How You Know They're Not Serious About "Securing the Border"

Have you seen this ad? We're told that S.744 (the "comprehensive immigration reform" bill that passed the Senate last month) contains "the tough border security America needs." Sen. Marco Rubio (R-Fla.), one of the "Gang of Eight" Senators who supposedly drafted this legislation,  assures us that the bill “puts in place the toughest enforcement measures in the history of the United States, potentially in the world.” Is that a fair statement?

Last week, I posted a critique of S.744 and detailed some of the problems with the bill's approach to immigration reform. I originally endeavored to go into even greater detail about the language of the legislation, but then I decided that the more tedious analysis belonged in a separate post. So, here, I will analyze with greater specificity where and how the Senate's bill comes up short. First, though, a brief passage on the policy lingo of immigration reform is needed.

The principal responsibility for protecting our country's border security, cybersecurity and economic security lies with the Department of Homeland Security (DHS). DHS is also charged with overseeing citizenship and immigration in the United States. The United States Citizenship & Immigration Services (USCIS) oversees legal immigration to the United States and is the agency that grants immigration and citizenship benefits. Immigration & Customs Enforcement (ICE) is "the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration," according to this thing somebody referred me to.
 

When discussing/debating "legalizing" illegal immigrants, it's important to understand that a pathway to legal status is not necessarily a pathway to citizenship. (To some, any legalization is "amnesty", but that's a topic for a separate post.) S.744 speaks of "registered provisional immigrant status," which if granted would then allow an immigrant to stay in the U.S. legally, without receiving all the rights and benefits of a U.S. citizen. In this post, I'll refer to applications for registered provisional immigrant status by the acronym "ARPISs".

It's also important to understand that, as was the case with past efforts toward "comprehensive immigration reform", the end game of S.744 is to legalize immigrants who are currently in the U.S. unlawfully without requiring them to resort to existing legal channels (which, in most cases, would require them to first leave the U.S. and re-enter the country legally). There are some who are categorically opposed to this, but most Americans who have an opinion on this subject are not. Most members of Congress, too, are willing to support legislation that would provide illegal aliens with a path to legal status or even citizenship, but a lot of them want any legislation that provides such a pathway to address the problem of illegal immigration with, inter alia, more border security, enhanced & increased "interior enforcement" and measures that discourage the wrong kind of immigration (to wit, illegal immigration and the immigrants who come here legally with an eye toward living off the government).

Rubio and other Republican proponents of the bill have insisted that it contains multiple security "triggers" that must be met before any immigrant currently in this country illegally can be legalized. Skeptics have contended that these "triggers" are weak, meaningless and/or can be easily manipulated/circumvented to fast-track the legalization process. Many Senators offered amendments to S.744 (discussed herein) that would strengthen the triggers or add additional preconditions to legalization.

You've probably heard of the "border surge" provisions in S.744. In the bill, what some are calling "the Border Surge" is part of the Comprehensive Southern Border Security Strategy. I'll just call it the Border Surge. There's also the "Southern Border Fencing Strategy," which is exactly what it sounds like. (S.744 requires the `Southern Border Fencing Strategy' to identify "where fencing (including double-layer fencing), infrastructure, and technology, including at ports of entry, should be deployed along the Southern border.") "E-verify" refers to a mandatory employment verification system required by current law  that the federal government never got around to implementing (at least not as originally conceived). There is currently a federal employment verification program in place, but it is not very potent or effective.

Now to the "triggers." I haven't read and analyzed the entire bill yet, so I can't tell you exactly what's in it. However, I can say what's not in it, and that's critical. By looking at what the proponents of this legislation voted against, you can see that they're not at all serious about border security.
 

Six weeks ago, the Senate agreed to table (kill) an amendment by Sen. Chuck Grassley (R-IA) that would have allowed DHS to begin processing ARPISs only after the Secretary of Homeland Security has certified to Congress that "the Secretary has maintained effective control of the Southern border for a period of not less 6 months." Such a nebulous standard could hardly be regarded as a serious precondition, so it should come as no surprise that Handsome John Thune's amendment, which contained more specific prerequisites, was also defeated by a vote of 39 to 54. Thune's amendment would have required 350 miles of Southern border fencing to be completed before the Secretary could commence processing ARPISs and conditioned any adjustment in the status of aliens who have been granted registered provisional status on the Secretary's written certification that:

• the Comprehensive Southern Border Security Strategy “has been substantially deployed and is substantially operational;” 

• the Southern Border Fencing Strategy has been submitted to Congress, implemented, and is "substantially completed;"
• 700 miles of Southern border fencing “that is double-layered and constructed in a way to effectively restrain pedestrian traffic” has been completed;

•  the Secretary has implemented E-verify; and
 
• the Secretary is using an electronic exit system at air and sea ports of entry that operates by collecting machine-readable visa or passport information from air and vessel carriers.

