all sorts 
of things we could do to help him.
  He remains concerned about this and wants to spend more and more 
money on military aid to Ukraine. But if he really cares as much as he 
does about Ukraine and he wants to get that funding done, I strongly 
advise him to consider an option like what I just described.
  Let us tie the release of the Ukraine funding. Let it be rolled out 
in staggered phases as the Biden administration achieves certain border 
security metrics and restores confidence--the confidence not just of 
Members of the Senate and the House but of the American people. I think 
that might work.
  If something like that gets packaged right and contains the right 
reforms, it might even get my vote. I am not somebody who is eager to 
vote for that, but I really want to secure the border because America 
is a less safe place every day Joe Biden continues to enrich drug 
cartels and subject women and children to sex slavery and indentured 
servitude.
  We have a duty here to make sure we pass good laws and to make sure 
those laws are enforced as they are supposed to be. When they don't 
enforce them, we shouldn't reward them by funding every pet project 
that the incumbent administration deems important. Sometimes we need to 
insist that they do their jobs. If we reward bad behavior, we are going 
to get more bad things, and it will be dangerous for the American 
people.
  I believe in this country. I believe in the American dream. That 
dream is becoming more distant every day lawlessness prevails. We can 
restore it. We can recapture it. But we do have to insist that our 
border be secure. It is not. May we make it secure once again is my 
entire endeavor in giving these remarks tonight.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Hassan). The majority leader.

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