Previous posts documented Congress’ earlier failure this Session to adopt (a) the Afghan Adjustment Act to improve the legal status of Afghan evacuees in the U.S. and (b) important bipartisan immigration reform, one of which was offered by Senators Kyrsten Sinema (ex-Democrat & now Independent) and Thom Tillis (Rep., NC) that would have addressed the legal fate of so-called Dreamers and provided billions of dollars to secure the U.S. border with Mexico and improve processing of asylum claims.[1]
Nor were these failures rectified in the balance of the Session with its primary focus on what was known as the Omnibus bill, which is discussed below.
The Omnibus Bill[2]
On the evening of December 19, the 4,155 page Omnibus Bill was introduced in the Senate. The bill provides $1.65 trillion to finance all of the federal government for the rest of fiscal 2023 (ending September 30, 2023). This includes $858 billion for defense, a 9.7% increase; $45 billion in new military and economic aid for Ukraine; new incentives for citizens’ retirement savings; increased funding for food stamps, heating assistance, Pell grants, Head Start, Child Care and Development Block Grant Program plus $40 billion in emergency spending (mostly to assist communities recovering from drought, hurricane and other natural disasters); and a ban on TikTok on government devices.
Other parts of this bill would make changes to Medicaid eligibility, the Children’s Health Insurance Program and Medicare provider payments.
According to a Wall Street Journal editorial, this is the “ugliest omnibus bill ever” and “[m]ajor changes in law deserve their own debate and vote. Instead, a handful of powerful legislators wrote this vast bill in a backroom. Members can use the need to fund the government as an excuse to say they supported, or opposed, specific provisions as future politics demands.”
Senate Approves the Omnibus Bill[3]
On the afternoon of December 22, the Senate passed the Omnibus bill, with a bipartisan vote of 68-29. It did so after that morning’s defeat of two proposed amendments to extend the so-called Title 42 to continue a legal ban on admission of migrants at the U.S.-Mexico border. One of these proposed amendments was offered by Senator Mike Lee (Rep., Utah), which was defeated 47-50; the other by Senator Sinema (Indep., Arizona) and Senator Tester (Dem., Montana), which was defeated with only 10 affirmative votes.
House Approves the Omnibus Bill[4]
The next day, December 23, the House approved the omnibus bill, as amended by the Senate, without any additional proposed immigration amendments, 225-201. The bill thus now will go to President Biden, who is expected to sign it in coming days.
Later on December 23 the 117th Congress adjourned and will terminate on January 3, 2023.
Litigation Over Continuation of Title 42[5]
While these legislative machinations were going on, there was pending litigation over the continuation of Title 42, which had been adopted by the Trump Administration to allow migrants to be quickly expelled back to Mexico after illegally crossing the border into the U.S. in order to prevent the threat of further spread of the coronavirus in the U.S. and which was scheduled to expire on December 21.
After such litigation had been dismissed by lower federal courts, the case went to the U.S. Supreme Court, and on December 19th Chief Justice John Roberts ordered a temporary ban against termination of Title 42 until the Supreme Court had acted on the issue.
Then on December 27, the Supreme Court, 5-4, issued an unsigned order that was supported by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett. That order (a) granted the application for stay of the District Court order, pending certiorari, that had invalidated Title 42; (b) granted the applicants’ suggestion that its application be treated as a petition for a writ of certiorari; and (c) directed the parties to brief and argue whether the State applicants may intervene to challenge the District Court’s summary judgment order. The Court added that this stay “precludes giving effect to the District Court order setting aside and vacating the title 42 policy,” but “does not prevent the federal government from taking any action with respect to that policy” and the Supreme Court “does not grant review of those merits, which have not yet been addressed by the Court of Appeals.”
This unsigned order then concluded by directing the Clerk “to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session” and by stating that the Court’s “stay shall terminate upon the sending down of the judgment of this Court” and that the previous stay order by the Chief Justice is vacated.
Justices Sotomayor and Kagan, without opinion, stated that they would deny the application while Justices Gorsuch and Jackson dissented. The latter’s dissenting opinion stated as follows:
- The Covid “emergency on which these orders were premised has long since lapsed.” The States which now are challenging the invalidation of title 42 “do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed.”
