The law project includes a mechanism that would give the Department of Homeland Security the authority to quickly expel migrants caught crossing the border illegally if crossings have been particularly high for several consecutive days.
This “border emergency” provision, which expires in three years, would automatically take effect when the number of crossings reaches an average of 5,000 per day over seven days, or 8,500 per day over a single calendar day. A president could choose to use the tool at a lower average of 4,000 per day for seven days.
Although supporters of the bill, including President Biden, have described this provision as one that would grant him new emergency authority to “shut down” the border when it is overwhelmed, the border would not be entirely closed . About 1,400 migrants would still be eligible for asylum at ports of entry, which would also remain open to conventional trade and travel.
Republican critics of the bill have particularly seized on the provision, saying it would allow the Biden administration to “release” 5,000 migrants per day into the United States. Sen. James Lankford (R-Okla.), the lead GOP negotiator on the bill, pushed back on that claim, saying it was the “most misunderstood section” of the bipartisan proposal.
“It’s not about leaving 5,000 people in one day,” Lankford told Fox News last month. “It's not about someone standing at the border with a little clicker and saying, 'I'm going to let one more in.' We're at 4,999', and then it has to stop. It’s a border closure and everyone finds themselves in a situation of reversal.”