Border policy questions loom as Senate works on funding, ‘Dreamers’

Republicans raise concerns that court-ordered end of Title 42 will increase migration

A Border Patrol agent searches for someone crossing through the Colorado River into the U.S. ahead of the border wall between the US and Mexico in Yuma, Ariz., in June.  (Patrick T. Fallon/AFP via Getty Images)
A Border Patrol agent searches for someone crossing through the Colorado River into the U.S. ahead of the border wall between the US and Mexico in Yuma, Ariz., in June. (Patrick T. Fallon/AFP via Getty Images)
Posted November 17, 2022 at 5:33pm

An imminent end to pandemic-era asylum restrictions under Title 42 has renewed border policy debates on Capitol Hill, which could complicate a must-pass government spending bill and threaten a Democratic push to help so-called Dreamers.

A federal judge in Washington struck down a pandemic-related border directive known as Title 42 on Tuesday, ordering the Biden administration to stop expelling migrants at the border without hearing their asylum claims.

The government requested a delay, and now has until Dec. 21 to wind down the controversial policy, which Republicans already latched onto to block legislative action earlier this year.

That ruling comes as Congress faces a Dec.16 deadline to fund the government. Senate Democrats also announced they would prioritize legislation to address the Deferred Action for Childhood Arrivals program during the lame-duck session.

The Title 42 policy has been used to turn away migrants at the border for more than two years. Ending asylum restrictions is likely to increase migration at the U.S.-Mexico border at a time when encounters with migrants are already historically high.

“If you think things are bad now, they're about to get worse,” Sen. John Cornyn, R-Texas, said on the Senate floor Thursday. “Title 42 has been one of the few remaining tools that have been used to prevent even greater chaos than what I've described, and now with it potentially likely going away, even that tool will be lost.”

Government funding

Senate Republicans and Democrats negotiating on government funding still need to set overall funding levels before decisions can be made about spending on border security.

Republican lawmakers say it’s possible Title 42 could play a role in any deal on an omnibus spending bill or short-term continuing resolution. Both those options would need 60 votes to overcome a Senate filibuster, which means at least 10 Republicans would have to vote alongside Democrats.

“I assume it will be in the mix,” Sen. Josh Hawley, R-Mo., said when asked if border policy could become a flashpoint in spending talks. “I imagine that there’s a very good likelihood of that.”

Partisan tensions over Title 42 came to a head this spring on a Ukraine-focused spending bill, as the Biden administration was first considering rescinding the policy.

Senate Republicans tried to attach an amendment to require the administration to retain the policy. The bid won the support of a handful of moderate Democrats, which forced Democratic leadership to drop billions of dollars in pandemic aid from the package to avoid a vote on the hot-button issue.

Sen. Shelley Moore Capito, R-W.Va., ranking member of the Appropriations Homeland Security subcommittee, said there “always” is a role for appropriators in discussions about border security.

“Once 42 goes away, these numbers are just going to go even higher and higher,” Capito said Wednesday. “I'm really concerned. But the administration has got to work with expedited removals. They've got to do a better job of expedited adjudication on asylum. They're just doing nothing to stop the flow.”

Sen. Christopher S. Murphy, D-Conn., the chair of the Homeland Security Appropriations subcommittee, said Wednesday that lawmakers are still awaiting information from the Department of Homeland Security to determine if the department will need more money following the repeal of pandemic-era Title 42 border directive.

Murphy said he has asked the Department of Homeland Security for estimates on the expected number of fiscal 2023 border presentations, which a federal judge’s Tuesday decision to strike down Title 42 directive will be factored into.

“There’s an argument that when Title 42 goes away, there may actually be a downward pressure on the number of people presenting at the border … while total asylum cases will go up,” he said. “It will have an impact; we are waiting for information.”

Threatening DACA

Democrats also are seeking Republican support for a bill to help “Dreamers,” or undocumented immigrants who came to the country as children, before Republicans take control of the House in January.

However, a predicted increase in migration following a court-ordered end to the Title 42 policy could jeopardize a DACA deal. Some Republicans signaled openness to DACA legislation, but others are more pessimistic.

Republicans have balked at advancing immigration bills of any kind while encounters with migrants at the border remain high. Fiscal 2022 was the busiest year on record, with Border Patrol agents recording nearly 2.4 million encounters.

“I think it’s very difficult to do anything until we get this border secure,” Sen. Rick Scott, R-Fla., said when asked about the Title 42 ruling and a potential DACA bill.

Hawley vowed to actively oppose any immigration deal struck before the end of the 117th Congress.

“I will do everything I can to prevent a DACA deal — some sort of immigration deal — by a lame-duck Congress full of people who are about to be out of the job,” Hawley said, “Which to me, on such a major policy issue, would be deeply disrespectful to voters who just sent a whole new slate of people here.”

Sen. Charles E. Grassley of Iowa, the top Republican on the Judiciary Committee, which handles immigration issues, said during a panel meeting Thursday that President Joe Biden has "poisoned the waters of that discussion" about DACA by not enforcing immigration laws.

The government’s plan

At a Senate Homeland Security and Governmental Affairs Committee hearing on Thursday that focused on worldwide threats, other GOP lawmakers took the opportunity to grill Homeland Security Secretary Alejandro Mayorkas on his department’s plans for the end of the Title 42 policy.

“The numbers continue to rise on this, with the end of Title 42 coming in 35 days,” Sen. James Lankford, R-Okla. “We expect it's going to accelerate even higher.”

In response, Mayorkas detailed a plan originally developed for the planned end to the Title 42 policy this spring, a move that was ultimately blocked in court. The DHS strategy includes surging resources to the border, increasing consequences for illegal crossers, and bolstering nonprofits that aid asylum seekers in the region.

“What we are doing is precisely what we announced we would do in April of this year,” Mayorkas told the committee. “And we have indeed been executing on the plan.”

But in an interview after the hearing, Lankford indicated he wasn’t satisfied.

“Title 42 is not forever. It was always intended to be temporary,” Lankford said. “But this administration seems to be unwilling to do anything to be able to deter.”

Suzanne Monyak and Aidan Quigley contributed to this report.