- These States also “contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. . . . But the current border crisis is not a COVID crisis. And the courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymers of last resort.”
Immediately after the issuance of this Supreme Court order, White House Press Secretary Karine Jean-Pierre issued a statement that the U.S. government will “comply with the order and prepare for the Court’s review” while also “ advancing our preparations to manage the border in a secure, orderly, and humane way when title 42 eventually lifts and will continue expanding legal pathways for immigration. Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”
The Press Secretary then shifted to the need for “Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office.” Now “Republicans in Congress [have] plenty of time . . .[to] join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”
The Department of Homeland Security that same day issued a shorter, but similar statement.
Also that same day a Wall Street Journal editorial concluded that the Supreme Court’s order “gives the President more time to prepare for Title 42’s end. Whether he makes the most of it is a different matter, and the last two years don’t bode well.”
According to an Associated Press journalist, no one knows how asylum will work after an end to Title 42 with the “Biden Administration . . . conspicuously silent about how migrants who plan to claim [asylum] should enter the . . . [U.S.when Title 42 ends], fueling rumors, confusion and doubts about the government’s readiness despite more than two years to prepare. . . . Many expect the government to use CBPOne, an online platform for appointment registration, . . . [but this may be] impractical for migrants without internet access or language skills. . . . [Moreover, once they are in the U.S., they are being given dates as far out as March 2024 just to complete initial processing. Then they have to contend with] “a court system that is backlogged by more than 2 million cases, resulting in waits of several years for judges to reach decisions” on asylum applications.
Prospects for Adoption of Immigration Reform in 2023 [6]
The 118th Congress opens on January 3, 2023, with the Republicans having a small majority in the House of Representatives while the Democrats in the Senate will maintain their narrow control (51-49) with Vice President Harris’ ability to break ties when the filibuster rule requiring 60 votes is not invoked.
Indeed, a U.S. Justice Department brief of December 20 referred to “new policies tailored to the consequences of the end” of Title 42 and “a complex, multiagency undertaking with policy, operational, and foreign relations that has been paused or partially unwound in light of the administrative stay” of any such changes.
Advocates for the Afghan Adjustment Act “worry that . . . [this bill] will be dead in the water if pushed into a new session next year, when Republicans appear intent on scrutinizing the Biden administration over the chaotic Kabul evacuation. About 170 Afghans and 13 U.S. troops were killed in a suicide bombing during the operation. The United States killed 10 civilians in a botched drone strike days later.”
Contributing to this uncertainty will be the House Republicans pledge to investigate the Biden administration’s record on the southern border and to impeach Homeland Security Secretary Alejandro Mayorkas. Another problem would be responding to any court’s overturning the Deferred Action for Childhood Arrivals (DACA) program that has granted legal status to millions of people who were brought illegally to the U.S. as children. Especially despondent about this possibility is Greisa Martinez Rosas, a DACA recipient and executive director of United We Dream, the nation’s largest youth-led immigrant network. When she thinks about “ the millions of young immigrants, including DACA recipients, who have had to live their lives in a perpetual state of limbo, I am filled with righteous anger, which I channel into action and a discipline of hope that we are working to create the conditions for us to win and to build the futures we deserve.”
Conclusion
Comments with corrections or additional thoughts on these complex issues are welcomed.
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[1] Need to Prod Congress To Enact the Afghan Adjustment Act, dwkcommentaries.com (Dec. 17, 2022);
Apparent Failure of Bipartisan Immigration Reform Bill, dwkcommentaries.com (Dec.18, 2022).
[2] Freking, Lawmakers unveil $1.7T bill to avoid shutdown, boost Ukraine, Seattle Times (Dec. 20, 2022)..
[3] Romm, Senate approves $1.7 trillion omnibus bill to fund government, Wash. Post (Dec. 22, 2022); Hughes, Collins & Wise, Senate Passes $1.65 Trillion Omnibus Bill After Deal on Title 42 Votes, W.S.J. (Dec. 22, 2022); Cochrane, Senate Passes $1.7 Trillion Spending Bill, in Bid to Avert Government Shutdown, N.Y. Times (Dec. 22, 2022);
4/ Romm, House approves $1,7 trillion omnibus bill amid GOP objections, sending it to Biden, Wash.Post (Dec. 23, 2022).
