Senate Whiffs on Immigration Reform

After months of negotiations, the bipartisan immigration reform and Ukraine aid deal falls apart.

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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

GOP Sen. James Lankford of Oklahoma talks to reporters as he makes his way to a meeting at the U.S. Capitol in Washington, D.C. on February 5, 2024. (Photo by Kevin Dietsch/Getty Images)

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. 

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  1. BDM

    LUK: I think killing the bill has more to do with the politics. I'm with Cong. Crenshaw on this. The GOP promised to reduce illegal immigration and this bill would help do that. But I'm sympathetic to the other arguments. Sen. Cornyn is right on point. The administration has all the laws and tools at its disposal to wind this crisis down (it'll take a while for the message to get to the migrants and traffickers that the border is no longer open) and eventually put an end to it (the crisis levels, not illegal immigration entirely). The administration (and Democratic Party) created this crisis by refusing to enforce current immigration law and sending the message to would be migrants that the door is wide open. Politically, they deserve to own it. Personally, I think this issue is what's going to give us Donald Trump back in the White House, which is, of course, why parts of the GOP don't want to let Biden get off the hook he intentionally placed himself on. The administration's refusal to enforce the law is also the reason I'm sympathetic to the argument that the number of daily illegal entries allowed is still way too high.

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    Karrie Tracy

    Politics.

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  3. AJS

    LUK: I think it was a mix of both, though politics probably played more of a role here. I don't think Trump whipping against the bill did any chance (which is, unfortunately, everyday politics now). At the same time, however, given that only four people from the GOP were for it, I don't believe it would pass.

    Looking at Cotton's complaints, I am surprised that they were only brought up now and not before; now it is possible that he did bring them up but weren't reported on. Either way, these issues could have been dealt with in some capacity during the negotiation process.

    Cassidy look like he was looking for an excuse to vote against this, possibly due to Trump.

    I do understand the trust issues for Biden on the border to an extent; at the same time, however, I don't entirely get the logic. Yes, Biden is weak on the border; he should be doing more. However, the fact Cornyn flip-flopped on this makes me believe that part of this is being done due to politics.

    I also don't understand what the Democrats were doing during this. The fact that they only realized the border was a crisis when they had to deal with it in their cities is pure incompetence. The negotiation length of time didn't help, as support for Ukraine Aid seems to be polling more negatively now (Which is unfortunate for multiple reasons). Also, the primary season started, meaning the GOP will want to play politics more. Given what people said, if the bill took less time to be made and maybe further right, it may have pass the Senate.

    TLDR: Mix of both but more politics then policy

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  4. Nick Pellicciotto

    You mean “Republicans in the US Senate whiff.”

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    Rdpulfer

    LUK: It's clearly politics. Even if the contents of the bill weren't going to please everyone, the GOP could passed it as is and then made whatever changes they wanted when/if they have greater numbers and a new President in 2025. Instead they just hung their own negotiator out to dry, because they are more interested in playing politics rather than doing politics.

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    Stephanie

    LUK: Apparently the bill was on track to pass and if the final touches hadn’t taken so long, it would already have passed in the Senate.

    In other words, if they’d had the bill finalized before Trump won the Iowa caucuses they’d have been home free.

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  7. Wlbrockman

    Re today's question: Seems to me that most Republican legislators, as well as most Democrats, view their chosen profession as performance art. Go however the wind is blowing, keep the customers/constituents satisfied, keep your job, sell your vote to the highest bidder, line your pockets, take care of family and friends and avoid conviction. Trouble yourself not with morals, ethics or principles.
    Maybe I'm hopelessly optimistic and/or naive, but that's how it appears to me.

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    Bill Dyer (aka Beldar)

    BELDAR'S HOT TAKE REGARDING THE D.C. CIRCUIT RULING:

    The opinion was "per curiam," meaning "by the court" rather than signed by the judge who was its principal author. Courts do that for two reasons, basically: (1) If the case is comparatively simple, and the result to be reached is clear and compellingly obvious (including on a great many procedural issues that result in summary disposition, e.g., "You missed the filing deadline" or "We rejected that argument last year in a precedent you missed"); or (2) if every member of the panel wishes to emphasize its unanimity.

    So: Very small cases and very big cases get per curiam treatment.

    For what is admittedly a case of first impression at this level of the federal courts, on a core constitutional issue involving the separation and operation of powers within the Constitution and, ultimately, whether we're a kingdom or a republican democracy — an issue which takes fifty-seven pages to resolve only because they had to bat down a lot of incredibly stupid Trump arguments — and with the certainty of international headlines breathlessly reporting the result, the fact that this opinion is per curiam definitely puts this case into the "per curiam because it's a very big case, not a trivial one"-category.

    The paradigmatic example is Brown v. Board of Education, in which the new Chief Justice at the time, former California Governor Earl Warren, wrote briefly and profoundly for a unanimous SCOTUS per curiam to overrule Plessy and the rest of Jim Crow's "separate but equal" farce. That not a single member of the SCOTUS dissented, or even wrote separately to concur, was itself a message to the segregationists: You no longer have ANY friends at this Court to help you pervert the Constitution of the United States.

