Democrats Can Stop Or Slow Down ICE

They still have the power of the purse, and they should use it now.

Ranking Senate appropriator Sen. Patty Murray (D-WA). Photo courtesy of The Hill

Democratic lawmakers find themselves in a rare position to bear down on the Department of Homeland Security and even freeze its funding at 2024 levels unless the GOP agrees to meaningful major reforms. And they wouldn’t need to shut down the whole government to accomplish this.

What they do need is the political will to stand firm.

But wait a minute. Didn’t the GOP budget, in its absurdly titled “One Big Beautiful Bill,” already fund ICE? Technically yes, but that’s not the end of the story. As I’ll discuss below, Democrats still maintain significant leverage in who actually gets funded and under what conditions. And it’s high time that Democrats use that power to freeze ICE’s funding absent clear limitations and reforms.

When we talk about Congress still having the power of the purse, this is exactly what we mean.

The rather insane way Congress actually funds the government

The GOP budget passed narrowly last year under a process called reconciliation, where it needed only a bare majority in each chamber to advance the legislation to the president’s desk. The GOP bill contains tens of billions more in ICE funding for 10,000 more agents and construction of many more immigrant detention centers. It threatened to create an ICE on steroids—a truly dystopian nightmare for the whole country.

But here’s the thing many don’t realize. ICE doesn’t actually have that money yet. Congress still has to pass an appropriations bill before DHS gets the funds, and that means getting 60 votes, not 51, in the Senate.

If that’s surprising to hear, it’s because the convoluted congressional budgeting process isn’t well understood by nearly anyone outside Congress, nor is it particularly logical. Why have a system that allows a budget resolution covering the entire federal government to pass by only a majority vote in each chamber when you know that the actual act of allocating the funds still has to pass by 60 votes in the Senate?

We can debate the merits of this system, but one thing is clear: The second requirement for actual funding means that spending remains a bipartisan affair, and that can have a highly moderating effect. That principle becomes very important when you’ve got extremists operating in parts of the government.

Sen. Patty Murray (D-WA), the ranking Democrat on the Senate Budget Committee, threw down a gauntlet over this very issue back in December. She issued a statement blasting Republicans for trying to fund DHS through a one-sided partisan bill instead of working with Democrats on a negotiated bill:

We need more accountability from President Trump’s out-of-control Department of Homeland Security, and as we proceed to conference negotiations on this bill and the remainder of our bills, I am going to keep working to produce the strongest possible legislation. American families should be able to count on their own government to support them through serious natural disasters and to enforce our immigration laws humanely and in accordance with the law.

Republicans should have listened back then. Now DHS is dangling without a bipartisan bill to fund it, while the rest of the government, as I’ll discuss below, is getting what it needs.

Given ICE’s outrageous behavior, I can’t help but suspect that this is, at least in part, by design.

Where things stand with government funding

It already seems quite long ago, given all that’s happened since, but last quarter the government shut down for a record 43 days. The GOP in its usual dysfunction had not managed to fund any of the government through the regular 12 appropriations bills. And Democrats refused to support any more “continuing resolutions” to keep the government open so long as the GOP refused to extend ACA premium subsidies.

Democratic lawmakers eventually backed down from that demand in exchange for a Senate vote on the ACA subsidies, which went about as expected. The government reopened, and there still are no ACA premium subsidy extensions. But at least voters are now keenly aware of where the two parties’ priorities lie, and support for Democrats has increased markedly in generic polling for the November midterms.

As part of the agreement to reopen the government, three different bills to fund different parts of it passed both chambers and were signed into law last year. Another five passed the House this month, three in a package of bills on January 8 and another pair on January 14, and will proceed now to the Senate. That makes eight funding bills, with still more possible before the January 30 deadline. Once the five that passed the House get through the Senate and are signed into law, as is expected, many parts of the government will be funded, including Defense, Justice, Treasury, State, Interior, Agriculture, Veterans, Energy and the EPA.

In these spending bills, there’s the quiet part few outside Capitol Hill are talking about. Through the budgeting process so far, Democratic negotiators have managed to force the GOP-led House to give up on Trump’s most drastic spending cuts. As the New York Times reported today,

Congress is quietly rejecting almost all of the deepest cuts to federal programs that President Trump requested for this year, turning back his efforts to slash funding for foreign aid, global health programs, scientific research, the arts and more in a bipartisan repudiation of his spending plans.

The latest rejection of his budget blueprint came on Wednesday, after the House voted 341 to 79 to pass a pair of bills to fund the State and Treasury Departments, as well as other foreign aid programs, providing money for agencies that Mr. Trump had proposed eliminating entirely.

Let’s recognize and celebrate a big win when we see it. Democratic appropriators, led by unsung heroes Rep. Rosa DeLauro (D-CT) and Sen. Patty Murray (D-WA), have managed to pull this off. They are leveraging the little understood quirk of the federal budgeting process, discussed earlier, that requires actual appropriations be more or less bipartisan in order to avoid a Democratic Senate filibuster.

So what could this mean for ICE funding?

You know what isn’t funded yet? Homeland Security. For it to spend newly budgeted money, it still needs an appropriation bill covering it. And that gives Democrats important leverage.

Some Dems want to pare back the new spending entirely. As Rep. Seth Moulton (D-MA) pointed out, money for the ACA premium subsidy extension that Democrats and 17 House Republicans voted for could come directly out of ICE’s funding increase. “We absolutely want to extend the ACA premiums tax credits, they shouldn’t be lapsing, but we’re funding it by taking money from ICE’s budget,” said Moulton, describing the Trump administration’s priorities as “completely out of whack.”

Could Dems actually prevent new money from flowing to ICE? Theoretically at least, yes. Dems could dig in and shut down the unfunded parts of the government, which would include Homeland Security. Or they could shrug and agree to another continuing resolution for the unfunded parts of government. That would still effectively freeze Homeland Security at 2024 funding levels for the immediate future.

Alternatively, Democratic lawmakers could insist upon reforms and conditions in exchange for ICE funding. Sen. Chris Murphy is the top Democrat on the Appropriations Subcommittee for Homeland Security. As he told The Independent, “It’s obviously natural that Democrats would want to make sure that any money we spend in DHS is being spent lawfully, and right now that department is full of unlawful activity.”

Murphy signaled that a blank check in the form of a partisan funding bill wasn’t going to happen. “I’m just not interested in funding an agency that is operating outside of the law and it’s making our communities less safe,” Murphy said, adding that “in every bill, there’s language on how our money is spent, and I want to make sure that our money is spent lawfully.” Some of the reforms and conditions Murphy has proposed include limiting where DHS agents can operate (e.g., not so far from the border), and whether they must not operate with their identities hidden.

Whether it’s freezing ICE funding (which I’d love to see) or placing significant restrictions on DHS’s operations, Democrats need to use their leverage now while they have it and move to halt or at least significantly slow ICE in its tracks.