Senate Whiffs on Immigration Reform

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Quick Hits: Today’s Top Stories

• Israeli Defense Minister Yoav Gallant said on Monday that the Israeli Defense Forces would push their campaign against Hamas into Rafah, Gaza’s southernmost city that borders Egypt. “We are continuing this operation, and we will also reach the places where we have not yet fought in the central and southern strip, and especially the last center of gravity left in Hamas hands—Rafah,” Gallant said. An estimated one million people, displaced from the fighting, are in Rafah, with many living in makeshift shelters. “Most of the remaining battalions are in the southern Strip and in Rafah, and we will deal with them,” said Israeli Prime Minister Benjamin Netanyahu. Meanwhile, Hamas responded yesterday to a potential ceasefire and hostage deal brokered by Qatar, maintaining their demand that Israel end the war to secure any hostage release. (As many as 50 of the remaining 132 hostages could be dead, according to reported Israeli estimates.)
• A three-judge panel of the U.S. Court of Appeals unanimously rejected former President Donald Trump’s claim of presidential immunity in special counsel Jack Smith’s 2020 election interference case. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote in their 57-page decision. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.” Trump’s legal team is expected to appeal the decision to the Supreme Court, and has until Monday to do so.
• The bipartisan border and foreign aid bill negotiated in the Senate over the last four months appeared doomed for failure on Tuesday night, as Senate Minority Leader Mitch McConnell told reporters yesterday that there was “no real chance here to make a law.” Republican support for the deal fell apart in the wake of Trump’s public opposition. President Joe Biden criticized Republicans in a speech yesterday, arguing they caved to Trump by not moving the legislation forward. “All indications are this bill won’t even move forward to the Senate floor. Why? A simple reason. Donald Trump,” Biden claimed. “Every day between now and November, the American people are going to know that the only reason the border is not secure is Donald Trump and his MAGA Republican friends.”
• House Republicans failed to impeach Homeland Security Secretary Alejandro Mayorkas last night, with the chamber voting 214-216 on the resolution, which alleges Mayorkas has “willfully and systematically refused to comply with the law” and “breached public trust.” Three GOP lawmakers defected from their party and voted against the impeachment: Reps. Ken Buck of Colorado, Mike Gallagher of Wisconsin, and Tom McClintock of California. A fourth, Rep. Blake Moore of Utah, changed his vote to no after it became clear the resolution would fail—a procedural maneuver that will enable House leadership to revisit the impeachment votes in the future. The House also failed to pass a standalone $17.6 billion Israel aid package on Tuesday, with 14 Republicans and 166 Democrats voting against the measure that was supported by Republican leadership and required two-third majority support.
• The National Transportation Safety Board released a preliminary report yesterday on the Alaska Airlines flight that experienced a door plug panel blowout last month. The report found that the bolts holding the panel in place appeared to have not been reinstalled after the panel was opened for repairs to rivets at a Boeing facility in Renton, Washington. FAA Administrator Michael Whitaker told lawmakers yesterday he intended to increase oversight of Boeing. Twenty inspectors have since been added to the Renton facility.

Immigration Deal Breaks Down in the Senate

Consider sparing a thought today for Republican Sen. James Lankford of Oklahoma. 

After being tasked by his colleagues with one of the hardest jobs in American politics—fixing the country’s broken immigration system—Lankford spent months negotiating with Democratic Sen. Chris Murphy of Connecticut and independent Sen. Kyrsten Sinema of Arizona to find a bipartisan compromise. The former president and de facto leader of Lankford’s party came out against the effort before the draft was even finished, leading prominent right-wing commentators to call for his resignation. When the work was finally complete and the negotiators released a 370-page bill, the backlash from his fellow Republicans was so fierce and so quick that Lankford himself is not even sure he’ll vote to advance his own bill today. 

Asked by a reporter on Tuesday how it felt to be run over by a bus, Lankford suggested the reporter’s metaphor was insufficient: “And backed up [over],” he clarified. A tough few days at the office, to be sure.

