Democrats are trying to pass a right-wing border bill, but the GOP won’t let them

A bipartisan group of Senate negotiators has reached a $118 billion deal that trades sweeping border security measures for aid for Ukraine, Taiwan, and Israel. Unfortunately for them, it’s likely dead on arrival.

In short, the deal proposes new authority to quickly expel migrants arriving on the southern border at times of high demand, amounting to a massive departure from the United States’ historical commitments to asylum seekers. It also looks to close gaps in the legal immigration system that has left everyone from the children of high-skilled foreign workers to Afghan refugees in limbo. Though it’s unlikely to pass, it still matters as a signal of what Democrats are willing to concede on immigration in an election year when it’s become a major flashpoint.

The deal falls far short of the kind of comprehensive immigration reform that Congress came close to passing in 2013 and leaves certain key issues unresolved, including the fate of so-called “Dreamers” who came to the US without authorization as children. It’s scheduled for a vote in the Senate on Wednesday, and former President Donald Trump has urged Republicans not to support it.

Some of the agreed-upon border security measures are ones that Democrats, who staked out a fairly unified position in support of immigrant rights during the Trump era, wouldn’t have dreamed of supporting a few years ago. But the aftermath of Trump’s presidency, which brought about a sharp rightward shift in the politics of immigration, and the ballooning crisis at the border have driven some moderate Democrats to abandon the party line.

What’s in the bill

The White House has framed the deal as a solution to the border crisis, with Biden challenging Republicans to dare to vote against it. “Do they want to solve the problem? Or do they want to keep playing politics with the border?” he asked in a statement. But it’s unrealistic to expect that much from this bill, which includes kernels of actual fixes but is mostly Democratic posturing to look tough on the border.

There’s no question that the situation at the border is dire: The number of times US immigration agents intercepted migrants attempting to cross the border exceeded 300,000 in December 2023, up from about 250,000 in December 2022. That’s more than has been recorded in a single month in over two decades. The numbers are largely driven by migrants coming from Central and South America, the Caribbean, Cuba, and Haiti, though Chinese migrants are the fastest-growing group of arrivals. The US remains ill-equipped to accommodate the migrant masses, with cities across the country struggling to ensure that they receive shelter and work permits.

These are complex problems in need of complex solutions. And the deal in the Senate does not fit that description.

It relies on a new authority that Ben Johnson, executive director of the American Immigration Lawyers Association, described in a statement as “a blunt instrument that puts vulnerable migrants at risk and denies some legitimate asylum seekers life-saving protections.” Essentially, it would shut down the border when too many migrants are trying to enter, with the threshold defined as more than 5,000 people a day on average over a week or 8,500 in one day. Those who are caught trying to cross anyway could be barred from seeking asylum.

There would be limits on this authority in the first year of its implementation, and the president could opt to keep the border open for 45 days at a time, no matter the number of arrivals, if they determine that it’s in the national interest. Immigration authorities would also still have to process at least 1,400 migrants per day at ports of entry even while the border is shut down.

This offloads responsibility for migrants onto Mexico, which has proved incapable of protecting them from cartels and smugglers. Human Rights First has tracked “at least 1,544 publicly reported cases of kidnappings, murder, torture, rape, and other violent attacks” against migrants the US has sent back to Mexico. Biden has already asked for Mexico’s support in trying to stem the flow of migrants, but Mexico has responded with a list of demands that may not be feasible, especially in a US election year. Those include suspending the US blockade of Cuba, dropping all sanctions against Venezuela, and giving work permits and protection from deportation to at least 10 million Hispanic people living in the US.

“Efforts to control the flow of migrants must include a protective process that requires coordination with Mexico to ensure that anyone having to wait at the border for processing will be safe,” Johnson said. “Without such coordination, the new expulsion authority will result in chaos at the border with migrants stuck in unsafe conditions in Mexico and vulnerable to violence.”

The deal would also raise the legal standard to pass an initial asylum screening, require that asylum cases be decided in six months rather than the current timeline that typically spans years, and allow some asylum claims to bypass the immigration court system — changes that immigration advocates say could infringe on asylum seekers’ right to a fair hearing.

Beyond that, there’s some good news buried in the bill for immigrants:

Over five years, it would add 250,000 family and employment-based visas. It would provide a pathway to permanent status for Afghans who came to the US after American forces withdrew from Afghanistan and allow those who worked for the US government to continue to hold special immigrant visas. It would guarantee legal representation for unaccompanied migrant children under the age of 13. It would codify the president’s ability to grant “parole” — a kind of temporary protection from deportation — to citizens of certain countries on a case-by-case basis. It would protect children of high-skilled workers on H-1B visas from aging out of their legal status.

But none of this is enough to make up for the flaws in the bill’s border security provisions.

“It does not offer any real solutions — it would only exacerbate the same ‘border crisis’ while causing even more human suffering,” Sirine Shebaya, executive director of the National Immigration Project, said in an emailed statement.

Will it be passed?

Progressives have denounced the bill, but it’s really Trump who has all but assured that it won’t go anywhere. He was reportedly calling up Senate Republicans and asking them not to support the negotiations so that he can keep the border a live issue ahead of the November election and use it against Biden.

“What is currently being worked on in the Senate will be meaningless in terms of Border Security and Closure,” Trump wrote on social media last month.

The deal will need at least 10 GOP votes to pass the Senate, and its chances of even getting that far are looking slim. But if it does, the next step will be even harder: House Speaker Mike Johnson seemed to go along with Trump Sunday, even though Senate Majority Leader Mitch McConnell has endorsed the bill. “This bill is even worse than we expected, and won’t come close to ending the border catastrophe the President has created,” Johnson wrote on X. “If this bill reaches the House, it will be dead on arrival.”

Why it still matters

Although the bill likely won’t pass, it reveals how Republicans have pushed Democrats to the right on a key issue in the 2024 election.

Voters have consistently ranked immigration among the most important issues facing the country, and the share of Americans who want to see immigration levels decrease is at a decade-high. Republicans like Texas Gov. Greg Abbott, who has been busing migrants to blue cities, have succeeded in weaponizing the issue against Democrats: Biden’s performance on the border has dragged down his approval ratings, which sank to 38 percent in January from 40 percent the prior month.

Biden came into office promising to undo the cruelties of his predecessor. His party’s 2020 platform didn’t even mention border security and instead focused on expanding legal immigration pathways, rolling back the US’s immigration detention regime, ending the root causes of migration, and other immigrant-friendly provisions. After former President Barack Obama was dubbed the “deporter in chief,” it seemed as though Trump had pushed Democrats to embrace a newfound moral case for increasing immigration.

But now Biden is staring down what is all but assured to be a rematch with Trump, whose ultra-right immigration platform was arguably what catapulted him to office in 2016 and who has promised to pursue even more extreme policies should he win a second term. The former president is reportedly considering expanding his travel bans on immigrants from certain countries, conducting wide-scale deportations of undocumented immigrants living in the US, ending birthright citizenship, resuming family separations in immigration detention, and more.

Democrats might still ridicule Trump’s call to build a wall on the southern border. But they’re now favoring an agenda that focuses more on constructing a figurative wall, grounded in legal hurdles and new enforcement measures designed to keep migrants out, than on meaningfully reforming the immigration system.