Democrats’ best hope for reining in ICE is right now

WASHINGTON – If Democrats in Congress have any chance of controlling the operation of Immigration and Customs Enforcement under President Donald Trump, it is now.

Lawmakers from both parties and both chambers are set to work over the weekend to try to reach a deal to fund the Department of Homeland Security, which includes ICE. Like other federal agencies, DHS will run out of funds by Jan. 30, and lawmakers are rushing to pass bills to ensure all agencies get new funding before that deadline.

But the shooting death of a Minneapolis woman last week by an ICE agent has complicated the path forward for DHS. The incident has fueled widespread anger and protests in the city and is driving the agency to new levels of unpopularity. Democrats are seizing the moment to demand reforms to ICE as a condition of their support for any new DHS funding.

“At this time, there is no bipartisan path forward for the Department of Homeland Security,” House Minority Leader Hakeem Jeffries (D-N.Y.) told reporters Wednesday.

Republicans control the House and Senate, but Democrats have little influence in the former and real influence in the latter. Speaker Mike Johnson (R-La.) can only afford to lose one or two GOP votes on any bill, assuming full turnout, so Democrats can complicate matters by literally all showing up to the vote. In the Senate, Republicans need at least seven Democrats to vote with them to push a DHS funding bill to eliminate a filibuster.

Conversations with Hill aides suggest three possibilities for what happens next regarding DHS funding: Congress could pass a year-long funding bill with limited ICE reforms from Democrats and with which Republicans agree; pass a temporary spending bill, or “continuing resolution,” that simply continues DHS funding at its current levels without reforms to ICE; or not fund DHS at all, a politically controversial move that would hurt other parts of the agency, such as the Federal Emergency Management Agency and the Transportation Security Administration.

None of the three options are likely to include major reforms that some Democrats want, such as end qualified immunity for ICE agents or abolish ICE completely – become law. But of the three options, one could generate changes, even if they are modest.

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Simply not funding DHS by January 30 is not an option to stop ICE’s aggressive tactics. As one Senate aide noted, because Republicans passed a law last year giving ICE an astronomical amount of money – $75 billion – the agency will remain flush with money regardless of what happens with the current fight over DHS funding.

Beyond that, because DHS and other agencies are currently funded by a continuing resolution rather than a more detailed appropriations bill, Secretary Kristi Noem has been given much more discretion to spend that $75 billion however she wants. In practice, he has had an ICE slush fund at his disposal, with little oversight over how he spends those dollars. Another continuing resolution would allow ICE to continue as it has been doing.

A continuing resolution “does nothing to limit how they act illegally,” said Sen. Chris Murphy (D-Conn.). said Tuesday.

So if refusing to fund DHS at all won’t hinder ICE operations, and if passing another continuing resolution to fund DHS won’t either, that leaves a year-long DHS funding bill as the last, and possibly least bad, option for legislatively reining in ICE.

In this scenario, Democrats have the opportunity to tie ICE reforms to new DHS spending and attach specific directives on how the agency’s next year’s funds should be spent, meaning Noem would not be able to continue spending ICE money as she wants, with little oversight.

A Senate aide confirmed that Democratic negotiators are already standing firm in refusing to include new funding for ICE in any DHS bill.

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The challenge for Democrats, then, is to determine which ICE reforms to demand and which they can persuade Republicans to accept. House and Senate Democrats have floating proposals such as requiring ICE agents to wear body cameras, de-escalation training, and banning ICE agents from wearing masks — measures that some activists likely complain don’t go far enough to counter ICE surges in cities like Minneapolis and Chicago.

But until Democrats take back the House or Senate, they won’t be able to call the shots. Senate Majority Leader John Thune (R.S.D.) has already noted he would be fine by simply funding DHS with another continuing resolution. A one-year spending bill for DHS is the only chance Democrats have to put up roadblocks to ICE for the foreseeable future.

The GOP’s biggest beneficiaries also want to pass a year-long DHS funding bill, for different reasons: They want to show that they are finally reasserting their role as the spending-control arm of the government, a power have been granting to Trump and Office of Budget and Management Director Russ Vought over the past year.

“I’m cautiously optimistic,” said House Appropriations Committee Chairman Tom Cole (R-Okla.). he told reporters Tuesday on passing a DHS funding bill. “If you don’t think you can get there, you certainly won’t, so I don’t expect a CR.”

“Our goal … is to sign all of these bills into law,” Sen. Susan Collins (R-Maine), chair of the Senate Appropriations Committee, said Thursday. on the Senate floor. “There are no continuing resolutions that set past priorities and do not reflect today’s realities.”

At least one Republican on the House appropriations panel, who requested anonymity to speak freely, predicted the GOP will take the path of least resistance to get DHS funding: a continuing resolution.

“I think we do CR,” they told News themezone.