[Congressional Record Volume 170, Number 88 (Tuesday, May 21, 2024)]
[Senate]
[Pages S3786-S3788]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Border Act of 2024

  Mr. THUNE. Mr. President, April border numbers came out last week, 
bringing us up to more than 1\1/2\ million migrant encounters at the 
southern border so far in fiscal year 2024--1\1/2\ million in just 7 
months.
  Between official U.S. Customs and Border Protection encounters and 
known ``got-aways''--which are individuals the Border Patrol saw but 
were unable to apprehend--we are closing in on a staggering 10 million 
migrant encounters at our southern border under President Biden. That 
is substantially more than the population of New York City. In fact, it 
is more than the population of all but the largest U.S. States, if you 
can believe that. And there are still 8 more months in the President's 
term.
  After 3 years of half measures, deflections, and outright ignoring 
the raging crisis at our Nation's border, the President and Democrats 
appear to have finally woken up to the fact that their border crisis 
might be a major political liability for them in the upcoming election.
  Fear for their election prospects is doing what 3 years of chaos at 
the southern border could not, and that is get them focused on illegal 
immigration--sort of, because the vote on border legislation the 
Democrat leaders announced for this week isn't really about addressing 
illegal immigration; it is about giving the American people the 
impression that Democrats care about illegal immigration.
  If the Democrat leader were serious about addressing the crisis at 
our southern border, he would be bringing up legislation that actually 
stood a chance of making it out of both Houses of Congress and to the 
President's desk, but he is not. Instead he is bringing up a vote that 
he knows will fail in the hope of giving political cover to vulnerable 
Democrats and with the side benefit, he hopes, of putting Republicans 
in a difficult spot--political theater at its finest.
  If the Democrat leader goes through with this vote this week, he 
should expect some difficult conversations. Perhaps he would like to 
explain why, if Democrats are so concerned about illegal immigration 
and securing the border, they have repeatedly banded together this year 
to oppose--to oppose--commonsense amendments that came to the floor.
  You would think that if Democrats were really worried about 
addressing the illegal immigration crisis, they might have supported 
Senator Blackburn's motion to allow State and local law enforcement to 
detain criminal illegal aliens for ICE to deport them. Or Senator 
Lankford's amendment to prohibit funding from being used to release 
special-interest aliens--those are individuals who may pose a threat to 
the United States--during legal proceedings. Or Senator Hagerty's 
amendments to prevent taxpayer dollars from being used to fly illegal 
immigrants into the United States or to have them count in the census. 
The list goes on.

  It is hard to understand why anyone would oppose such commonsense 
measures, and yet all Democrats did. So it is just a little hard to 
swallow their newfound enthusiasm for border security.
  Needless to say, it is not just Democrats in Congress scrambling for 
political cover. The President is also desperately trying to make 
himself appear serious on the border. Two weeks ago, the Department of 
Homeland Security proposed a rule to expedite the deportation of 
criminals and terrorists. But if the President thought this would make 
him look serious on border security, he was wrong because the 
President's new order is a reversal of his own policy, which was 
established earlier in his administration. That is right. The only 
reason the President had to finally allow for the immediate deportation 
of criminals and terrorists is because his administration had created a 
situation that allowed these individuals to stay in the country in the 
first place.
  Look, I am glad President Biden is making a small attempt to clear up 
part of the mess he has made, but I am afraid the ``Vote for me; I am 
cleaning up the historic disaster I have created'' may not be the most 
convincing election slogan.
  Let's be very clear. We are here today with 3 successive years of 
recordbreaking illegal immigration at our southern border because of 
President Biden. On the day he took office, the President began 
dismantling the border security policies of his predecessor that, I 
might add, had been working. Illegal immigration began surging in 
response, and it has never stopped.
  So while I appreciate that my Democratic colleagues would like to 
make it seem like this is a congressional matter in order to take the 
President off the hook and put Republicans on it, the truth is, we 
don't need congressional action to fix the crisis at our southern 
border. President Biden created this border crisis, and he can end it 
today using the very same authority he used to dismantle so many border 
security policies when he became President.
  We have 5 more months until election day, and I suspect this won't be

