Border Security, Government Shutdowns, and Political Chicken

Confessions of a Former Government Employee

By Andrew R. Arthur on December 28, 2018

We are now one week into the strangest government shutdown I have ever seen. And because each of the two parties has different needs, it doesn't look like it's going anywhere fast.

I rode the commuter train between Baltimore and Washington on Wednesday to get to work. It felt like one of those flights when you travel on the actual holiday, and the plane is strangely empty. I almost expected the Maryland Transit Administration to waive the cost of the ticket, simply because the conductors needed the company. Part of it was the fact that it was the day after Christmas, and if you are a government employee (or any employee) and can avoid work generally, you do.

Of course, part of it had to be the fact that if you are a non-essential (or non-excepted, which means the same thing) government employee, you couldn't come to work anyway. I have been "affected" by three major government shutdowns, and they take a little bit of getting used to when you work for the federal government. For the first one, in November 1995, I was in the middle of arguing a case for the INS in San Francisco when one of my coworkers tapped me on the shoulder and told me I had to leave because I was "non-essential". I kind of wanted to stick around and finish the case (to which I felt essential), but I was informed that that was not an option. My co-worker was "fee-based" (paid out of fees, not tax revenue), so she picked up where I left off. I left work, and went to Gino and Carlo in North Beach where I shot pool and drank beer with the bike messengers.

Your first experience of a shutdown is a bit unnerving, because you literally have no idea what to do. Your superiors constantly tell you that there's no guarantee that you will be paid, and it was a point in my life where I really needed the paycheck (and the healthcare it paid for). Also, as a lawyer I felt had an obligation to my client to represent it (or you, if you are a taxpayer), even if I wasn't getting paid, a point they hammer into you in law school. After a couple days, I snuck into my office at 630 Sansome Street and prepared my future cases. I believe that the statute of limitations has run on this minor indiscretion. Of course, we all got paid in the end.

For the second shutdown, about a month later, my colleagues and I were all deemed essential. This led to a different sort of feeling, because again I was told that there was no guarantee that I would get paid for my work. By this point, I felt that the parties to that dispute (Bill Clinton and Newt Gingrich, who were arguing over domestic spending cuts), were being unreasonable, largely for selfish reasons – again, I was told there was no guarantee that I would get paid, and I didn't like the idea of working for free. Of course, again, we all got paid in the end.

By my third shutdown in October 2013 (over Obamacare) I was an old pro. By then, I was an immigration judge, and I received the usual warning that I may not get paid. Because I was a judge in the detained court, I was deemed essential. I sort of resented my colleagues who did not have to work, and were basically getting a free government holiday, because I knew again we would all get paid. (And we were.).

The National Constitution Center explains the legal reasons why government shutdowns occur at all:

Because Congress rarely passes annual funding and all related budget resolutions by October of each year, these continuing appropriations resolutions are needed to keep the government in business – and they frequently come with some controversy.

Again, that is the legal reason. The real reason is generally political, and that is as true this year as it has been in the past. As the National Constitution Center puts it:

This year, the Trump administration is reportedly insisting that the continuing resolution includes significant funding for a border wall with Mexico. It may also attempt with the help of some Republicans in Congress to advocate for eliminating all or major parts of Obamacare.

I can't comment on the part that has to do with Obamacare, because there hasn't been a lot of discussion about that, and it is outside my area of expertise. I can (and have) commented on the part that has to do with the border wall, however.

Politifact has noted (and partially opined) that:

Building "a big, beautiful wall" on the Southern border was Trump's signature promise during his campaign, winning him support from advocates for hard-line immigration reform.

It continued:

Cost estimates for the wall vary greatly. Here are some relevant estimates, as chronicled by news publication Quartz.

In July 2016, Bernstein Research, a firm that analyzes material costs, put the price tag at $15 billion to $25 billion, for a wall that stretches 1,000 miles and is 40 feet high, which was Trump's initial desired height.

In January 2017, Senate majority leader Mitch McConnell said the wall would be $12 billion to $15 billion.

In February 2017, a leaked report from the Department of Homeland Security put it much higher, at $21.6 billion.

In April 2017, the Democratic staff of the Senate Homeland Security and Governmental Affairs Committee said in a report that costs could soar to nearly $70 billion — not including the significant costs and legal resources required for land acquisition.

Taking the low- and the high-end costs, then, effectuating the president's vision would cost anywhere between $12 billion and $70 billion. CNBC reports, however, that the president is looking for $5 billion for border-wall funding, only a portion of what would be required for a wall along the entire Southwest border according to any of the estimates above.

I almost typed "is only looking for $5 billion," but stopped myself after realizing what a Washington statement that would be. You could get 119,047 Ford F-150 Lariat pickup trucks for $5 billion, and still have money left over.

My old boss, Jason Chaffetz, used to use familiar venues (college football stadiums) to illustrate numbers of people, and I think it is a good guide. The largest college football stadium, the University of Michigan's Michigan Stadium, seats 107,601; the college football stadium down the street from me, Unitas Stadium (home of the Towson University Tigers), seats 11,198. This means that we could give everybody who shows up at the two stadiums a brand-new Ford F-150 Lariat, and still have 248 left over, along with a few thousand dollars.