The bipartisan immigration deal—which had once seemed to be the best hope for immigration reform in almost two decades—was functionally pronounced dead by Senate Minority Leader Mitch McConnell Tuesday afternoon, less than 48 hours after the text of the bill was released to the public. The bill, which proposed some major changes to asylum law and created new emergency authorities for limiting the number of migrants crossing the border in addition to providing more aid to Ukraine and Israel, may not be strong enough for some of the Senate’s fiercest immigration hawks. Other Republicans seem reluctant to vote in favor of legislation that doesn’t have the support of their entire conference and will be, as House Speaker Mike Johnson put it, “dead on arrival” in the lower chamber. Senate Republicans must now return to square one, moving to divorce the foreign aid provisions from border security after once lobbying to bind the issues together.

How did we get here? As we explained late last month: 

The early stages of border deal negotiations in the upper chamber reflected a remarkable level of unity among Senate Republicans, who, though less fractious than their House counterparts, still have their gripes. The conference had found a point of leverage in the Biden administration’s original proposal in October to link foreign aid to Ukraine, Israel, and Taiwan with additional funding for border security: Democrats were overwhelmingly supportive of additional Ukraine aid, and Republicans—some of them much more agnostic on or opposed to continued assistance to Ukraine—had decided the time had come for immigration reform.

Months of negotiations—led by Lankford, Murphy, and Sinema—culminated in nearly 400 pages of legislative text released Sunday night. As promised, the first 61 pages detail $118 billion in spending related to the war in Ukraine, as well as aid to Israel, efforts to counter China in the Indo-Pacific, humanitarian aid, and spending to implement the border policy changes. 

The rest of the bill’s pages outline some of the most significant proposed changes to immigration law since Congress almost passed comprehensive immigration reform in the late aughts. One key provision of the bill would resurrect some elements of Title 42—the pandemic-era law that allowed Customs and Border Protection to immediately expel migrants without allowing them to lodge an asylum claim. If triggered, the new authority would allow the Secretary of Homeland Security to immediately deport all migrants, except unaccompanied minors, arriving between the southwest border’s ports of entry (across the Rio Grande, for example). Migrants would still be able to schedule an appointment to be processed at a port of entry, and the bill requires a minimum of 1,400 appointments daily, even under the emergency authority. 

The new emergency procedure would be triggered by the volume of migrants attempting to cross the border. If the seven-day rolling average of CBP “encounters” at the border—a figure measuring the number of apprehensions, rather than the number of unique individuals CBP arrests—reaches 4,000 a day, the secretary could enact the emergency authority. At an average of 5,000 encounters a day, the secretary would have to trigger the emergency provisions. Once the numbers have fallen below 75 percent of the figure that triggered the emergency measure, the DHS secretary has two weeks to lift the order. Unlike Title 42, which imposed no penalty on repeat crossers, the new authority would bar for a year anyone expelled more than twice during a border emergency, potentially lowering overall encounters.

The bill would also change asylum law. Rather than being referred through the immigration court system, many migrants would now have their claims heard and, crucially, decided by U.S. Citizenship and Immigration Services asylum officers. The current process can see claims languishing in the system for as long as a decade while migrants are released into the country to wait it out. The new system would require the claim to be heard and adjudicated within 90 days,  with most being detained during that period. Families would be excepted, though the bill would have them released under observation either through an app or ankle monitor. The expedited process would combine several separate screenings and raise the threshold for a successful claim of credible fear of persecution or torture from “significant” to the more difficult-to-attain “reasonable.”

A grab-bag of other changes—including more immigrant visas, the creation of a new class of non-immigrant visas for people visiting family, limits on paroling migrants to enter at the southwest border, and additional funding for the border wall—round out the bill. Notably absent is a path to legalization for so-called Dreamers (who were brought into the country illegally and covered by the 2012 Deferred Action for Childhood Arrivals policy), something that has long been a major priority for many on the left. Rather than some form of amnesty—as has been typical in previous attempts at comprehensive immigration reform—the main “concession” Republicans would have been making in negotiations was additional military aid to Ukraine.

