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Even before a bipartisan group of senators unveiled the text of a foreign aid and immigration overhaul bill on Feb. 4, it faced significant opposition from former President Donald Trump and other Republican leaders.
On Feb. 7, the bill failed in the Senate after it was opposed by all but four Republicans and a few Democrats. Some of the criticism leveled by Republicans opposing the bill was based on a distortion of what it would and would not do.
Much of the controversy centered on a section of the bill that would have provided emergency authority to the administration to “summarily remove” people who cross into the U.S. illegally between ports of entry, even if they are seeking asylum. While Trump argues that presidents already have that authority, the fact is that when he tried to exercise that kind of authority, the courts blocked him.
Trump and other Republicans have also said the bill would have permitted up to 5,000 illegal entries per day, but that’s not accurate either.
We’ll explain what was in the legislation and the facts on these two talking points.
The Bill, in Brief
The $118 billion bill, called the Emergency National Security Supplemental Appropriations Act, sought significant changes in border policy. It included money to build more border barriers, to greatly expand detention facilities, and to hire more Immigration and Customs Enforcement and Border Patrol agents, asylum officers and immigration judges to reduce the years-long backlog in cases to determine asylum eligibility. It sought to expedite the asylum process, essentially ending — in most cases — the so-called “catch and release” policy whereby migrants are released into the U.S. pending asylum hearings. And it would have increased the standard of evidence needed to win asylum status.
The bill also would have supplied more funding to interdict fentanyl and human trafficking, and it included $60 billion in aid for Ukraine and $14 billion for Israel.
“It doesn’t have everything in it I wanted, it doesn’t have everything it it my Democratic colleagues wanted,” one of the architects of the bill, Republican Sen. James Lankford, said from the Senate floor before the vote was taken. “But it definitely makes a difference.”
In the lead-up to the vote, Lankford accused his Republican colleagues of opposing the bill on political, rather than policy, grounds.
“It is interesting: Republicans, four months ago, would not give funding for Ukraine, for Israel and for our southern border because we demanded changes in policy,” Lankford said on CNN. “And now, it’s interesting, a few months later, when we’re finally getting to the end, they’re like, ‘Oh, just kidding, I actually don’t want a change in law because it’s a presidential election year.’”
The bill was also supported by several groups that typically align with Republicans, such as the U.S. Chamber of Commerce and the Wall Street Journal editorial board. The National Border Patrol Council, a union that represents about 18,000 border patrol agents, also endorsed the bill.
Does Not ‘Accept’ 5,000 Illegal Immigrants a Day
Leading up to the vote, House Majority Leader Steve Scalise on social media said the bill “accepts 5,000 illegal immigrants a day.” Republican Sen. Marsha Blackburn added her voice to the opposition, posting that she would “never vote to make illegal immigration legal.”
Those comments misrepresented the bill.
The bill stated that temporary border emergency authority would be automatically activated by the Department of Homeland Security secretary if there is an average of 5,000 or more migrant encounters a day over seven consecutive days — or if there are 8,500 or more such encounters on any single day. In December — according to the latest data from U.S. Customs and Border Protection — there was an average of more than 8,000 encounters a day of migrants who crossed the border illegally between points of entry.
“It’s not that the first 5,000 [migrants encountered at the border] are released, that’s ridiculous,” Lankford said on the Senate floor. “The first 5,000 we detain, we screen and then we deport. If we get above 5,000, we just detain and deport.”
In a social media post on Feb. 5, Trump wrote, “Only a fool, or a Radical Left Democrat, would vote for this horrendous Border Bill, which only gives Shutdown Authority after 5000 Encounters a day.”
He’s wrong about the 5,000 encounters threshold. Although that is the threshold for mandatory activation of the emergency authority, the bill also would have extended “discretionary activation” to the Homeland Security secretary once there is an average of 4,000 or more encounters over seven consecutive days. Customs and Border Protection provides only monthly data, and looking at data during the Trump administration the number of encounters would have reached that threshold in May 2019, when encounters averaged 4,286 per day.
