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Senate immigration showdown ends with Title 42 stalemate

The procedural drama rankled senators who want to see Congress compromise on immigration policy

Sen. Jon Tester of Montana, shown on Dec. 13 in the Capitol, joined Sen. Kyrsten Sinema of Arizona on a Title 42 amendment to the fiscal 2023 spending bill.
Sen. Jon Tester of Montana, shown on Dec. 13 in the Capitol, joined Sen. Kyrsten Sinema of Arizona on a Title 42 amendment to the fiscal 2023 spending bill. (Tom Williams/CQ Roll Call)

Congressional inaction on immigration sparked yet another Senate showdown over the so-called Title 42 border expulsion directive, prolonging a legislative stalemate on the issue and paving the way for U.S. border policy to likely be decided in the courts.

The Senate shot down a pair of proposed amendments to the fiscal 2023 government spending bill on Thursday, both of which would have extended the pandemic-related directive that has been used for nearly three years to expel asylum-seekers at U.S. borders.

The rejection of the amendments came after hours of behind-the-scenes negotiations. The approval of either amendment would have doomed the spending bill with more progressive House Democrats who support an end to the Title 42 policy.

Ultimately, Democratic leaders embraced a “side by side” amendment agreement that allowed moderate Democrats who are supportive of the Title 42 policy to vote to keep it in place while also ensuring the extension would be excluded from the final bill.

The deal echoed a similar agreement that lawmakers struck when considering Title 42 amendments to a budget reconciliation bill in August. It leaves in place the status quo for the policy, as the Supreme Court considers whether to halt a lower court ruling that would force the government to end the program.

But the procedural drama, less than 48 hours before the government is set to shut down, rankled senators who want to see Congress compromise on immigration policy.

Legislative impasse

A bipartisan immigration effort by Republican Sen. Thom Tillis of North Carolina and Sen. Kyrsten Sinema of Arizona, who recently announced plans to switch her registration from Democrat to independent, collapsed less than two weeks ago after months of negotiations.

Their deal, circulated in a framework to other senators, would have provided protections from some undocumented immigrants while attempting to heighten border security and improve migrant processing.

The issue has taken on increased urgency following a court ruling last month that could lead to the end of the Title 42 policy, which was launched under the Trump administration at the start of the COVID-19 pandemic. The Biden administration tried to rescind the policy voluntarily in May but was blocked in separate litigation.

“With the looming end of Title 42, we see an untenable crisis that’s occurring in our border communities right now increasing to a level that is not sustainable,” Sinema said in an interview Wednesday.

But the pair ultimately ran out of time to draft legislative text and whip up enough support for an immigration deal this year, leaving an opening for Republicans to continue to use clashes on border security as a tool to thwart Democratic priorities.

Sen. Chris Coons, D-Del., condemned what he called a “willful inability to legislate in a way that meaningfully protects our core values and our country” in a brief interview as the Senate negotiated a time agreement for consideration of the amendments.

“We’ve had a broken immigration system for many years now, and I think it’s bad faith for some members to hold us here for days saying we need to do this, and then not be willing to engage in negotiating anything that has any chance of passing,” Coons said.

Sen. Christopher S. Murphy, D-Conn., chairman of the Senate Homeland Security Appropriations Subcommittee, warned that further congressional inaction on efforts to streamline border processing and shore up resources in the region will lead to more political stalemate in the future.

“If we don’t pass legislation giving the president the tools he needs to manage the border, it’s going to gum up everything that we need to do,” he said. “It’s an unmanageable situation.”

Procedural drama

Trouble began Wednesday night when Republicans demanded a vote on an amendment to the sprawling omnibus spending bill offered by Sen. Mike Lee, R-Utah. The Lee amendment would have blocked the Biden administration from rescinding the Title 42 policy.

Democrats, leery of moderate senators in their own party who might support that amendment, countered with a proposal by Sinema and Jon Tester of Montana that would set aside billions in border security and preserve Title 42 restrictions until a “proper plan to manage the crisis at our border” is in place.

Unlike Lee’s amendment, the Sinema-Tester proposal would have also provided extra funding to speed up border processing, including to hire more immigration judges and increase detention capacity. The amendment would have additionally provided money to build up shelter capacity along the border.

Crucially, Sinema and Tester’s proposal was deemed not germane by the Senate parliamentarian, requiring a 60-vote threshold for adoption. That gave moderate Democrats political cover on the floor Thursday to support Sinema and Tester’s doomed-to-fail amendment keeping Title 42 in place while simultaneously voting against Lee’s.

Sinema and Tester’s amendment was rejected 10-87, earning just one Republican vote — Tillis — and nine Democratic votes, almost exclusively senators representing purple states: Sinema and Mark Kelly of Arizona; Tester; Sherrod Brown of Ohio; Maggie Hassan and Jeanne Shaheen of New Hampshire; Joe Manchin III of West Virginia; Jon Ossoff of Georgia; and Jacky Rosen of Nevada.

Lee’s amendment then was rejected on a 47-50 vote.

Sen. Rick Scott, R-Fla., said Thursday that the Sinema-Tester amendment extending Title 42 was “set up not to pass.”

“It was all set up. They don’t support Title 42. The Democrats are all in for open borders,” Scott said.

Court fights

While lawmakers pitched amendments to extend the border policy legislatively, the Supreme Court is considering a request by Republican attorneys general to do so through the courts.

A Washington federal judge ruled against the border expulsion policy last month and ordered it to terminate on Dec. 21. But just days before the policy was set to end, the Supreme Court pressed pause on the court ruling while it considered a request from a coalition of Republican-led states to keep the border policy in place for the foreseeable future.

The Biden administration has defended the Title 42 policy in court but has also signaled it is not interested in keeping the policy in effect currently, which prompted the states to step in. The high court is expected to rule on that request imminently.

Either amendment on the Title 42 policy, if passed, could have blunted the effect of any high court decision.

The standoff Thursday marked a moment of déjà vu in the Capitol. Earlier this year, a similar stalemate on the Title 42 policy stalled a package that would have provided billions in COVID-19 aid.

Earlier on Thursday, immigrant advocacy groups urged lawmakers to shut down any efforts to attach provisions to the funding legislation that would extend the asylum restrictions.

In a news release, Anthony Romero, executive director of the American Civil Liberties Union, described the vote as a “moment of reckoning for every member of Congress who supports the basic and longstanding right to seek asylum” and urged lawmakers to vote down any spending bill that included such language.

Sen. Bob Menendez, D-N.J., a longtime opponent of asylum restrictions under Title 42, argued in a floor speech Wednesday night that extending Title 42 would do little to alleviate strain on government resources at the border.

Under Title 42, many migrants expelled have made repeated attempts at crossing.

“Republicans know that Title 42 has led to record-high border crossings. Voting yes on any amendment to extend Title 42 will doom this omnibus spending package,” Menendez said. “Considering an indefinite extension of Title 42 when we have millions of Dreamers who still cannot become U.S. citizens and millions of people waiting to legally be joined with their families in the U.S. is the greatest failure of all.”

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