Secure America Act

Floor Speech

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Mr. MERKLEY. Mr. President, I submit this statement on behalf of Senator Durbin, Ranking Member of the Judiciary Committee; Senator Peters, Ranking Member of the Committee on Homeland Security and Governmental Affairs; and myself.

Federal law prohibits bills enacted through the budget reconciliation process from effectuating primarily substantive changes to law that are not related to fiscal policy. The budget reconciliation process is reserved for changes to the Federal budget and specifically precludes the inclusion of ``extraneous'' matters, including any provision whose budgetary effect is ``merely incidental'' to its nonbudgetary policy components. These limitations on the reconciliation process are commonly referred to as the ``Byrd rule'' after Senator Robert Byrd, who championed their enactment. So long as these limitations, among several others, are adhered to, a budget reconciliation bill can pass the Senate with only simple majority votes; but any language that does not comply with the Byrd rule is subject to a point of order that requires 60 votes to waive. In practice, the minority scrutinizes every provision of a reconciliation bill and challenges those it believes violate the Byrd rule in litigation before the Senate Parliamentarian, which occurs before the Senate considers the bill on the floor. In response to successful challenges, the majority often strikes or revises text ahead of floor consideration.

This statement highlights sections of S. 2, the Secure America Act, the fiscal year 2026 reconciliation bill passed by the Senate on June 5, 2026, to further demonstrate that provisions passed through the reconciliation process must be read in accordance with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Public Law 110-457; 122 Stat. 5044), hereinafter the TVPRA, the Flores Settlement Agreement, and other applicable laws.

On May 4, 2026, Homeland Security and Governmental Affairs Committee--or HSGAC--Chair Paul released the proposed Senate HSGAC title of what became S. 2, the Secure America Act. This proposed text included language concerning screenings of unaccompanied children in Section 3(a)(6) that was identical to Section 90004(a)(6) of Public Law 119-21, the fiscal year 2025 reconciliation bill commonly known as the ``One Big Beautiful Bill Act.'' The May 4, 2026, HSGAC title also included language to provide funding for the purposes under title IX of Public Law 119-21, therefore carrying forward section 90003 regarding detention capacity and section 90004(a)(6) of that law.

The Trump administration is currently relying on provisions of Public Law 119-21, which are identical to section 3(a)(6) and referenced by section 4 in the proposed May 4, 2026, HSGAC title, to contravene legislative provisions for the identification and screening of unaccompanied children and to override a settlement agreement governing the care and custody of children detained in U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection--or CBP-- custody. For instance, the Department of Justice cited section 90003 of Public Law 119-21 in district and appellate briefs where they assert the authority to detain families indefinitely in family residential centers. In its implementation of section 90004(a)(6) of Public Law 119-21, CBP has changed its screening of unaccompanied children. Under this new processing mechanism, CBP claims it is now permitted to ask unaccompanied children from noncontiguous countries to withdraw applications for admission to the United States. Such substantive policy overrides would not comply with the Byrd rule.

Given the administration's position on the fiscal year 2025 reconciliation bill, the minority challenged section 3(a)(6) and section 4 of the May 4, 2026, HSGAC text as violating the Byrd rule because the administration would again incorrectly claim that this language constitutes congressional authorization of their new policies related to unaccompanied children and family detention. The Parliamentarian sustained the Democrats' challenges to section 3(a)(6) and section 4, as indicated by a May 14, 2026, press release published by the U.S. Senate Committee on the Budget. Senate Republicans then released a subsequent version of the HSGAC title, specifically the text reported out of HSGAC on May 19, 2026, and the Budget Committee on May 20, 2026, which removed the offending language regarding unaccompanied children in section 3 and the reference to Public Law 119-21 in section 4. These changes reinforce that neither congressional intent nor statutory authorization should be read into, or inferred from, either Public Law 119-21 or the Secure America Act, to change the implementation of immigration law or override settlement agreements, including the TVPRA and the Flores Settlement Agreement.

On May 4, 2026, U.S. Senate Judiciary Committee Chair Grassley released the proposed Senate Judiciary Committee title of what became S. 2, the Secure America Act. This proposed text allocated funds to the U.S. Departments of Justice and Homeland Security through fiscal year 2029. It included language in section 3 to provide $2.5 billion for the purposes provided in the title as well as in part II of subtitle A of title X of Public Law 119-21.

Since its passage, the Trump administration has relied upon section 100051(8) of Public Law 119-21 to set aside legal protections enshrined in the TVPRA for unaccompanied children. The TVPRA limits voluntary withdrawal to children from contiguous countries, and it states that, absent ``exceptional circumstances,'' children from noncontiguous countries must be transferred to Office of Refugee Resettlement custody within 72 hours of entering CBP custody and placed in full removal proceedings. In a recent letter to Senator Wyden, however, CBP Commissioner Scott wrote: ``The language in Section 100051(8) of [Public Law 119-21] makes it permissible to allow certain [unaccompanied children] who are screened and determined to be eligible--including those from noncontiguous countries--the opportunity to withdraw their application for admission and voluntarily return to their country of origin, if they choose to do so.'' In another telling example, the administration relied on section 100051(8) in attempting to overturn a 40-year-old permanent injunction requiring that unaccompanied children receive written notice of the right to a hearing in immigration court and access to a telephone to call a responsible adult or lawyer. As with the HSGAC title, however, such substantive policy changes would not comply with the Byrd rule.

Given the Parliamentarian's determinations with respect to the HSGAC title, and in light of the positions taken by the administration that provisions of Public Law 119-21 override the TVPRA, the minority then challenged the proposed text of section 3 in the Judiciary title. That text was also amended in the subsequent version released by Senate Republicans ahead of floor consideration. In order to meet the requirements of the Byrd rule, proposed section 3--which became section 203 of S. 2, the Secure America Act--was narrowed to remove references to provisions related to the treatment of unaccompanied children. The final language allocated $2.5 billion to the purposes provided in the Judiciary title or for paragraphs (3) or (7) of section 100051 of Public Law 119-21 only. Further still, to avoid future misapplications of funds issued through the budget reconciliation process, in section 202(9) of S. 2, the Secure America Act, provisions funding certain immigration enforcement actions emphasize that such funds must be utilized ``in accordance with existing laws.''

These changes reinforce that provisions in either Public Law 119-21 or the Secure America Act are not intended to change the implementation of immigration law or to override settlement agreements, including the TVPRA and the Flores Settlement Agreement.

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