Note that both Grassley's and Thune's amendments suffer from the same flaw: The predicate for legalizing illegals is not actually securing the borders but rather the Secretary of Homeland Security's certification that the southern border is secured. (Grassley's amendment also contained a special carve-out for aliens granted blue card status, which is a special legal status for agricultural workers; Grassley’s home state of Iowa is about 95% farmland.) We already know that members of Obama's cabinet have no compunction about lying to Congress, so what good is the DHS Secretary's word on anything?

Later that same day,  Sen. Rand Paul, R-Ky., offered a good fix: require Congress to vote annually for five years on whether the border is secure. "If Congress believes that the border is not secure," the Senator explained in a speech on the Senate floor, "then the processing of undocumented immigrants stops until it is secure." As David Nakamura of the Washington Post reported it:

Paul’s amendment would require the Department of Homeland Security to implement specific border security measures, including hundreds of miles of additional fencing along the U.S.-Mexico border, and provide a report to Congress each year on its progress.

Then Congress would vote annually as to whether the agency had met its goals. Each year, another group of illegal immigrants would earn legal work visas if the metrics are met, Paul said.

This short summation--while accurate and concise--does not do Paul's amendment (styled the "Trust But Verify Act of 2013") justice. Indeed, those who crafted this particular legislation appear to have thought of everything. The bill specified what the Secretary must conduct an annual comprehensive review of and provided specific border security metrics, the progress toward which must be reported on. It stated what the joint resolution affirming that the border is secure must say and prevents the resolution from being amended. It even contained a provision limiting debate on the joint resolution "and on all debatable motions and appeals in connection with such resolution" and curtailing the ability of would-be obstructionists to use parliamentary shenanigans to delay a vote on the resolution or dispose of it without a vote. 

Paul's amendment also addressed the problem of DHS officials using their administrative authority to not enforce the law (as discussed in my earlier post) by prohibiting the Secretary from making "any alteration to the Border Patrol sectors in operation or the boundaries of such sectors" without first notifying both the House and Senate Homeland Security Committees of the proposed change "not later than 120 days before any such change would take effect," by which time Congress could act to thwart any undesired changes. It also required the Secretary to establish a Student Visa National Security Registration System and submit an annual report to Congress that describes the effectiveness with which DHS is screening student visa applicants through the System and "indicates whether the System has been implemented in a manner that is overbroad or results in the deportation of individuals with no reasonable link to a national security threat or perceived threat." And, the amendment capped the number of  applicants who may be granted registered provisional immigrant status under the law in any calendar year at 2,000,000 (a ridiculously high limit, but apparently too low for some people). 61 Senators voted to table Paul's "Trust But Verify" amendment.

Maybe Senator Paul was just asking for too much. (I don't think so, but reasonable minds can differ.)  Sen. David Vitter (R-LA) had a simpler request: Hey, remember that integrated entry & exit data system (a system to track the border comings and goings of foreigners) that was supposed to be developed and implemented under a 1996 law? You know, the one we're still waiting on? Well, forget all the stuff that Paul wanted. Let's just condition the temporary grant of legal status to, or adjustment to citizenship status of, any individual who is unlawfully present in the United States on the Secretary's written certification that that biometric border check-in/check-out system (officially the US-VISIT System) has been fully implemented at every land, sea and airport of entry. Oh, and Congress has to pass a joint resolution stating that this integrated entry and exit data system has been sufficiently implemented, because, you know, we don't trust this administration's word. Senator Vitter proposed an amendment to that effect over a month ago. It even included "fast track" procedures for getting the requisite joint resolution through Congress without unnecessary delay.

Now, it seems that a piece of legislation that basically just says, "Hey, let's incentivize the executive branch to do what they're already required to do by conditioning something that they want but that nobody really needs on them doing that thing they're supposed to do." shouldn't be something that a lot of Senators would find a reason to vote against, but if you view their votes on Senator Vitter's amendment, which was rejected by a vote of 36 to 58, in the context of most of them not giving a damn about securing our borders, then it makes sense. Another amendment, proposed by Sen. Mike Lee (R-Utah), that would have required “fast-track congressional approval” of what the Gang of 8 legislation merely requires the Secretary of Homeland Security to certify was also voted down, 39 to 59.

Enter Sen. John Cornyn (R-Texas), tall, learned and circumspect, a conservative Republican from a state with a large population of illegal immigrants. As the Senate Minority Whip, it's his job to make sure GOP Senators vote the party line on critical pieces of legislation. Cornyn, who was Texas Attorney General before being elected to the U.S. Senate, had criticized the "border-security triggers" in S.744 as "talking points disguised as policy." Could he offer a serious bill for predicating any legalization of illegal immigrants on actual, verified border security measures? Well, a little over a month ago, after the amendments proposed by Senators Grassley, Thune, Paul, Vitter and Lee had all been voted down, Senator Cornyn offered an amendment to the immigration bill that would have kept newly legalized immigrants from becoming permanent residents or pursuing citizenship until certain border goals were met. Those goals were:

• to achieve and maintain operational control of the Southern border;
• to achieve and maintain full situational awareness of the Southern border;
• to fully implement a biometric entry and exit system at all land, air and sea ports of entry; and
• to implement E-verify.