I know that $5 billion is real money to most Americans.

From a budget perspective, however (the context in which this discussion is taking place), $5 billion is a rounding error. The Congressional Budget Office (CBO) budget projection for FY 2018 as of May 2018 showed federal government outlays of $4.1 trillion. That means that if the president's wall request is 0.12 percent of last year's federal budget. Even CNN Politics (which indicates that the total federal budget is the higher $4.4 trillion) states: "And that $5 billion might sound like a lot, but the US government brings in and spends trillions of dollars each year."

So why would the Democrats want to stop a budget of more than $4 trillion from being enacted over 1/820th of that budget?


Want proof? There were 80 Senators who voted in favor of the Secure Fence Act of 2006. As the Congressional Research Service (CRS) described that bill, in part it:

Amend[ed] the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to direct the Secretary to provide at least two layers of reinforced fencing, installation of additional physical barriers, roads, lighting, cameras, and sensors extending: (1) from ten miles west of the Tecate, California, port of entry to ten miles east of the Tecate, California, port of entry; (2) from ten miles west of the Calexico, California, port of entry to five miles east of the Douglas, Arizona, port of entry (requiring installation of an interlocking surveillance camera system by May 30, 2007, and fence completion by May 30, 2008); (3) from five miles west of the Columbus, New Mexico, port of entry to ten miles east of El Paso, Texas; (4) from five miles northwest of the Del Rio, Texas, port of entry to five miles southeast of the Eagle Pass, Texas, port of entry; and (5) 15 miles northwest of the Laredo, Texas, port of entry to the Brownsville, Texas, port of entry (requiring fence completion from 15 miles northwest of the Laredo, Texas, port of entry to 15 southeast of the Laredo, Texas, port of entry by December 31, 2008).

Among the Senators who voted for that bill were Democrats Barbara Boxer and Dianne Feinstein of California, Tom Carper of Delaware, Hillary Clinton of New York, Chris Dodd of Connecticut, Tom Harkin of Iowa, Herb Kohl of Wisconsin, Barbara Mikulski of Maryland, Debbie Stabenow of Michigan, and Ron Wyden of Oregon, as well as Joe Biden of Delaware and Barack Obama of Illinois. And Chuck Schumer of New York. You do not need to follow politics closely to know that these are not what we would call "immigration hawks".

Schumer, Carper, Feinstein, Stabenow, and Wyden still sit in the Senate. Clinton left to become secretary of state, and then ran an unsuccessful campaign for president. Obama and Biden left to become president and vice president, respectively. And Carper is a Deputy Democratic Whip and Schumer is the Minority Leader of the upper chamber.

A cynic would assert that those senators cast those votes because it was brought to the floor 40 days before the 2006 midterm elections, and did not want their party (which was cruising to a victory in those elections, in which it captured both chambers from the Republicans) to appear soft on border security. Democrats in more tenuous seats (for example, Mary Landrieu of Louisiana and Blanche Lincoln of Arkansas, both of whom would later lose reelection), also voted in favor of the bill, but again, that does not prove that they did not support the bill or its intent.

Instead, assigning the purest of motives to those senators, each voted the way he or she did because each wanted to beef up our national security by erecting barriers along the border. Which raises the question as to why there is no agreement on the president's request — if barriers along the border were necessary 12 years ago, why aren't they necessary today?

One answer may lie in the fact that the Democrats will control the House of Representatives in the upcoming 116th Congress. As CRS has noted, under the Constitution "all revenue measures originate in the House, and the House traditionally has insisted that this prerogative extends to appropriations as well as tax measures." So, the Democrats could either deny the president one of his key election pledges in the next Congress, or it could demand significant concessions (such as a complete or partial amnesty for some or all of the 11 million-plus aliens unlawfully present in the United States, for example) in exchange.

The first proposition is risky for the Democrats. There is a saying in Washington: "Win a vote, create a law, lose a vote, create an issue." Elections are a zero-sum game — if one side wins a seat, the other necessarily loses it. And border security is an issue that can move the needle in an election in the favor of the party that supports it (and therefore move the needle against the opposing party; see the cynical view of the Secure Fence Act of 2006), especially if there were a terrorist attack carried out by an actor who had entered illegally, or using a weapon that had crossed the border surreptitiously. There might be support amongst a significant portion of the Democratic base to deny Donald Trump anything he wants, but such a position could have negative ramifications for Speaker Pelosi and her party in the long run.

The second proposition, on the other hand, is a lot safer for the party of Jackson. Both sides could claim victory (Trump with his wall, the Democrats with the concessions they can squeeze from him), but such a strategy carries significant danger for the president. Any concession could be viewed as a "sell-out" by at least part of the president's base, and the bigger the concession, the larger the proportion of the base that could turn against the president.

If I were still working in a non-essential position, I would be scouting North Beach for a place to hunker down for a while. But I would not worry about getting paid — furloughed workers always do in the end.