Another Dive into the Ugly 2019 DHS Funding Bill

By Dan Cadman on August 1, 2018

Several of my colleagues here at the Center for Immigration Studies have commented on some of the objectionable provisions in the 2019 Department of Homeland Security (DHS) funding bill that recently passed the House Appropriations Committee (see herehere, and here).

I want to augment their remarks on how truly dismal the final product is. It's hard to believe that this is a bill crafted under Republican stewardship. What could the committee's leadership have been thinking?

It's ironic that several (although by no means all) of the objectionable provisions were last-minute additions passed by voice vote on amendments introduced by Democrats who then, having gotten their way on these anti-enforcement provisions, went on to vote against the overall bill on party lines, knowing it would pass anyway because of the Republican majority. So it is that the Republicans allowed them to have the best of both worlds. It's like allowing someone to turn your backyard into a minefield.

Here is a sampling of the amendments voice-voted into the bill:

DACA and TPS Recipients

My colleague Mark Krikorian has already noted the peril inherent in Congress by embedding any references to DACA in law, appearing to legitimize a program that is probably unconstitutional and was certainly established without a statutory basis — a program that at heart usurped the federal legislative authority. This is particularly worrisome since the termination of the program ordered by President Trump is still being litigated. Yet the Appropriations Committee seems to be singularly indifferent to these concerns.

Rep. Pete Aguilar (D-Calif.) offered an amendment prohibiting the removal of DACA recipients who are military "veterans". This amendment would be of limited application, so one might even feel a measure of sympathy, but the language was deeply flawed. What if these veterans were discharged under other-than-honorable conditions? Should they really be treated the same as veterans who honorably served the United States in the armed forces? They would be under the amendment.

Having gotten his way on the prohibition against deporting DACA veterans, which was probably a great surprise to him, Aguilar then introduced a more broad-based amendment. This one prohibits expenditure of funds to detain or deport any DACA or even Temporary Protected Status (TPS) program recipients. (Note the rapidly expanding pool of illegal alien beneficiaries of Aguilar's amendments.) This is a stealth amnesty for both populations of aliens that would number into the hundreds of thousands, possibly over a million.

A number of the TPS programs have been terminated by the Trump administration with forward-projected end dates, as was DACA, whose recipients are for the moment protected by an injunction at the lower court level. However, the administration has appealed the district court decision and it is a reasonable expectation that it will ultimately prevail at the Supreme Court. If so, then it seems likely that the outcome of Aguilar's second amendment would be to burden the United States with a permanent underclass of aliens who have no lawful status as theirs expires, but who cannot be removed since DHS would be prohibited from spending funds to do so. If Congress wishes to bestow benefits on these individuals, then the appropriate mechanism is to do so via amnesty, which to date it has declined to do. It is incredible that the House Appropriations Committee would permit such an amendment to pass on a voice vote.

Family Migration

Rep. Kevin Yoder (R-Kan.), chairman of the House Appropriations Committee's Homeland Security subcommittee, introduced an amendment containing this language: "The Department shall only separate a child from a parent if the parent has a criminal history, a communicable disease, or is determined to be unfit or a danger to the child." This is clearly a reaction to the recent uproar over family separations, but is simplistic in approach because the amendment's language would be really problematic to execute. For example:

  • Does a criminal rap sheet, regardless of convictions, constitute a disqualifying "criminal history"? What if the rap sheet includes sex or domestic violence offenses, but no convictions?
  • Who determines when a parent is unfit or a danger? What are the criteria for making these determinations?

The only sure outcome of this Yoder amendment is a plethora of time-consuming and costly litigation that would ensue from any DHS efforts to comply.

Another portion of the same amendment would make millions of federal taxpayer dollars available for mental health care for aliens who were traumatized because they "fled violence". While it, like the prior portion, is superficially attractive, it is of dubious utility to presuppose that each and every alien was traumatized by "violence" they fled. In fact, there are cogent reasons to believe that many people depart from major sending countries because they are seeking to better themselves economically (see here and here).

One is obliged to ask, then: Was it the violence they allegedly fled that traumatized them — or equally (or perhaps even more) likely was it the illicit trek that they chose of their own volition, during which they were traumatized as they faced predation by cartels, alien smugglers, human traffickers, and corrupt officials? Why does this become the burden of U.S. taxpayers? Does this amendment not just further the likelihood of a continued flow of women and children by embedding in federal law the presupposition that, as a group, all have "fled violence"? No law, rule, or policy of the United States should have as a likely outcome the continued flow of the most vulnerable.

