Government to Close?

As the Biden border remains open for (the cartels’) business but the federal government may close, Emily Brooks reports that House Speaker Kevin McCarthy is pursuing a strategy proposed by House Judiciary Committee Chairman Jim Jordan:

• Rep. Patrick McHenry ... a key McCarthy ally, said that the idea to pair border policy measures with a [continuing resolution] CR to fund the government was first floated by Rep. Jim Jordan ... earlier this year during a GOP leadership retreat.

• “Whatever bill we wind up funding the government for should say no money can be used to process or release any new migrants into the country. That is essential,” Jordan said. “And then any other elements of H.R. 2 we can get in there, great, I’m all for that too. But that’s the essential part.”

Of course, Jordan is referring to the Biden administration’s mass release of aliens 1) it apprehends at the border, flouting statutory detention mandates, and 2) after unlawfully granting them parole and ushering them across the border, or allowing them to fly to U.S. airports. As my colleague Andrew Arthur has written:

Court-ordered disclosures in Texas and Border Patrol’s statistics reveal that 2,289,990 illegal migrants encountered by [U.S. Customs and Border Protection] CBP at the Southwest border have been released into the United States, nearly all in violation of law. Add in the inadmissible aliens encountered ... at the Southwest border ports [of entry] since July 2022 who were issued [notices to appear], and that number exceeds 2.6 million, not counting [U.S. Immigration and Customs Enforcement] releases, which could push the total above 2.7 million.

This is why President Biden wants hundreds of millions of dollars from Congress — to speed up DHS’s ability to process and release such aliens into the U.S. and to then shower them with taxpayer-provided benefits. To Biden and Secretary of Homeland Security Alejandro Mayorkas, this is “border security”. Well, it’s more like “room and board”.

As then-House Republican Leader McCarthy stated last December regarding the year-end omnibus spending bill:

It includes hundreds of millions of dollars to somehow “manage” the crisis Biden created by choice, but reduces funds that would actually secure the border. For example, this bill provides for more migrant shelter services and reduces the number of ICE detention beds. This facilitates the eventual release of even more migrants all across the country.

Of course, to Border Patrol agents, this perversion of their mission is soul deadening. A few days ago, Eric Swanson, a representative of the local Border Patrol union, told KGTV in San Diego that: “[Agents] can't do their job. They can't do what they're sworn to do[.] It's terrible. You're just processing all day and let them go out the door. It's overwhelming, but they've got to be there.”

Brooks reports that:

• Speaker Kevin McCarthy ... is going all-in on border issues as he takes a second shot this week at passing a GOP-only short-term funding bill that would pair an extension of government funding with a swath of border policy changes.

• “The president could keep government open by doing something on the border,” McCarthy said.

• Asked ... if he would be willing to shut down the government over the border, McCarthy said: “Let’s be very clear, it would not be on us.”

Brooks also reports that:

• In trying to coalesce his fractious conference around a stopgap funding proposal of his own, the Speaker is aiming to reframe the funding battle as a choice for President Biden — and his hard-line opponents as siding with the president on border issues.

• The Speaker ... said he would put the bill on the floor no matter where the vote count is ... . A handful of holdouts forced leaders to pull a similar proposal last week, and several of them insist they will never vote for a CR to keep the government open.

• McCarthy ... is taking a stronger tone against those holdouts as he aims for a second shot at a GOP-only CR.

• “If they want to stand with the president by keeping the border open, I think that’d be a wrong position,” McCarthy said.

(Don’t) Show Me the Money!

Speaker McCarthy just made an incredibly important statement that is exceedingly rare in Washington, D.C. — “Don’t show me the money!” As Brooks reports: “McCarthy stressed that Republicans are focusing on policies at the border rather than funding. ‘The border doesn’t need more money to be solved. It needs a policy change [from what] the president put in when he became president.[’]”

Speaker McCarthy is right. What the border lacks is not funding, rather, it lacks an administration with any resolve, or even any real desire, to enforce the law. As I have said, what President Biden inherited was priceless — the Trump administration put in place mechanisms that had actually brought the border under control (even before Title 42), such as the Migrant Protection Protocols (MPP). DHS found the MPP to be “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, noting “a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico”. All President Biden had to do was keep things on autopilot. Instead, he handed the controls to anti-border zealots and sought to terminate the MPP. As Andrew Arthur has written:

Joe Biden inherited what his first Border Patrol chief, Rodney Scott, described in a September 2021 letter to Senate leadership as “arguably the most effective border security in” U.S. history. Scott complained, however, that Biden quickly allowed things at the border to “disintegrate” as “inexperienced political appointees” ignored “common sense border security recommendations from experienced career professionals”.

