WASHINGTON – Senators negotiating new US immigration restrictions as part of a deal to advance aid to Ukraine are exploring ways to prevent a future president from abusing some of the executive powers on the table to control the number of migrants seeking asylum, two sources with knowledge of the talks said.
One source said Democrats want a “safety valve” in the new policy to prevent cruelty and mass roundups that could one day be used far beyond the goal of controlling the border. They’re aware that if former president Donald Trump – or someone with similar views on immigration – is elected, expanded powers without limits could backfire.
It’s the subject of some key sticking points, as Republicans demand more expansive powers for the president to deal with a border situation they describe as unchecked and chaotic.
In one dispute, GOP senators want to expand the president’s discretionary powers to close the border. While Democrats aren’t worried about President Joe Biden abusing that power, “what Donald Trump could do with it – and would do with it – is very different. And that is clearly on people’s minds as they draft,” said a Democratic source familiar with the talks.
“None of this is being drafted in a vacuum,” the source said.
Another key example is that Democrats are open to beefing up expedited removal powers to allow an administration to turn away new migrants – but they’re adamantly opposed to expanding that to include deportations from within the country, which Trump tried and failed to do as president. “That would never fly with Democrats,” the Democratic source told NBC News, calling it a “red line” for them.
Democrats fear that an expansion of expedited removal authorities without clear limits – especially under a new Republican administration – could lead to mass targeting and racial profiling, resulting in the deportation of long-time residents, spouses of Americans and perhaps even US citizens themselves.
Some progressives say Democrats should oppose any new border crackdown policy altogether, citing Trump’s comments accusing immigrants of “poisoning the blood of our country” – which critics have compared to comments made by Adolf Hitler – and his statement to the New York Young Republican Club that he wants to “be a dictator for a day”.
Sen. Alex Padilla, D-California, said Trump’s recent “promises to serve as a dictator and his vile anti-immigrant rhetoric should be a wake-up call” not to give a president more powers to “target, round up and deport immigrants.”
“Expanded nationwide expedited removal is an incredibly dangerous tool that, if willingly handed over in these negotiations, could easily be abused by a future Trump administration to target political opponents and critics,” Padilla said.
But the White House and Democratic leaders have a different answer: Cut a deal, but limit the new powers to prevent abuse by Trump or another future president.
“As the Article I branch, we should always have an interest in not outsourcing too much authority to the Article II branch as a matter of principle,” Senator Chris Murphy, D-Connecticut, the party’s lead negotiator on the issue, told NBC News.
Republicans, meanwhile, want more aggressive powers and mandates for the executive branch regardless of the next election, fearing that Biden will be too lenient on asylum seekers and fail to reduce the flow at the border.
Sen. James Lankford, R-Okla., the top Republican negotiator, said the Biden White House has made clear it wants more tools to manage the border, arguing that it’s not a purely GOP position.
“They’re saying, ‘We’d like to be able to solve some of these things, but we don’t have the authorities to do it. We need that authority,” Lankford said.
That was the fundamental tension at the heart of the elusive deal between Democrats and Republicans, who said they continued to negotiate and make progress over the weekend and continued into Monday without an agreement. Biden is motivated to reach an immigration deal as the GOP has made clear it is a condition to win their votes to advance aid to Ukraine and Israel.
As a compromise, the two sides are exploring a “trigger” that would initiate expedited removal at the border – for example, a certain number of migrants seeking asylum or apprehended between ports of entry, said Sen. Thom Tillis, R-N.C. He theorised that the threshold could be 3,000 asylum seekers per day, taking discretion away from the president and requiring the president to use those authorities to begin turning away migrants.
“Now, the key is the language would have to be so explicit that we could literally win a lawsuit quickly that the president is not exercising his authority,” Tillis said of the GOP position. “So that goes into the language: If it’s time to close the border because we can’t handle the capacity, the president has to act.”
The text of any deal will be key to assessing whether it has the votes to pass the Senate, where Democrats control 51 votes and need 60 to break a filibuster, and the Republican-led House, where Speaker Mike Johnson has called for more sweeping measures to restrict migration. And Biden will face his own pressure from immigration hawks in his party as he attacks Trump’s anti-immigrant language.
Sen. Bob Menendez, D-N.J., said last week that “the administration’s proposals read like a bucket list of Stephen Miller’s wildest fantasies,” referring to the immigration hardliner who advises Trump and played a key role in shaping his policies as president.
Todd Schulte, the president of the bipartisan pro-immigration group FWD.us, noted that Trump’s administration has sought to expand the powers under discussion to launch an immigration crackdown.
“There is no need to speculate about what President Trump and his team want for their far-right, authoritarian agenda,” he said. “They have explicitly stated that nationwide expedited removal is absolutely fundamental if they’re going to continue their horrific efforts to arrest and deport millions and millions of immigrants.”
Tillis said he wasn’t sympathetic to the pushback from the left as talks continue, instead saying it could even help win GOP votes for a deal.
“Part of it may be some fear that people are gonna get shot – that their base is somehow gonna come after them. Cry me a river,” Tillis said, noting that he has been rebuked by his state party for supporting bipartisan measures. “Bipartisan things are hard. You have to step up and do it.”
