Freedom

Story by Saul Elbein 

It’s the border bill that could cause a government shutdown.  

Congressional Republicans are threatening to shut down the government if Democrats don’t pass House Resolution — or H.R. 2 — a sweeping bill that would drastically restrict the asylum process while establishing a vast new surveillance system to forcibly freeze regional migration and crack down on the existing undocumented population.   

Republicans say that the bill, which passed the GOP-controlled House last year with no Democratic support, is necessary to stop hundreds of thousands of migrants — including thousands of unaccompanied children — from coming across the U.S. southern border.  

And they have repeatedly sought to tie its passage to Democratic priorities — such as military aid to Ukraine or, this week, the passage of a federal budget.  

“Joe Biden, Kamala Harris, and everybody else — they do not want to do the simple job of securing the border, and so now [is] when you have a massive catastrophe which they created,” Rep. Byron Donalds (R-Fla.) told Fox News.  

“The answer is simple, follow House Republicans’ H.R. 2. It’s the plan,” he added.  

That has been a non-starter to Democrats.   

“We can’t lose our values in this thing,” Rep. Greg Meeks (N.Y.), the senior Democrat on the Foreign Affairs Committee, said last month.  

“We think that we need to deal with certain things on the border. We can work together to get certain things done. But not the draconian moves — a lack of human rights, etc. — that the Republicans want and put forward in H.R. 2. That is a red line.”  

Here’s what the bill would do. 

Purges the U.S. workforce of undocumented workers  

Under H.R. 2, employers would be required to verify — under penalty of prison — that all their workers were documented.  

The method for doing so would be the E-Verify system, a voluntary program set up under a 1996 immigration bill passed under then-House Speaker Newt Gingrich (R-Ga.) that cross-references an employee’s employment paperwork against the social security database.  

That program is currently optional under federal law, although 22 states require all employers to use it, and several — including Michigan and Texas — require it for federal contractors.  

Data on whether requiring the program successfully forces undocumented immigrants from the labor force is contradictory.  

A Southern Economic Journal study suggested that states that used E-Verify saw wages fall for undocumented Mexican men — but more labor force participation by Mexican women, who may have had an easier time entering the informal economy as domestic workers.  

The study also suggested that E-Verify meant more employment and higher wages among Mexican-born men who were U.S. citizens — though no significant benefits for white Americans. 

And a study in the IZA Journal of Migration found that states with E-Verify laws had fewer “less-educated prime-age immigrants from Mexico and Central America.”  

That’s a category the IZA authors correlated with undocumented migrants. But that association is imperfect — as is the assumption that those who fail to pass an E-Verify check are undocumented.  

U.S. government records found that about 57,000 citizens were erroneously flagged as undocumented by the program — a number that the National Immigration Forum argues is a serious undercount, because recording such an error requires employers to know they can contest a false positive.  

And a 2019 report by the libertarian Cato Institute found that E-Verify catches fewer than 1 in 6 undocumented workers.  

Even catching that share could impact industries that rely on undocumented labor, however. That includes the agriculture industry, as about 40 percent of all farmworkers in the U.S. are undocumented, according to the United States Department of Agriculture (USDA).  

According to the USDA, that number is highest in California — and a reason Rep. John Duarte (R) was one of just two Republicans to vote against H.R. 2 in May.  

The program “would have been devastating for food producers or would have been devastating for farmworker families,” he said.   

Slashes asylum  

Under existing law, immigrants who can make a “credible” claim of being refugees can stay in the U.S. while that claim is assessed — and if granted asylum, they are allowed to stay. 

Republicans have long argued that this system suffers from rampant abuse, and they have argued that Biden administration asylum policies are tantamount to an open invitation to migrants.  

As such, H.R. 2 makes it far harder for migrants to claim asylum and makes the process far more onerous for those able to stay long enough for that claim to be processed.  

For example, the bill denies people the ability to claim asylum unless the Customs and Border Protection (CBP) officer who processes them believes their ultimate case would more likely than not be accepted, adds a $50 fee to make an asylum claim and bars migrants from making an asylum claim anywhere but at an official port of entry.  

This last measure represents a paradox, because it is precisely the backups and closures at ports of entry that help push migrants to venture into the desert between official crossings.  

The bill also provides for even those who are found to have credible claims to be held in detention for the years while their cases drag on — and requires the Department of Homeland Security to expand detention facilities to hold them.  

When the bill passed the House, co-author Tom McClintock (R-Calif.) told reporters it was necessary to stem a tide of horrors.   

He pointed to “classrooms packed with non-English speaking students, hospitals flooded with illegals demanding uncompensated care, violent criminal cartels and gangs introduced into our communities … suppressed wages for working Americans, and the collapse of the social safety net that was supposed to take care of Americans in need.”  

“These are not asylum-seekers,” he said. “Asylum is not an open invitation to bum rush our borders. But the Democrats have made it precisely that.”   

McClintock asserted that under the current system, “you make a fraudulent asylum claim, you are guaranteed to receive immediate admission into our country, you get cash, a range of free goods and services, indefinite residency and indefinite work authorization.”  

In fact, under the Biden administration, the asylum system has already been significantly restricted. In August, a three-judge panel upheld the administration’s “asylum ban,” which bars most migrants who have transitioned through a third country from applying for refugee status.  

In a blistering dissent, Judge Lawrence VanDyke wrote that the Biden administration’s immigration policy was “not meaningfully different” than the Trump administration ban that judges threw out — which representatives including McClintock have portrayed as belonging to a halcyon era of low immigration.  

“This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app,” VanDyke wrote.  

