bill:

The bill gives the federal government significant discretion over exactly when to implement this new emergency summary-deportation process and does not require it to be publicly announced. The upshot is this: on any given day, a would-be asylum seeker would have no idea whether they would be allowed to seek asylum in the U.S. or not. The government would be allowed to opt people out of summary removal for a variety of reasons, including operational constraints such as overcrowding. Non-Mexican unaccompanied children would also be exempted. Those set for summary removal could receive a screening for non-asylum humanitarian protection by affirmatively “manifesting” fear of persecution or torture to a border official—volunteering without prompting that they fear return or showing an obvious sign of fear.

People summarily deported under this authority could be sent to their home countries, or if the Mexican government is willing to accept them, sent to Mexico instead. A second deportation under emergency authority would trigger a one-year bar from obtaining a visa.

Crucially, the emergency authority does not “close” or “shut down” the border. It does not prevent unauthorized migration entirely: legislation cannot physically prevent people from crossing between ports of entry at all (it can only assess consequences for what happens after). Furthermore, the bill requires the government to allow people to seek asylum at ports of entry even during a border emergency and requires the government to maintain capacity for 1,400 daily entries in this manner—ensuring that asylum will not be wholly unavailable.

By creating two different sets of border policy depending on whether the emergency authority was in effect or not—without declaring whether it was in effect at any given time—the bill would increase confusion at the U.S./Mexico border. Border Patrol agents, U.S. Citizenship and Immigration Services (USCIS) asylum officers and migrants themselves would be left uncertain on a day-to-day basis about which set of rules was in effect. Confusion about border policies is easily exploited by human smugglers, who encourage people to come to the U.S. quickly if there are threats that the border is about to be “shut down.”