The polarization of both the House and Senate has made it largely impossible to pass legislative overhauls without some parliamentary chicanery. Obamacare, Trump’s tax cuts, and Biden’s Inflation Reduction Act were all passed under the budget reconciliation process which allows a simple majority in the Senate to bypass the legislative filibuster. In other words, the last three presidents all were forced to bypass the regular order of the Senate to push through their legislative agendas by using budgetary mechanisms. For anyone serious about stopping the border crisis that is engulfing the nation in a state of emergency, it is time to use the coming spending fight to force broad reform of the immigration system.
The House of Representatives already passed H.R. 2, the Secure the Border Act of 2023, in May of this year. Among other things, the bill would close loopholes that are driving the current crisis, like asylum abuse, nonsensical unaccompanied alien children (UAC) policy, categorical parole programs, and the Flores court settlement. In addition, the legislation would mandate E-Verify, thus shutting off the jobs magnet enticing illegal aliens to enter the United States. Combining E-Verify with closing of the loopholes would dramatically reduce the pull factors that have left our Federal bureaucracy and local communities overwhelmed.
Our friends in the Senate cannot pass this legislation under their regular rules. Majority Leader Schumer and the Democratic Senators have largely supported the border policies of President Biden. They have dismissed any focus on enforcement of immigration law as immoral and believe rewarding illegal immigration will stop the flow of migrants. Before they will consider any support for enforcement of the law, they demand amnesty for tens of millions of migrants present in the country illegally.
In this context, there is little hope for sanity in immigration law. As the saying goes, desperate times call for desperate measures. Certainly, these are desperate times. New York City, Chicago, Denver and Washington D.C. are in states of emergency due to the border crisis. States like New York, Massachusetts, Florida, and Texas are all in a state of emergency. Many more localities are in an undeclared crisis. Polls of the American people consistently show President Biden’s approval on handling immigration is in the toilet.
So it is simply not going to work for Speaker Kevin McCarthy to have a stand alone vote in the House and move on to the next topic on his long legislative wishlist. Obviously, passage of H.R. 2 was a victory, but the spending fight in September provides a very real opportunity to deliver actual results for the American people.
At this point, we are all familiar with the idea of a government shutdown fight. President Obama faced a shutdown fight with Republicans seeking to defund Obamacare in 2013. President Trump faced shutdown fights over the issue of immigration and border security twice in 2018. The basic premise of these fights is simple to understand: The government’s spending bills are some of the few “must-pass” pieces of legislation in Congress. That means, while a President or one chamber of Congress may ignore legislation in ordinary circumstances, the spending bills cannot be ignored. This provides a chance for a determined Congress to use the spending bills as a vehicle for other legislative priorities.
Despite what you may hear, this is done all the time. Spending bills are often jammed full of legislative priorities of congressional leadership and presidents. One term for these auxiliary measures is a ‘rider.’ A spending bill without riders is called a ‘clean’ spending bill. Rare is the occasion in modern times where a spending bill has been clean. Immigration policy changes have often been securely tucked in massive omnibus appropriations bills. For example, the expansion of H-2B visas has occurred with regularity within appropriations measures in recent history
Nor is it accurate to suggest there is no push for riders on the current spending legislation. The Biden Administration is seeking supplemental funds for Ukraine in their fight against Russian invasion, spending for assorted natural disasters, and additional “border funds” to continue processing illegal aliens into the country. The past and present both speak to riders on spending bills being a common occurrence. Efforts to paint a rider securing the border as radical or threatening government shutdown are simply political rhetoric. If it is fair to use the government funding process to help secure the Ukrainian border, it is just as fair to add a policy rider that secures the American one.
All the Speaker must do is add the legislative language of H.R. 2 to any spending legislation sent to the Senate. At that point, the media and Majority Leader Schumer will certainly cry foul. This song and dance is predictable because we have all seen it before. The goal is to make the other side fold and surrender, lest they get blamed for shutting the government down. In Washington, D.C., the home of the Federal government, it is gospel that shutting the government down is a disaster for the party blamed for it. Of course, in 2013, Republicans were blamed for shutting down the government and then won sweeping victories in the 2014 midterms. In 2018, Democrats shut the government down twice over immigration and duly won the 2018 midterms and the presidency in 2020.
My sense is that the American people are not nearly as concerned with the government shutting down as they are with the border being wide open. Immigration polling makes that clear. They also are well aware of the theatrics and rhetoric of shutdown fights from the past. The approval ratings for Congress make that clear. Instead of worrying about being blamed for a shutdown, Speaker McCarthy should worry about being blamed by voters for not doing anything about the border. Angry voters will not be persuaded that passing H.R.2 was sufficient when their communities are overrun. Congress has the power of the purse for a reason, and it’s time they used it.
Because one thing is definitively certain–this is the last chance Republicans in the House have to secure the border. The debt ceiling deal has already been cut without any border security measures. If this spending bill passes, then there are no more “must-pass” pieces of legislation they can muster to force President Biden’s hand. The government could well be funded through September 2024. Failing to secure the border now dooms the country to calamity for the next fiscal year. Voters are often told by politicians that they will fight for them in Washington. Now’s their chance.
JARED CULVER is a Legal Analyst for NumbersUSA
