The Biden administration and Congress are caught in a no-win situation over policy changes and funding at the southern border: the White House unable to enact new policies without additional funds, and House Republicans unwilling to unlock funding without sweeping changes to U.S. immigration policy.
While the Department of Homeland Security has drafted some possible actions that could be taken unilaterally, including plans to place more migrants on a fast track for deportation, those policies have been shelved, at least for now, because DHS lacks the manpower to carry them out, according to three Biden administration officials.
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The Biden administration had originally asked Congress for just over $13 billion to boost resources at the border, but after Republicans blocked a bipartisan Senate bill that would have significantly affected immigration and border policy, the national security package cleared by the upper chamber on Tuesday omitted any funding for the border.
President Joe Biden has been in near-daily meetings with top aides about border security for weeks, stressing that the system is “broken” and pushing officials to come up with solutions that don’t require Congress.
“Congress controls the purse strings,” a source involved in the congressional negotiation process told NBC News. “There is no magic pot of money for the administration.”
Two DHS officials tell NBC News that Immigration and Customs Enforcement is forecasting a budget shortfall of over $500 million if Congress continues to fund the government through a continuing resolution without giving ICE or other areas of DHS a boost. At that rate, key areas of ICE operations, including deportation flights and detention, could run out of money and force the agency to scale back operations by May, the officials said.
There is broad acknowledgment within the Biden administration that some kind of executive action needs to be taken to address the rampant migrant crossings along the southern border, particularly after the bipartisan border deal fell apart in Congress. But not everyone is in agreement on the path forward: There is division between some in the White House and DHS on the best course of action given the heightened political environment months before the November election, according to two people familiar with discussions.
In a statement, a White House spokesperson said, “The administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system. Congressional Republicans chose to put partisan politics ahead of our national security and rejected what border agents have said they need.”
There is one other must-pass item in which border resources could be addressed — the government funding bills that are expected to be taken up in the first week of March. The bills are now being conferenced between the “four corners,” the two Democrats and two Republicans who run point for House and Senate appropriations, and there is significant back and forth concerning funding for DHS, two sources with knowledge of the negotiations said.
But because of the Fiscal Responsibility Act passed by Congress and negotiated by then-House Speaker Kevin McCarthy, R-Calif., and the Biden administration last May, there are concrete limits on how much funding Congress can appropriate.
The act caps nondefense discretionary spending, which most of DHS funding falls into, to just over $700 billion — a whopping 9% cut from last year if there were a yearlong continuing resolution. However, because of a side deal pushed by Democrats as part of the agreement, discretionary spending levels for this fiscal year would largely stay flat. Emergency funding appropriated in bipartisan Senate bills that would have added billions across a number of agencies, including $2 billion for DHS, have been cut at the insistence of House Republicans.
House Republicans who helped kill the Senate’s bipartisan immigration overhaul bill have been insistent on their partisan border security bill, called HR2, which would never pass the Democratic-controlled Senate. Without that bill or legislation palatable to hard-liners, House Republicans would not likely support additional funding.
The Pentagon is expected to receive the resources requested by the administration as part of its FY2024 budget proposal to Congress. Biden could, theoretically, reallocate funding from one agency to another for increased detention beds and other critical needs at the border, but he could face litigation as his predecessor Donald Trump did when he diverted $2.5 billion in military construction funds for the border wall.
The first week of March also coincides with Biden’s State of the Union address, where the border and immigration are expected to be key topics. The president has largely blamed Trump and “MAGA Republicans” for tanking the bipartisan deal in Congress, but senior White House officials concede that messaging strategy will have to be combined with tangible action on the border.
Three DHS officials said a continuing resolution funding bill that keeps border operations funded at current levels is still not enough to avoid budget shortfalls. The agency has already reprogrammed funds in the past few years, pulling from less essential areas to send more resources toward apprehending migrants crossing the U.S.-Mexico border illegally. It would take a significant boost in new funding to keep ICE and Customs and Border Protection from cutting core operations by May, the officials said.
