House Democrats Surrender on Border Supplemental

This week saw the struggle over and then enactment of supplemental appropriations for the current fiscal year to address the inflow of migrants on the U.S.-Mexico border. Yesterday, the Congress sent the $4.5 billion “Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019” (H.R. 3401) to the White House. It appeared as if the House and Senate would need to work out the significant differences between their two bills, but Democratic Leadership’s support from moderates and conservatives collapsed and Speaker Nancy Pelosi (D-CA) acquiesced to the Senate’s bill. This is the second supplemental appropriations bill passed by Congress for FY 2019 as the “Additional Supplemental Appropriations for Disaster Relief Act, 2019” (P.L. 116-20) was enacted earlier this month.

Here’s the timeline of floor consideration of supplemental appropriations:

  • On June 25, the House passed H.R. 3401 by a 230-195 vote after adopting a manager’s amendment to the underlying bill and defeating a motion to recommit with instructions by a 205-218 vote
  • The next day, the Senate voted down the House’s bill by a 37-55 vote and then passed their version of the supplemental
  • On June 27, the House unveiled its amendment to the Senate’s bill (technically the Senate’s amendment to the original House bill) but then later took up and passed the Senate’s bill by a 305-102 vote

Yesterday, a number of media reports indicated that the House Democratic position collapsed when moderates and conservatives made clear they could not support a package of changes to the Senate bill. The Problem Solvers Caucus and the Blue Dog Coalition had informed Democratic Leadership that their Members would vote against the rule to the House’s amendment to the Senate, the type of procedural vote defeat the leadership of the House has not suffered since the George W. Bush Administration. The Speaker acceded to reality after counting votes and allowed the Senate’s bill to come to the floor. In a Dear Colleague letter to House Members, Pelosi wrote “The children come first. At the end of the day, we have to make sure that the resources needed to protect the children are available.” She added “[a]s we pass the Senate bill, we will do so with a battle cry as to how we go forward to protect children in a way that truly honors their dignity and worth.”

At the end of the day, Pelosi and House Democratic Leadership got rolled by the White House, Senate and House Republicans, and House Democratic Moderates. First, House Democratic Leadership got squeezed by a deadline. In a May 1, 2019 letter to Congress, the Administration claimed the HHS’ Office of Refugee Resettlement (ORR), the entity in charge of caring for migrant children, might run out of funds to address the needs of those in the Unaccompanied Alien Children (UAC) program in June. The Office of Management and Budget (OMB) asserted

There is a significant likelihood that the UAC program will exhaust all of its resources in June. If Congress fails to provide HHS this additional funding, the expected continuation of current trends may require HHS to divert significant resources from other programs that serve vulnerable populations – such as refugees and victims of trafficking and torture. In addition, UAC services that are not necessary for protection of human life, such as education and legal services, as well as recreational activities, would likely need to be canceled or scaled back. . Should reallocated funds be exhausted, it is highly unlikely that HHS would ·be able to acquire the additional shelter capacity it would likely need to continue to accept UAC referrals from DHS in a timely manner, meaning that children would likely stay in DHS facilities for longer than 72 hours following a determination that the child is a UAC. In the worst-case scenario, thousands of children might remain for lengthy periods of time in facilities that were never · intended to be long-:-term shelters, rather than being expeditiously transferred to HHS custody, where they would receive case management and other services that address their unique needs.

The pressure to fund ORR and related programs was exacerbated by the coming recess for July 4. Members of House and Senate leadership had defined the metric of success as passing a bill by the time Members left Washington, a deadline the White House was all too happy to throw its weight behind. Even though, House Democratic moderates and conservatives voted for the first House supplemental with substantially the same language, they balked on doing so for the second time, in part, because of the overwhelming bipartisan Senate vote and the fear of attack ads in which they would be portrayed as more willing to side with illegal aliens than with securing the U.S. border.

