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.
==================================
[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);