[5] Federal judge strikes down Trump-era border policy known as title 42, Wash. Post (Nov. 15, 2022); Hackman & Wolfe, Judge Strikes Down Title 42, Used to Expel Asylum Seekers, W.S. J. (Nov. 15, 2022) ; Liptak, Chief Justice Roberts Briefly Halts Decision Benning Border Expulsions, N.Y. Times (Dec. 19, 2022); Marimow & Sacchetti, Chief Justice temporarily keeps pandemic-era Title 42 border policy in place, Wash. Post (Dec. 19, 2022); Hackman & Bravin, Supreme Court Temporarily Blocks Biden From Ending Trump-Era Border Policy, W.S.J. (Dec. 19, 2022); Supreme Court blocks Biden from lifting Covid-era border restrictions, Guardian (Dec. 20, 2022); Spagat, How will asylum work after Title 42 ends? No one knows yet, Wash. Post (Dec. 20, 2022). Supreme Court, Order, Arizona v. Mayorkas, No. 22A544 (22-592) (Dec.27, 2022); Liptak, Jordan & Sullivan, Migrant Expulsion Policy Must Stay in Place for Now, Supreme Court Says, N.Y. Times (Dec. 27, 2022); Barnes & Marinow, Supreme Court leaves in place Title 42 border policy for now, Wash. Post (Dec. 27, 2022);Bravin & Hackman, Supreme Court Leaves Pandemic Border Controls in Place, W.S.J. (Dec. 27, 2022); White House, Statement by White House Press Secretary Karine Jean-Pierre on Supreme Court Title 42 Order (Dec. 27, 2022); Dep’t Homeland Security, Statement by the Department of Homeland Security on Supreme Court title 42 Order (Dec. 27, 2022); Sandoval, At a Crowded Border Camp in Mexico, Frustration and Shattered Hopes, N.Y. Times (Dec. 27, 2022).
[6] Spagat, How will asylum work after Title 42 ends? No one knows yet, abcnews.go.com (Dec. 20, 2022); Horton, Congress drops Afghan allies item, dimming evacuee hopes, Wash. Post (Dec. 20, 2022); Meyer & Caldwell, Why the Immigration debate is only going to get more tense, Wash. Post (Dec. 21, 2022); Rosas, Congress Has Once Again Failed Immigrant Youths, N.Y. Times (Dec. 22, 2022);
Comment: Omnibus Act Creates 4,000 New Special Visas for Afghans
According to the Wall Street Journal, the recently enacted Omnibus Act had “modest good news” for Afghans by creating 4,000 new Special Immigrant Visas (SIV) for Afghans “who worked closely with the U.S. government, the military and its contractors, as well as their spouses and children” and by extending the SIV program for another year through 2024.
The bad news of the Omnibus Act, said the Journal, was the failure to pass the Afghan Adjustment Act along with “the help Afghan allies deserve.”
Editorial, Congress Lets Down Afghan Allies, W.S.J. (Dec. 27, 2022), https://www.wsj.com/articles/congress-lets-down-afghan-allies-11672091217
Comment: Speculative Interpretation of Supreme Court Decision on Title 42 Case
The above post summarizes the U.S. Supreme Court’s December 27th decision, 5-4, to have a hearing next February on whether 19 states have a right to intervene in this case regarding the proposed termination of Title 42 that allowed the U.S. promptly to expel immigrants at the U.S.-Mexico border in order to prevent the threat of further spread of the coronavirus in the U.S.
The dissenting opinion by Justice Gorsuch is straightforward and logical in stating that the Executive branch’s decision to adopt these Title 42 orders was premised on the actual or potential existence of a covid health threat to U.S. citizens posed by these immigrants. But, said Justice Gorsuch, “the emergency on which those orders were premised has long since passed” and these 19 states seeking intervention in this case “do not seriously dispute that the public-health justification undergirding the Title 142 orders has lapsed.” (There is no expressed or actual disagreement with these statements.)
