On Wednesday, Senate Republicans blocked the Biden administration’s Ukraine/Israel emergency funding bill because of Senate Democrats’ refusal to include meaningful measures to repair the damage caused by President Biden’s disastrous immigration policies. Senate Republican Leader Mitch McConnell (R-Ky.) stated that “Today’s vote is what it takes for the Democratic leader to recognize that Senate Republicans mean what we say.” Politico reported earlier on Wednesday that McConnell’s counterpart, Senate Majority Leader Charles Schumer (D-N.Y.), has “derided the Republican border position as ‘hostage-taking’”.
Democratic lawmakers have seized upon the “hostage-taking” trope, either because they are all using ChatGPT to write their quips or because their leadership has sent around talking points. Per Everett and Wu, Sen. Brian Schatz (D-Hawaii) said “Republicans are taking, literally, Europe hostage in exchange for border concessions” and AP reported that Sen. Chris Murphy (D-Conn.) said “Republicans have decided to hold Ukraine funding hostage to a domestic political priority that is amongst the hardest in American politics to solve.” And Politico reported that over in the House, Progressive Caucus Chair Pramila Jayapal (D-Wash.) “advised Democratic senators ... [‘]don’t give in to the hostage-taking, the throwing under the bus of immigrants’”.
Sen. Dick Durbin (D-Ill.) also “condemned Republicans’ attempt to attach punitive border policies to essential national security emergency funds”. He and 10 other Democrat senators stated that “we are concerned about ... harmful changes to our asylum system that will potentially deny lifesaving humanitarian protection. ... [Republicans u]sing a one-time spending package to enact these unrelated permanent policy changes sets a dangerous precedent.”
To be fair, Schumer did proclaim on the Senate floor that “I don’t think we are doing enough to secure our borders” and “We must never bend in our determination to secure our borders and protect our Nation from harm.” But that was just window dressing to set up his claim that “sneaking drastic changes to our immigration laws into a must-pass measure ... is not the way to address these [i]ssues” and “any bill that makes such dramatic changes to our immigration laws should be looked at carefully and considered judiciously”, not as a “take-it-or-leave-it ultimatum strategically devised for partisan political benefit”. Schumer stated in disbelief that “There are provisions ... that will make it harder for people persecuted ... to pursue asylum and the American dream.”
Tricked you! Schumer actually made those floor statements 18 years ago, in 2005, not as to emergency wartime funding for Ukraine and Israel, but rather in regard to supplemental funding for our military operations in Iraq and Afghanistan and emergency relief following the tsunami that had devastated Sri Lanka.
What is the backstory? It all began when Congress passed and President Bush signed into law the “Intelligence Reform and Terrorism Prevention Act of 2004”, supposedly implementing the recommendations of the 9/11 Commission. The House of Representatives had passed a version of the legislation by a vote of 282-134 that contained crucial border security and asylum reform provisions, and national integrity standards for state driver’s licenses. But in a move straight out of Austin Powers, the Senate pushed a button dropping the most important House provisions straight into a tank full of ravenous national sovereignty-eating sharks. You see, while the Senate was controlled by Republicans at the time, they saw fit to allow Sen. Joe Lieberman’s (D-Conn.) staff to play Dr. Evil and run roughshod over House Republican conferees. You may ask how I know this. My CIS colleague Andrew Arthur and I witnessed it with our own eyes as staffers for House Judiciary Committee Chairman F. James Sensenbrenner, Jr., at the conference committee.
In any event, this and other outrages resulted in an uprising of sorts by House Republicans. To quell the rebellion, Republican leadership made a deal with Sensenbrenner. They would attach the jettisoned provisions to the first must-pass legislation in the new Congress the following year — a time-honored stratagem used by both parties. As Sensenbrenner stated at a press conference in December 2004:
We have a commitment from Speaker Hastert and Majority Leader DeLay that the [provisions] will be attached to the first must-pass legislation so that we can get them into law as quickly as possible and make Americans safer from a terrorist attack…. [T]hey set the schedule. We will have this all teed up so that when the must-pass bill train leaves the station, this will be on it.
To be honest, I assumed at the time that our leadership would renege on the deal when the time came. But to my surprise and delight, the must-pass bill train ran on time and with the desired freight. Early in 2005, Sensenbrenner introduced the “REAL ID Act of 2005”, containing versions of the shark-eaten provisions (and other crucial items). The House passed the bill on February 10 by a vote of 261-161, with close to 80 percent of House Democrats in opposition (42-152). In May, after the House and Senate had passed versions of what was to be enacted as the “Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005”, the bill went to a House-Senate conference. House Republican leadership demanded the insertion of the REAL ID Act.
Senate Democrats, immigrant advocates, and those on the Left and Right opposed to the driver’s license provisions were outraged. As the New York Times editorial board put it, “Attaching a bad bill to a vital one is a sneaky business, making it nearly impossible for thoughtful members of Congress to vote against it.” Yeah, that’s the point (putting aside whether the conflicted members were in fact the “thoughtful” ones). Jeanne Butterfield, executive director of the American Immigration Lawyers Association (AILA) — and former executive director of an organization reported to be a front group for a State Department-designated foreign terrorist organization — bemoaned the fact that “the ink is barely dry on the intelligence reform legislation and we are already seeing a fresh push to pass these discredited measures under the guise of national security”. AILA itself stated that the REAL ID Act “[c]ontain[ed] measures that Congress voted to strip from intelligence reform legislation less than two months ago”, provisions that “will not make us safer”. AILA condemned REAL ID Act provisions that would, among other things, “make it extraordinarily difficult for people fleeing persecution to obtain refuge in the United States” (by requiring asylum applicants to provide corroborating evidence where reasonable and allowing immigration judges to more easily make negative credibility determinations), “undermine our fundamental commitment to free speech” (by making aliens who endorse or espouse terrorist activity excludable and deportable), and “waste valuable resources, both economic and environmental, on false border security solutions” (by allowing DHS to waive all laws necessary to ensure expeditious construction of border fencing/barriers).
Despite all the protestations, the Senate ended up passing the conference report — with a version of REAL ID attached — by a vote of 100-0. Yes, 100-0. Lest we forget the membership of the U.S. Senate at the time, this means that Barack Obama, Hilary Clinton, and, yes, Charles Schumer, Dick Durbin, and Joe Biden himself voted for the conference report. The House then passed it by a vote of 368-58, with the support of almost three-quarters of voting Democrats (143-54), including Democrat Leader Nancy Pelosi (D-Calif.), current House Judiciary Committee Ranking Democrat Jerrold Nadler (D-N.Y.), and current Judiciary Committee Immigration Subcommittee Ranking Democrat Zoe Lofgren (D-Calif.).
I thus need to correct Sen. Durbin and remind him that the “dangerous” precedent he bemoans was set 18 years ago. And he and Senate Majority Leader Schumer and Reps. Nadler and Lofgren helped set it. In my view, they did the country a great service at the time. Might they consider rolling over again?