“The reason we’re doing that [providing emergency authority] is because we want to be able to shut down the system when it gets overloaded, so we have enough time to process those asylum claims,” Sen. Kyrsten Sinema, who helped craft the bill, said on CBS’ “Face the Nation” on Feb. 4.
“So we have placed provisions in the law that mandate the enforcement of each of these provisions of our law and require the Biden administration and any future administration to actually implement this,” Sinema, an independent who caucuses with the Democrats, said. “So, we’re requiring it, not permitting it.”
In other words, while President Joe Biden had said that if the bill passed he would have exercised that emergency authority immediately, it would not have been a choice at this time — it would have been mandatory.
As for claims that the bill would allow or accept 5,000 illegal crossings a day, that’s a distortion of what’s in the bill.
“That authority would be mandated when arrivals exceed an average over the previous seven days of 5,000,” Theresa Cardinal Brown, a senior adviser on immigration and border policy at the Bipartisan Policy Center, told us via email. “This is not a number that is ‘allowed in.’ It is a threshold of ARRIVALS that triggers a new authority.”
“We already have more than 5,000 illegal crossings happening,” Brown said. “We aren’t ‘allowing it’; it is happening, and we then have to deal with it.”
“There is this idea that we control how many migrants attempt illegal crossings. We do not. The migrants (and smugglers) control that,” Brown said. “We control what happens once we encounter someone who has already crossed the border illegally.”
The other point in Trump’s post is that Biden “already [has] the right to CLOSE DOWN THE BORDER NOW.” But Trump tried to bar migrants caught crossing into the U.S. illegally from pursuing asylum and failed.
Several other Republicans made the same dubious claim. House Speaker Mike Johnson argued in a post on X that Supreme Court precedent and provisions of 1952 Immigration and Nationality Act give the president such authority. He cited Section 212(f) of the act that states a president may, via proclamation, “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” if their entry is deemed “detrimental to the interests of the United States.”
“You can see after December the increase of illegals that are coming to our border, 302,000 in December, illegal crossings into the United States,” Sen. Joni Ernst said at a Senate Republican press conference on Jan. 31. “Yet President Biden won’t shut the border down.”
At the same press conference, Republican Sen. Steve Daines quoted Biden as saying that the bill would give him “new emergency authority to shut down the border when it becomes overwhelmed,” and that he would have exercised that authority immediately if the bill passed. Daines, however, said, “And let’s be very clear, President Biden could use his executive authority now to stop it, but he refuses.”
Trump’s Attempt to ‘Close’ Border
In November 2018, as reports circulated about a “caravan” of migrants from Central America making their way through Mexico en route to the U.S. border, Trump issued a proclamation barring the entry of migrants unless they entered at ports of entry. The same day, the administration issued new regulations making those who entered the U.S. illegally between ports of entry ineligible for asylum.
Trump’s proclamation largely relied on Section 212(f) of the INA, the same section cited by Johnson in his social media post arguing that Biden already had the authority to “close” the southern border.
The courts, however, blocked Trump’s effort.
A federal District Court judge in California temporarily halted Trump’s effort, after concluding that barring migrants who enter outside of designated ports of entry from seeking asylum violated federal immigration law, international law and “the expressed intent of Congress.”
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” the judge wrote.
In a 2-1 decision in December 2018, the U.S. Court of Appeals denied the Trump administration’s emergency motion for a stay of the District Court’s order. The Trump administration appealed to the Supreme Court, but its motion to stay the District Court ruling blocking enforcement of the policy was denied.
“The President does not have the authority to close the border under 212(f),” Denise Gilman, co-director of the Immigration Clinic and law professor at the University of Texas at Austin, told us via email. “That legal provision provides for a bar on the entry of certain individuals or specific categories of persons. It does not allow for closure of the border and wholesale exclusion of all arrivals at the border.”