A historical example suggests the argument that asylum protections lead to an increase in undocumented immigrants is erroneous, argued David J. Bier of the Cato Institute.  

In December, Bier noted that when the Biden administration lifted the COVID-era Title 42 restrictions, which included a ban on asylum applications, Republicans — and even some Democrats — forecast a huge increase in illegal migration.  

They were wrong, he wrote. Instead, the number of crossings post-Title 42 fell by 15 percent — and covert crossings fell by half.  

“Ending Title 42 shows that security isn’t at odds with accepting immigrants,” Bier wrote in an op-ed for The Hill.  

“Politicians create a false choice between a secure and welcoming border. Americans deserve — and can have — both.”  

Build a wall while slashing immigrant services  

H.R. 2 would require the federal government to wall off at least 900 miles of the U.S.’s roughly 2000-mile border with Mexico, resuming all Trump-era plans that were interrupted by the former president’s electoral defeat in 2020.  

To do so, the bill would require the Department of Homeland Security (DHS) to waive all legal requirements — such as environmental review or historical site review — to get the wall built as quickly as possible.  

It also would offer $110 million per year to the border forces being set up by states including Texas, often in open defiance of the federal government — with money that would in part be balanced out by defunding any nonprofits that provide services to undocumented immigrants.  

And it would require CBP to solicit policy recommendations specifically from those “negatively impacted by illegal immigration.”   

The bill would further ban asylum-seekers who do make it out of detention from using their DHS-provided identification to get on a plane.  

And it would revive long-ignored language from a 2006 bill that would allow DHS to close the border entirely if it determines doing so is necessary to block undocumented crossings. 

In 2006, the George W. Bush administration passed the Secure Fence Act, which gave the DHS a sky-high goal for maintaining “operational control” over the southern border.  

According to that act, “control” means “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”   

This has never come anywhere close to being accomplished.  

Ends protections for migrant children  

H.R. 2 would roll back many protections for minors created under the Flores settlement, which resulted from a 1993 court case and has since guided federal immigration law, aside from a brief hiatus under Trump.

It would require DHS to reestablish family detention, and once again allow families with children to be detained indefinitely.  

The bill would also make it far harder for unaccompanied migrant children to claim special immigrant juvenile status — something youth can currently claim if they can’t reunite with one or both parents, and which H.R. 2 would restrict to those whose parents have neglected or abandoned them.  

It would also fast-track deportations of unaccompanied minors, lengthen the time that children can be held in adult facilities on the border from 3 to 30 days and bar states from creating licensing requirements for those border detention facilities — even in cases where state law should require such oversight.  

And in a particularly stark move, H.R. 2 would require the Department of Health and Human Services to provide details on local sponsors of unaccompanied migrant children to DHS — and require DHS to begin deportation proceedings in 30 days if those adults are undocumented.   

Doesn’t address legal immigration  

Perhaps just as notable as what H.R.2 includes, however, is what it doesn’t: any path for citizenship, bolstering of pathways to legal immigration or alternative means of supporting a U.S. workforce — and particularly food system — that relies on undocumented labor.  

In addition to not offering any expansion to the country’s sclerotic and backlogged legal immigration pathways, H.R. 2 wouldn’t provide funding to expand the capacity of official ports of entry — the only place where it would allow asylum claims to be made.  

And GOP lawmakers including Rep. Chip Roy (R-Texas) have pushed to cut DHS’s funds if the Biden administration and the Senate don’t pass H.R. 2.  

This lack of action on legal immigration stands out as even key Republican constituencies like the Chamber of Commerce, which is part of a vast array of state and national business groups — from the National Milk Producers Federation and the National Restaurant Association to Asphalt Roofing Manufacturers Association — call for comprehensive reform of the legal immigration system.  

Shortly before H.R. 2 passed the House in May, these groups launched the so-called Legal Immigration and Border Enforcement Reform This Year campaign, which directly linked the wave of undocumented crossings to failures in the legal immigration system.  

“Our legal immigration system has been outdated for decades, which has directly contributed to the significant security challenges on our southern border,” the groups wrote Congress.  

The groups pushed for “significant” increases to legal immigrations, expanded scopes for essential worker programs and new visa programs — and argued that the math on immigration restrictions simply doesn’t add up.  

“Right now, we have over 8.8 million jobs open in the U.S. and 5.8 million unemployed workers,” a Chamber report wrote.  

The groups’ push roughly aligns with what President Biden himself proposed in a 2021 House bill that created an eight-year path to citizenship for millions of undocumented migrants, along with increases in visa quotas.  

Momentum for such reforms is largely absent from the ongoing border talks in Washington, however. The Senate appears to be negotiating a deal that would accept broad swaths of the far-right Republican platform — like wall construction and drastic rollbacks in asylum rights — in return for aid to Ukraine.

Even given those apparent concessions, a wide array of House Republicans told CNN on Wednesday that it was H.R. 2 or nothing.  

“I will not help the Democrats try to improve [Biden’s] dismal approval ratings. I’m not going to do it. Why would I? [Senate Majority Leader Chuck Schumer (D-N.Y.)] has had H.R. 2 on his desk since July. And he did nothing with it,” Rep. Troy Nehls (R-Texas) told CNN.  

Amid the acrimony, Bier of the Cato Institute wrote that bipartisan consensus has been reached on one key point: Powerful factions in both parties have bought into the idea that the solution to the current border situation is more restrictions.   

But in fact, Biers asserted in December, those restrictions are the root of the problem. “Nearly everything that politicians now use to justify immigration restriction can be traced to the restrictionist policies already in force.”  

“In other words, immigration restrictionists create the problems and then demand ever more restrictions to fix them,” he added.  

“Lather, rinse, repeat.”