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PaperclipPerfector  6mo ago (text post)   24828 thread views

Culture War Roundup for the week of May 6, 2024

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It was all boiled down to that 5000 number that you’ll see repeated over and over again in Republican criticisms of the bill. What’s worse is that this number is presented as a capitulation to Democrats rather than a ceiling on the use of a draconian new power granted in a heavily conservative bill. It’s presented as if the bill mandates open borders for the first 5000 illegal immigrants every day, and only then begins to enforce some border policies. This is so laughably, bafflingly wrong that it defies belief.

In addition to the obvious no-trust problems -- there was already wide suspicion that official numbers on undocumented crossings (aka gotaways) were underestimates before the feds had additional cause to massage them down, and there's no judicial authority to require the Border Patrol to actually do something even should they report the real numbers, there's some fun questions about how mandatory 'shall' language gets -- the proposed bill had a number of other wide ceilings to its use that your summary glosses over:

  • The count only includes "encounters" "between the southwest land border ports", "between the ports of entry along the southern coastal borders", and "between the southwest land border ports of entry of the United States", where "encounter" means physical apprehension and/or seeking admission at a port of entry. Gotaways don't count.
  • "Aliens described in subsection (a)(2)(C) [unaccompanied minors] from noncontiguous countries shall not be included in calculating the sum of aliens encountered."
  • "If the President finds that it is in the national interest to temporarily suspend the border emergency authority, the President may direct the Secretary to suspend use of the border emergency authority on an emergency basis." [for 45 days out of a year]
  • The Secretary of Homeland Security only shall activate the border emergency without review on crossing the numeric thresholds for 90 days for the first year, 75 days for the second year, and 60 days for the third year; the SHS has unreviewable authority to not activate the 'mandatory' emergency for 180/150/120 days, and may not activate it at all the remainder of those years.
  • The Border Emergency's exception lists includes "An alien who an immigration officer determines, with the approval of a supervisory immigration officer, should be excepted from the border emergency authority based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests, or an alien who an immigration officer determines, in consultation with U.S. Immigration and Customs Enforcement, should be excepted from the border emergency authority due to operational considerations." [eg, just because there's a border emergency active and mandatory doesn't mean any alien must actually be handled.
  • ‘‘(A) SUMMARY REMOVAL .—Notwithstanding any other provision of this Act, subject to subparagraph (B), the Secretary shall issue a summary removal order and summarily remove an alien to the country of which the alien is a subject, national, or citizen (or, in the case of an alien having no nationality, the country of the alien’s last habitual residence), or in accordance with the processes established under section 241, unless the summary removal of the alien to such country would be prejudicial to the interests of the United States. [emphasis added.]

Sure, the additional restrictions you mentioned do exist, but remember the priors here. The Border Emergency Authority is a draconian measures meant to be used sparingly for emergencies, not a "you must meet these criteria to even start deporting illegals" that Trump, Gaetz, and others painted it as. You could strip out the entire Border Emergency Authority and it would still be quite a conservative bill, adding funds for normal enforcement and closing the asylum loophole among other beneficial things. The biggest issue with the BEA is that it sunsets after 3 years so it's only really meant to be used for the current surge, but opponents of the bill keep neglecting to mention that since it screws with their narrative that the BEA is a permanent bad thing.

Despite those restrictions, under the current numbers Biden would be required to use the authority. This would have been a win-win for those who want enforcement. Either he uses the authority and gets illegal immigration under control, which would be good, or he wriggles out of using it, providing fodder for Republicans to say we need an even more draconian measure to stop illegal immigration.

Despite those restrictions, under the current numbers Biden would be required to use the authority.

Or else what?

Or else someone sues and gets found to have no standing.

and none of that suing in Texas or Florida, they'll be forced to file the lawsuit in the US District Court for the District of Columbia because the bill gives sole and original jurisdiction to that laughably biased and corrupt court

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