Provisions in the Immigration and Nationality Act “make very clear that all persons arriving at the border or entering the United States, without regard to status, must be processed for asylum if they indicate a fear of return to their home countries,” Gilman said. “These provisions cannot simply be trumped by 212(f). Under current law, they must be given effect and asylum seekers must be able to present their claims.”
A little over a year after the courts blocked his proclamation, as the pandemic hit, Trump invoked Title 42, a public health law that allowed border officials to immediately return many of those caught trying to enter the country illegally, even those who sought asylum. When the federal public health emergency for COVID-19 ended, Biden lifted Title 42 in May 2023.
Brown noted that Title 42 was challenged in court, “and at least one court ruled that it could not be used to supersede immigration law.”
“It was heading toward SCOTUS when Biden ended it making the case moot,” Brown said. “But even under Title 42, we took everyone into custody to do the identification and security checks and then determine when/how we could send them out of the country. Trump had to release some migrants into the interior when Mexico wouldn’t take them back or we couldn’t send them back to their home countries. ANY border authority, no matter how strict, can be rendered moot if we simply don’t have the resources to apply that authority to the number of arrivals.”
Immigration law experts say the proposed Senate bill would have given Biden the authority to quickly deport many of those crossing illegally into the country and seeking asylum.
If the bill became law, Kathleen Bush-Joseph, a lawyer and policy analyst at the Migration Policy Institute, told us in a phone interview, Biden “could prevent people from applying for asylum and quickly remove lots of people. You would see many more people being returned.” The bill would still, however, allow some migrants who come through designated points of entry to apply for asylum.
Section 3301 of the Senate bill — the section that deals with border emergency authority — “changes IMMIGRATION LAW, to create a temporary border authority that would work very much like Title 42,” Brown said, “to allow for summary deportations of migrants and deny them the chance to apply for any way to stay in the U.S. other than very limited circumstances.” And, she said, it would “eliminate the type of litigation that Title 42 faced.”
Past Attempts to ‘Close’ Border
A Congressional Research Service report from April 2019 considered four instances when ports of entry were restricted: a full closure of the southern border on the day of John F. Kennedy’s assassination; the closure of nine ports of entry for several days after the abduction of a Drug Enforcement Administration agent in Mexico in 1985; and restrictions imposed by President Richard Nixon as part of “Operation Intercept” in 1969 and President George W. Bush in the wake of the 9/11 terrorist attacks, both of which “consisted primarily of extensive inspections that brought border traffic to a standstill.” None of those executive actions, the report said, “prompt[ed] legal challenges that required federal courts to assess the Executive’s authority for the measures.”
The report also discussed an iteration of Trump’s travel ban, which restricted certain nationals of Iran, Libya, Somalia, Syria, Yemen and North Korea from obtaining visas to travel to the U.S., and which was ultimately upheld by the U.S. Supreme Court.
According to William A. Stock, former president of the American Immigration Lawyers Association, the Supreme Court ruling “applies only to ‘immigrants and nonimmigrants,’ people who have been issued permanent or temporary visas to the United States, and allows the President to deny entry to those individuals if they have already been issued visas, or to refuse them visas they would otherwise be entitled to, if they met the conditions of the Proclamation.”
The situation confounding Biden at the southern border is different, Stock told us via email.
“At the Southern Border, however, President Biden is confronted with migrants who have neither temporary nor permanent visas to enter the United States, and as such are neither seeking ‘entry as immigrants’ nor ‘entry as nonimmigrants,’ which is what can be suspended using the 212(f) authority,” Stock said. “Rather, such individuals are normally seeking to present claims to protection from persecution in their home countries – asylum – and the statute expressly allows any person either physically present in the US, arriving in the US at a port of entry, or arriving at the US border other than at a port of entry to submit an application for asylum.”
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