In its press release, the House Appropriations Committee provided this summary of the additional FY 2019 funds provided by their initial bill:

  • $934.5 million for processing facilities, food, water, sanitary items, blankets, medical services, and safe transportation;
  • $866 million to reduce reliance on influx shelters to house children;
  • $200 million for an integrated, multi-agency processing center pilot program for families and unaccompanied children, with participation by non-profit organizations;
  • $100 million for legal services for unaccompanied children, child advocates, and post-release services;
  • $60 million to assist jurisdictions experiencing a significant influx of migrants and non-profit organizations serving those communities;
  • $20 million for Alternatives to Detention;
  • $15 million for the Legal Orientation Program to educate migrants about their rights and legal proceedings; and
  • $9 million to speed up placement of children with sponsors and manage their cases.

House Democrats also included language with “important oversight provisions to hold the administration accountable and to protect the rights and dignity of migrants, including:

  • No funding for a border wall or barriers, or for ICE detention beds;
  • Prohibits the use of funds for any purpose not specifically described;
  • Places strict conditions on influx shelters to house children by mandating compliance with requirements set forth in the Flores settlement;
  • Protects sponsors and potential sponsors from DHS immigration enforcement based on information collected by HHS during the sponsor vetting process;
  • Ensures congressional oversight visits to facilities caring for unaccompanied children without a requirement for prior notice;
  • Requires monthly reporting on unaccompanied children separated from their families;
  • Requires additional reporting about the deaths of children in government custody; and
  • Ensures CBP facilities funded in the bill comply with the National Standards on Transport, Escort, Detention, and Search.”

Last week, the Senate Appropriations Committee marked up and reported out its FY 2019 supplemental appropriations bill and a summary.

The Senate Appropriations Committee summarized their package:

  • Executive Office for Immigration Review: $65 million, which will include funding for 30 new Immigration Judge Teams and as well as funding for the Legal Orientation Program (LOP) to educate detainees about the Immigration Court process and thus expedite Immigration Court proceedings.
  • United States Marshals Service, Federal Prisoner Detention: $155 million for emergency expenditures related to the housing, transportation, and care for Federal detainees remanded to the custody of the U.S. Marshals Service.
  • The bill provides $145 million among the operation and maintenance accounts of the Army, Marine Corps, Air Force, and Army National Guard for operating expenses in support of multiple missions including rotary-wing aviation support, strategic lift, medical assistance, mobile surveillance, command and control, and maintenance activities.
  • Includes $793 million for establishing and operating migrant care and processing facilities to improve conditions at border stations and ports of entry.
  • Includes $112 million for migrant medical care and consumables, including clothing, baby formula, hygiene products, and other essential items.
  • Includes $110 million for travel and overtime costs for Department of Homeland Security staff in support of CBP’s mission.
  • Includes $50 million for improvement to immigration data systems and tools.
  • Includes $35 million for transportation of migrants among facilities.
  • Includes a provision emphasizing CBP’s ongoing efforts to meet national standards
  • within migrant processing facilities.
  • Includes a provision emphasizing CBP’s continued commitment to staffing along the Northern border.
  • Includes $48 million for the transportation of unaccompanied alien children and migrants among facilities.
  • Includes $70 million for travel, overtime costs, and pay adjustments for on-board Department of Homeland Security staff in support of ICE’s mission.
  • Includes $45 million for detainee medical care.
  • Includes $21 million for Homeland Security Investigations counter-human trafficking
  • operations.
  • Includes $20 million for alternatives to detention.
  • Includes $5 million for background investigations and facilities inspections by the Office of Professional Responsibility.
  • The bill includes $2.88 billion for the Department of Health and Human Services’ Unaccompanied Alien Children (UAC) program.
  • In recent months, the number of unaccompanied alien children entering the U.S. and referred to HHS has significantly increased. Through May nearly 51,000 children have been referred to HHS this fiscal year, an increase of almost 60 percent over the comparable period last year. The additional funding will allow HHS to expand its shelter capacity, including to the greatest extent possible in traditional, state-licensed facilities, to ensure it can provide safe and appropriate shelter and care for children referred to their custody. It allows HHS to resume funding the full-range of services for children in their care, and prevents HHS from having to divert funding from other important programs.

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