Among the ideas under consideration, according to two of the people, is a version of Title 42-like expulsion authorities and a nationwide expansion of the process known as expedited removal, which allows the government to deport anyone unable to establish a legal basis. In addition, conversations have centered on including a mandatory detention policy until migrants can be placed into expedited removal proceedings, as well as changes to the credible fear standard, which would ultimately deny more migrants the opportunity to apply for asylum.
People both on the Hill and the administration cautioned that talks were fluid. They also warned that no specific policies have been agreed to and simply because an idea was under consideration didn’t mean it would be included, let alone presented, as a Democratic-authored proposal.
“The White House has not signed off on any particular policy proposals or final agreements, and reporting that ascribes determined policy positions to the White House is inaccurate,” said a White House spokesperson. “The President has said he is open to compromise and we look forward to continued conversations with Senate negotiators as we work toward a bipartisan package.”
But the people involved in the negotiations also noted that the White House is eager to see a deal cut. And if the policies under consideration do move forward, it would be viewed as major reversals by the Biden administration.
Few think a deal this week is possible, though negotiators hope to keep the talks alive into the new year. But the last-ditch effort speaks to the level of urgency facing the White House as President Joe Biden pushes Congress to deliver more aid for Ukraine in a package now tied to border policy.
On Tuesday, Lankford said the White House ramped up talks with him Monday night, after he suggested earlier in the day that “there’s no time” to finish a deal.
“Not the first that I’ve talked to them, but the first time we’ve talked about anything serious policy,” he said.
The potential counteroffer comes as Biden hosted Ukrainian President Volodymyr Zelenskyy at the White House on Tuesday. Zelenskyy first spoke directly to senators Tuesday morning in an effort to pressure Congress, where a deal to deliver emergency aid to his country has reached an impasse over border issues.
Murphy on Monday said the White House was getting more “involved in these discussions” but noted the House is set to leave Thursday — restricting an already tight timeline for the negotiators to find common ground.
Even if senators agree to move forward on policies under discussion, such changes to the immigration system would still have to be formalized into actual legislative text. There would also be implementation challenges: On mandatory detention, there is not enough capacity or resources for an operation of this scale, unless massive camps are set up at the border. Even in this case, the Flores settlement from the 1993 SCOTUS ruling would prohibit children from being detained for longer than 20 days.
It also remains unclear if any deal reached in the Senate would have the necessary support in the House.
Republicans, going further last week, offered a list of Trump-era border restrictions in their latest proposal, including several policies Democrats have denounced. Republicans continue to push on class-based “parole,” a key tool the administration has used to create legal entry pathways and manage the influx at the border. This policy has so far appeared to be a red line for the White House.
GOP senators also proposed a policy to set metrics for automating a border shutdown — halting U.S. acceptance of migrants if border numbers hit a certain level.
Jennifer Haberkorn and Burgess Everett contributed to this report.