Although a bill addressing the immigration crisis at the southern border and providing defensive funding for Ukraine, Israel, and Taiwan still has a chance of passing the Senate, the prospects for the deal passing the House now look bleak.
The legislative text of the agreement between GOP Sen. James Lankford of Oklahoma, Democratic Sen. Chris Murphy of Connecticut, and Sen. Kyrsten Sinema (an Arizona independent who caucuses with the Democrats) has yet to be released, but House Speaker Mike Johnson wrote in a letter to House GOP colleagues last week that, based on rumors reported about the deal in the press, it is “dead on arrival” in the House—a message he continued to emphasize this week.
Like other GOP critics of the Lankford-Murphy-Sinema deal, Johnson has zeroed in on a provision that would require a shutdown of the border when federal agents encountered an average of 5,000 migrants in a day over the course of a week. “Based on the news reports of this agreement,” Johnson said at a press conference on Tuesday, “it seems the new authority to shut down the border would kick in only after as many as 5,000 illegal crossings happen each day. Why? Why would we do that? Illegal Immigration is against the law. Why would you tolerate 5,000 a day before you sought to suddenly enforce the law?”
GOP senators who have been briefed on the still-unreleased bill spent the week trying to push back against what they describe as misinformation. Sen. Mitt Romney of Utah told The Dispatch a border shutdown at 5,000 average daily encounters doesn’t mean most of the migrants encountered up to that point would be admitted into the country. “Encounters are different than the number of people that come into the country,” Romney said. “Encounters are how many people show up at the border; many of them are rejected. And under the new legislation, even more would be rejected—the majority would be rejected.”
Sen. Thom Tillis of North Carolina, a Republican, said that while “extraordinary measures” would be mandated at 5,000 daily encounters, the bill would ensure that up to that point, “we have the capacity to detain them, to triage them, and potentially send them back.” The idea that we’re going to “bring in and parole 5,000 a day—that’s bogus,” Tillis said.
As Lankford himself said on January 28 appearance on Fox News Sunday, his proposal increases the number of border patrol agents, asylum officers, and detention beds “so we can quickly detain and then deport individuals. It ends catch-and-release. It focuses on additional deportation flights out; it changes our asylum process so that people get a fast asylum screening at a higher standard and then get returned back to their own country.”
“This is not about letting 5,000 people in a day,” he added. “This is the most misunderstood section of this proposal.”
As the week stretched on, the congressional debate about the deal—both the attacks against it and defenses of it—began to seem more than a little absurd because there was no legislative text of a bill to actually debate. “The height of stupidity is having a strong opinion on something you know nothing about,” Texas GOP Rep. Dan Crenshaw told reporters on Thursday morning. “I’m extremely disappointed in the strange maneuvering by many on the right to torpedo a potential border reform bill.”
Senate Majority Leader Chuck Schumer said Thursday morning that there were “still some pieces remaining to be settled,” but by the afternoon Schumer announced that the full text of the bill would be “as early as tomorrow and no later than Sunday” and said that a first vote to proceed to debate on the bill would be held on Wednesday. It’s possible to see how the bill gets 60 votes necessary to overcome a filibuster in the Senate because at least 10 GOP senators have made favorable comments about the emerging deal, but it’s unclear how many of the 51 Senate Democrats might oppose it. Progressive House Democrats are expressing opposition to the Senate deal, but progressives in the Senate have mostly held their fire. Sen. Bernie Sanders of Vermont told The Dispatch on Thursday he hadn’t been briefed on the deal. Asked if he had any views on the deal based on press reports, Sanders said, “I honestly don’t.”
But even if the bill passes the Senate, it’s hard to see Speaker Mike Johnson bringing it up for a vote in the House. Donald Trump has urged Republicans to reject anything other than a “PERFECT” deal. “Let me tell you, I’m not willing to do too damn much right now to help a Democrat and to help Joe Biden’s approval rating,” Texas GOP Rep. Troy Nehls told CNN at the beginning of January. “I will not help the Democrats try to improve this man’s dismal approval ratings. I’m not going to do it. Why would I? Chuck Schumer has had HR 2 on his desk since July. And he did nothing with it.” (HR2 is an immigration bill House Republicans passed on a party-line vote earlier this year.)
The political backdrop makes it extremely difficult to imagine Johnson—who ascended to the role of speaker because eight House Republicans teamed up with House Democrats to oust Kevin McCartthy—changing his tune on Lankford’s deal with Senate Democrats. Lankford has told reporters Johnson’s office has been briefed on the details, but Johnson’s spokesman pushed back against that claim on Thursday, saying that Lankford’s office “never provided Speaker Johnson’s office with proposed legislative text or a written description of the new expulsion authority. They have described it in conversation [with] less detail than what is available in published news reports.”
So what happens next? If the Senate passes the deal and Johnson bottles it up, the only prospect of bringing it up for a vote in the House would be a discharge petition, whereby a majority of House members can force a floor vote by signing a petition to bring up a bill that has sat in committee for at least 30 legislative days. But it’s unlikely the rarely used maneuver would save such a complex bill. A successful discharge petition would need more than a handful of Republicans because of opposition from progressive House Democrats. “It’s bad immigration policy. It’s bad for our economy. It’s not humane,” Democratic Rep. Greg Casar of Texas told Politico this week. “It’s bad for Americans, and then I think it’s bad politics as well. I don’t think that we should be accepting a hostage-taking situation and Trump-light policies as Democrats.”
“The coalition for the mega-supplemental is so tough that I don’t see the path for that,” Liam Donovan, a Republican lobbyist and former staffer at the National Republican Senatorial Committee, told The Dispatch. But, Donovan added, it’s possible to “see how Ukraine [funding] alone might be discharged.”
In the event that the Senate deal fails, would GOP Ukraine hawks in the House be willing to rescue Ukraine funding by signing a discharge petition? “People keep asking that question. It’s so far into the hypothetical realm, I’m not willing to answer it because we don’t even have a deal that we can disagree with yet,” Crenshaw told The Dispatch in the Capitol. “It would be stupid to take down a deal that would have a meaningful effect on immigration, but we don’t have that deal yet.”
“A bunch of us are pushing for military aid to Ukraine,” GOP Rep. Don Bacon of Nebraska told The Dispatch in a text message. But he added that he’d need to think about whether he’d sign a discharge petition.
On Wednesday, Senate Minority Leader Mitch McConnell raised the prospect of funding to Ukraine and Israel aid passing without the border deal. “We’ve got two friends in the middle of a huge fight—Israel, Ukraine—they need help,” he said at a press conference. “It’s time for us to move something, hopefully including the border agreement, but we need to get help to Israel and Ukraine—and quickly.”
The point of the Senate passing the border-Ukraine funding deal would be “to put pressure on the House to act in any way the House can act,” Donovan said. “We’re at the point where they have to resolve this one way or another—they need to dispose of it even if it fails. At least if it fails, you can move on, but you have to shoot the shot.”