WASHINGTON – If Democrats in Congress have any chance at reining in how Immigration and Customs Enforcement operates under President Donald Trump, it’s right now.
Lawmakers in both parties and both chambers are set to work over the weekend to try to reach a deal for funding the Department of Homeland Security, which includes ICE. Like other federal agencies, DHS is set to run out of funding by Jan. 30, and lawmakers are racing to pass bills to ensure all agencies get new funding by that deadline.
But last week’s fatal shooting of a Minneapolis woman by an ICE agent has complicated the path ahead for DHS. The incident has fueled widespread anger and protests in the city, and is driving the agency to new levels of unpopularity. Democrats are seizing on the moment to demand reforms to ICE as a condition for their support on any new DHS funding.
“Right now, there’s no bipartisan path forward for the Department of Homeland Security,” House Minority Leader Hakeem Jeffries (D-N.Y.) told reporters Wednesday.
Republicans control the House and the Senate, but Democrats have a little leverage in the former and real leverage in the latter. Speaker Mike Johnson (R-La.) can afford to lose only one or two GOP votes on any bill, assuming full attendance, so Democrats can make things difficult by literally all showing up to votes. In the Senate, Republicans need at least seven Democrats to vote with them to advance a DHS funding bill in order to clear a filibuster.
Conversations with Hill aides suggest three possibilities for what happens next for funding DHS: Congress could pass a yearlong funding bill with limited ICE reforms from Democrats that Republicans agree to; pass a temporary spending bill, or a “continuing resolution,” that just continues DHS funding at its current levels with no reforms on ICE; or don’t fund DHS at all, a politically controversial move that would hurt other parts of the agency, like the Federal Emergency Management Agency and the Transportation Security Administration.
None of the three options is likely to include major reforms that some Democrats want — like ending qualified immunity for ICE agents or abolishing ICE altogether — passed into law. But of the three options, one could actually result in changes, albeit modest ones.
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Simply not funding DHS by Jan. 30 isn’t an option for stopping ICE’s aggressive tactics. As a Senate aide pointed out, because Republicans passed a law last year giving ICE an astronomical $75 billion, the agency will remain flush with funds regardless of what happens in the current fight over DHS funding.
Beyond that, because DHS and other agencies are currently funded by a continuing resolution versus a more detailed appropriations bill, it’s given Secretary Kristi Noem much more discretion to spend that $75 billion however she wants. She’s effectively had an ICE slush fund at her disposal, with little oversight on how she’s spending those dollars. Another continuing resolution would let ICE carry on as it’s been doing.
A continuing resolution “doesn’t do anything to constrain the way that they’re acting lawlessly,” Sen. Chris Murphy (D-Conn.) said Tuesday.
So if refusing to fund DHS at all won’t hamper ICE’s operations, and if passing another continuing resolution to fund DHS won’t either, that leaves a yearlong DHS funding bill as the last, and arguably least bad, option for containing ICE legislatively.
In this scenario, Democrats have a chance at tying ICE reforms to new DHS spending and at attaching specific directives on how the agency’s next year of funding has to be spent, meaning Noem couldn’t keep spending ICE money however she wants, with little oversight.
A Senate aide confirmed that Democratic negotiators are already holding the line on refusing to include any new funding for ICE in any DHS bill.
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The challenge for Democrats, then, is figuring out which ICE reforms to demand and which ones they can persuade Republicans to accept. House and Senate Democrats have floated proposals like requiring ICE agents to wear body cameras, de-escalation training and barring ICE agents from wearing masks — steps that some activists are likely to complain don’t go far enough to counter ICE’s surges into cities like Minneapolis and Chicago.
But until Democrats win back the House or Senate, they don’t get to call the shots. Senate Majority Leader John Thune (R-S.D.) has already signaled he’d be fine with just funding DHS with another continuing resolution.
Top GOP appropriators also want to pass a yearlong DHS funding bill, for different reasons: They want to show they’re reasserting their role, at last, as the branch of government that controls spending, a power they’ve been conceding to Trump and Office of Management and Budget director Russ Vought over the past year.
“I feel cautiously optimistic,” House Appropriations Committee chair Tom Cole (R-Okla.) told reporters Tuesday about passing a DHS funding bill. “If you don’t believe you can get there, you certainly won’t, so I’m not expecting a CR.”
“Our goal … is to get all of these bills signed into law,” Sen. Susan Collins (R-Maine), the chair of the Senate Appropriations Committee, said Thursday on the Senate floor. “No continuing resolutions that lock in previous priorities and don’t reflect today’s realities.”
At least one Republican on the House appropriations panel, who requested anonymity to speak freely, predicted the GOP will take the path of least resistance for getting DHS funded: a continuing resolution.
“I think we CR it,” they told HuffPost.