A third portion of Yoder's amendment would oblige Immigration and Customs Enforcement (ICE) to prioritize alternative-to-detention (ATD) and family case management program (FCM) programs "to improve participant compliance with immigration court adjudication obligations." Again, Yoder is clearly focused on finding means to avoid the troubling necessity of detaining families while still finding some way to oblige them to comply with the law. And again the language falls short, this time because it doesn't go far enough.

It isn't simply showing up for immigration court that's important; that's only half the equation. If a court orders removal, it is the "participant's" obligation to show up for deportation at the time and place ordered. This cuts right to the heart of how ATD and FCM programs should be measured for success or not. If these programs cannot, in the end, carry the burden of ensuring that court orders are carried out, then they should be either reformed, curtailed, or abandoned. Else it's just a "hamsters on the wheel" exercise. Yet there are cogent reasons to question whether they are or ever can be effective because, in the end, there is little or no incentive for aliens to report for deportation if ordered removed by an immigration judge. That is the inherent flaw in ATD programs that is not readily susceptible to legislative cure.

Right to Entry

Rep. Derek Kilmer (D-Wash.) introduced an amendment establishing the unambiguous right of Native Americans to cross the U.S.-Canada border back and forth, regardless of where they were born. As a general rule it's hard to argue with this logic; Native Americans are, after all, the original settlers, going back into the mists of time. But there is always peril in absolutes. What if a Canadian-born Native American was known to have radical domestic terrorism sympathies or violent tendencies? It's unlikely, but not impossible. Should national security measures not be permitted to prevail in this kind of circumstance? How about Canadian-born Native Americans who might be convicted pedophiles or drug traffickers? Should they be permitted unfettered travel?

Asylum and Credible Fear

The amendment that has occasioned the most comment in the media is one by Rep. David Price (D-N.C.), whose language prevents expenditure of funds to implement certain policy memoranda issued recently by U.S. Citizenship and Immigration Services (USCIS) having to do with the rules for finding there is a credible fear of return in relation to claims for asylum. The policy memoranda have had the practical effect of prohibiting findings of credible fear claimed by illegal alien border-crossers based solely on generalized violence or domestic abuse, since fear of crime is not in and of itself a basis for seeking asylum. This curbing effect has in turn inflamed migrant advocacy groups since they realize that many aliens do not have particularized fears of return that otherwise fall into the asylum categories recognized under law.

The amendment's language is a canard, because the policy memos referenced simply direct USCIS adjudicators to adopt the findings of the U.S. attorney general (AG) in a recent case that he certified to himself. The AG is the chief legal officer of the United States, and his findings of law are binding on executive branch employees. Thus, the policy memos are simply the mechanism by which USCIS has instructed its employees to obey the legal findings of the AG. Looked at in this light, the amendment sets up a constitutional conundrum for officials of the executive branch. If the legislative branch wishes to change the underlying laws having to do with credible fear and asylum, the appropriate means to do so is to amend the specific provisions contained in the Immigration and Nationality Act, not the subterfuge of an appropriations bill.

ICE Funding

Finally, to circle back on something mentioned by Krikorian:

[T]he funds approved are very different from what the administration requested. The mostly non-immigration part of ICE, Homeland Security Investigations (HSI), is given about 17 percent more funding than the administration requested, while Enforcement and Removal Operations (ERO), which handles deportations, is given 19 percent less than requested.

I cannot think of a greater slap in the face to the men and women of ERO, who may be performing the hardest, most politicized work in federal law enforcement today: ensuring compliance with statutes that draw the ire of leftists, and putting the ERO agents themselves into the cross-hairs as a result.

Yet how have their ostensible compatriots and colleagues in HSI reacted? By publicly whining about having to do immigration enforcement, calling the president an idiot, and at the leadership level doing everything that they can to sidestep immigration enforcement work and throwing ERO under the bus by seeking to have the agency cleaved in half so that HSI agents no longer have to explain to recalcitrant state and local agencies in sanctuary jurisdictions why they are "different" from ERO.

And how does Congress react to this bizarre set of circumstances? By passing meaningless resolutions in favor of the hard work that ERO agents do daily, and are vilified for. But when the chips are down, where does the House Appropriations bill send the money to? The prima donnas.