[Congressional Record Volume 172, Number 97 (Tuesday, June 9, 2026)]
[Senate]
[Pages S2686-S2687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SECURE AMERICA ACT
Mr. MERKLEY. Mr. President, I submit this statement on behalf of
Senator Durbin, Ranking Member of the Judiciary Committee; Senator
Peters, Ranking Member of the Committee on Homeland Security and
Governmental Affairs; and myself.
Federal law prohibits bills enacted through the budget reconciliation
process from effectuating primarily substantive changes to law that are
not related to fiscal policy. The budget reconciliation process is
reserved for changes to the Federal budget and specifically precludes
the inclusion of ``extraneous'' matters, including any provision whose
budgetary effect is ``merely incidental'' to its nonbudgetary policy
components. These limitations on the reconciliation process are
commonly referred to as the ``Byrd rule'' after Senator Robert Byrd,
who championed their enactment. So long as these limitations, among
several others, are adhered to, a budget reconciliation bill can pass
the Senate with only simple majority votes; but any language that does
not comply with the Byrd rule is subject to a point of order that
requires 60 votes to waive. In practice, the minority scrutinizes every
provision of a reconciliation bill and challenges those it believes
violate the Byrd rule in litigation before the Senate Parliamentarian,
which occurs before the Senate considers the bill on the floor. In
response to successful challenges, the majority often strikes or
revises text ahead of floor consideration.
This statement highlights sections of S. 2, the Secure America Act,
the fiscal year 2026 reconciliation bill passed by the Senate on June
5, 2026, to further demonstrate that provisions passed through the
reconciliation process must be read in accordance with the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(Public Law 110-457; 122 Stat. 5044), hereinafter the TVPRA, the Flores
Settlement Agreement, and other applicable laws.
On May 4, 2026, Homeland Security and Governmental Affairs
Committee--or HSGAC--Chair Paul released the
[[Page S2687]]
proposed Senate HSGAC title of what became S. 2, the Secure America
Act. This proposed text included language concerning screenings of
unaccompanied children in Section 3(a)(6) that was identical to Section
90004(a)(6) of Public Law 119-21, the fiscal year 2025 reconciliation
bill commonly known as the ``One Big Beautiful Bill Act.'' The May 4,
2026, HSGAC title also included language to provide funding for the
purposes under title IX of Public Law 119-21, therefore carrying
forward section 90003 regarding detention capacity and section
90004(a)(6) of that law.
The Trump administration is currently relying on provisions of Public
Law 119-21, which are identical to section 3(a)(6) and referenced by
section 4 in the proposed May 4, 2026, HSGAC title, to contravene
legislative provisions for the identification and screening of
unaccompanied children and to override a settlement agreement governing
the care and custody of children detained in U.S. Immigration and
Customs Enforcement and U.S. Customs and Border Protection--or CBP--
custody. For instance, the Department of Justice cited section 90003 of
Public Law 119-21 in district and appellate briefs where they assert
the authority to detain families indefinitely in family residential
centers. In its implementation of section 90004(a)(6) of Public Law
119-21, CBP has changed its screening of unaccompanied children. Under
this new processing mechanism, CBP claims it is now permitted to ask
unaccompanied children from noncontiguous countries to withdraw
applications for admission to the United States. Such substantive
policy overrides would not comply with the Byrd rule.
Given the administration's position on the fiscal year 2025
reconciliation bill, the minority challenged section 3(a)(6) and
section 4 of the May 4, 2026, HSGAC text as violating the Byrd rule
because the administration would again incorrectly claim that this
language constitutes congressional authorization of their new policies
related to unaccompanied children and family detention. The
Parliamentarian sustained the Democrats' challenges to section 3(a)(6)
and section 4, as indicated by a May 14, 2026, press release published
by the U.S. Senate Committee on the Budget. Senate Republicans then
released a subsequent version of the HSGAC title, specifically the text
reported out of HSGAC on May 19, 2026, and the Budget Committee on May
20, 2026, which removed the offending language regarding unaccompanied
children in section 3 and the reference to Public Law 119-21 in section
4. These changes reinforce that neither congressional intent nor
statutory authorization should be read into, or inferred from, either
Public Law 119-21 or the Secure America Act, to change the
implementation of immigration law or override settlement agreements,
including the TVPRA and the Flores Settlement Agreement.
On May 4, 2026, U.S. Senate Judiciary Committee Chair Grassley
released the proposed Senate Judiciary Committee title of what became
S. 2, the Secure America Act. This proposed text allocated funds to the
U.S. Departments of Justice and Homeland Security through fiscal year
2029. It included language in section 3 to provide $2.5 billion for the
purposes provided in the title as well as in part II of subtitle A of
title X of Public Law 119-21.
Since its passage, the Trump administration has relied upon section
100051(8) of Public Law 119-21 to set aside legal protections enshrined
in the TVPRA for unaccompanied children. The TVPRA limits voluntary
withdrawal to children from contiguous countries, and it states that,
absent ``exceptional circumstances,'' children from noncontiguous
countries must be transferred to Office of Refugee Resettlement custody
within 72 hours of entering CBP custody and placed in full removal
proceedings. In a recent letter to Senator Wyden, however, CBP
Commissioner Scott wrote: ``The language in Section 100051(8) of
[Public Law 119-21] makes it permissible to allow certain
[unaccompanied children] who are screened and determined to be
eligible--including those from noncontiguous countries--the opportunity
to withdraw their application for admission and voluntarily return to
their country of origin, if they choose to do so.'' In another telling
example, the administration relied on section 100051(8) in attempting
to overturn a 40-year-old permanent injunction requiring that
unaccompanied children receive written notice of the right to a hearing
in immigration court and access to a telephone to call a responsible
adult or lawyer. As with the HSGAC title, however, such substantive
policy changes would not comply with the Byrd rule.
Given the Parliamentarian's determinations with respect to the HSGAC
title, and in light of the positions taken by the administration that
provisions of Public Law 119-21 override the TVPRA, the minority then
challenged the proposed text of section 3 in the Judiciary title. That
text was also amended in the subsequent version released by Senate
Republicans ahead of floor consideration. In order to meet the
requirements of the Byrd rule, proposed section 3--which became section
203 of S. 2, the Secure America Act--was narrowed to remove references
to provisions related to the treatment of unaccompanied children. The
final language allocated $2.5 billion to the purposes provided in the
Judiciary title or for paragraphs (3) or (7) of section 100051 of
Public Law 119-21 only. Further still, to avoid future misapplications
of funds issued through the budget reconciliation process, in section
202(9) of S. 2, the Secure America Act, provisions funding certain
immigration enforcement actions emphasize that such funds must be
utilized ``in accordance with existing laws.''
These changes reinforce that provisions in either Public Law 119-21
or the Secure America Act are not intended to change the implementation
of immigration law or to override settlement agreements, including the
TVPRA and the Flores Settlement Agreement.
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