Senate Committee Passes Emergency Border Bill with Omissions and Unnecessary Provisions

Some good, but a lot of bad

By Andrew R. Arthur on June 21, 2019

The Senate Appropriations Committee on Wednesday advanced to the floor of the Senate a "Bipartisan Border Supplemental Package" which "provides a total of $4.59 billion to address the border crisis." That package is in response to President Trump's May 1, 2019, request for supplemental funding for the border. Some of the funding provided in that package is absolutely crucial. Some of it, however, is just plain bad, unnecessary restrictions on immigration funding are included, and much crucial funding is omitted.

As the Washington Post reported at the time the president made that request, White House acting budget director Russ Vought told congressional leaders: "The situation becomes more dire each day. ... The migration flow and the resulting humanitarian crisis is rapidly overwhelming the ability of the Federal Government to respond."

More than four weeks later, acting Homeland Security Secretary Kevin McAleenan quantified the scope of the problem:

Over the past 21 days, an average of over 4,500 people have crossed our border illegally or arrived at ports of entry without documents. In May of 2017, that number was less than 700 a day. The month of May is on pace to be the highest month in crossings in over 12 years and will significantly surpass the record 109,000 in April.

Yesterday, a single group of 1,036 families and unaccompanied children simply walked from Juárez, Mexico into the United States illegally as a single group — the largest group ever apprehended at the border.

U.S. immigration authorities now have over 80,000 people in custody, a record level that is beyond sustainable capacity with current resources. Over 7,500 single adults are in custody at the border and Immigration and Customs Enforcement is holding over 50,000.

Most urgently, children are being put in danger daily as transnational criminal organizations smuggle unprecedented numbers of families and children across our borders. Over 2,350 unaccompanied children — the highest level ever — are currently in custody waiting for days for placements in border stations that cannot provide appropriate conditions for them because Health and Human Services is out of bed space and Congress has failed to act on the administration's emergency supplemental request for more than four weeks.

The bill as advanced by the Senate Appropriations Committee does provide funding for border operations, as well as for additional immigration judges. As the accompanying fact sheet explains, with respect to U.S. Customs and Border Protection (CBP), that bill:

  • Includes $793 million for establishing and operating migrant care and processing facilities to improve conditions at border stations and ports of entry.
  • Includes $112 million for migrant medical care and consumables, including clothing, baby formula, hygiene products, and other essential items.
  • Includes $110 million for travel and overtime costs for Department of Homeland Security staff in support of CBP's mission.

With respect to U.S. Immigration and Customs Enforcement (ICE), that bill:

  • Includes $48 million for the transportation of unaccompanied alien children and migrants among facilities.
  • Includes $70 million for travel, overtime costs, and pay adjustments for on-board Department of Homeland Security staff in support of ICE's mission.
  • Includes $45 million for detainee medical care.
  • Includes $21 million for Homeland Security Investigations counter-human trafficking operations.

In addition, that bill "includes $2.88 billion for the Department of Health and Human Services' [HHS} Unaccompanied Alien Children (UAC) program."

Further, the bill would appropriate $45 million to the Executive Office for Immigration Review (EOIR), to fund 30 new immigration judge teams, consisting of not only new immigration judges, but also necessary support staff for those judges.

Finally, there is funding for the Department of Defense (DOD):

The bill provides $145 million among the operation and maintenance accounts of the Army, Marine Corps, Air Force, and Army National Guard for operating expenses in support of multiple missions including rotary-wing aviation support, strategic lift, medical assistance, mobile surveillance, command and control, and maintenance activities.

Given the scope of the unfolding humanitarian and national-security disaster at the border, this funding is not only appropriate, it is crucial. That is the good.

Now for the bad, and there is a lot of it.

Beginning at the top, that bill specifically appropriates $10 million to EOIR "to be used only for services and activities provided by the Legal Orientation Program [LOP]." If LOP sounds familiar, that is because in April 2018 I wrote a post questioning whether that program was even necessary. The LOP website explains how that program works:

Through the Legal Orientation Program (LOP), representatives from nonprofit organizations provide comprehensive explanations about immigration court procedures along with other basic legal information to large groups of detained individuals. The program is normally comprised of four components:

  • Group Orientation, which provide an interactive general overview of immigration removal proceedings, forms of relief, and is open to general questions
  • Individual Orientation, where unrepresented individuals can briefly discuss their cases with experienced LOP providers and pose more specific questions
  • Self-help Workshops, where those with potential relief or those who wish to voluntarily depart the country, are provided guidance on specific topics (such as how to complete an asylum application or prepare for a bond hearing), and given self-help legal materials
  • Referral to Pro Bono Legal Services, where available

EOIR manages the LOP through a contract with the Vera Institute of Justice and local subcontracting legal service organizations to provide program services.

Much of this work is duplicative of the responsibilities already imposed on immigration judges to explain the purpose of removal proceedings and an alien's rights in those proceedings, as well as to evaluate whether the alien is eligible for relief. That is likely why EOIR suspended the program in April 2018 to assess its cost-effectiveness before reinstating the program in response to complaints by interest groups and others.

