Why Pelosi Caved on Border Funding Bill

By Andrew R. Arthur on July 3, 2019

On June 27, 2019, the U.S. House of Representatives passed a Senate-sponsored bipartisan bill that would provide $4.6 billion in additional aid to fund border operations, and in particular to fund housing for unaccompanied alien children (UAC) apprehended along the Southwest border. As Reuters described it: "In victory for Trump, U.S. House Democrats back down on border aid bill demands." Speaker of the House Nancy Pelosi had to push back far-left members of her own conference who wanted to add further restrictions on immigration enforcement to pass that bill for a simple reason: she had no choice. 

It was an abrogation of duty for both parties in both Houses to have waited so long to finally pass funding. As I noted in a June 26, 2019 post captioned "If You Are Just Now Angry About UAC Detention, You Haven't Been Paying Attention," President Trump asked for that funding on May 1, 2019, and acting Homeland Security Secretary Kevin McAleenan made an impassioned plea to the press to underscore the need for that funding 29 days later:

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 [HHS] is out of bed space and Congress has failed to act on the administration's emergency supplemental request for more than four weeks.

Nobody believed him then, apparently, because there was no legislative action until June 19, 2019, when the Senate Appropriations Committee advanced to the floor of the Senate a "Bipartisan Border Supplemental Package" that "provides a total of $4.59 billion to address the border crisis."

So why did Pelosi cave? The "narrative" was getting away from the script that the Democratic Party and its allies in the media began to trumpet when news came out about the conditions in U.S. Customs and Border Protection (CBP) stations and processing facilities.  

On June 20, 2019, (temporarily) acting CBP Commissioner John Sanders told Associated Press that Congress had to "act swiftly," because "Border Patrol stations are not meant for long-term care."  

On June 25, 2019, the Washington Post reported on arguments that were made before the Court of Appeals for the Ninth Circuit on behalf of the government by Sarah Fabian, a senior attorney from the Office of Immigration Litigation (OIL), the Department of Justice (DOJ) component largely responsible for appellate issues arising from immigrant detention and removal: 

The federal government told a panel of Ninth Circuit appellate judges last week that U.S. border detention facilities are “safe and sanitary,” as required by law, even though migrant children are denied soap, toothbrushes and dark places to sleep.

Judge William A. Fletcher called the position of [Fabian], "inconceivable."

Senior U.S. Circuit Judge A. Wallace Tashima told the government attorney, "If you don’t have a toothbrush, if you don't have soap, if you don’t have a blanket, it's not safe and sanitary."

Fabian's argument spread rapidly across the Internet — and so did several tweets supporting the notion that the United States treats migrant detainees less humanely than foreign pirates and the Taliban treat their captives.

That article (headlined "'The Taliban gave me toothpaste': Former captives contrast U.S. treatment of child migrants"), was largely gratuitous and (in my opinion) slanted, but a few key facts were buried therein:

On Tuesday, the agency said that children in custody receive "continuous access to hygiene products and adequate food" while awaiting shelter placement.

This fact suggests that while the government's points may not have been artfully argued, and were likely legally correct, they did not accurately reflect the situation under which migrants were detained in CBP custody.  Unfortunately, in a 24-hour news cycle in which a significant proportion of the media is openly hostile to the administration, a lawyer is not simply speaking to a judge, or even three judges, but is actually speaking to the nation as a whole, at least as it relates to this hot-button issue.

The other point is the following:

The case heard on Tuesday stems from a motion filed under the Obama administration. In part, it argued that Customs and Border Protection was holding children in detention facilities that were not "safe and sanitary," in violation of a 1997 precedent.

This latter point is key, and goes directly to the reason why Speaker Pelosi had to allow the vote she did. The press can expound sanctimoniously about the "harshness" of Trump-administration policies, but at the end of the day the subject about which they are speaking (the conditions under which migrants are detained in CBP facilities and the reasons why that detention occurs) is technical, not policy-oriented, as demonstrated by the fact that the same conditions existed under the Obama administration.

And then there was the almost irrational response to the detention of migrant children at all from certain quarters. For example, as CNN reported, employees who work for the online retailer Wayfair "sent a letter to senior management [on June 21, 2019], asking the company to no longer do business with BCFS," which the network described as a "global nonprofit . . . , which operates migrant facilities for the Department of Health and Human Services [HHS]. BCFS is set to open a new facility in Carrizo Springs, Texas, which will accommodate about 1,600 unaccompanied minors." 

As the Congressional Research Service (CRS) has explained:

DHS's [CBP] apprehends and detains unaccompanied children arrested at the border. DHS's Immigration and Customs Enforcement (ICE) handles custody transfer and repatriation responsibilities, apprehends UAC in the interior of the country, and represents the government in removal proceedings. HHS's Office of Refugee Resettlement (ORR) coordinates and implements the care and placement of unaccompanied children in appropriate custody. 

ORR contracts much of those care and placement responsibilities out to companies like BCFS, as I explained in an April 2019 Backgrounder. The inescapable question is how migrant children's lives are improved by not providing them beds, particularly at a facility in which they are being cared for. The attitude of those Wayfair employees is a great talking point, but not one that stands up to any analysis whatsoever.

In the larger context of CBP detention, however, the action of those employees is even more counterproductive. CBP facilities were not meant for long-term detention, let alone the detention of migrant children. Only HHS ORR can provide that care until those migrant children can be humanely and safely placed with sponsors in the United States. What is the alternative? For CBP to release alien minors on the streets, or with sponsors who may seek to exploit and/or traffic them? It reminds me of a reference I made in May 2018 in response to some really bad legislative ideas being floated at the time:

Animal House has been a part of American culture since it was released almost 40 years ago, and certain quotes have become shorthand for specific situations, but one in particular has significant resonance in the discharge drama. To set the scene, the brothers have learned of their expulsion and are debating whether to respond. The house Lothario (Otter) takes the floor, supported by the house slob (Bluto), in this exchange from IMDB:

Otter: No, I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody's part!

Bluto: We're just the guys to do it.

Yes: the actions of those employees were futile and stupid, with the added detriment of being harmful to the very class of individuals those actions were intended to help. 

The longer that HHS lacked the critical funding it needed, the more the press would have had to have delved into the technical reasons why the administration was requesting the funding to begin with. The speaker knew that, hence the vote. Congress, not the administration, was to blame, and Congress could not have been seen as taking a July 4th holiday while the situation festered.  

Now, Congress can go back to blaming the president. Which it has.