All these goals would have to be met "within 5 years of the date of the enactment of this Act," i.e., the comprehensive immigration reform bill. As used in Cornyn's amendment, the term "operational control" meant that, "within each and every sector of the Southern border, a condition exists in which there is an effectiveness rate, informed by situational awareness, of not lower than 90 percent." The term "situational awareness" was defined as "knowledge and an understanding of current illicit cross-border activity, including cross-border threats and trends concerning illicit trafficking and unlawful crossings along the international borders of the United States and in the maritime environment, and the ability to predict future shifts in such threats and trends." The Secretary and the U.S. Customs & Border Protection Commissioner would have to "jointly submit" to the President and Congress a written certification, under penalty of perjury, that the Secretary had met these goals.  This submission could not be made sooner than 9½ years after the comprehensive immigration reform bill becomes law and must include "a comprehensive report detailing the data, methodologies, and reasoning" justifying the certification. And, the Comptroller General of the United States would be required to "review such certification and provide Congress with a written report reviewing the reliability of such certification" and expressing the Comptroller General's own conclusion as to whether or not the specified border goals have been achieved.

The Secretary would still be required to submit a strategy "for achieving and maintaining operational control and full situational awareness of the Southern border" to the Comptroller General, and within 60 days of the submission of such strategy, the Secretary would also have to submit "an implementation plan for each of the border security components of the Department to carry out the Strategy." This plan must include, at a minimum:

• a comprehensive border security technology plan for continuous and systematic surveillance of the Southern border, including a documented justification and rationale for the technologies selected, deployment locations, fixed versus mobile assets, and a timetable for procurement and deployment;
• the resources, including personnel, infrastructure and technologies that must be developed, procured and successfully deployed, to achieve and maintain operational control and full situational awareness of the Southern border; and
• a set of interim goals and supporting milestones necessary for the Department to achieve and maintain operational control and full situational awareness of the Southern border.

It seemed doomed to fail, but Cornyn's amendment had something the others didn't: an appropriate acronym. The Senator dubbed his amendment, "Requiring Enforcement, Security and safety while Upgrading Lawful Trade and travel Simultaneously (RESULTS)," and it fared better with his colleagues than the other amendments I've described here did. Only 54 Senators voted to kill it. Two Democrats, Mark Pryor of Arkansas and Joe Manchin of West Virginia, voted against the Motion to Table, as did Senator Rubio, who had opposed the aforementioned amendments offered by  Senators Grassley, Thune, Paul, Vitter and Lee. (Curiously, Rand Paul voted with the anti-enforcement coalition, but that may have been because of the amendment's hefty cost.) Heritage Action ("The Heritage Foundation’s lobbying arm") urged Senators to vote “NO” on Cornyn's RESULTS amendment "because it fails to solve the enforcement problems in the underlying bill" and would "serve as political cover for [multiple Senators] to justify their support for the Gang of Eight’s amnesty."

So, on June 27th, S.744 passed the Senate, free of any amendments that would require DHS to actually secure the borders before illegal aliens could be legalized. It did include language from a border security and enforcement amendment proposed by Sen. Patrick Leahy (D-VT) and modified by the much-touted Corker-Hoeven Amendment, which inludes a lot of stuff that should turn off congressmen and women  on both sides of the aisle. (Leahy, who "begrudgingly" supported the changes to his amendment offered by Senators Corker and Hoeven, complained that their legislation “reads like a Christmas wish list for Halliburton.”) While Corker-Hoeven does delay the legalization of illegals (No Registered Provisional Immigrants can receive Green Cards until at least ten years after the bill becomes law) and strengthens the border-security "triggers" to legalization, it fails to cure many of the bill's other deficiencies and focuses on border security but not interior enforcement. Then there's the price tag; the CBO reported it would add $38 billion to the cost of the act. At the very least, the amendment added language to S.744 aimed at preventing the abuse of federal benefits by illegals who would be legalized under the legislation, including:

·         preventing immigrants who used a fraudulent or false Social Security number while they were unlawfully present in the U.S. from getting Social Security credits for that period;

·         restricting certain non-immigrant visa holders, such as tourists and foreign students, from accessing Medicaid, SCHIP and Obamacare benefits; and

·         providing that the Department of Health & Human Services may not grant waivers to states to allow them to use Temporary Assistance for Needy Families (TANF) dollars to give cash assistance benefits to registered provisional immigrants.

That ad I mentioned at the beginning of this post calls the Border Surge "the toughest border security plan ever passed by Congress." That it may be, but again, border security is only part of what we need. S.744 falls short of ensuring the aggressive interior enforcement that is desperately needed and eliminating the government-created magnets for illegal immigrants. Also, it fails to predicate legalization on a congressional affirmation of border security or other objectively verifiable metrics. If any of that bothers you, then please contact your Representative and admonish him or her not to vote for any bill that contains the same flaws as the Senate bill. But first, follow us on Twitter.