In a fact sheet put out in May 2019, EOIR noted:

MYTH: Participation in the Legal Orientation Program (LOP) reduces the length of an alien's proceedings, reduces the time an alien spends in detention, and reduces costs to the Department of Homeland Security (DHS).

FACT: Aliens who participate in LOP spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.

Given these facts, Congress should not appropriate any additional funding to the LOP until it is fully vetted and shown to be cost-effective. Instead, the Senate Appropriations Committee provided the program $10 million more from the taxpayers' pockets.

Section 401 of the bill is wasteful on both a federal and local level. It directs HHS to "prioritize use of community-based residential care (including long-term and transitional foster care and small group homes) and shelter care other than large-scale institutional shelter facilities to house unaccompanied alien children in its custody. The Secretary shall prioritize State-licensed and hard-sided dormitories."

In other words, the Senate appropriators want to draw on limited community resources (long-term and transitional foster care and small group homes) instead of allowing HHS to erect temporary facilities to house UACs. This would be fine if there were no need for foster care facilities for children in the United States. Children's Rights reports, however, that there are nearly 443,000 children in foster care in the United States on any given day, 11 percent of whom "live on institutions or group homes."

This is not to say that UACs should not be sheltered or protected. There is no indication, however, in the Senate bill that any consideration was given to the effect that its section 401 mandate will have on the foster population in the United States, a population that is equally deserving of care.

Moreover, while we are seeing an increase in UACs now, that may not be true in a year. What is the likelihood that the "hard-sided dormitories" that the Senate expresses a preference for will be ready for occupancy in less than a year? As a person who formerly worked in the government-contracts field, I question whether it is likely at all. If not, that funding will be wasted.

In addition, while that bill would appropriate $11,981,000 to ICE "for detainee transportation for medical needs, court proceedings, or relocation" from CBP custody, no additional funding is included for ICE detention needs. In particular, there is no additional funding for the detention of aliens traveling in family units (FMUs), that is, one or more adult aliens traveling with one or more alien children. Such funding is critical because, according to CBP statistics, 84,542 (63.6 percent) of the aliens apprehended along the Southwest border in May 2019 were FMUs.

Those FMUs cannot be placed in adult facilities, which are not suitable for children. The only other alternative would be to separate children from their parents. That is a nonstarter that would be hung around the president's neck.

Instead, the committee voted to appropriate $20 million for alternatives to detention (ATD). In January 2019, the Center explained "Why Alternative Programs Don't Eliminate the Need for Immigration Detention". The most significant takeaway from that piece was: "Long-term data do not conclusively establish the value of the programs in actually ensuring removal from the United States of ATD participants once they have been ordered removed."

Despite that fact, however, instead of funding actual detention, for FMUs or even for single adult illegal migrants, the Senate Appropriations Committee instead opted to fund ATD.

The worst provision that bill, however, is a retread. Section 409 therein simply states, with respect to HHS funding:

Funds made available in this Act under the heading ''Department of Health and Human Services — Administration for Children and Families — Refugee and Entrant Assistance'' shall be subject to the authorities and conditions of section 224 of division A of the Consolidated Appropriations Act, 2019 (Public Law 116–6).

Despite this bland and bureaucratically benign language, this provision doubles down on section 224 of Public Law 116-6, which I dubbed the "The Worst Provision in the Funding Bill". As I summarized that provision in February:

To recap, congressional Democrats put language into an appropriations bill that both makes it more difficult for ICE to do its job of apprehending aliens illegally present in the United States (for which, by the way, the appropriators did not include additional funding) while at the same time providing greater incentives for parents and legal guardians to pay to place children in the hands of some of the most vile criminals on the face of the earth.

I stand by that statement.

There are other problematic provisions in the Bipartisan Border Supplemental Package, but these are the most significant. And the worst part is that the bad provisions didn't have to be there, and the good, but omitted, provisions could have been inserted. Understand that this is as good as the supplemental funding bill will get. It is doubtful that Republicans in the Senate will have enough votes on the floor to amend this bill to address the points made herein. And the bill will only get worse in the Democratic-controlled House, where the most important appropriator, Appropriations Chairwoman Nita Lowey (D-N.Y.), is almost viscerally opposed to any immigration enforcement.

Chairman Richard Shelby (R-Ala.) of the Senate Appropriations Committee could have advanced this bill out of committee with Republican votes alone, and without having to agree to the restrictions and limitations listed above. Democrats are feeling the heat on their refusal to acknowledge the unfolding disaster the border until it was too late. Why is Pete Buttigieg asserting that he "wouldn't put it past" President Trump to allow the border "to become worse in order to have it be a more divisive issue, so that he could benefit politically?" Because he knows the border disaster is a bad issue for the Democrats who through their action and inaction allow the problem to fester.

More money to address the border disaster is needed. But there is a right way to do it and a wrong way. Unfortunately, in too many cases, Senate appropriators chose the wrong way, and wasted public funds.