Dems Use Sleight of Hand to Protect Vulnerable Senators Over Title 42 in Climate Bill

“This is the reason people get so angry at Washington, DC”

By Andrew R. Arthur on August 11, 2022

On August 7, Senate Democrats passed H.R. 5376, the “Inflation Reduction Act of 2022”, which lavishes hundreds of billions of dollars on climate-related causes and funds 87,000 new IRS agents. Republicans tried to use that budget reconciliation bill to force the Biden administration to continue CDC “Title 42” orders that direct the expulsion of illegal migrants at the Southwest border, but that effort was defeated when no Democrats voted for it. Leadership then used some slick sleight of hand to provide cover for Democratic senators for whom the disaster at the border is a political vulnerability.

Reconciliation and the Byrd Rule Explained. Budget reconciliation is a tool the senate majority can use to pass contentious legislation on a party-line vote, as I explained in September when controlling Democrats attempted to use it to pass a massive amnesty, but here’s a quick recap.

To pass a bill in the House, all that sponsors need is a simple majority (218 votes when all 435 seats are filled), and the rules in the lower body allow the party in the majority to limit debate.

Senators can speak on an issue for as long as they want, however, and to get to a vote on passage of a bill in the Senate, 60 senators have to first vote to end debate through “cloture”. Cloture is closely related to the more popularly understood “filibuster”, which senators can use to stall consideration of a bill.

Reconciliation bills do not require that initial cloture vote, however, meaning that there is not much the minority party (in this case the GOP) can do to stop them in the face of a united majority front. They are rarely used, however, because under the “Byrd rule”, the subjects of reconciliation bills must have a direct budgetary impact. If the bill’s subjects don’t have a direct budgetary impact, they “lose privilege” and are subject to filibuster.

Biden's Non-Deterrence Policy. The Biden administration believes its most important duty at the border is ensuring that all foreign nationals who can make it to U.S. soil (legally or illegally) are able to apply for asylum—regardless of the strength or veracity of their claims, the years it will take for those applications to be heard, or the burden hundreds of thousands of bogus claims will impose on already crushing immigration court backlogs.

Of course, our immigration laws actually require DHS to prevent the illegal entry of aliens, but the administration pretends and contends that it is complying with that mandate (which it isn’t).

As a consequence, however, the administration rejects policies that deter migrants from entering illegally. The best example of this is the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

MPP was a Trump-era policy that allowed DHS to send non-Mexican nationals who were apprehended entering illegally back across the border to await adjudication of their asylum applications.

In its October 2019 assessment of the program, DHS determined that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, while at the same time, MPP removed incentives for aliens to make weak or bogus claims when apprehended.

Consistent with its policy of ensuring that as many aliens are able to access the drawn-out asylum-application process as possible, however, the Biden administration opposes Remain in Mexico, and has successfully (thus far) fought efforts by state plaintiffs to force DHS to continue the program.

Title 42. Shortly after the Covid-19 pandemic was declared in late March 2020, CDC issued its first Title 42 order, directing DHS to quickly expel all illegal entrants to prevent the introduction and spread of the disease.

The Biden administration, however, announced in the early spring that it was going to lift CDC’s Title 42 expulsion directives on May 23, though that effort was enjoined in federal court in Louisiana three days before Title 42 was supposed to end.

Title 42 is a public-health policy, not a border-deterrence plan per se, but it has deterred some migrants. Illegal entrants who are expelled under Title 42 aren't able to live and work in the United States for the years it would take for their asylum claims to wend their way through the system, which is, again, at least part of the reason why the administration wants to terminate those orders.

DHS estimates that up to 18,000 aliens will attempt to enter the United States illegally per day once Title 42 ends. By way of comparison, Border Patrol apprehended more than 224,000 illegal migrants at the Southwest border in May, the most in any month in history, at an average rate of 7,233 per day. Thus, if DHS is correct, illegal entries will more than double post-Title 42.

Biden’s immigration and border policies are extremely unpopular with voters, which threatens the electoral prospects of the president’s fellow Democrats in the upcoming midterm elections. A tsunami of illegal entrants would underscore the feckless nature of the president’s immigration policies, further imperiling the reelection bids of Biden’s fellow partisans.

Not surprisingly, a number of Democratic senators in tight races, including Sens. Maggie Hassan (D-N.H.), Mark Kelly (D-Ariz.), Raphael Warnock (D-Ga.), and Catherine Cortez Masto (D-Nev.), in April called on the White House to delay the end of Title 42 until it has a plan in place to deal with illegal entrants.

The Lankford and Tester Amendments. Sen. James Lankford (R-Okla.) tried to force those senators to put their money (actually the taxpayer’s money) where their mouths are, by offering an amendment to H.R. 5376 that would fund a continuation of Title 42 until 120 days after the Covid-19 public health emergency is terminated, thus continuing those CDC expulsion orders indefinitely.

As Lankford explained: “Title 42 authority is the last line of defense that our Border Patrol agents have to protect our Nation, and my Democratic colleagues said they agreed with that idea back in April. The situation has only worsened since that time so surely they will agree with me more today.”

Despite their concerns, Hassan, Kelly, Warnock, and Cortez Masto, as well as such “moderate” Democrats as Sens. Joe Manchin (D-W.V.) and Jon Tester (D-Mont.) voted against the Lankford amendment, which failed on a party-line vote.

Democratic leadership likely knew that this was a bad look for those senators, which brings me to the legislative legerdemain that transpired next, when Tester offered his own Title 42 amendment, a “quite simple” proposal he explained as follows:

It is to make sure that we have a comprehensive plan in place before title 42 is lifted. Very straightforward. This is not whether title 42 should ever be lifted or not; rather, it is about making sure that we are doing the right thing at the right time, which I believe is when the COVID-19 national emergency is lifted and when we have a plan in place.

The Tester amendment, however, did not contain a funding component—again, critical under the Byrd rule for subjects in a reconciliation bill—that was a key part of Lankford’s. The senator from Oklahoma called out the con immediately:

I anticipate there will be a few people who are going to vote for it before they vote against it, in this case. What this is, is this is actually my title 42 bill, except with one little tweak in it. It takes it out of Byrd compliance. So this allows any individual to be able to vote for this one but actually oppose the one that would have actually implemented the policy that was actually Byrd-compliant.

Which is more or less what happened next. Sen. Majority Whip Dick Durbin (D-Ill.) challenged the Tester amendment under the Byrd rule, and while Sens. Hassan, Kelly, Warnock, Cortez Masto, Tester, every Republican, and Kelly’s fellow Democratic Arizonan, Kyrsten Sinema, all voted to waive that rule, the waiver fell four votes short of the 60 votes needed.

As Lankford said before that vote: “This is the reason people get so angry at Washington, DC, because people will say: Oh, I didn't really mean to do that; I meant to do this.”  And he’s right.  The people aren’t happy with what the editorial board at Bloomberg Opinion calls “Biden’s border fiasco”, but whether they are fooled by congressional border security shell games remains to be seen.