[[Page S3787]]

the last attempt by Democrats to try to convince people that they want 
to address illegal immigration. But after 3-plus years of a Democrat-
created border crisis, will the American people really believe--really 
believe--that the arsonists who started the fire are really serious 
about putting it out?
  I yield the floor.
  The PRESIDING OFFICER (Mr. Padilla). The Senator from Wisconsin.
  Mr. JOHNSON. Mr. President, I come to the floor today to speak to the 
same topic that my distinguished colleague from South Dakota was 
talking about. He called what was going to happen over the next couple 
of days here political theater. That is pretty accurate. A political 
stunt. Political cover. A charade. Instead of actually securing the 
border, that is what Democrats in Congress, that is what President 
Biden--that is all they are interested in, because, as my colleague 
mentioned, President Biden has all the authority he needs to secure the 
border.
  But I want to spend a little bit of time here talking about the 
bipartisan bill that has been reintroduced that we will be voting on 
again on Thursday, although it failed very quickly because it literally 
was worse than doing nothing.
  But I think the first point to be made is--so the American public 
understands--when President Biden and Democrats in Congress talk about 
securing the border, they are not talking about securing the border the 
way most Americans think about it, like actually securing the border. 
What they are talking about is: How do we make it more efficient to 
encounter, process, and disperse illegal immigrants who are coming to 
this country with invalid asylum claims? How can we encounter them, 
process them, and disperse them as efficiently as possible? That is 
what they are talking about. So don't be fooled when they talk about 
securing the border.
  Proof positive of that is, one of the lead Democrat negotiators in 
this bipartisan bill--let me give the exact quote. He said the bill 
requires the President to funnel asylum claims to the land ports of 
entry when more than 5,000 people cross a day. That is not called 
securing the border; that is just sending the flow someplace else. Then 
the Senator went on and said: The border never closes.
  So, again, when Democrats talk about securing the border, they are 
talking about more efficiently encountering, processing, and dispersing 
people; they are not talking about securing the border.
  I want to start--to prove my point that they were never serious in 
these negotiations other than looking for political cover--with this 
quote that the majority leader gave to POLITICO a day or two after that 
border bill failed. The majority leader said:

       We were playing chess, they were playing checkers, and we 
     ended up with a Ukraine bill.

  He also went on to say:

       We also end up in much better shape on the border than we 
     were three months ago.

  I will come back to this, but let me hit the points now. If you were 
really negotiating in good faith, if those negotiations failed, would 
you literally rub your negotiating partner's nose in the failure by 
claiming: We were playing chess, those knuckleheads were playing 
checkers, and we got exactly what we wanted? I would argue that is not 
the sign of a good-faith negotiation.

