Congress Should Cease Political Theater And Fix The Border

The following is part of an editorial by The Washington Post editorial board:

Washington needs to craft a better system to manage the mass migration of people seeking asylum in the United States, as migrants request U.S. protection at massive rates, knowing that the process for vetting their claims will drag out. That requires, above all, clear standards to determine who is entitled to protection that are enforced swiftly and certainly. Otherwise, they will not be credible. The bipartisan bill would have done some good in this respect. But its backers vastly oversold what it could accomplish.

Consider its provision to “shut the border” amid large surges of asylum seekers. There is a close precedent: Title 42, the rule deployed during the covid-19 pandemic, from March 2020 until May 2023, to summarily expel migrants on public health grounds without hearing their asylum applications. Trump adviser Stephen Miller said it could be invoked again to keep out “severe strains of the flu” or “scabies.”

Three million people were expelled under the rule. But it didn’t stop the flow. Border Patrol encounters with migrants increased sharply, largely because, under Title 42, they didn’t face consequences for repeat illegal entries, including criminal prosecution. So those kicked out would turn around and try again, hoping to sneak through undetected. Recidivists rose from 7 percent of encounters in fiscal 2019 to 27 percent in 2021. Unauthorized migrants whom U.S. agents detected but failed to catch — “gotaways” in Border Patrol parlance — also soared as migrants kept trying until they made it.

That was hardly the only glitch. Washington soon discovered it couldn’t apply Title 42 to everyone showing up at the border because often there was nowhere to send people back to. Overall, only 41 percent of those encountered at the border were expelled using the rule. The United States could expel single adults coming from Mexico and Central America, because Mexico would accept them. But countries such as Venezuela, Cuba and China would not take back their citizens. Only 8 percent of single adults not from Central America or Mexico got kicked out under Title 42.

Beyond political showmanship, “fixing” the border requires sending a credible signal around the world that the United States can enforce its rules. Today, it can’t. The country doesn’t have the agents to conduct interviews to find out whether migrants meet the standard to request asylum, the judges to rule on whether asylum is warranted, or enough beds to house migrants until these things are determined.

U.S. Immigration and Customs Enforcement, for instance, reports 1.3 million immigrants scattered around the country who have been denied permission to stay and face removal orders. ICE cannot detain 1.3 million people — it has only 40,000 beds. Nor can it deport them quickly, even if their home country would take them back. It has 11 planes. . . .

To be fair, the bipartisan Senate deal included provisions to boost the credibility of the United States’ rules. It would have funded more than 4,300 new asylum officers and support staff, 100 additional immigration judge teams, 1,500 Border Patrol agents and customs officers, 1,200 ICE staff to help with deportations. It would have increased detention capacity and added deportation flights.

This, but at a grander scale, would offer the best shot at bringing the border under control. After the political skirmishing is done, lawmakers ought to work on a solution.