The bill 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 days in a row.
That “border emergency” provision, which expires in three years, would automatically kick in when crossings reach an average of 5,000 per day over seven days, or 8,500 per day on a single calendar day. A president could choose to use the tool at a lower average of 4,000 per day over seven days.
Though advocates 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 becomes overwhelmed, the border would not be entirely closed. About 1,400 migrants would still be able to qualify for asylum at ports of entry, which would also remain open to conventional trade and travel.
Republican critics of the bill have seized on this provision in particular, claiming it would allow the Biden administration to “release” 5,000 migrants into the United States a day. Sen. James Lankford (R-Okla.), the GOP’s lead negotiator on the bill, has pushed back on that claim, saying it is the “most misunderstood section” of the bipartisan proposal.
“This is not about letting 5,000 people in a day,” Lankford told Fox News last month. “This is not someone standing at the border with a little clicker saying, ‘I’m going to let one more in. We’re at 4,999,’ and then it has to stop. It is a shutdown of the border and everyone actually gets turned around.”