The House of Representatives has weighed in on its 2,000-plus page version of the Consolidated Appropriations Act of 2016, H.R. 2029 – which is an amendment to the Senate's amendment of the House's original version, if you follow that.
From an immigration perspective, it's a cornucopia of disappointment. If establishment politicians are wondering why the presidential campaigns in both parties have tilted toward non-establishment outliers as represented, left and right, by Bernie Sanders and Donald Trump or Ben Carson, then they need only look at their own handiwork to find the answer.
The American electorate is not so completely filled with ingénues or naifs that we don't recognize Congress's institutional incapacity to take on hard issues in any meaningful way, leaving the vacuum to be filled with various and sundry executive pronouncements from the Obama administration in every avenue of public life.
It is in no small measure this fecklessness and failure of will on the part of our legislative branch that has led even establishment conservative stalwarts such as George Will to bemoan the rise of a huge and constitutionally-unmentioned fourth branch of government – the bureaucracy, which he describes as "the administrative state".
I have neither the patience nor desire to devote to an analysis of the entire omnibus bill represented by H.R. 2029, but here are a few highlights:
- Transfers $4 million from the Immigration Examinations Fee Account of the Department of Homeland Security (DHS) to the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ). That account is where fees collected from aliens for the filing of various applications are deposited, so as to ensure that adjudication of their applications is self-funding. EOIR is the name of the DOJ agency which handles immigration court removal hearings. USCIS is quite flush with cash these days, because for years it has been skimming money off these immigration fees to build a “reserve fund” that it had hoped to use to administer the president’s plan to issue work permits to millions of illegal aliens, which was blocked by a federal court.
- Appropriates $476 million in Byrne state and local law enforcement grant funds but does not in any way require that those state or local agencies comply with immigration detainers or not enact "sanctuary" policies of the type that have resulted in so many murders by illegal aliens in the recent past. (See here and here.)
- Appropriates $210 million for State Criminal Alien Assistance Program (SCAAP) funds – again, with no caveats that to receive the money, state and local governments must honor detainers and take no steps to impede immigration law enforcement.
- Appropriates an additional $187 million in COPS grants to state and local law enforcement agencies for hiring and retention of officers. Once again, no caveats on the funding to require cooperation with federal immigration agents in enforcing the laws against alien criminals.
- Provides $9.2 million to the U.S. Commission on Civil Rights, which recently exceeded its statutory mandate and did a one-sided hatchet job on the federal immigration detention system.
- Provides $385 million to the Legal Services Corporation without specifying that such funds may not be used in support of aliens in removal proceedings, contrary to Section 292 of the Immigration and Nationality Act – although the appropriation language very specifically outlines other areas in which the money may not be used contrary to statute.
- Appropriates the DHS Office of the Secretary almost $137.5 million for operations and executive management provided that Congress receives within 30 days of enactment two reports – one on the biometric entry-exit system, and one on visa overstays. (Note that both of these reports are already statutorily required, and so demanding that the law requiring the overdue reports to be complied with seems in many ways an exercise in both redundancy and futility.)
- Appropriates more than $447 million for border fencing, infrastructure, and technology.
- Also provides more than $802 million to Customs and Border Protection (CBP) for a variety of purposes including salaries and benefits – but also for unmanned aerial systems (drones), even though the DHS Inspector General has repeatedly panned the program as ineffective, with weak internal controls and repeated cost overruns without evidence of value. (See here and here.)
- Appropriates more than $5.79 billion to Immigration and Customs Enforcement for operations, equipment, and salaries, subject to several provisos. One of them is that $5 million will be withheld until the ICE director briefs Congress on the agency's efforts to increase the number of state and local law enforcement agencies participating in the "Priority Enforcement Program" (PEP).
The problem with this proviso is that by mere mention of PEP, Congress legitimizes it even though it was created as a part of the administration's constitutionally dubious "executive action" memos. At the same time, merely demanding a "report" in return for release of the money provides the spinmeisters at DHS and ICE a prime opportunity to put together a pseudo-document purporting to show the wonders of the program notwithstanding its obvious shortcomings and the fact that many sheriffs and police chiefs dislike it intensely, or have rejected it out of hand.
- Provides U.S. Citizenship and Immigration Services (USCIS), the immigration benefits-granting agency, nearly $119.7 million, most for administration of the E-Verify system. (As noted above, most of USCIS is funded out of its fee account.)
These are just a few of the immigration provisions contained in the omnibus bill that give me pause (or outright heartburn).
If you look for anything in this measure that defunds, or even pushes the pause button on, the refugee or asylum programs, which are exceedingly vulnerable to fraud and misuse, including potentially by terrorists, you will look in vain. You won't even find anything directing DHS or its subordinate agencies to tighten up vetting procedures in the wake of the San Bernardino attack.
It would be easy to try to forgive or overlook many of the shortcomings of the bill, immigration-related or otherwise, by pointing to its inordinate size and breadth, and saying that one can't micromanage everything in an omnibus government spending bill. But the fact is that, when they want, congressional legislators are quite happy to micromanage. Take a look, for instance, at this gem hidden on page 215 of the bill:
Sec. 529. To the extent practicable, funds made available in this Act should be used to purchase light bulbs that are "Energy Star" qualified or have the "Federal Energy Management Program" designation.
No, the reality appears to be something entirely different than simple information overload. It seems to me that we have a Republican majority in both chambers of Congress with few principles in which they believe strongly enough that they are willing to call out the White House and take a stand, particularly if those principles carry with them any degree of controversy – which the subject of immigration inevitably does.
Reflecting on what the bill does – and, importantly, what it doesn't even attempt to do – I'm led to conclude that when House Republicans elected Paul Ryan as Speaker, they got exactly what they wanted, and what they expected: a John Boehner Mini-Me. What, then, was the point in unseating Boehner in the first place?