    Yesterday's opinion is in that mode. That it's per curiam rather than signed by its author is itself a powerful message from the panel.

    Indeed, I would make a very large wager that as the senior active judge on the panel who's in the tentative majority, D.C. Circuit Judge Karen LeCraft Henderson, appointed by Bush-41 in 1990, exercised her prerogative to assign this opinion to herself to write, but that she did so in very close consultation with the two other members of the panel, Judges J. Michelle Childs and Florence Y. Pan, both Biden appointees. I think it's safe to presume that the delay between argument and release of the opinion was to get all three on them into perfect alignment, with an opinion that genuinely did speak for all three.

    I would also make a large wager that consistently with past practices in extremely high-stakes cases, the panel circulated a late-stage draft of this per curiam opinion to the entire D.C. Circuit contingent of active-status judges who would be considering it if there were to be a petition for rehearing en banc. That may also have resulted in a slight change or two, and account for some of the post-argument delay — just to make sure in advance that rehearing en banc ain't gonna happen.

    Since it won't buy him any more time at the trial court level nor extend his time to seek SCOTUS review, given the way the panel crafted its language regarding issuance of the mandate, Trump may well skip seeking rehearing en banc.

    Yesterday's opinion includes several citations to and quotes from Scalia opinions — Scalia himself having been a DC Circuit judge before appointment to the SCOTUS — including at least one citation quoting from a Scalia DISSENT. This makes me think Judge Henderson and the panel were signposting for a very select audience of nine — one which does indeed include three Trump appointees. I would bet $1000 at 10 to 1 odds that none of them support him on this particular case.

    On its merits, the decision is transparently, obviously correct — a foregone conclusion that should surprise no one. The real remaining question is whether the SCOTUS denies certiorari — which it could do secure in the knowledge that it would have a second chance to reconsider any immunity arguments, not in the abstract but after a conviction, if there is one — or whether it takes the case to affirm the DC Circuit simply because of its importance and lack of direct prior precedent on point. There's no split between the circuits, nor is there likely to be one on this issue, and it affects precisely one person in the universe right now, there only being one ex-president presently under indictment. I think it's about 50/50 whether they grant cert to take the case, and may depend on what they see happening with the Section 3 disqualification case from Colorado.

    But if the SCOTUS takes it at all, it will affirm. Of this I am as confident as one can ever be when predicting SCOTUS rulings.

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    1. M L

      I real enjoy your takes on this stuff. Are you angling for a guest spot on AO?

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      Rebecca

      My money is on Sup Ct denying cert. There’s simply nothing controversial or disputable in the D.DC opinion.

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      Angie

      Thank you Bill, that actually made me feel much better

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      Richard Maxton

      Please Dear Sweet Baby Jesus, let Bill be 100% on this.

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    5. Genehoward92603

      Very interesting and very informative. Thanks for the posting.

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    SandyG

    The cultural self-promotion that's required of artists today in order to be successful - that means ads filled with moving or stll images - makes me sick. As a former school librarian and literacy teacher, I am a lover of text. However, text has long been overtaken by images and this is another nail in the coffin of literacy.

    Processing text is a much more complex task for the brain and therefore develops the brain. Images, like instincts, are encoded and easy for the brain to process. Images are also the basis for propaganda. So you could say our brains are getting less able to handle complexity. IMO, this bodes very poorly for our nation.

    As a former school librarian who gave what are known as book talks to "sell" a book to students, I never relied on the author's "brand". I told just enough of the key elements in any narrative - the characters, the setting, their dilemma and what I liked about it - to get a student interested. The author's brand doesn't mean the same thing as a good book.

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      Brian

      This reminds me of the Andre Agassi ad campaign in the 80's or 90's - "Image is everything." Of course he was advertising for a camera company, but that message has endured and grown in that time, and we're not better for it.

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        SandyG

        Well put.

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    Greg Hurley

    LUK: I’m increasingly skeptical that elected officials care as much about the welfare of America as much as they care about their personal interests, so skeptical that I’m nearly convinced. This is a profoundly important issue for me as it’s fundamental. Who cares what they’re doing or what their ideology or anything else is if you believe that they’re not pursuing the interests of the country.

    Do I think they have more to do with politics? 💯. I think that the are taking cover behind reasonable sounding excuses because the Trump Death Cult gave a thumbs down. And you have to be a complete buffoon to believe that Trump cares about America more than he cares about himself. He is the fixed point around which his universe is created because he’s mentally deranged.
    If the Republicans were honestly interested in what was best for the country then you’d see them trying to get their concerns addressed. They’d sound more like Dan Crenshaw who does actually want what’s best for America.
    I think that the excuse that Biden wouldn’t enforce the new legislation is insultingly disingenuous. If he signed legislation and didn’t enforce it then Trump would have a cudgel to use on him in his campaign. And if he didn’t enforce the legislation then we’d hardly be worse than we are today. Yes, I’m for funding the wars in various places that are being fought to protect representative democracies against totalitarianism or religious extremism.

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