  Then, if you were really interested in securing the border, you would 
never make that statement: ``We . . . end[ed] up in . . . better shape 
on the border than we were three months ago.'' Better shape on the 
border would have been actually passed enhanced authority for the 
President to actually secure the border.
  The majority leader thinks he is in better shape on the border 
because he got the political cover he sought, which was his only goal 
in those negotiations.
  Let me spend just a little bit of time describing why that bill was 
far worse--and I mean far worse--than doing nothing.
  This is the border chart I have been producing since I became 
chairman of Homeland Security in 2015. This shows monthly totals of 
encounters on the southwest border.
  You can see, back here in 2014--I have recreated that right here--
that President Obama, when he hit 2,000 people a day, declared that a 
humanitarian crisis. And President Obama was correct; it was a 
humanitarian crisis.
  Now, the solution back then was we started detaining people. We 
started clamping down. We built a new detention facility. President 
Obama actually had success in reducing the flow until a court 
reinterpreted the Flores settlement agreement and said that that 
applied to not only unaccompanied children, forcing their release in 20 
days; it also applied to children accompanied by their parents.
  That was the one court decision that did weaken a Presidential 
authority. But the fact of the matter is, even with that weakened 
Presidential authority, because of DACA, which sparked all this, when 
President Trump faced his border crisis--almost 5,000 people a day in 1 
month--he used the Presidential authority that the Supreme Court, in 
its 2018 decision talking about the Immigration and Nationality Act, 
said that current law exudes deference to the President in every 
clause. It entrusts to the President decisions whether and when to 
suspend entry, whose entry to suspend, for how long, and on what 
conditions. It thus vests the President with ample power to impose 
entry restrictions in addition to those elsewhere enumerated in the 
Immigration and Nationality Act.
  So obviously President Trump was able to use existing authority. He 
closed the border in 12 months--12 months--not through any help by 
Congress passing a law; by using that authority where the Supreme Court 
said the law exudes deference to the Executive.
  Well, when President Biden came into office, he blew the border wide 
open. How? He did it by using that exact same Executive authority that 
exuded deference to the President. He used that deference, he used that 
authority, and he blew open the border, and we see the catastrophe that 
has resulted.
  Now, the problem with this bill is it codifies most of President 
Biden's open border policy. It sets thresholds at 5,000, at 4,000, and 
I will talk about those in greater detail. But thresholds to do what? 
Supposedly to secure the border. No, it doesn't really secure the 
border. Again, it sends those individuals to the ports of entry to have 
their asylum claims adjudicated in a Rube Goldberg-type situation. It 
spends almost $20 billion, this bill--$20 billion--primarily, again, to 
accomplish the Democrats' definition of securing the border, which is 
to more efficiently encounter, process, and disperse illegal migrants 
who do not have valid asylum claims. That is what this bill does. It 
builds more detention facilities. It hires a small number of Border 
Patrol agents--425--but it hires over 4,000 asylum officers to, again, 
adjudicate these claims.
  And they use a new standard now. It goes from a significant 
possibility that these claims are valid to a reasonable. I am sorry; I 
don't see much distinction there. So, again, these asylum officers are 
going to be given all kinds of discretion. These adjudications are now 
going to be done by asylum officers, not by immigration judges.
  So I see nothing in this bill that in any way, shape, or form forces 
a higher standard. It is all subjective. And under this administration, 
the subjectiveness of that I can pretty well guarantee you will 
continue the catastrophe.
  It pays for more detention beds. It pays for alternates to detention, 
which has never worked effectively. But, again, $20 billion of money we 
don't have.
  Now, when President Trump secured the border, he didn't have 
additional funding for that. He didn't have additional Customs and 
Border Protection agents. He used his policies. He used his Executive 
authority--``Remain in Mexico.'' You can't come to this country and 
claim asylum; you have to do it from your home country or stay in 
Mexico to do it. That was a huge deterrent, and the flow stopped with 
safe third country agreements. There were other things. Again, using 
that Executive authority, he secured the border. We didn't need an 
immigration bill--certainly not this Rube Goldberg bill that spends $20 
billion that we don't have.
  Rather than spending all that money to encourage more illegal 
immigrants

[[Page S3788]]

to come to this country, we ought to stop the flow, and then we 
wouldn't have to spend the money. Doesn't that make a whole lot more 
sense? Do what President Trump did: Actually stop the flow. But, again, 
that is not what this bill does.
  I think the worst aspect of this bill--and this is why I always talk 
about it is worse than doing nothing--is not the 5,000 average migrants 
a day, which was--I mean, that is what this would look like if we just 
normalized 5,000 or 4,000. You are just codifying the open border. The 
5,000 threshold makes it mandatory that the President supposedly secure 
the border. Again, it doesn't really define that. I would argue that 
doesn't even secure the border. But it is the 4,000 discretionary 
threshold--that, when average migration, I think, over 7 days reaches 
4,000 a day--a massive number--now the President, it says, has 
discretion to stop processing asylum claims and supposedly secure the 
border.
  Well, why is that problematic? Well, again, the Supreme Court said 
the current law exudes deference. President Trump had the authority. By 
Congress passing a law basically implying the President doesn't have 
the authority to stop processing asylum claims, you are weakening that 
authority. And even worse, that discretionary authority ends after 3 
years. So that bipartisan bill would actually dramatically weaken the 
authority of a President who is actually serious about securing the 
border.

