WASHINGTON — The landmark border security bill negotiated by senators and the White House has touched off a fierce partisan fight on Capitol Hill. House Republicans leaders have dismissed the proposed legislation, saying President Joe Biden does not need Congress to stop the record levels of illegal border crossings. Democrats and some immigration experts say that is not the case and there is more to it.

What You Need To Know

  • House Republican leaders have dismissed the border security deal negotiated by senators and the White House, saying President Joe Biden does not need Congress to stop the record levels of illegal border crossings

  • While House Speaker Mike Johnson pointed to a section of the Immigration and Nationality Act that gives the president broad authority to suspend the entry of certain foreign nationals. Immigration experts say it is a bit more complicated
  • Former President Donald Trump tried to block people from seeking asylum if they crossed the southern border illegally, but the courts stopped him, citing a provision of the law that affords anyone on U.S. soil the right to seek asylum
  • Republicans have said Biden could reinstate Trump’s "Remain in Mexico" policy, but it would need the Mexican government's cooperation and it has since vowed to reject any restart of the program

Biden said with the deal struck by a bipartisan group of senators, he could do more to reduce illegal immigration at the southern border. 

In a statement when the bill’s text was released, Biden said, “It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed.” 

But House Republican leaders say he does not need a new bill to stop the surge of crossings. 

“He falsely claimed it was a false claim that he needs Congress to pass a new law to allow him to close the southern border. He knows that's not true,” said House Speaker Mike Johnson in his first floor speech since being elected to the leadership role in the chamber.  

Johnson pointed to a section of the Immigration and Nationality Act that gives the president authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 

But some immigration experts say it is a bit more complicated.

When asked if Johnson’s interpretation of the Immigration and Nationality Act was correct, Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, said courts allowed former President Donald Trump to temporarily restrict entry in the U.S. of citizens from mostly Muslim-majority countries. That was not the case when it came to unlawful border crossings.  

“President Trump also tried to use that authority at the southwest border, but was blocked by the courts,” Bush-Joseph told Spectrum News. “Which is why President Biden has said that he needs this new authority to be able to prevent people from applying for asylum.” 

In 2018, Trump tried to block people from seeking asylum if they crossed the southern border illegally, but the courts stopped him, citing a provision of the law that affords anyone on U.S. soil — no matter how they got there —  the right to seek asylum. 

“A president doesn't have the unilateral authority to shut down the border. If a president did, the prior president would have done it,” said Alberto Benitez, director of the Immigration Clinic at George Washington University Law School. “Even the prior president, who had a particular perspective on immigration, never shut down the border. There needs to be buy-in from Congress that a border shutdown is necessary, which there never has been.”

Republicans have said Biden could reinstate Trump’s "Remain in Mexico" policy, which required migrants to stay in Mexico as their applications for asylum played out. Trump’s policy was challenged in court and anything like it today would need Mexico’s cooperation. Trump was able to win that help by threatening tariffs on Mexican goods, but Mexico’s government has since vowed to reject any restart of the program. 

Plus, advocacy groups said it exposed migrants to violence. 

“The Mexican side of the Mexico-U.S. border is very dangerous. In addition, I'm not sure that the Mexican government now is willing to essentially be the front entrance for U.S. immigration policy. They did do it before, and they got a lot of criticism for doing it,” Benitez said.

Republicans opposing the Senate bill have seized on a provision that says if illegal crossings reach a certain level, the president would have new power to immediately expel migrants without the opportunity to make an asylum claim. Johnson has suggested there should be zero illegal crossings. 

“I'm not aware of any country that is able to prevent all unlawful entries into their territory,” said Bush-Joseph. “I think that what we need is a system that is more orderly and allows for the implementation of the laws that we have in place, as well as a system that provides protection for those who need it. “ 

The border bill may be a moot issue, though, as Johnson has already indicated it is “dead on arrival” in the House.