If Biden wants a border bill, he’ll need to actually compromise with Republicans 

President Biden may have mentioned the border crisis in his State of the Union (SOTU) address, but his remarks indicate he doesn’t understand the role he played in creating it. 

In her SOTU response for the Republicans, Sen. Katie Britt (R-Ala.) said:  

“President Biden inherited the most secure border of all-time. But minutes after taking office, he suspended all deportations, halted construction of the border wall, and announced a plan to give amnesty to millions.” 

“We know that President Biden didn’t just create this border crisis. He invited it with 94 executive actions in his first 100 days.” 

The head of the National Border Patrol Council, Brandon Judd, also blames Biden for the border crisis: 

"He has put us in the situation that we've never thought that we would ever be in. We're apprehending seven times more people than what we normally apprehend. We have more than 10 times the got-aways. We've got more fentanyl coming into this country than we've ever seen before. We've got more dangerous criminals coming into this country than we've ever seen before.”  

Illegal immigration recently surged to the top of the most important problem list, but it has been a concern for a long time. Former President Bill Clinton expressed his concern about it in a SOTU address he gave 29 years ago: 

“All Americans, not only in the States most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use imposes burdens on our taxpayers. ... We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.”   

Instead of acknowledging his role in creating the border crisis and offering a way to turn the situation around, Biden offered partisan political talking points and complained that the Republicans won’t work with him to pass the Senate Border Act of 2024 (Border Act). 

Although the Border Act does offer some superficial fixes, it would have little, if any, impact on the factors that attract illegal immigration: it’s too easy for migrants without a visa to get into the United States, and they are safe from deportation once they have reached the interior of the country.  

Biden’s SOTU 

Biden claimed that the Senate Border Act has the toughest set of border security reforms we’ve ever seen in this country. It also provides for hiring 1,500 more border security officers; 100 more immigration judges to help tackle a backload of 2 million cases; 4,300 more asylum officers; and 100 more high-tech drug detection machines.  

“But unfortunately, politics have derailed it so far.  I’m told my predecessor called Republicans in Congress and demanded they block the bill. He feels it would be a political win for me and a political loser for him. It’s not about him or me.  It’d be a winner for America!  My Republican friends you owe it to the American people to get this bill done.”    

The Border Act does include an arguably tough provision that would provide authority to shut down the border, but it wouldn’t kick in until the seven-day average number of cumulative encounters with inadmissible migrants averages 4,000 per day. And it would be discretionary unless the seven-day average goes above 5,000 per day — that’s almost 2 million per year.  

In any case, a border shutdown isn’t feasible without cooperation from the Mexican government, and it is far from certain that the Mexican government would cooperate. This provides Biden with a ready-made excuse to say he can’t shut the border down. 

Moreover, the Border Act would not prevent undocumented migrants from using one of the legal pathways the administration has created. This includes special processes for paroling up to 30,000 migrants a month into the country from Cuba, Haiti, Nicaragua and Venezuela, and a Family Reunification Parole Process for certain nationals from other countries.  

It wouldn’t end the CBP One mobile application program either, which permits migrants without visas to schedule an appointment to present themselves for inspection at a designated port of entry. Nearly 250,000 migrants have been paroled into the United States through this program as of August 2023. Parole was granted in 99.7 percent of the interviews.   

And it would not make the administration abandon its enforcement guidelines in which Department of Homeland Security Secretary Alejandro Mayorkas says, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” Enforcement efforts will be focused instead on migrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” 

This shields illegal border crossers who reach the interior of the country from the threat of enforcement action. 

Need for genuine bipartisanship 

Genuine bipartisanship requires cooperation in both directions.   

If Biden really wants a bipartisan border security bill, he can work with the Republicans on combining provisions from the Senate Border Act with provisions from the bill that House Republicans passed last year, the Secure the Border Act of 2023 (H.R. 2). 

The Biden administration has said that it would welcome congressional efforts to deal with the border crisis but that H.R. 2 would make things worse, not better. 

Nevertheless, it is a serious attempt to deal with the border crisis. 

When Congressman Mario Diaz-Balart Introduced H.R. 2, he said, "House Republicans have spent months holding hearings with border patrol agents, local law enforcement, and stakeholders to hear first-hand about their ongoing struggles and what resources are necessary to enhance security and regain operational control.” 

It should be possible to put together a border security bill that would meet the political needs of both parties by combining acceptable provisions from the Senate Border Act with acceptable provisions from H.R. 2.  

The alternative is continuing to raise false hope with bills that have no chance of being enacted. 

 Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at: https://nolanrappaport.blogspot.com