We’re in the midst of the quietest government shutdown in American history. For 34 days, funding for the Department of Homeland Security (DHS) has been blocked in a standoff over the Trump administration’s deeply unpopular immigration enforcement, something the White House has finally realized is such a public opinion disaster that they’ve stopped calling it mass deportation. The biggest public-facing side of this shutdown is Transportation Security Administration workers, who have now worked without a paycheck for a month. But aside from frustration about longer airport security lines, there’s been little pressure on Washington to end the impasse.
On Wednesday, Sen. Markwayne Mullin (R-OK) had his confirmation hearing to run the department that currently has no funding. While his rhetoric was softer, he didn’t really offer many thoughts about the issues in the dispute. For example, Mullin said that he would have ICE and Customs and Border Protection (CBP) officers obtain warrants from judges before entering homes to detain people suspected of being in the country illegally, but he added a caveat: “unless we’re pursuing someone who enters into [a residence or place of business].” That’s a potentially enormous loophole; as long as agents see a suspect enter a home, they can “pursue” them without a warrant, in violation of the Fourth Amendment.
The White House has also moved ever so slightly closer to Democratic demands, albeit with similar avenues of escape. In a letter to Senate Republicans, border czar Tom Homan and Office of Legislative Affairs director James Braid cited some modifications of past practices—ending the surge operation in Minneapolis, deploying body cameras, curtailing so-called “roving patrols,” and cooperating with local law enforcement.
ICE and CBP agents are currently being paid, and could in theory go on for a lot longer without appropriations.
Their letter then laid out several measures it suggested should be codified into law. This included expanding body camera use “with an exception for undercover operations” (the definition of which could be malleable); requiring retention of body camera footage; “limiting” ICE activities at sensitive locations like hospitals and schools but “subject to a narrow carve-out for immediate needs like national security, flight risks, and public safety” (which could in theory characterize all detentions); allowing congressional oversight of detention facilities (which is already current law); creating mandatory reporting requirements to the DHS inspector general (who has repeatedly complained of interference with his investigations); mandating visible identification for all law enforcement personnel (while saying nothing about masking); and not deporting or knowingly detaining U.S. citizens (again, this is already the law).
The release of the letter didn’t seem to do much to alter the Democrats’ position. In a speech on the Capitol steps Wednesday, House Democratic Leader Hakeem Jeffries (D-NY) said that “Republicans have chosen to hold the country hostage,” while reiterating the need for immigration officers to take off masks, for racial profiling to end, for judicial warrants, and other nonnegotiables.
Jeffries put forward a discharge petition that would fund all DHS agencies except ICE and CBP immediately at agreed-upon levels, a bill that Democrats have been willing to support since before the shutdown began. To be successful, the discharge petition would need minimal Republican support, which seems unlikely. But the longer the shutdown continues, the more likely it is that a small handful of moderates may want to make a deal.
ICE and CBP agents are currently being paid, and could in theory go on for a lot longer without appropriations because of the $175 billion given to the agencies in the One Big Beautiful Bill Act. Given the positions of both sides, there’s certainly a world where neither of them is funded by additional appropriations for the duration of Trump’s term.
One way that Republicans could funnel money to other parts of DHS is by using the same technique as they did for ICE and CBP last year: use a reconciliation package to deliver funding to specific agencies outside of the appropriations process. All year long, some Republicans, particularly the House leadership, have been talking about doing a second reconciliation bill.
But there’s a problem now, one created by Donald Trump’s boneheaded decision to bomb Iran. Because we are using up munitions at such a rapid rate, there’s an expectation that the White House will come to Congress with a supplemental funding request to keep the war going. The latest report is that this supplemental request will be more than $200 billion. The war is deeply unpopular, and few Democrats have any interest in supporting it monetarily. So Republicans may have to use up that reconciliation bill to fund the war.
That would be unprecedented, but what isn’t in Washington these days? The bigger problem for Republicans, however, is the crowd-out effect. Hard-liners would almost certainly require any reconciliation bill to be fully paid for. Finding offsets that practically all Republicans agree upon will be hard enough to limit the spending in the bill. So if Iran war funding has to go in, it’s unlikely that much else will be allowed. That leaves out administration priorities like lowering prescription drug costs, but also any escape hatch to fund TSA or FEMA or the Coast Guard, among other DHS agencies.
So while the White House and Republicans are pretending to compromise, they’re rejecting anything that would narrow the matter to ICE and CBP, the specific agencies at issue. And there isn’t any deus ex machina on the horizon that would magically get funding restarted. The quietest shutdown is almost certainly going to become the longest one, too.
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