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Biden border move opens rift among Senate Democrats

Republicans see an opening to force tough votes for some Democrats who face acute pressure as they seek reelection

Sen. Mark Kelly of Arizona, one of several Democrats who signed on to a bill that seeks to keep pandemic border restrictions, talks with reporters in the Capitol last week.
Sen. Mark Kelly of Arizona, one of several Democrats who signed on to a bill that seeks to keep pandemic border restrictions, talks with reporters in the Capitol last week. (Tom Williams/CQ Roll Call)

The Biden administration’s latest decision to lift border restrictions has laid bare a key disagreement in the Senate Democratic caucus, threatening to frustrate legislative efforts ahead of midterm elections where Republicans hope to flip control of Congress.

The administration plan to rescind a pandemic policy next month that restricted migration at the U.S.-Mexico border, known as Title 42, has divided Democrats as they cling to the slimmest of majorities, a 50-50 lineup where Vice President Kamala Harris provides a tie-breaking vote.

Most Democratic senators — including Majority Leader Charles E. Schumer, D-N.Y. — had urged President Joe Biden to end the controversial public health directive that has been in place for more than two years. But several moderate Democrats in recent weeks have echoed their Republican colleagues on concerns about a potential migration influx when the asylum restrictions are lifted.

Republicans see an opening to force tough votes for some Democrats who face acute pressure as they seek reelection in close races this November. Last week, Republicans blocked a pandemic aid package because Democratic leadership did not want to allow a vote on an amendment to force Biden to keep the Title 42 policy.

After that, Minority Leader Mitch McConnell of Kentucky pointed to the border, along with inflation and crime, as the three top legislative priorities for Senate Republicans if they take control in November — a sign that the party’s candidates will make it an issue.

And several Republican senators signaled they would support forcing the Title 42 issue again on future bills. “I think we’ll be doing this as long as we can,” South Carolina Republican Sen. Lindsey Graham said.

Democratic split

A number of Democrats have spoken out against the Biden administration’s move and even signed on to a bill to stop it. Some, such as Sens. Mark Kelly, D-Ariz., and Maggie Hassan, D-N.H., face close reelection races. Others, including Sen. Joe Manchin III, D-W.Va., and Sen. Jon Tester, D-Mont., have concerns reflective of their conservative states.

In Arizona, for instance, Biden edged out former President Donald Trump by just 0.3 percentage points in the 2020 elections. Kelly beat his opponent, Republican incumbent Martha McSally, by a slightly higher margin in the year’s special election. Immigration remains a major issue in the border state, a former Republican stronghold that has become a bellwether in national trends.

“I’ve made it very clear with the White House that there’s no plan in place to lift Title 42,” Kelly said Thursday. “We already have a crisis on the border. And they’ve got an outline of something that might be the beginning of the plan, but it’s not a plan and it’s not sufficient.”

Kelly, alongside Tester, Manchin, Hassan and Sen. Kyrsten Sinema, D-Ariz., joined six Republicans in introducing a bill last week that would prevent the Biden administration from rescinding the directive until 60 days after the surgeon general terminates the COVID-19 public health emergency.

That has drawn frustration from progressive Democrats, particularly because some of those same moderate senators sank Democrats’ efforts to pass a sweeping budget reconciliation bill a few months ago that would have legalized millions of undocumented immigrants and cut visa backlogs, among other provisions.

“With all due respect, they’re just wrong,” Senate Foreign Relations Chairman Bob Menendez, D-N.J., who has long pushed for an end to Title 42, said. “Title 42 is not the solution. It’s part of the problem.”

And Menendez pointed out that the same Republicans who have opposed many COVID-19 public health measures now back the continuation of the Title 42 directive.

“They’ve always used immigration as a wedge issue,” Menendez said. “At the end of the day, you know, they don’t like using public health emergencies for anything, but they seem to like it on immigration.”

Sen. Ben Ray Luján, D-N.M., a vocal proponent of legislation to help undocumented immigrants, said Thursday he opposed legislation that would stop Biden from lifting the restrictions.

Democrats argue the policy violates migrants’ legal right to seek asylum and may actually fuel more border crossings by turning people back without penalty.

“Make no mistake: When someone turns themselves into a federal authority, they’re following the law,” Luján said. “So this fiction that has been spread around on the Senate floor confuses me.”

Election ramifications

Democrats’ support for border restrictions angered many immigrant advocates, as they scrambled to mobilize against the bill in the hours before and after it was unveiled, according to emails obtained by CQ Roll Call.

Douglas Rivlin of America’s Voice, a left-leaning immigrant advocacy group, called those Democrats’ position a “missed opportunity” for the party to put forward a stronger message on immigration ahead of the midterms.

“It doesn’t seem to me that buying into the Republican talking points about an open border or ‘no immigration laws other than Title 42’ is a very smart place for anyone to stand, let alone Democrats, let alone people who are seeking reelection,” Rivlin said.

Republicans see immigration as a potent political issue, especially after the busiest year of border encounters since border agents began tracking that information.

Department of Homeland Security officials expect that the full rescission of Title 42, scheduled to complete by May 23, will cause a spike in migration. In one scenario the department is preparing for, daily border encounters with migrants could top 18,000 — nearly three times the current level.

Texas Republican Sen. Ted Cruz argued the Democratic Party is dominated by a “radical extreme” on immigration that opposes “reasonable efforts to stop illegal immigration.”

“A number of Democrats in their heart of hearts know that those positions are insane,” Cruz said. “But they’re too scared of being primaried from the left to dare to disagree with them.”

Sen. James Lankford, R-Okla., who led last week’s bipartisan bill with Sinema, called the situation a “real concern” for the Biden administration.

“There are some that are open borders folks within the administration, and there’s some that are saying the chaos is hurting them politically,” he said. “So they’re gonna have to decide as an administration where they are on this.”

Legislative play

Asked if Republicans could use the Title 42 issue to stop other legislation, Lankford said his party’s efforts last week on the pandemic aid package were a genuine effort to protect the border.

“It’s not about trying to stop that bill,” Lankford said. “Six weeks from now, they’re gonna open up the border. And DHS says we’re gonna have a million people illegally cross when that happens.”

Sen. Elizabeth Warren, D-Mass., accused Republicans of “playing politics with the health and the lives of the American people.”

“We can have disagreements over any range of issues,” Warren said Thursday. “But for the Republicans to block funding for vaccines and treatments for COVID that we may need in the next few months is irresponsible and potentially dangerous.”

Immigration disputes have caused a halt in government operations before. The Trump administration oversaw the longest federal government shutdown in history in late 2018 over funding for a border wall. The fight over Title 42 too could extend beyond the current debate over pandemic relief funding, political analysts warned.

Upcoming legislation to fund the government for fiscal 2023, which begins in October, could also provide opportunities for Republicans to force difficult votes on border security. So could a revived Democrat-only budget reconciliation bill or bipartisan legislation to compete economically with China that is headed to a conference committee.

Cris Ramón, an immigration analyst who consults for the Migration Policy Institute and Bipartisan Policy Center, described Republicans’ immigration push as a dual effort to both score political points while also thwarting the Democrats’ legislative agenda.

“It is sort of a midterms strategy,” Ramón said. “But at the same time, there is something to be said about obstructionism, and just trying to shut down what the administration is trying to do.”

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