  That is why that bill had to be defeated and must be defeated now. It 
is not a serious attempt. It is a bill that was negotiated in bad 
faith, with the Democrats supposedly playing chess and, unfortunately, 
our side playing checkers.
  Again, it doesn't have to be this complex. Use current authority. 
Take a look at what Trump did. Do that. Don't spend additional money. 
Stop the flow. That ought to be our goal.
  So, again, most Republicans in the Senate conference, we weren't 
looking for an immigration bill. We certainly weren't looking for one 
that weakened the President's authority. We would have been happy to 
strengthen the President's authority. We would have been happy to 
clarify--by the way, Obama's Secretary of Homeland Security, Jeh 
Johnson, completely disagreed with the court decision on the Flores 
settlement. We would be happy to clarify that, no, Flores only applies 
to unaccompanied children. We have that deterrence. We could follow the 
law to detain people who came to this country illegally. We would be 
happy to strengthen authority.
  What we were looking for in a border bill was to have an enforcement 
mechanism that would force President Biden to use the authority he has 
to actually secure the border based on our definition of securing the 
border, the way most Americans view securing the border. Stop the flow 
of illegal migrants that has caused a clear and present danger to this 
Nation. I could go through the list of horribles--the drug traffickers, 
the human traffickers, the sex traffickers, the members of some of the 
most brutal gangs in Mexico, South and Central America, the military-
age men coming into this country. We are going to be dealing with this 
catastrophe for decades--for decades; the rapes, the murders that are 
being committed by people in this country who shouldn't be here that 
have been facilitated by this open border policy.
  Again, Republicans would be happy to strengthen the President's 
authority to actually secure the border. What we are not happy to do is 
engage in this charade.
  Let me end on this note again: Is this the quote of someone who has 
entered into good faith negotiations to develop a bill to actually 
secure the border? This is the majority leader of the Senate, the one 
who is going to engage in political theater again this week, bringing 
up the exact same bill that has already failed. It failed in the eyes 
of the public within 24 hours after the introduction, it was so bad. It 
was worse than doing nothing. But the majority leader seemed to be 
pretty happy with that failed bill:

       We were playing chess, they were playing checkers, and we 
     ended up with a Ukraine bill.

  That is what they wanted. Their primary focus, their priority, was 
providing $60 billion to a bloody stalemate, which, by the way, a 
couple of days after that thing passed, the administration was already 
indicating, well, that is probably not going to be enough. Even though 
the majority leader came out of the White House and said: This is 
simple. Ukraine gets $60 billion, they win. If they don't get $60 
billion, they lose.
  This is a disingenuous quote of a bad-faith negotiating partner. But 
it is also the quote--if you look at the last sentence there--of 
somebody who is not looking to secure the border but was looking for 
political cover. That is all he wanted. That is all the Democrats 
wanted. That is all President Biden wants: political cover.

       We also end up in much better shape on the border than we 
     were 3 months ago.

  Again, the bill didn't pass. I am glad it didn't. It would have been 
worse than doing nothing. But they didn't get a bill to supposedly 
secure the border. And he is happy about it? He has a big old Cheshire 
Cat grin on his face: We were playing chess, they were playing 
checkers, we got exactly what we wanted. And $60 billion to secure 
another country's border, and we can keep our border wide open. We can 
allow this flood of illegal migrants coming to this country. We don't 
care. We want an open border. We know it causes problems. All we want 
is political cover, and we got it.
  We are in a lot better shape passing nothing; not strengthening the 
President's authority to close the border; not having enforcement 
mechanisms to force President Biden, who wants an open border, to use 
the authority to secure the border. No. They got a bill that they are 
going to bring up again. It will fail. They are going to play political 
theater. They are going to use political cover. And they are just happy 
as a lark. They think they have political cover.
  I am hoping that the American public is paying attention to this 
charade, to this political theater, and recognizes that President Biden 
and his colleagues in the Democratic Congress want an open border. They 
caused this problem, and they will do nothing to secure it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. CASSIDY. I ask unanimous consent the Senate start the scheduled 
vote early.
  The PRESIDING OFFICER. Without objection, it is so ordered.