Further, as I have noted, the number of Border Patrol agents has become a questionable border security metric, as so many illegal border crossers now actually seek out agents to surrender to so that they may be processed, released from detention, and granted work authorization.

Consequently, Chip Roy and 14 other House Republicans sent a letter to their House colleagues boldly proclaiming that:

No appropriation should fund DHS until the necessary steps are taken to secure the border, such as ... [s]igning H.R. 2, or similar strong border security legislation, into law and prohibiting funds from being used in contravention of its provisions, including by mass releasing migrants.

Resources for Homeless Americans or Bus Tickets for Illegal Aliens?

Last year’s omnibus provided that:

Of the amounts transferred from “[CBP] — Operations and Support” to “Federal Emergency Management Agency [FEMA] — Federal Assistance” ... up to $785,000,000 may be made available for the emergency food and shelter program under title II of the McKinney Vento Homeless Assistance Act ... for the purposes of providing shelter and other services to families and individuals encountered by [DHS].

Arthur has explained “how a 1987 law to help homeless Americans now funds bus tickets for illegal aliens”. But, of course, all this remains woefully insufficient for migrant advocates. The National Immigrant Justice Center noted that “The federal spending bill enacted in December 2022 includes $800 million for a new Shelter and Services grant program ... distributed as grants to state and local governments and NGOs providing support to newly arriving migrants”, and then recommended that:

The White House and DHS should immediately focus attention on developing the ... Program as a centerpiece of the United States’ approach to border reception ... . Because the funds are designed as a transfer from [CBP] ... to FEMA, the administration must zealously protect the new program’s integrity as a humanitarian funding structure, firewalled from CBP’s enforcement mission.

These funds ... can spur dramatic capacity growth in NGOs that already have the trust of immigrant communities and deep expertise in providing respite and welcoming services.

“[F]irewalled from CBP’s enforcement mission”? “[R]espite and welcoming services”? Then, the Justice Center goes on to more rarefied heights of absurdity:

• Overhaul How Immigration Policy Is Budgeted By Moving Funds Away From Detention And Enforcement And Toward Asylum Processing And Humanitarian Needs.

  DHS’s establishment over 20 years ago solidified the false perception of immigration as a security issue, and DHS’s budget continues to reflect that perception.

• Phasing out or severely limiting immigration detention — a harmful and unnecessary system — would free up billions of dollars for humanitarian reception and processing. Imagine if NGOs providing shelter, respite, and legal and social services to arriving migrants were allocated $3 billion in grant funding instead of $800 million; people in need of services would be far better supported and therefore better able to thrive in their new lives in the United States. Similarly, moving even a portion of the billions spent on militarizing the border toward ensuring that border officers are trained and equipped to fairly and efficiently process arriving asylum seekers would relieve much of the strain the system is currently experiencing while also upholding the government’s international obligations.

Yes, as John Lennon once said, just “imagine” that! President Biden could actually deliver in his first term on his goal of emptying Latin America!

What Is in the Bill?

Brooks writes that:

Leaders have not yet revealed new bill text for the proposal, but McCarthy indicated it would be a proposal that the conference discussed last week, attaching the bulk of the House Republicans’ H.R. 2 border crackdown bill that passed earlier this year.

That bill includes numerous Trump-era policies such as requiring authorities to detain all migrants or return them to Mexico or their home country, and restarting construction of the border wall. But the stopgap would nix mandating that employers use E-Verify, a system used to check whether someone is authorized to work in the U.S. — which some moderate Republicans opposed.

What is H.R. 2, and why is it so important? As I have discussed regarding H.R. 2640, the House Judiciary Committee-passed bill that forms the core of the measure, U.S. Reps. Tom McClintock’s (R-Calif.) and Andy Biggs’ (R-Ariz.) legislation represents an audacious attempt to bring to a close the current border mega-crisis, which is the all-too-predictable result of the Biden-Mayorkas malpractice (bordering on malfeasance) at the border. The bill would provide DHS with the industrial-strength cleaning supplies it needs to mop up the Biden administration’s mess at the border. It would also force the administration to clean up its own mess.

• The bill would once and for all end the executive branch’s — and especially, the Biden administration’s — abuse of the statutory parole power. As I have written, “The Biden administration has granted parole to over one million aliens in just over two years ... and it’s just getting started.” The bill would in general limit the allowable exercise of parole to those rare emergency circumstances as contemplated by Congress when creating this power in 1952.

