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Fact check: Senate border bill would expand Mayorkas’ authority

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A U.S. Senate border bill proposed by Democrats and Sen. James Lankford, R-Oklahoma, was negotiated with Department of Homeland Security Secretary Alejandro Mayorkas, according to multiple reports, as House Republicans held over a dozen hearings into his conduct and eventually impeached him.

President Joe Biden has called on the Republican House to pass what he calls the “bipartisan” Senate border bill, which Lankford and others claim would limit illegal entry to 5,000 foreign nationals a day. The claim is false according to the bill language, former Border Patrol chiefs and others argue.

The bill would codify into law “discretionary authority” for Mayorkas, which Mayorkas has argued Congress already gave him in lawsuits filed against his policies. Using such authority, Mayorkas unilaterally changed laws established by Congress, including creating over a dozen parole programs, which House Republicans said are illegal and cited to impeach him. State attorneys general who sued him, and federal judges who ruled against him, argue no such discretionary authority allows him to change the law.

Instead of eliminating discretionary authority, as Texas officials, Republican state attorneys general and others have called on Congress to do, the Senate bill would expand and codify it.

In “Title III Securing America Sec. 3301 Border Emergency Authority,” the bill would amend the Immigration Nationality Act to grant the Homeland Security secretary “a border emergency authority.”

“Whenever the border emergency authority is activated, the Secretary shall have the authority, in the Secretary’s sole and unreviewable discretion,” to implement removal policies, the bill states. The secretary can activate this authority “if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day; during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.”

The bill also defines how to calculate seven-day periods depending on where illegal entries occurred in a complicated process.

Key exceptions to the 5,000 a day limit include families and unaccompanied minors who are not Canadian or Mexican citizens, meaning people from all over the world would be processed for entry, which is current policy.

A retired Border Patrol agent who spoke to The Center Square on condition of anonymity due to his current role in law enforcement said the bill would facilitate cartels creating fake families.

“Every time in the history of the Border Patrol where we have made an exception for family units, you immediately see massive fraud families,” the agent said.

“What happens is the cartels [who organize and move people across the border] will extort a woman and child into adding a single adult male to their group. Typically, Border Patrol will process them as a family unit. Then, within hours of their release, Border Patrol will catch the single adult male trying to get past a checkpoint by himself. When he’s arrested and asked where are his wife and kid, he admits they weren’t his wife and kid.”

To address this criticism, the bill would include $20 million for DNA testing, but not rapid DNA testing where results come back within 24-48 hours. Under the Trump administration, Border Patrol agents used rapid DNA testing to determine if people arriving claiming to be a family were biologically related. The Biden administration halted the process. Because Border Patrol agents are required to release illegal foreign nationals within 72 hours and the FBI is 15 months behind processing DNA tests, the retired agent said the bill does nothing to determine if family units are actual families, but codifies existing policies.

The 5,000 a day limit “is a whole lot of hot air about numbers to try to convince you they’re going to limit the number of illegal immigration,” the retired agent said. “What the bill really does is legalize illegal immigration and puts more children in danger because now they’re getting paired up with God knows who. The 5,000 could be 10,000. It could be 15,000 as long as they’re not from a contiguous country,” meaning Canadian or Mexican citizens, as stipulated in the bill.

Lankford issued a statement justifying the bill, adding that the Border Patrol union endorsed it. The union did initially post a positive statement on X, which it later deleted. Lankford also said the 5,000 a day limit means “everything is shut down so we can make sure that we can actually legally process people. We are detaining, screening, and deporting until we get to a break glass moment. And then we’re not even screening anymore. We’re just detaining and deporting because we can’t manage the numbers.”

But this claim is false, authors of a Heritage Foundation analysis argue, because of the numerous exemptions to the limit, including families, unaccompanied children, “parolees, those who claim a fear of persecution, have already been in the U.S. for 14 days, or already traveled beyond 100 miles from the southwest border.”

Former Border Patrol chief and Heritage Foundation fellow Mark Morgan told The Center Square, “The list of exceptions to the cap is so long, along with the ability to waive the cap, it swallows the emergency rule authority, making it meaningless.”

Texas officials have also said the bill would codify mass migration and nullify state sovereignty.

“President Joe Biden opened the border and created the country’s crisis using only executive, not congressional, authority,” Morgan, who coauthored the report, said. “He can end the chaos with the same executive authority; he does not need congressional authority.”