Congressional Republicans Punt on Sovereignty

The furor over illegal immigration policies peaked this week as the House of Representatives began consideration of its immigration bills, and the White House initiated full enforcement of America’s border laws.

On Thursday, the House produced what was, initially, a carefully orchestrated CYA move by the leadership to avoid the embarrassment of losing control of the floor via the amnesty discharge petition, led by moderate Republicans and all of the Democrats.

But things quickly took a turn when two things happened. The first was the failure of the border security-focused bill by Rep. Bob Goodlatte (R-Va.). To be sure, the bill that many conservatives supported was supposed to fail. Republican leadership fought every opportunity to bring the bill to the floor, claiming it lacked the conference wide-support necessary to garner sufficient votes.

How ironic, then, that on Thursday the Goodlatte bill almost passed, coming just 25 votes shy of the necessary 218 it needed to prevail. Apparently, more Republicans in the House support border security than their leadership would care to admit.

All of this, of course, played out against the backdrop of the second bill—the Ryan-led “consensus” plan. That bill, which was slated for a vote on Thursday, was designed to mollify the moderate Republicans with enough amnesty-lite provisions so as to disincentivize the group from being disruptive.

After seeing how well the Goodlatte bill did on the floor, however, the leadership made the last-minute decision to delay a vote on the Ryan plan, rather than be embarrassed by what was likely to be a poor showing.

It seems that some in Congress finally may have realized that a vote for the Ryan bill would not, as the leadership suggested, earn them credit for supporting a border security compromise. Instead, support for that bill will put members on the record for supporting amnesty for 1.8 million individuals (at a minimum) in exchange for—wait for it—nothing.

Not only is the bill intended for failure, but the policies laid out in the proposal are, in current form, far from straightforward. Though proponents touted the bill’s alliance with the president’s “four pillars,” an actual review of the provisions suggests something else.

The amnesty proposed in the bill goes beyond mere work permits to a privileged path to citizenship for 1.8 million people, at minimum—well beyond the 700,000 recipients of the Deferred Action for Childhood Arrivals (DACA) program. The provision eliminating the visa lottery merely transfers the visas into escrow, where they could be restarted by a later Congress. The widely hailed “end to chain migration” provisions instead leave the largest category (parents of U.S. citizens) intact, while the second largest categories are turned into options for employment-based green cards in expanded numbers.

The disparity in approach between the Goodlatte bill and the Ryan plan on this point is significant. An analysis by the Center of Immigration Studies finds that Ryan’s plan would result in a net increase of 2.12 million more green cards over the next 15 years, compared to a net decrease of 1.23 million green cards that would result from the Goodlatte plan.

The bill’s two strongest points are its merit-based immigration provisions and funding for President Trump’s border wall—but even these have loopholes. $25 billion is appropriated for the wall and border security measures upon enactment, but the mechanisms forcing the money to be spent are weak. Moreover, the amnesty the bill provides is not contingent upon any border wall construction. 1.8 to 2.4 million illegal aliens receive amnesty regardless. And while the Ryan bill creates something of a merit-based system for green cards, it only applies it to a limited number of amnestied illegal aliens for a set window of time.

In other words, the Ryan plan offers massive concessions to the pro-amnesty crowd with little in the way of the meaningful, lasting reforms sought by border security advocates. This is unsurprising given that the bill was haphazardly thrown together as a band-aid alternative to the real debate and deliberation being demanded in the House by both the Right and the Left.

Those Kids at the Border
But while Congress fiddles, the border burns. President Trump has decided on full enforcement of the law against illegal border crossers, implementing a “no tolerance” policy of prosecution. In law enforcement terms, this means that when illegal aliens are apprehended crossing the border, they are put in a detention facility and separated from their families while they await processing. Their children, if they have them, are transferred to the custody of the Health and Human Services Department, who care for them in temporary shelters.