Now these states, said Gorsuch, “contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” Justice Gorsuch then concedes, “I do not discount the States’ concerns. Even the federal government acknowledges ‘that the end of the Title 42 orders will likely have disruptive consequences.’” Thus, there is no expressed or actual disagreement with these statements.
Gorsuch then logically concludes, But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
The Court’s majority portion of this decision does not dispute any of these statements by Justice Gorsuch and instead discusses the purported need to address the issue of whether the states have a right to intervene, which seems totally unnecessary.
This makes one wonder if the majority of the Court assumes or recognizes that the Executive Branch has not developed another plan to address the threat of a crisis of many migrants crossing the U.S. border without the U.S. having the policies and personnel to address such a crisis and that the Court does not want to be an object of criticism for exacerbating the crisis. As a result, the Court’s majority is postponing a decision on this case until after oral arguments sometime in February and after opinions are prepared by the Justices, thus giving the Administration two to four additional months to develop such a plan and personnel to address the crisis.
Comment: Other Reactions to Failure To Adopt Immigration Reforms
The above post discussed the failure of the Omnibus bill to include needed immigration measures, a point that was emphasized in the 12/30/22 Wall Street Journal, “A political logjam over the southern U.S. border has once again prevented Congress from making changes to the immigration system, with prospects for next year only growing dimmer.” The Journal provided the following additional details:
• “Farmers, military veterans, tech companies and immigration advocates had all pinned their hopes on Congress to pick up any of several bipartisan immigration proposals during their lame duck session, before Republicans assume control of the House in January. But a $1.65 trillion omnibus spending package, the last bill to pass before this Congress adjourns, contained no significant immigration measures.”
• “Top Republicans were unwilling to consider any immigration-related changes amid an unprecedented surge of illegal immigration at the border, with some previously bipartisan proposals shedding GOP support as this year’s congressional session came to a close. Fears over the border were amplified by the impending termination of Title 42, a pandemic-era border policy allowing migrants to be rapidly turned back to Mexico. That policy was set to expire last week but was held up by the Supreme Court, which announced it would hear a case on the policy.”
• “Concern over the policy was so great that a GOP amendment requiring the Biden administration to keep Title 42 in place briefly stalled the spending package, threatening a potential government shutdown before congressional leaders brokered a workaround.”
• “’When the border is on fire, it’s really hard to come together and cut a deal and limit the more extreme voices on the far right and the far left,’ said Matthew La Corte, government affairs manager for immigration policy at the Niskanen Center, a center-right-leaning think tank. ‘Until the politics of fixing the immigration system outweigh the politics of border chaos, I think we’re going to be in this no-man’s-land.’”
• “Prospects for reform will only grow tougher in the next two years as Republicans take over the House, where Rep. Kevin McCarthy (R., Calif.), the expected next speaker, has said he won’t take up any immigration bills unless they deal first with bolstering border security. Republicans are also expected to make the Biden administration’s handling of border flows a subject of oversight hearings next year.”
• “Sen. Thom Tillis (R., N.C.), who led bipartisan negotiations with Sen. Kyrsten Sinema (I., Ariz.) over a potential deal to create a path to citizenship for Dreamers., . . . didn’t rule out reviving the talks in the next Congress. But, he said, ‘It’s going to be necessarily more conservative on border security than we would have been able to negotiate this cycle because now we’ve got a divided Congress.’”
. The Afghan Adjustment Act despite Republican co-sponsorship “couldn’t overcome the opposition of GOP leaders including Sen. Chuck Grassley (R., Iowa), the top Republican on the Senate Judiciary Committee, which has purview over immigration matters. Republicans opposed to the bill have said it wouldn’t adequately vet applicants before giving them permanent residence, and some Republicans oppose the idea of issuing so many blanket green cards at all.”
A Washington Post editorial stated, “Republicans made no attempt to justify Title 42, a public health measure, on public health grounds. Yet in keeping it in place while the GOP officials continue to press their appeal, the Supreme Court ignored all that, acting more as lawmakers than as judges. . . . It remains the case that the immigration and asylum system, overwhelmed by a years-long backup in its caseload, cannot be jury-rigged by borrowing a public health measure for an unintended purpose. It is a job for Congress, not courts, to forge a solution.”
