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On immigration, the Gang of Eight security promise that wasn’t

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Photo - WASHINGTON, DC - APRIL 18:  U.S. Sen. John McCain (R-AZ) (2nd L) speaks as (L-R) Sen. Jeff Flake (R-AZ), Sen. Marco Rubio (R-FL), Sen. Richard Durbin (D-IL), Sen. Chuck Schumer (D-NY), Sen. Bob Menendez (D-NJ), Sen. Lindsey Graham (R-SC), and Sen. Michael Bennet (D-CO), also known as the Gang of Eight, listen during a news conference on immigration reform April 18, 2013 on Capitol Hill in Washington, DC. The senators discussed the "Border Security, Economic Opportunity, and Immigration Modernization Act".  (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - APRIL 18: U.S. Sen. John McCain (R-AZ) (2nd L) speaks as (L-R) Sen. Jeff Flake (R-AZ), Sen. Marco Rubio (R-FL), Sen. Richard Durbin (D-IL), Sen. Chuck Schumer (D-NY), Sen. Bob Menendez (D-NJ), Sen. Lindsey Graham (R-SC), and Sen. Michael Bennet (D-CO), also known as the Gang of Eight, listen during a news conference on immigration reform April 18, 2013 on Capitol Hill in Washington, DC. The senators discussed the "Border Security, Economic Opportunity, and Immigration Modernization Act". (Photo by Alex Wong/Getty Images)
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When the Gang of Eight was crafting its comprehensive immigration reform proposal — but before the bill was actually released — pro-reform Republicans on Capitol Hill often pointed to the various triggers they said would ensure the bill’s border-security directives are actually carried out.

One key trigger, they claimed, was the creation and empowerment of something called the Southern Border Security Commission.  If within five years after the passage of the bill, the Secretary of Homeland Security has failed to increase border security to a level in which 100 percent of the border is under surveillance and 90 percent of those attempting to cross illegally are caught — if Homeland Security has not reached those goals, then the Commission would be formed.

It wouldn’t be the standard, do-nothing Washington commission, Gang sources argued.  Instead, it would have real legal authority to actually carry out the border security measures that the Secretary of Homeland Security had failed to accomplish.  This is how one key Capitol Hill source described it to me in an interview a few days before the bill was released:

Five years after the notice of commencement, you will have to have achieved 100 percent situational awareness and 90 percent apprehension in all nine sectors of the border.  If that metric has not been achieved after the first five years, the Border Commission goes from being an advisory panel to a policy-making one.  We have set money aside in escrow for the Border Commission to come up with a supplemental plan to meet that metric of 90 percent and 100 percent.  That happens after five years.

It sounded tough, intended to convince skeptical conservatives that reform would be based on stringent border security.  But as it turns out, the structure Gang sources described is simply not in the bill.

In the legislation, the Commission would be formed if the Secretary of Homeland Security “certifies that the Department has not achieved effective control in all high-risk border sectors during any fiscal year beginning from the date that is five years after the enactment of this Act.” The Commission’s “primary responsibility,” according to the bill, “shall be making recommendations to the President, the Secretary, and Congress on policies to achieve and maintain the border security goal” of 100 percent surveillance and 90 percent apprehension.  The Commission will have six months to write a report “setting forth specific recommendations for policies for achieving and maintaining the border security goals [specified in the bill].”  That report shall contain, according to the bill, “recommendations for the personnel, infrastructure, technology, and other resources required to achieve and maintain [those goals].”

The bill requires that the head of the Government Accountability Office then review the report to determine whether the Commission’s recommendations are likely to work and what they will cost.  And then — the process stops.  “The Commission shall terminate 30 days after the date on which the report is submitted,” says the bill.

There is nothing about the Commission going from “being an advisory panel to a policy-making one.”  The strict trigger that Gang sources advertised as being in the bill just isn’t there.

As far as the “money set aside in escrow” for the Commission and its enforcement plan, the bill specifies that $2 billion “shall be made available” to the Secretary of Homeland Security “to carry out programs, projects, and activities recommended by the Commission.”  It is not clear whether there is any directive for the Secretary to actually do anything.

Finally, even after the bill was released, a leading Gang member, Republican Sen. Marco Rubio, stressed that the Commission would not be a Washington-centric panel, the kind that are so common and so ineffective that they are the butt of jokes.  “If, in five years, the plan has not reached 100 percent awareness and 90 percent apprehension, the Department of Homeland Security will lose control of the issue and it will be turned over to the border governors to finish the job,” Rubio told radio host Mark Levin shortly after the bill was made public.  “Which is not a Washington commission, made up of congressmen or bureaucrats.  It’s largely led by the border state governors, who have a vested local interest in ensuring that that border is secure.”

The bill specifies that the Commission will have ten members.  Two will be appointed by the president.  One will be chosen by the Majority Leader of the Senate, and another by the Minority Leader.  (Formally, both will be appointed by the President pro tempore of the Senate.)  Another one will be chosen by the Speaker of the House and one by the House Minority Leader.  And the other four, one from each border state — California, Arizona, New Mexico, and Texas — will either be the governor of the state or someone the governor designates.  So that is six Washington-based appointments and four border state appointments, which may or may not be the border state governors.

The Gang of Eight bill faces many possible amendments in the Senate Judiciary Committee and beyond.  But one thing it does not do, at least in its present form, is create a commission with the powers the bill’s sponsors promised it would have.

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