According to the Left, the result has been literally Auschwitz, fomented by literally Hitler. In retribution, the self-identified party of tolerance and civility advocated violent misogyny against a Cabinet official, promoted the kidnapping and torture of a child, advocated the murder of ICE agents, and doxxed a White House official and 1,500 employees of ICE.

The outrage, as usual, obscures more than it illuminates.

The facts are these. Insane declarations by the media to the contrary, the Trump Administration is not changing the law that governs family separation. Rather, they are implementing a policy of full enforcement, with an eye toward deterring the increased flow of illegal crossings. (President Obama attempted a similar deterrence strategy during his tenure.)

Once an adult is taken into custody, the criminal proceedings are short, with sentences generally issued for time already served, and the aliens can then be reunited with their children and return home.

The hiccup comes if the adult files an asylum claim, as it results in far longer detention as the claim is processed. Because of a 1997 consent decree, children of detained illegal aliens can be held only 20 days. Even if the government wanted to maintain them in shelters for a longer period, they are unable to do so. This is why the children are bussed off to foster shelters, sometimes in far-flung locations.

For the U.S. government, this creates a choice. The family unit either can be released into the country and told to appear later for court proceedings—the infamous (and ineffective) “catch and release” Obama-era policy—or they can be detained. Trump has opted for the latter. The response of the Left has been, well, this.

Nothing about Trump’s policy, of course, prevents the families from simply collecting their kids and going home. The United States has a policy that allows the swift return of a family unit post-prosecution. And for actual asylum seekers, entering a port of entry legally with an asylum claim—as opposed to illegally crossing and then claiming asylum—is a much faster way to be processed while keeping their family together.

Lost in the discussion, however, is why the Trump administration claimed it was necessary in the first place. Family border crossings are surging. In 2015, border patrol apprehended 15,000 individuals traveling as part of a family unit. Just two years later, that number rose to 75,000.

The obvious question is why—and the answer is simple: incentives. Previous U.S. policy has prioritized families with children, and illegal crossers have noticed. In April, the New York Times reported:

Some migrants admitted they brought their children not only to remove them from danger . . . but because they believed it would cause authorities to release them from custody sooner.

Others have admitted to posing falsely with children who are not their own, and Border Patrol officials saw that such instances of fraud are increasing.

If this proves anything, it should be that privileging certain illegal crossers, or giving amnesty to entire populations, doesn’t solve any problems. It merely creates new ones. This is especially true as drug cartels and sex traffickers abuse the lax border enforcement for their own nefarious purposes.

The Left, however, does not care. On Thursday, the Trump Administration announced it would detain families together. Predictably, the Left’s narrative immediately shifted from “stop separating families” to “stop indefinitely detaining families.” Their goal, if you haven’t identified it already, is to let every family who crosses illegally stay. Instead of trying to appease them, the Right would do better simply to call out the open borders demand of the Left and make them own it.

Sovereignty at Risk
It is not an overstatement to suggest that America’s political parties are at war in open field over what the rule of law in America will mean: giving a special pass to various sympathetic populations outside the lawful processes that already exist, or enforcement with an eye toward security and sovereignty.

As a practical matter, lax border enforcement incentivizes more illegal crossings, diminishes the government’s ability adequately to provide services, and empowers extremism (case in point: Europe.)

But from a citizenship standpoint, the consequences resonate still further. Should Congress and the president be manipulated by the social media outrage and the radical view that enforcement of the law is a totalitarian attack on democracy, they will be diminishing the essence of what it means to be a sovereign nation in a very fundamental way.

Without borders, there are no nations. Without a nation, there is no democracy, no civil society, and no liberal order.

These questions go to the heart of what it means to be a constitutional republic. How they are handled will determine, to a great extent, what kind of country America will be. Thus far, the national conversation largely has been driven by emotive images and grossly inappropriate Holocaust metaphors. This is not policy making, it is mob mentality. Our discourse, and our decision making, and the founding wisdom of our country deserve better.

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.