The Washington Post focused on the plight of 76,000 Afghan evacuees who face an August 2023 deadline for expiration of their temporary parole status. Supporters of the Afghan Adjustment Act “said their efforts were thwarted by one man: Republican Sen. Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, which oversees immigration issues.”
Responding to these advocates, Grassley told the Associated Press, “’First of all, people that help our country should absolutely have the promise that we made to them. There’s some disagreement on the vetting process. That’s been a problem and that hasn’t been worked out yet.’”
Grassley’s concerns were rebutted by “U.S. national security and military officials [who] have outlined the stringent screening process that evacuees went through before arriving on American soil. Those security screenings, conducted in Europe and the Middle East, included background checks with both biographic information and biometric screenings using voiceprints, iris scans, palm prints and facial photos.”
Nevertheless, “ mandatory in-person interviews for all Afghan applicants were written into the bill as well as requirements that relevant agencies brief Congress on proposed vetting procedures before putting them in place.” Despite these changes, “the bill never made it out of the Judiciary Committee and failed to win inclusion in the just-passed $1.7 trillion government funding bill.”
Senator Amy Klobuchar, D-Minn., who was one of the lead sponsors of the Afghan bill, said, ‘If this is what we do when they come to our country, and we don’t have their backs, what message are we sending to the rest of the world who stand with our soldiers, who protect them, who provide security for their families?’”
Not giving up, Klobuchar and the bill’s lead Republican co-sponsor, Sen. Lindsey Graham of South Carolina, “pledged to bring the bill back up again in the new session of Congress starting in January.”
Catherine Rampell, a Washington Post columnist, contrasts the strong words against Title 42 used by Biden as a presidential candidate with his dragging his feet as President on the issue. For example, since October this year his Administration has begun using this Title to expel Venezuelans, Cubans, Nicaraguans and Haitian immigrants at the border. Rampell suggests that the Administration needs to send more resources to the border, beef up the asylum system to operate more efficiently and expeditiously, enable asylum seekers more quickly to seek work permits and create more legal, safe and orderly pathways for migrants to come to the U.S. to seek protection from persecution and to pursue economic opportunities.
A law school classmate of this blogger says, “Courts often like to maintain the status quo (i.e., keep Title 42 for now) while they ponder, even relatively easy questions, such as “do the 19 states who are plaintiffs have any standing, and how.” So the 5-4 stay may be a bit more benign, and the real concern will be a ‘final answer’ giving states standing in immigration, that will guarantee chaos before any federal immigration action (and that may be these 19 states’ goal).” He also wonders if this is an “Administrative Procedure Act problem, and it can take a while to rethink and develop a new policy.”
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Rampell, Biden says he wants to dismantle Title 42. So why has he expanded it?, Wash. Post (Dec. 29, 2022), https://www.washingtonpost.com/opinions/2022/12/29/title42-migrant-asylum-biden-solutions/
Editorial, With Latest Title 42 ruling, Supreme Court majority makes a mockery of the law, Wash. Post (Dec. 29, 2022), https://www.washingtonpost.com/opinions/2022/12/28/title-42-supreme-court-saga/
Dobbins & Jordan, Will Lifting Title 42 Cause a Border Crisis? It’s Already Here, N.Y. Times (Dec. 29, 2022), https://www.nytimes.com/2022/12/29/us/title-42-border-el-paso.html?searchResultPosition=1
Hackman, Partisan Splits Scuttle Year-End Action on Immigration Policy, W.S.J. (Dec. 30, 2022), https://www.wsj.com/articles/partisan-splits-scuttle-year-end-action-on-immigration-policy-11672404314
Amiri, Afghan refugees in US face uncertainty as legislation fails, Wash. Post (Dec. 30, 2022), https://www.washingtonpost.com/politics/afghan-refugees-in-us-face-uncertainty-as-legislation-stalls/2022/12/30/96e77b06-8842-11ed-b5ac-411280b122ef_story.html
I am really glad that there are people like you who understand the complexity of these issues. I also cringe every time some yahoo bleats on imimigration.