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A bipartisan $10 billion COVID-19 supplemental is stuck in the Senate amid a dispute over a tangential pandemic-related border control policy, with both parties at a loss on how the impasse will be resolved. 

“I don’t see a pathway,” Senate Health, Education, Labor and Pensions ranking member Richard M. Burr, R-N.C., who helped negotiate the bill, said Wednesday.

The stalemate over the so-called Title 42 policy put the final nail in the coffin for action on the supplemental this week ahead of a scheduled two-week recess, absent a move from Senate Majority Leader Charles E. Schumer to cancel the break and hold senators in town until they reach a deal. 

But both parties acknowledged delaying the recess won’t resolve the issue and thus senators would be allowed to go home or on previously scheduled foreign trips after the Senate votes on confirming Judge Ketanji Brown Jackson to the Supreme Court.

“We have to have willing partners and a way to do this,” Michigan Sen. Debbie Stabenow, a member of Democratic leadership, said. 

Senate Republicans are filibustering the supplemental, which would redirect $10 billion in unspent pandemic relief funds from prior laws to the Department of Health and Human Services to buy more therapeutics, vaccines and testing supplies and prepare for future virus variants, because they want to be able to offer amendments. 

Specifically the entire Republican Conference has united behind an effort to secure a vote on still-unspecified language that would prevent the Biden administration from ending the Title 42 public health directive that has allowed border patrol agents to prevent asylum-seeking migrants from entering the United States. 

The ostensible goal of Title 42 is to prevent the spread of COVID-19, but it’s also served as a tool for limiting border crossings. Although a majority of Democrats have encouraged the Biden administration to rescind Title 42, lawmakers in both parties worry about a migrant surge if the directive is allowed to lapse without alternative plans for securing the border.

[Biden administration will rescind border expulsion policy]

Senate Democratic leaders do not want to allow a Title 42 amendment because there are senators in their party who would vote for it. Adding language on Title 42 would undermine the Biden administration and complicate efforts to pass the COVID-19 supplemental in the House, two outcomes Democratic leaders want to avoid. 

Democratic divisions

West Virginia Sen. Joe Manchin III said Wednesday that he would support an amendment that would prevent the Biden administration from ending Title 42, while lamenting the matter was preventing the Senate from acting on pandemic aid. 

“We should not get rid of [Title] 42. I’ve always said that,” he said. “But still yet, you just don’t hold up the package needed to protect Americans too, so I hope they can work through that.”

Democratic leaders typically don’t mind giving Republicans amendment votes in exchange for their cooperation in speeding up passage of bills if the amendments are partisan and guaranteed to be rejected. But as Manchin’s support shows, a Title 42 amendment would be adopted if allowed a vote under a simple majority. 

The only other obvious solution would be to raise the threshold for adopting a Title 42 amendment to 60 votes. But if the amendment is germane to the underlying bill — and Republicans have said their goal is to draft Title 42 language in consultation with the parliamentarian that is — both parties would need to agree to set a 60-vote threshold, something Republicans have no intention of doing.

Even a 60-vote threshold is risky, depending on the amendment language, given the number of Senate Democrats who have said the administration should not prematurely end Title 42 without a longer-term plan to secure the border.

Besides Manchin, those Democrats include Sens. Mark Kelly and Kyrsten Sinema of Arizona, Catherine Cortez Masto of Nevada, Jon Tester of Montana, Maggie Hassan of New Hampshire and Raphael Warnock of Georgia. Kelly, Cortez Masto, Hassan and Warnock are considered the most vulnerable Democrats up for reelection in November. Sinema, Manchin and Tester are all up in 2024.

Cortez Masto declined to “speculate” on how she would vote on a Title 42 amendment until there’s language to look at. But she said the administration should provide a “detailed plan” on how to prepare for any “potential surge” at the border.

[Odds dimming for quick passage of $10B virus aid package]

Kelly also said he wants the administration to provide an alternative border security plan but he said he is “not likely” to hold up the COVID-19 supplemental over the Title 42 issue. 

Blame game

Each party blamed the other for the impasse.

Senate Health, Education, Labor and Pensions Chairwoman Patty Murray accused Republicans of going back on their bipartisan agreement to support the $10 billion in aid. “We were in agreement on getting this package done, not on doing a bunch of sidebar issues,” she said.

Asked if Democrats were considering staying in town through the recess to work through the impasse, Murray, D-Wash., suggested that would be fruitless without GOP cooperation. 

Burr said Schumer and Speaker Nancy Pelosi “killed” the supplemental with their decision not to allow a vote on a Title 42 amendment, which Republicans made clear was a necessary condition for supporting the bill.

“We’ve got the leader of the House and the leader of the Senate who have decided that COVID money is not going through,” he said. 

In floor remarks Wednesday, Schumer claimed “Republicans wanted to kill this bill with unrelated poison pills,” calling the $10 billion in pandemic aid “exceedingly reasonable, carefully negotiated, and desperately needed.”

Schumer said Republicans may think they’re “gaining some temporary advantage” but they will be to blame if another virus variant sweeps the nation and there aren’t enough therapeutics, vaccines and tests available.

White House Press Secretary Jen Psaki reiterated Wednesday that the U.S. supply of monoclonal antibodies to fight COVID-19 infections will run out “as soon as late May.” Testing manufacturing capacity, she said, “will begin ramping down at the end of June.”

Senate Labor-HHS-Education Appropriations Subcommittee ranking member Roy Blunt, R-Mo., acknowledged delaying funding could have a negative impact but that it may take some time for it to be felt.

“My guess is that most of the impact is later when we find out that we ordered therapeutics a month later than we should have and so we get them… five months later than we should have because that therapeutics line depends on how many other people are in it,” he said.

Revisiting after recess 

With neither party backing down, it’s unclear how the Title 42 issue will be resolved. 

“I assume [negotiations] get restarted on our return or maybe during the break, who knows?“ Senate Minority Whip John Thune, R-S.D., said. 

Stabenow said Title 42 is “extraneous” to the funding package despite its connection to the pandemic and should be dealt with separately.  

The recess could provide time for leaders to figure out how to get out of the Title 42 snag and possibly work through other issues on the bill, like $5 billion in international aid that was left out because the parties couldn’t agree to enough offsets for it. 

Schumer and other lawmakers said before the $10 million in domestic funds stalled that they wanted to do a separate supplemental for the international pandemic aid that could be combined with funding for other global needs like fighting famine and assisting Ukraine as it fights off a Russian invasion. 

Senate State-Foreign Operations Appropriations ranking member Lindsey Graham, R-S.C., said he supports a global aid package but that would likely face the same issue as the domestic funds if the Title 42 issue is not resolved. 

“That’s going to be a hurdle we have to deal with no matter what aid package you’re looking at,” he said.

And Democrats face at least one other intraparty issue. If leaders reopen the $10 billion package for negotiation, Sen. Ron Wyden, D-Ore., wants to replace one of the offsets, $887 million pulled from unspent local and tribal assistance funds. 

“Of course I very much favor additional COVID funding,” he said. “I just felt very strongly that those clawbacks — particularly as it related to rural communities, small businesses, tribes, a number of social services which I’ve been hearing about — it wasn’t right to claw back that money so that Big Pharma can pad its profits.”

David Lerman, Herb Jackson and Paul M. Krawzak contributed to this report.

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