[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
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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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