February 21, 2024

The national security supplemental legislation that included a controversial bill on border and asylum policy—which failed to even scrounge up 60 votes in the Senate on Wednesday—was the result of months of negotiations, yet ended in foreseeable defeat. So foreseeable, in fact, that Senate Majority Leader Chuck Schumer immediately replaced it on the floor with a bill that included aid to Ukraine, Israel, and the Indo-Pacific region—without any border provisions. The second supplemental advanced on Thursday afternoon, with more votes expected over the weekend.

Nonetheless, the first national security supplemental proposed this week, and the bipartisan border bill contained within, was significant for two reasons: its politics and its policy. Less than 24 hours after its release, Senate Republicans immediately torpedoed the prospects of the bill negotiated in part by one of their own—GOP Senator James Lankford—because they found it insufficiently stringent.

Even though the border legislation will not become law, it’s worth considering its substance: It could provide a framework for future legislation or—perhaps more likely—yet another cautionary tale as to why substantive immigration-related measures are doomed to fail in the modern political era.

Substantively, the initial supplemental contained controversial elements regarding asylum, immigration, and border policy, which left many humanitarian and immigrant rights groups concerned. Not only was this legislation insufficient to solve any of the problems the bill purported to solve, these organizations say, but serious unaddressed issues will remain long after the media stops gawking at this week’s legislative wreckage.

“It doesn’t do anything to solve the root of the problem, which is that our immigration system hasn’t been overhauled since 1986,” said Mark Hetfield, the president and CEO of HIAS, a refugee resettlement organization. “The entire asylum system is bearing the burden that we haven’t updated our immigration laws to make sure they meet the labor needs of the country.”

The border legislation would have made significant changes to the backlogged asylum system. It would have made it more difficult for migrants to claim asylum, requiring them to show greater proof that they have a “credible fear” of facing persecution upon returning to their home countries. It would attempt to streamline the appeals process by functionally excising immigration courts, granting those decisions to internal review boards. It would include around $3 billion for Immigration and Customs Enforcement to expand detention capacity.

The measure would also require the Department of Homeland Security to shut down the border if illegal crossings exceed 5,000 migrants over a week, or 8,500 in one day; the administration would also be able to shut down the border if crossings exceed 4,000 daily for a week. The border would only reopen if crossings dropped to 75 percent of that number over the course of a week. (This was a provision that many Republicans found to be unsatisfactory, contending that it allowed for too many crossings.)

Krish O’Mara Vignarajah, the director of the refugee resettlement organization Global Refuge, called that provision “deeply unsettling” because it would require the expulsion of migrants seeking asylum without recourse, and thus perhaps even a violation of international agreements like the Refugee Convention.

“I think at the end of the day, we all understand that bipartisanship requires compromise. But lawmakers have to ask themselves, does it require us to compromise our nation’s core values?” O’Mara Vignarajah said. “We’re trying to support the effort to fix the system but also ensure that it doesn’t preclude people in the most desperate of circumstances from exercising a legal right.”

There are elements of the legislation that humanitarian organizations would support, including offering 250,000 new visas for migrants who wish to work in the United States or join family members, making asylum-seekers eligible for work permits as they wait, and providing a pathway to citizenship for children of immigrants who came to the U.S. on certain work permits. However, as Hetfield put it, “the good stuff doesn’t compensate for all the bad stuff.”

Hetfield argued that economic circumstances “demand” immigration reform to help address the labor shortage. Many migrants are using the asylum system to get into the U.S. for work, he continued, even though that process is not designed for such a purpose. “What really drives me crazy is this line that Republicans have been giving for years, which is that ‘first we have to fix the border,’” Hetfield said. “It is one ecosystem.”

This article first appeared in Inside Washington, a weekly TNR newsletter authored by staff writer Grace Segers. Sign up here.

Vibe check: Update on the Afghan Adjustment Act

Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: the future of a key bill to aid Afghan allies.

There were other elements of the initial legislation that did not make it into the second supplemental proposal, including a version of the Afghan Adjustment Act: a bill that would grant Afghan evacuees paroled into the U.S. after the withdrawal from Afghanistan a way to obtain permanent residency, and that would expand and streamline the Special Immigrant Visa process for allies still trapped in Afghanistan. Veterans groups and humanitarian organizations have been lobbying to pass the bill for years.

“We’re very unhappy about it not being in the bill right now,” said Senator Richard Blumenthal, one of the co-sponsors of the Afghan Adjustment Act.

The initial exclusion of the Afghan Adjustment Act was a major blow to the tens of thousands of Afghans paroled into the U.S., the allies still in Afghanistan, and their advocates stateside. However, there was a fervent behind-the-scenes effort by the bill’s supporters in the Senate to ensure it would receive a vote as an amendment—assuming, of course, that the underlying second supplemental could advance.

“We are trying to get a vote on that amendment,” Senator Chris Coons, one of the bill’s co-sponsors, told me on Wednesday afternoon. “There’s a strong bipartisan group that would support it.”

Although it was unclear whether there would be votes on amendments at the time of publication, the Afghan Adjustment Act might be a relatively popular addition.

“If it gets offered as an amendment, I’ll be voting for it,” said Senator Thom Tillis, a Republican co-sponsor of the Afghan Adjustment Act. “I’ve got to imagine that there are several members that would want to offer that up as one of the amendments.” Such an amendment might be brought by Senator Amy Klobuchar, who introduced the legislation in the Senate and has helped drive the behind-the-scenes effort to attach it to the supplemental.

Representative Earl Blumenauer, who introduced the bill in the House, said on Wednesday that the Afghan Adjustment Act is “noncontroversial” and has bipartisan support. (The bill is not entirely “noncontroversial”—GOP Senator Chuck Grassley previously blocked it due to concerns over vetting of parolees, even though the legislation would include an additional vetting process.)

But Blumenauer also highlighted the chaos that has consumed Congress, indicating that across-the-aisle endorsements may not be enough to get this portion over the finish line. “It’s a crazy time. I mean, who knows?” Blumenauer said.

For refugee advocates, the inclusion of the Afghan Adjustment Act in the initial supplemental legislation was a positive step forward—even if it didn’t make up for the provisions they did not like. “When you work in the immigration space, you’ve got to have hope,” said O’Mara Vignarajah. “But it still feels like an uphill battle.”

What I’m reading

Billy Joel said he’d retired from pop. Here’s what brought him back, by Caryn Ganz in The New York Times

It was a pleasure just to watch Carl Weathers move, by Matt Zoller Seitz in Vulture

We all know we should save the whales. What about the sardines? by Russell Jacobs in Slate

Team Cow or Team Soy: The milk wars roiling America, by Kristina Peterson in The Wall Street Journal

TikTok is full of tryhard slang, by Rebecca Jennings in Vox

Pet of the week

Want to have your pet included at the bottom of the next newsletter? Email me: [email protected].

This week’s featured pets are Bandit (left) and Cleo, submitted by Tal Kopan. The two are 7-year-old littermates; their favorite things include cuddles, scratchies, loudly hunting their toys in the middle of the night, and sharing Goldfish crackers for snack with their human sister.