The very quiet shutdown of the Department of Homeland Security got louder in the past week as lines outside TSA airport security checkpoints grew to tremendous lengths. ICE agents were sent in to “help,” which apparently means hanging out and walking around with no discernible purpose. Congress seemed to get really interested once Delta suspended its special service that allowed members of the House and Senate to skip security lines. Funny how that works.
The framework of the emerging deal was on the table before the shutdown even began. Rep. Rosa DeLauro (D-CT) introduced a bill in February to fund other parts of DHS, but not ICE or Customs and Border Protection (CBP), while negotiations continued. What’s being discussed in the Senate would go further: Every agency in DHS, including CBP, would get funding except for ICE’s Enforcement and Removal Operations (ERO), the entity that finds and detains people. Republicans would then seek to fund ERO as part of a broader budget reconciliation bill on a party-line vote.
Something like this was presented to President Trump over the weekend, and he rejected it, in public, saying that no negotiations should continue until Democrats relent and pass his favorite voter suppression bill, the SAVE Act. This was Trump taking full responsibility for the airport chaos, because he’s so dead set on rigging elections and preserving GOP power in Washington. But a White House meeting on Monday night with Senate Republicans shifted the mood, and now leadership on both sides is alerting the rank and file to the possible deal.
In exchange for funding everything but ERO, Democrats would get some version of the immigration enforcement reforms they have sought, though the details are still under negotiation, according to Senate aides. As I wrote last week, the White House’s last offer sheet to Democrats included expanding body camera usage, requiring retention of body camera footage, “limiting” ICE activities at sensitive locations like hospitals and schools, allowing congressional oversight of detention facilities, creating mandatory reporting requirements to the DHS inspector general, mandating visible identification for all law enforcement personnel, and not deporting or knowingly detaining U.S. citizens. Some of this stuff is the law already, and most of the others have caveats or potential loopholes.
A second Republican reconciliation bill with the elements being discussed seems like it would quickly become the most loathed bill in American history.
In addition, Markwayne Mullin, the new secretary of homeland security as of today, said in his confirmation hearing last week that ICE would not bust into homes without a warrant, unless it was pursuing a suspect who fled into one. That also has a loophole—define “pursuing”—but could be part of the reform deal as well.
Given the lack of specific detail, it’s hard to fully assess the deal. But I have lots of questions.
The case for just not funding ICE for the rest of Trump’s term is pretty clear: A private Gestapo is wildly unpopular, and the agency just got supplemental funding equal to seven times its annual budget in last year’s Big Beautiful Bill. Let them draw that down. But this is much narrower, funding all of ICE except for ERO, and also funding CBP, which has been involved with enforcement in the interior of the country and whose officers, you may recall, killed Alex Pretti. Furthermore, I don’t know how you give Donald Trump appropriations for anything and expect them to be followed faithfully. Money could seep into enforcement without safeguards, especially given the giant slush fund the agency already has in its hands. (CBP money could be restricted to officers at the border, for example.)
There’s also reason to be skeptical about the reforms, mainly because the laws around things like congressional inspection of ICE facilities and deportations of people here legally are already being violated. A couple might be worthwhile at the margins, but again, we don’t know what will be included. In fact, Senate Democratic Leader Chuck Schumer is now saying that the proposed deal “does not have any reforms to ICE.”
Moderate Democratic brain might convince senators into thinking they didn’t fund what has people upset (ICE enforcement) and got some limits on that enforcement in the process. But that only works if CBP won’t replace ICE, if ICE won’t shift around its budget, and if ICE decides to follow statutory rules of engagement when their budget is coming from outside the appropriations process. That’s a lot of ifs.
On the other side, a second Republican reconciliation bill with the elements being discussed seems like it would quickly become the most loathed bill in American history, and I don’t see a path to getting the votes for it in an election year. Think about these elements: funding the highly unpopular abduction of people off American streets, and the $200 billion supplemental request for the Iran war that has jacked up the price of gas by over a dollar per gallon in a month, with no end in sight, and apparently parts of the SAVE Act as well. There’s no doubt hard-liners will ask for this to be offset with budget cuts, likely to Medicaid or other benefits, which will probably also be highly unpopular. What Republican at risk of losing re-election would vote for this?
Throwing the combustible SAVE Act into the process probably ensures defeat all by itself. Budget reconciliation bills can only include things with a budgetary impact. How does requiring IDs to vote save money? I could maybe see it costing money, if it’s an appropriation to send out national IDs to everyone with a Social Security number. But that doesn’t fit with state and local election administration, and the whole point of the Republican push is to not make IDs easy to get!
Republicans who understand the process have admitted that the Senate parliamentarian would almost certainly reject SAVE Act provisions in reconciliation. Republicans could then overrule the parliamentarian. But that’s just another way of ending the filibuster, which is the situation we’re in right now with the SAVE Act, which is on the Senate floor. Senate Majority Leader John Thune (R-SD) is not ending the filibuster to pass SAVE now and won’t effectively end the filibuster to pass SAVE later.
But if Thune demurs once again, you would almost certainly get threats from hard-line Republicans to vote against the whole reconciliation bill. The House Freedom Caucus is already rejecting the proposed deal, calling it “failure theater.” They don’t have the votes to stop the deal if Democrats decide to vote yes. But they would certainly have the votes to stop a reconciliation bill in its tracks, if it doesn’t meet their liking.
This would also make it more likely that the Freedom Caucus would turn to another must-pass bill, the extension of warrantless wiretapping under the Foreign Intelligence Surveillance Act, to demand the inclusion of the SAVE Act. As my colleague James Baratta reported, that could easily upend the already controversial FISA extension.
The SAVE Act is a reverse Midas bill; everything it touches turns to crap. And endless end runs around appropriations with off-books slush funds is intolerable. This deal has something for everyone to hate. But Democrats can make one case to pass it: It enshrines the idea that ICE enforcement, at least, cannot get money through the normal congressional funding process anymore. It does show that Democrats, even in the minority, can leverage the power of the purse. It’s a chip in the wall of presidential supremacy and could lead to more.
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