Though the proposal was unlikely to please anyone entirely—such is the nature of compromise in divided government—Lankford surely didn’t predict he’d lose the support of most of his fellow Senate Republicans in a matter of hours. Republican Sen. Tom Cotton of Arkansas, who had once been part of negotiations over the deal, criticized it in a tweet Monday morning. “I’ve reviewed the bill, I don’t think it will solve our border crisis, and might make it worse,” he wrote. “I will oppose it.” Cotton pointed to what he considered to be insufficient changes to the parole authority—which President Joe Biden has used to grant parole to Cubans, Nicaraguans, Venezuelans, and Hatians—and argued changes to the asylum process that he said would be a pathway to “rubber-stamping amnesty.” 

Some Republican senators argued that with the bill set for a vote on Wednesday, there wasn’t sufficient time to read and deliberate on the contents of the legislation. Sen. Bill Cassidy of Louisiana, for example, told The Dispatch’s John McCormack on Tuesday that was why he was a “no” on cloture (the measure that would end debate and pave the way for a vote on the bill). Lankford himself seemed sympathetic to that line of reasoning, but said on Monday that extra reading time shouldn’t end the work on the bill: “We need to do something.”

Several Republican senators offered a more cynical reason for opposing the bill: Biden, they argued, wouldn’t follow the laws even if they did change them. “Part of the problem is the legislature passes laws, but we’re not the ones that actually enforce them,” Sen. John Cornyn, a Republican of Texas, told reporters Tuesday. “The basic question I would have is, ‘If President Biden won’t enforce current laws, which are essentially the same laws that were in effect when President Trump was there, what confidence do you have he’ll actually force these new changes?’” In December, however, Cornyn argued Republicans should pair the White House’s request for additional aid to Ukraine and Israel—which he supports—with legislative changes on immigration that would “force the Biden administration to do what they should have been doing all along.”

Sen. John Barrasso of Wyoming, the GOP conference chair, echoed that sentiment in his statement opposing the bill (which he also opposed on substantive grounds). “Joe Biden will never enforce any new law and refuses to use the tools he already has today to end this crisis,” he said Tuesday. “I cannot vote for this bill. Americans will turn to the upcoming election to end the border crisis.”

Some senators lamented the bill’s defeat. Utah Sen. Mitt Romney, a Republican who had championed the deal, told reporters he was “deeply disappointed” that the deal was toast. “Politics used to be the art of the possible,” he said. “Now it’s the art of the impossible. Meaning, let’s put forward proposals that can’t possibly pass so we can say to our respective bases, ‘Look how I’m fighting for you.’”

Murphy, the bill’s lead Democratic negotiator, had moved to the “anger” stage of grief by Tuesday afternoon. “Look at what they did to James Lankford,” Murphy told reporters. “It’s disgusting what they did to James. They put him out there and asked him, on their behalf, to negotiate a compromise and then they didn’t even give him the chance to argue the merits. These are not serious people.” 

GOP Rep. Dan Crenshaw of Texas also turned fire on his fellow Republicans. “If we have a bill that, on net, significantly decreases illegal immigration, and we sabotage that, that is inconsistent with what we told our voters we would do,” he told reporters on Tuesday. “People will make up whatever reasons they want to … but it would be a pretty unacceptable dereliction of your duty.”

By Tuesday afternoon it was clear that, with 60 votes needed to pass cloture and more than a dozen Republicans opposing the bill for one reason or another, the bill was functionally dead. “Most of our members feel we’re not going to be able to make a law here,” out of the current bill, McConnell said Tuesday, particularly given that House Speaker Mike Johnson and Republican House leadership said the bill won’t be taken up by the lower chamber even if it did pass the Senate. In an interesting split screen, the lower chamber spent the day Tuesday attempting—but failing—to impeach Homeland Security Secretary Alejandro Mayorkas for what Republicans argue is his dereliction of duty on securing the southern border. 

