The Patriot Post® · In Brief: A Dangerous Senate Border Deal

The border bargain in Congress is a bad one, our Michael Swartz wrote last week. Andrew McCarthy goes into greater depth explaining why.

Senator Kyrsten Sinema has lashed out at critics of the Senate border deal. In her defense of the deal … however, the Arizona independent (formerly a Democrat) proves the point that the negotiators contemplate undercutting existing laws that require detention and rapid expulsion of illegal aliens. President Biden has all the authority he needs to address a crisis that he has caused by not using it.

It is quite something for Senators Sinema, James Lankford (the Oklahoma Republican leading the GOP side), and other dealmakers to blast their critics for peddling misinformation when they have yet to release the text of what they say they’ve agreed to. Great work if you can get it.

In short, Sinema said this: “Our bill ends catch and release. It ensures that the government both has the power and must close down the border during times when our system is overwhelmed. And it creates new structures to ensure that folks who do not qualify for asylum cannot enter the country and stay here.”

McCarthy methodically takes that apart.

Catch-and-release is already against the law. Our existing immigration statutes require that illegal aliens who attempt to enter the United States “shall be detained” until the conclusion of their removal proceedings — even if they have an ostensibly colorable fear-of-persecution claim. (Title 8, U.S. Code, §1225(b)(1)(B)(IV).) Catch-and-release is happening precisely because Biden won’t enforce the law, not because we need new authorities. …

So, Senator Sinema, if (a) illegal immigrants are crashing the ports of entry and otherwise sneaking in by the thousands per day, (b) Biden has already released millions into the country even though current law required their mandatory detention, and © we already lack anything close to sufficient detention space even as Biden won’t use the space available, how are you ending catch-and-release?

Next, he adds:

Sinema elaborated that under the deal, illegal aliens who claim asylum at places other than ports of entry would be detained immediately, and remain detained while their claims are adjudicated. But that is what is supposed to happen under current law. Ergo, rather than strengthening border-security law, the senators contemplate markedly weakening it.

Sinema contrasted this treatment of illegal aliens making claims in places other than ports of entry with illegal aliens who make claims at the ports of entry: Under the still-veiled Senate deal, Sinema suggests that they would be permitted to enter the country for 90 days while their claim is decided, and then immediately removed if it is rejected. But those people are supposed to be detained now, throughout their proceedings. If new law were written permitting their release, that would undercut current immigration law, which makes detention mandatory. No one should be fooled by the tough-sounding 90-day deadline: Given the numbers we are talking about, that tight time frame is unrealistic, and the Biden administration would surely ignore it anyway — if the president won’t enforce the detention requirement, what assurance could we have that he’d enforce a mere deadline for hearing and removal? After all, they’re releasing people now with the expectation that proceedings would take years to complete.

The truth is, “The president has all the authority he needs right to shut down the border this second,” McCarthy says. The question this is this: “why tamper with statutes that already mandate detention of all illegal aliens and swift removal of those who have no right to remain?”

National Review subscribers can read the whole thing here.