Can you imagine Senate Democrats ever supporting a bill that gave President Donald Trump the power to temporarily ignore provisions he didn’t believe were in the “national interest”? Of course not. Yet one of the most conspicuous parts of the new bipartisan border bill allows Joe Biden to do just that.
Once there is a rolling average of 5,000 border encounters per day for a week, or 8,500 encounters in a single day, the Department of Homeland Security (DHS) would be given “emergency authority” and compelled to turn away anyone else who crosses (though there are many exemptions). Most conservatives believe this threshold is already too high. Under 5,000 daily crossings can still amount to nearly 2 million entries per year, which is around double the number of Green Cards we hand out annually.
Yet, on top of that, Biden has the power to unilaterally suspend the closure (for 45 days each year) if he deems it “in the national interest.”
You know, the reason we have political debates in the first place is so we can figure out how to protect the “national interest.” If we had a common understanding of the idea, we’d be a one-party state. But as with other political phrases these days — the “common good” or “democracy,” come to mind — the term “national interest” is meaningless. Democrats, for instance, believe it’s in the national interest to regulate gas stoves and “misinformation.” I believe it’s in the national interest for the executive branch’s power to be limited to its constitutional role and mind its own business.
Indeed, the president can already declare national emergencies. Trump did on the border in 2019 and was called an authoritarian by Democrats. Congress could stop this from happening again by repealing the National Emergencies Act, not by doubling down and handing the executive branch even wider latitude to interpret laws whenever they find it convenient.
Most of the provisions in the bill are so loophole-riddled they are worse than irrelevant. One provision allows administration officers to grant asylum without any oversight from judges, who (at least, theoretically) use a set of criteria to adjudicate these cases. “Asylum” might have been stripped of any real meaning, as well, but it’s a mystery why James Lankford wants to hand Alejandro Mayorkas more autonomy on this front. Or any front. (Again, can you imagine Democrats signing onto a bill that handed Chad Wolf more discretion over asylum cases?)
Then again, if there are any legal fights over the implementation of the law, Democrats have cherry-picked the court that will adjudicate. No, not the Fifth Circuit, which inconveniently sits on the border, but the left-wing D.C. District Court will have exclusive authority over “written policy directive, written policy guideline, written procedure” and their implementation.
Meanwhile, Democrats are acting as if they’ve made some giant, historic concession even deigning to address the crisis. But where is the compromise? They’ve rigged the bill, making it so malleable that Biden can basically interpret and implement its provisions in any fashion he chooses. (Only on the enforcement side, naturally. There is no opting out of Ukraine aid or more taxpayer-funded asylum lawyers.) Then, Democrats ensured that the court hearing any disputes over that implementation would almost surely side with them.
And lest anyone think I’m some kind of hardline closed-border type, I’m fine with more asylum-seekers and more immigration and more work visas. High walls and wide gates, etc. Like many Americans, though, I’m just not a fan of policies that perpetuate anarchy.
