After spending the last 10 years debating border security—the last two of which were under unified GOP control—and then engaging in a 35-day shutdown the best Congress could muster this week was a 1,169 page bill that does nothing more than sustain the problem.
The fix was in from the start. Democrats entered negotiations determined not to give an inch to President Trump’s policy priorities, particularly on the wall. They were matched with Republicans who largely agreed with them. Senators Richard Shelby (R-Ala.), Shelley Moore Capito (R-W.Va.), Roy Blunt (R-Mo.), and John Hoeven (R-N.D.) made up Team GOP and of those names, the latter are three already on record supporting amnesty. Hoeven, in fact, was the lead sponsor of the Senate’s 2013 Gang of Eight amnesty proposal.
The Democrats, it seems, did not have to put up much of a fight on the wall, or, for that matter, on much else. Funding for 55 miles of fencing was included in the legislation—but paid for with $1.4 billion, less than the $1.6 billion Democrats were originally offering.
The Washington Post made clear the type of hardball Republicans were willing to play:
An emboldened House Appropriations Committee Chairwoman Nita M. Lowey (D-N.Y.), a Pelosi confidante, took a page from her friend’s playbook of driving a tough bargain: She walked into the room and surprised her Senate counterparts by lowering the offer to $1.375 billion.
Shelby accepted without a fight.
Encouraging Illegal Immigration
It should come as no surprise, then, the resulting bill is shot through with policies that not only fail to address the decades-long border crisis, but likely make it worse.
Absent were any provisions to fund more Immigration and Customs Enforcement agents, provide for more judges at the border to speed asylum claims, or funding for more detention beds to house the increasing numbers of families crossing the border. The bill actually reduces the number of border detention beds from 49,060 to 40,520.
Instead of being processed at the border, asylum seekers will be placed in an Alternatives to Detention program—funded at $40 million in the bill—where they are moved to the interior of the country, and usually let go, pending a court date. So much for ending “catch and release.”
Worse yet, the bill creates a pernicious new incentive for illegal immigration and child trafficking. Under section 224 of the bill, the federal government is now prohibited from detaining or deporting any current sponsor, potential sponsor, or anyone residing with, an unaccompanied minor (UAC). This is hugely problematic for two reasons. First, as Jessica Vaughan of the Center for Immigration Studies has pointed out, 80 percent of those who sponsor UACs are here illegally.
Moreover, 30 percent to 40 percent of MS-13 gang members arrested by ICE in the last two years have come here as UACs. While the provision allows for deportation of UAC sponsors who have committed a felony, most remain unknown to law enforcement. Protecting the UAC and all sponsors, potential sponsors, and household members places a huge deportation shield on those who have already broken the law, and demographic surveys tell us they are a population at-risk for participation and recruitment into MS-13 gang activities.
Second, the legislation provides new incentives for cartels to expand trafficking in children. Our weakened asylum laws already encourage migrants to come to the border with children. As the New York Times reported in April,
Some migrants admitted they brought their children . . . because they believed it would cause authorities to release them from custody sooner. Others have admitted to posing falsely with children who are not their own, and Border Patrol officials saw that such instances of fraud are increasing.
Rather than fixing this incentive, the bill Congress passed last week expands it. By providing a deportation shield for anyone associated with a UAC, there is now an additional inducement to bring children on these incredibly dangerous treks, or to find a cartel willing to “lend” one.
Pass It, Then Find Out What’s In It
From a process standpoint, the bill falls into the “pass it and then find out what’s in it” category. The text of the legislation was released close to midnight on Wednesday evening, before receiving its first vote at 3:59 p.m. on Thursday in the Senate, and passing the House at 8:59 p.m. the same day. The bill passed both chambers less than 24 hours after it was made public.
It was also still undergoing changes. The first version of the bill’s final text was 1,159 pages, before 10 new pages were mysteriously added to double the cap on H-2B non-agricultural, low-skilled workers.
Industry lobbyists, it seems, can get amendments. Members of Congress, not so much.
The form of the bill—it was considered as a conference report, rather than as regular legislation—restricted Members from offering changes. While points of order, otherwise known as violations of budget laws or House and Senate rules, existed throughout the bill, no one had time to find or raise them.
This isn’t to say there weren’t other options. Members of Congress took to Twitter to ask openly that a two-week funding extension be passed to give them time to digest the details of the 1,169-page bill. Obviously, their calls were ignored.
The reason? Well, as one former staffer for Senate Majority Leader Mitch McConnell put it recently,
Look, I get that for some people a little delay would be helpful to stir up some more support for another pointless shutdown, but 99 [percent] of the rank and file are perfectly content to put this all in the rearview mirror.
Congress: Do Nothing, Then Whine About It
Frustrated, once again, by a Congress that flat out refuses to solve the country’s illegal immigration and border security crisis, Trump followed through on his pledge to declare a national emergency at the border. This allows him access to funds he can then move to fund the wall.
Members of both parties have raised objections, citing subversion of congressional authority. This is rich, coming from a body that has passed 136 statutory provisions related to presidential emergency powers. It’s also the body that raised zero objections to the 18 times that Presidents Bush and Obama moved around funds using emergency declarations.
But perhaps the richest of ironies here is that, if Congress had wanted to prevent President Trump from declaring a national emergency, they explicitly could have done so in the funding bill they just passed it.
But, in keeping with bipartisan congressional tradition on just about everything these days, the only thing they did was . . . nothing.
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Photo Credit: Bill Clark/CQ Roll Call