Late last night, it was reported that the bipartisan conference committee tasked with reaching an immigration-related spending agreement in order to stave off another partial government shutdown had reached a deal. As someone who's grown increasingly cynical about both parties' capacity to tackle complicated problems in any serious way, I'll admit to having been a bit surprised by the announcement. I had surmised that the likeliest outcome was either a dubious presidential emergency declaration gambit, or yet another temporary CR punt. But here we are, and the question is whether this deal is better than not having one at all? Initial rumors suggested that lawmakers had agreed to spend even less than Democrats' original offer of $1.6 billion, and that there would be no barriers. If true, that would have been an unmitigated disaster. For Trump to walk away from this whole mess with zero dollars for new physical barriers would have represented an abject humiliation. But the emerging details look marginally better:
House and Senate negotiators late Monday struck a bipartisan deal “in principle” that would dodge a second partial government shutdown by providing President Trump $1.375 billion in funding for physical barriers along 55 miles of the Rio Grande Valley...The $1.375 billion in funding for a border barrier is far below President Trump’s request for $5.7 billion for a southern border wall, but the GOP aide said all of the money can be used for physical barriers and is double the miles of new fencing funding provided in 2018. The aide said any currently deployed design can be used to construct a barrier, including the steel slat fence Trump has touted. Democrats said the barrier funding achieves their goal, arguing it cannot be used for the type of big, concrete wall Trump long advocated on the campaign trail.
Trump can say that Democrats finally agreed to fund some of his wall, with dozens of miles of new barriers being deployed in a key border sector -- and not the woefully insufficient anti-vehicle barriers or easily-penetrated 'Normandy fencing' Nancy Pelosi had talked about. Democrats can say that they denied Trump both the majority of the funding he sought, as well as the giant concrete 'wall' they say he wanted (they often prefer to avoid talking about what he's actually proposed as president on this front). The games over semantics have already started. Then there's the matter of detention beds that allegedly emerged as a major sticking point over recent days. Democrats had introduced a ludicrous demand to reduce and cap the total number of illegal immigrants ICE was legally permitted to detain on any given day. Their claimed logic was to force ICE to focus their resources and attention on pursuing illegal immigrants accused of dangerous crimes, but the practical effect would have been to compel the US government to release even more unlawful entrants into the country's interior, pending future proceedings. Statistics show that a significant number of illegal immigrants and asylum seekers never show up in court.
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In other words, the detention cap would have exacerbated the systemic 'catch and release' problem that has inexorably swelled the illegal population over many years, and that has also helped fuel the family separation crisis that offended so many Americans. Democrats' awful idea struck me as almost the exact opposite of sensible policy-making, explicitly making it harder for US immigration officials to enforce existing law, and mitigating first-rung consequences for violating American sovereignty. All of this would likely have the perverse effect of incentivizing more illegal immigration, keeping the cycles of dysfunction (and the "need" for future amnesties) churning. The good news is that Democrats finally dropped their bonkers demand. It's not in the deal. They were apparently able to secure a nominal decrease in the number of ICE detention beds, but Republicans say those limits aren't enforceable in practice, and that the agreement maintains “the funding and flexibility necessary to maintain its current detention population and respond to surges in apprehensions,” according to the Washington Examiner.
My inner cynicism wondered whether some of this was kabuki theater: Democrats introduce a terrible "poison pill" idea, Republicans get angry about it, then Democrats back down, handing the GOP a talking point "win" over something that was never going to happen anyway. Are you not entertained? On the other hand, sources on the Hill have told me that the detention cap fight was a bona fide issue that virtually paralyzed talks, so it seems as though this little dance wasn't actually choreographed for public consumption, even if that's how it might appear to some. Regardless, is this a good agreement? No. It's a tiny bandaid on a much larger policy challenge that each party has powerful incentives not a solve. But guess what? Anything that might have come out of this broken process was going to be a stinker. Shutdown politics are bad politics. Trump and the GOP chose not to prioritize 'the wall' when they were in full control, lost leverage in November, then lost even more during the shutdown. The realistic goal of this committee, from a GOP perspective, was to save a little bit of face and walk way with some modicum of plausibly-claimed non-defeat. Because there are some new barriers included, this deal checks that box. But how feeble is it, on a policy level? Quite:
Bipartisan Senate Approps deal *last June* had $1.6b for 65 miles of fencing. This is $1.375b for 55 miles.
— Jim Newell (@jim_newell) February 12, 2019
And that's ignoring a previous $25 billion-for-DACA offer that fell apart when Trump muddied the waters and Schumer's base revolted. In any case, nobody wants a double-dip shutdown (the White House appeared desperate to avoid one), so I'd be surprised to see Trump rise up and reject this agreement. He may complain and blame, but he'd rather put the sting of the shutdown fiasco behind him, and be able to point to new mileage of barriers being constructed along the Southern border on his watch. Meanwhile, reports a circulating that the president may be inclined to sign the deal and pursue an emergency declaration, or some other sort of executive decree:
A person close to the president sends me this link and says this is what the WH is looking at tonight. Says WH considering taking deal and averting shutdown but using exec power, including this part of U.S. law, to do more than the Hill pact. https://t.co/ZDkbzgiKqA
— Robert Costa (@costareports) February 12, 2019
I've always opposed the emergency plan, insofar as it involves trying to redirect money appropriated for other purposes, which would be highly constitutionally suspect. As such, it would probably be halted or impeded by the judiciary anyway. But Trump may see this as a win/win: He'd be guaranteed some new progress on 'The Wall,' via Congressional action, and the executive power maneuver -- even if thwarted -- would signal to his base that he's still deeply dissatisfied and trying everything he can think of to build the wall. Or, as he's now framing things, to finish the wall; he's been telling crowds it's already under construction. To be clear, while previously-scheduled upgrades and maintenance are being carried out, nothing that could remotely be described as a Trump barrier has yet been built during his presidency. That said, 61 new miles are currently slated to be built, thanks to prior Congressional action. The new tentative deal could increase that number to 116 miles. I'll leave you with Rep. Dan Crenshaw skewering 2020 Democrats' insipid, simplistic and false anti-wall rhetoric:
.@BetoORourke should answer a simple question tonight with respect to the border debate:
— Dan Crenshaw (@DanCrenshawTX) February 11, 2019
If you could snap your fingers and make El Paso’s border wall disappear, would you?
Because this DHS graph shows that when the wall was built, illegal crossings dropped significantly. pic.twitter.com/JgquXfw2Ee
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