Failed GOP Wall Amendment Shows Path Forward for Border Security

And that the 2018 government shutdown was unnecessary

By Andrew R. Arthur on August 15, 2022

On August 12, Congress passed H.R. 5376, the “Inflation Reduction Act of 2022”, a budget-reconciliation bill that throws hundreds of billions of dollars at climate and healthcare issues, boosts taxes, and funds tens of thousands of new IRS agents. While GOP senators tried and failed to include a half-billion dollars for border barrier construction in that bill, their effort shows a way forward for border security funding — and reveals that the 2018 government shutdown over “the wall” was completely unnecessary.

H.R. 5376 and Budget Reconciliation. I discussed H.R. 5376 in an August 11 post, which described the legislative tricks Senate Democrats used to defeat a Republican effort to force the Biden administration to keep CDC “Title 42” exclusion orders for illegal entrants at the Southwest border in place.

Title 42 is a public-health measure intended to protect the American people from the introduction and spread of Covid-19 throughout the United States. The first CDC Title 42 order was issued when the coronavirus pandemic was declared in late March 2021. That order and subsequent ones have directed DHS to expel all illegal entrants and aliens seeking admission at the land borders without proper documents from this country.

DHS under Trump expelled more than 87 percent of all such aliens at the Southwest border, but the Biden administration has enforced Title 42 much less vigorously. Less than 45 percent of the aliens subject to Title 42 expulsion at the U.S.-Mexico line in June were expelled under those CDC orders.

Although the administration continues to raise concerns about Covid, the president tried to end Title 42 in late May. A federal district court judge, however, enjoined the termination of Title 42 three days before those orders were set to end, a decision the Biden administration is appealing.

Many vulnerable Democrats who are up for reelection in November have called on the administration to continue Title 42 until Biden can bring the border under control. Despite that fact, every Democratic senator — including those in tight races — voted against a GOP amendment in H.R. 5376 that would have funded a continuation of Title 42.

A subsequent vote on a Democratic-sponsored Title 42 amendment received 56 votes, but fell four votes short of the necessary number for adoption. Which says a lot about the sincerity of those Democrats who claim to want to keep Title 42 in place, but also provides insight into the nature of the bill itself.

Most bills require 60 votes to pass under Senate rules, but budget-reconciliation bills can pass with just 51 votes. Democrats have a slim majority in the House (where simple majorities rule), but the Senate is evenly divided. Vice President Kamala Harris, as the president of the Senate, casts the tie-breaker, which is how H.R. 5376 passed out of the upper chamber.

That said, not every piece of legislation can be called “budget-reconciliation” and pass the Senate on a simple majority. Under the “Byrd rule”, the subjects of reconciliation bills must have a direct budgetary impact. If they don’t have a direct budgetary impact, they “lose privilege” and are subject to a 60-vote filibuster.

The Republican Title 42 amendment authorized funding, so it was “in order” under a border-reconciliation amendment that could pass by a simple majority under the Byrd rule. The Democratic one didn’t, and thus needed 60 votes it didn’t receive.

The Sullivan “Wall” Amendment and the 2018 Shutdown. Which brings me to amendment 5194 to H.R. 5376, offered by Sen. Dan Sullivan (R-Alaska). It would have authorized $500 million “for necessary expenses relating to the construction or improvement of primary pedestrian fencing and barriers along the southwest border”.

While Congress authorized border “wall” construction along the U.S. border with Mexico in 2006, and appropriated $1.375 billion yearly for that purpose for FY 2019, FY 2020, and FY 2021, one of Biden’s first acts as president was to “pause” (read: “halt”) border barrier construction. Except for promises to plug a few “gaps” where barriers are incomplete, no new fencing has been undertaken since Trump left.

Barrier construction used to be a bipartisan issue. Then-Sen. Joe Biden (D-Del.) voted for that 2006 legislation, as did Sens. Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.). In his 2008 presidential campaign, Biden even made fencing a key talking point.

That all changed once Trump made a vow to “build the wall” a cornerstone of his 2016 presidential run. Democrats turned against any further construction, and Trump’s demand in late 2018 for $5.7 billion for Southwest border fencing led to a 35-day government shutdown that only ended after Trump agreed to $1.375 billion instead.

As an aside, on the same day he signed that funding bill, Trump declared a “national emergency” at the Southwest border, which directed the military to assist and partially fund border barrier construction. That simply inflamed Democrats even more.

Back to the point, even some Republicans complained about Trump’s threats to shut down the government over wall funding before that shutdown began on December 22, 2018, despite the fact they controlled both houses of Congress at the time.

On December 12, 2018, for example, The Hill reported that Rep. Tom Cole (R-Okla.), a House appropriator, had complained:

It’s not going anywhere in the Senate. How many hundreds of bills do we have other there? We have to prove yet again we can send a bill over that Schumer won’t provide 60 votes for? ... So I see an exercise in futility. Because then you’re asking people to make tough votes over here for absolutely no good over there.

Which brings me back to the Sullivan amendment. It would have done — on a smaller scale — what Trump shut down the government for back in late December 2018, that is, fund border wall construction. That’s important, but not the most notable part.

Democrats did not raise a “point of order” opposing that amendment under the Byrd rule, meaning it must have been approved by the Senate parliamentarian before it was brought to a vote.

My colleague, David North, and I have explained the role of the Senate parliamentarian in some depth in connection with a series of amnesties Democrats attempted to include in H.R. 5376 in its earlier iteration, when it was known as the “Build Back Better Act” (BBB).

Briefly, however, the parliamentarian is a nonpartisan gatekeeper whose role is “to provide expert advice and assistance on questions relating to the meaning and application of the Senate’s “legislative rules, precedents, and practices”.

The parliamentarian determined that the Democrats’ amnesty proposals in the BBB were “merely incidental” to the non-budgetary components of that bill, and therefore were improper under the Byrd rule. As noted, she did not make a similar ruling on the wall funding in the Sullivan amendment.

Looking Back — and Looking Forward. Thus, congressional Republicans didn’t need to get 60 votes in the Senate on an appropriations bill in December 2018 to fund Trump’s barrier initiatives. They could simply — and properly — have introduced a budget reconciliation bill like H.R. 5376 that would have done the same thing.

Of course, the parliamentarian’s ruling also means that the GOP could “build the wall” in future legislation, even absent Democratic assent, provided they have majorities in the House and the Senate.

That won’t do much good even if Republicans take control in the next, 118th Congress, because Biden could simply veto the bill. If the party were, however, to gain control of Congress and the White House in 2024, congressional Republicans would have a clear path to passage, assuming that they can keep their members in line.

The ruling also means any number of other immigration proposals could be added to such a reconciliation bill, provided that the parliamentarian finds that those proposals are in order under the Byrd rule. There is a saying in my family that “if you don’t ask, you don’t get”, which members who are concerned about out-of-control immigration may want to keep in mind.

The Sullivan amendment to H.R. 5376 would have forced the Biden administration to restart border wall construction, and while it failed on a party-line vote, it points the way forward for a future Congress to reverse the deleterious effects of what the editorial board at Bloomberg Opinion has termed “Biden’s Border Fiasco”.