Killing this bill doesn’t just snuff out current hopes for immigration reform: Foreign aid to Ukraine, Israel, and the Indo-Pacific would also be on the chopping block if senators fail to move the bill. But after insisting back in October that the aid be contingent on border security—“It was my side that wanted to tackle the border,” McConnell acknowledged Tuesday, saying, “We started it”—it now seems increasingly likely that Republicans will be the ones to unhitch them. “We still, in my view, ought to tackle the rest of it, because it’s important,” McConnell said Tuesday. “Not that the border isn’t important, but we can’t get an outcome.” 

Worth Your Time

• Writing for Vox, Rebecca Jennings explored cultural self-promotion and what’s required of artists today in order to be successful. “The internet has made it so that no matter who you are or what you do—from nine-to-five middle managers to astronauts to house cleaners—you cannot escape the tyranny of the personal brand,” Jennings argued. “Authors are writing these incredible books, and yet when they ask me questions, the thing that keeps them up at night is, ‘How do I create this brand?’ says literary agent Carly Watters. It’s not that they want to be spending their time doing it, it’s that they feel they have to. … Under the model of ‘artist as business manager,’ the people who can do both well are the ones who end up succeeding. You can see this tension play out in the rise of ‘day in my life’ videos, where authors and artists film themselves throughout their days and edit them into short TikToks or [Instagram] Reels. Despite the fact that for most people, the act of writing looks very boring, author-content creators succeed by making the visually uninteresting labor of typing on a laptop worthwhile to watch. You’ll see a lot of cottagecore-esque videos where the writer will sip tea by the fireplace against the soundtrack of Wes Anderson, or wake up in a forest cabin and read by a river, or women like this Oxford University student who dresses up like literary characters and films herself working on her novel. Videos like these emulate the Romantic ideal of ‘solitary genius’ artistry, evoking a time when writing was seen as a more ‘pure’ or quaint profession. Yet what they best represent is the current state of art, where artists must skillfully package themselves as products for buyers to consume.”

Presented Without Comment 

Republican Rep. Marjorie Taylor Greene, addressing the media yesterday about a Republican-led resolution declaring that former President Trump did not engage in an insurrection:

When they came to Washington and protested, all of you called it an insurrection, and then when Biden was inaugurated and this entire Capitol complex was surrounded with 30,000 National Guard troops, none of you stood there and called that an insurrection. Oh no, you all stayed silent.

Also Presented Without Comment

Politico: Where’s Biden? A Bit Off Stage From the Main Attraction.

Since those strikes began four days ago, Biden has declined to directly address the nation about his administration’s offensive in the Middle East. He’s been driven by concerns that delivering a major speech could escalate tensions with Iran and spark a larger regional conflict, according to three senior administration officials granted anonymity to speak publicly about internal deliberations.

Also Also Presented Without Comment

New York Times: [Nikki] Haley Outvoted in Nevada Primary by ‘None of These Candidates,’ Without Trump on the Ballot

Toeing the Company Line

• What should we make of the GOP’s DOA immigration package, House Republicans’ attempt to impeach Homeland Security Secretary Alejandro Mayorkas, and the latest in the Middle East? Mike was joined by Mary, Andrew, David (Drucker), James, and Charlotte to discuss all that and more on last night’s Dispatch Live (🔒). Members who missed the conversation can catch a rerun, either video or audio-only, by clicking here. 
• In the newsletters: Nick unpacked (🔒) the Republican about-face on the border deal.
• On the podcasts: Jonah is joined by David Bahnsen on The Remnant to discuss his latest book, Full-Time: Work and the Meaning of Life, and Grayson sits down with (🔒) Steve Waldman, president of Rebuild Local News, on The Skiff to discuss the decline of local news and efforts to revive the industry. 
• On the site today: Jonah argues the old political rules may no longer apply in 2024, and Erec Smith explains the dangers of “citational justice.”

Let Us Know

Do you think Republicans’ issues with the negotiated immigration deal have more to do with the substance of the bill or the politics of the bill?