• The bill would replace DHS’s expired Title 42 authority/responsibility to expel aliens during the COVID pandemic with something even more powerful. Instead of linking border expulsions to a U.S. Centers for Disease Control and Prevention declaration of a pandemic-related public health emergency, it would allow DHS to prohibit the introduction of aliens as necessary to achieve operational control of the border. As I have written, “DHS would not be encumbered by the flawed expedited removal/credible fear process ... . [A]liens subject to the prohibition on introduction would generally be immediately expelled”.

• The bill would end the Biden administration’s flagrant disregard of its statutory mandate to detain aliens apprehended at the border. It would require DHS to either remove aliens it cannot detain (as required by law) to a safe third country or “without exception ... [except] as expressly authorized” in the reformed parole statute, return the alien to the “foreign territory contiguous to the United States” from which they arrived pending their removal proceeding in immigration court. Of course, this would mandate the return of the Trump administration’s MPP.

• The bill would in large measure terminate the disastrous “Flores Settlement Agreement” bestowed upon us by the Clinton administration and an out-of-control federal judge, especially with regard to the detention of alien minors who were accompanied by a parent or other guardian when they come across the border. It would allow DHS to safely and expeditiously return unaccompanied alien minors from noncontiguous countries who have not been trafficked and who don’t have asylum claims home, just as DHS already can do with unaccompanied minors from Canada and Mexico.

  The explosion in the number of unaccompanied minors who have come to, and been released into, the U.S. under the Biden administration has resulted in a humanitarian nightmare. As the bill reports, the New York Times “found that unaccompanied alien children are being exploited in the labor market and ‘are ending up in some of the most punishing jobs in the country.’ ... ‘under intense pressure to earn money’ in order to ‘send cash back to their families[’]”. As the Times also revealed, “[a]s the [Biden] administration scrambled to clear shelters that were strained beyond capacity, children were released with little support to sponsors who expected them to take on grueling, dangerous jobs. ... [O]fficials expressed concern for migrant children but shifted blame for failing to protect them.”

• The bill would institute badly needed reforms to our asylum system based upon reforms included in the Trump administration’s “global asylum rule” and “third country transit asylum bar rule”, but then eviscerated by misguided federal courts and the Biden administration.

  • The bill would generally bar aliens from being eligible for asylum if they had travelled through third countries in which they failed to apply for protection on their way here (because their real motivation was access to the U.S. economy). It would also bar aliens from eligibility who voluntarily resided — without suffering persecution or torture — in any one country for a year or more after departing from home.
  • The bill would prevent aliens from basing asylum claims on factors not relevant to the statutory standard of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”, such as an alien’s gang membership, past or present terrorist activity or association, presence in a country with a high crime rate, or having been a victim of a private criminal act. (Does Congress really need to specify that an alien can’t receive asylum because of being a gang member? Well, tell that to some of our federal courts.)
  • The bill would bar asylum officers from finding aliens have a credible fear of persecution unless finding their statements more likely than not to be truthful. Common sense?

For the Senate, Milk-Bone Underwear, Bitter Pills, and Blowing in the Face

But even if Speaker McCarthy is successful, and prevails in the House, what about the Senate? Brooks reports that:

“Why would it be dead on arrival?” McCarthy said. He repeatedly pointed to recent concerns voiced by New York City Mayor Adams (D) and New York Gov. Kathy Hochul (D) about how the migrant crisis has affected their city and state.

“It’s interesting,” McCarthy told reporters later in the day. “Leader Schumer comes from New York. His governor is crying out, his mayor is crying out. Well, shouldn’t he listen to them too? I think that would be important.”

Well, Schumer should, but a lesson that I learned well in my years working for the House Judiciary Committee is that the Senate is indeed the place where House bills go to die. Speaker McCarthy might want to try out a tactic once contemplated by retired House Judiciary Committee Chairman F. James Sensenbrenner, Jr., who the New York Times concluded was “known as one of the toughest negotiators in Congress ... . [‘a] pit bull,’ sa[id] Representative Ric Keller.” Keller then remarked that “the Senate negotiators he’s up against are wearing Milk-Bone underwear.” In any event, when Sensenbrenner’s dog Stinky picked up a case of giardia, it “require[d] Mr. Sensenbrenner to force-feed Stinky four pills a day”. But, according to the Times:

[T]he chairman says he picked up a strategy from a guy he met in the beer tent of a church festival. He places the pills in the dog’s throat, and blows in his face. Stinky then swallows them. “I’d never tried that before, blowing in a dog’s face,” Mr. Sensenbrenner marvels.

He has never tried it with a senator, either. “I have given them pills that don’t taste very good,” he says. “I’ve done that.”