The senators negotiating a bipartisan compromise on the border have for weeks urged colleagues to wait until the bill text is released before judging the deal.
That time is almost here. The proposal will be released no later than Sunday as part of a larger national security supplemental.
But the legislation will hobble into public view following weeks of withering criticism fueled by leaks, some suspect and others legitimate, on the contents of the border deal.
The lead negotiators, chiefly Sen. James Lankford (R-OK), have lamented what has snowballed into a “massive, out-of-control internet rumor,” attempting to correct the record even before the ink is dry.
But the conservative criticism persists, and will surely continue, despite the damage control.
Border hawks have railed on alleged provisions of the bill, from the notion it pays for asylum-seekers’ attorney fees to the claim that illegal border crossers would get “immediate” work permits.
A source familiar with the proposal called those characterizations false.
But the biggest threat to the bill is the claim that it would allow 5,000 border crossers into the country a day.
The figure is real — the proposal would force the president to shut down the border after a weekly average of 5,000 encounters a day. But the threshold has been oversimplified or outright mischaracterized.
The accusation is more or less measured depending on the politician making the claim. Speaker Mike Johnson (R-LA) has questioned why any illegal immigration should be tolerated before compelling President Joe Biden to turn immigrants away.
“We shouldn’t be asking what kind of enforcement authority kicks in at 5,000 illegal crossings a day because that number should be zero,” he said in a speech from the House floor on Wednesday.
Meanwhile, Kari Lake, a surrogate for former President Donald Trump, has incorrectly claimed that “this bill would actually legalize nearly 2 million of these illegal immigrants every single year.”
“We don’t want this invasion legally codified. We want it stopped,” she said on Saturday.
The 2 million figure, based on 5,000 crossings a day across the entire year, has become central to the rallying cry against the proposal, led by Johnson and the former president.
But the senators who crafted the deal call the threshold the most “misunderstood” element of the bill and its detractors guilty of “misinformation.”
“It is misinformation, and whether it is willful or not is someone else’s question to answer, but the rumors that are swirling about what this legislation does are wrong,” Sen. Kyrsten Sinema (I-AZ), one of three senators who brokered the deal, told the Washington Examiner on Wednesday.
The senators say the misunderstanding comes down to the purpose of the threshold, which is to keep the border from becoming overwhelmed.
So long as authorities have detention space for the immigrants they apprehend and the manpower to intercept and process them, the United States will have “operational control” of the border.
The 5,000 figure is reflective of that tipping point, according to the negotiators.
Conservatives dispute the figure, noting that Jeh Johnson, the Obama-era homeland security secretary, said in 2019 that the border becomes overwhelmed at around 1,000 immigrants a day.
But the threshold, paired with provisions including money for additional detention space, would mark an end to “catch and release,” according to Sinema.
For context, around 10,000 immigrants are currently being encountered at the border a day, an all-time high.
Under the proposal, asylum claims would be evaluated in detention or, for those who cannot be detained, such as family units, authorities would accept or reject the asylum claim within six months of apprehension.
Those claims would be evaluated using a stricter asylum standard set by the legislation, meaning fewer of those caught would be allowed to stay in the country.
Rather than “normalizing” 5,000 encounters a day, as critics accuse the legislation of doing, Lankford says the point is to get the border back under control and allow for the orderly deportation of those who do not qualify.
“It would be absolutely absurd for me to agree to 5,000 people a day,” Lankford, the lead Republican negotiator, said on Fox News Sunday. “This bill focuses on getting us to zero illegal crossings a day.”
He noted it increases detention beds, asylum officers, deportation flights, and Border Patrol agents “so we can quickly detain and then deport individuals.”
The six-month time frame is meant to allay concerns over what has become yearslong waits for asylum cases to be heard.
Immigrants would receive their first asylum screening within 90 days, then be deported if they fail.
If immigrants pass the first screening, a second determination would be made within 90 days after that. Those immigrants would receive work authorization in the interim.
The bill does permit some level of crossings, up to 1,400 immigrants a day, even when the border is shut down, but those must occur at legal ports of entry.
The border would remain closed until crossings fall below 75% of the trigger number for a week.
The 5,000-per-day figure, a weekly average, is not the only threshold laid out in the proposal. The president would also be compelled to close the border if crossings exceed 8,500 in a single day. He is only granted the expulsion authority at 4,000 average daily crossings per week.
The proposal falls short of Republican demands in the House. Those lawmakers also want to see “Remain in Mexico” restored, plus the resumption of border wall construction that Biden halted upon assuming office.
It’s challenging to evaluate all of the claims before the full text is released. Fox News host Laura Ingraham claimed on Monday that Biden’s parole authority, used by the president to admit more than 1 million migrants, would be “unchanged” under the deal.
That authority is the central reason it has taken so long for negotiators to reach a deal. The proposal does address parole, according to Lindsey Graham (R-SC), but the senator has spent weeks lobbying for stricter provisions.
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The border deal, by necessity a compromise in divided government, would have faced opposition from conservatives no matter the timeline. But the grinding pace of negotiations, which have stretched across four months, have opened the deal up to prolonged scrutiny.
Many of the claims come from a supposed draft agreement leaked by an immigration restrictionist group two weeks ago that Lankford has dismissed as a “lie.”
Emily Jacobs contributed to this report.
