Republicans’ DHS Funding Pathway Must Clear Multiple Pitfalls

Republicans’ plan to use a complex budget maneuver to fund immigration enforcement faces multiple hurdles before legislation can get to President Donald Trump’s desk, illustrating the GOP’s tightrope walk to end the government shutdown.

The GOP embarked on this particular gambit after House Republicans shot down a bipartisan agreement in the Senate to fund non-immigration components of the Department of Homeland Security, which has been operating without base funding since February.

Lawmakers are hoping to end the longest partial government shutdown in American history using a two-track method of restoring standard funding to agencies like the Transportation Security Administration and the Coast Guard, while using a party-line process known as budget reconciliation on Immigration and Customs Enforcement and Border Patrol.

Trump, after meeting with Sens. Lindsey Graham (R-S.C.) and John Barrasso (R-Wyo.) Friday, endorsed senators’ plan and called on Republicans to “stick together” to bypass Democratic opposition.

“Reconciliation is ON TRACK, and we are moving FAST and FOCUSED in keeping our Border SECURE,” he said in a social media post.

Graham reiterated Trump’s goal of passing the ICE and Border Patrol funding by June 1 and said in a Fox News appearance Friday the GOP can fund immigration enforcement for the next three years—the remainder of Trump’s term.

But budget reconciliation—the same process Republicans used to pass their massive tax and spending cuts law last year—has multiple procedural steps, each of which could doom the entire enterprise.

First Stop: Budget Resolution

Senate Republicans by the end of the month plan to adopt a budget resolution with instructions to relevant committees to write legislation to increase the deficit by a set amount. That unlocks the ability to create mandatory spending for future years under expedited procedures, bypassing the de facto 60-vote threshold known as the filibuster.

Republicans will likely task the Senate Homeland Security and Governmental Affairs and Judiciary Committees with writing underlying policy that would increase the deficit.

Graham, the Budget Committee chairman, told NBC News he’s exploring sending the budget resolution directly to the floor rather than marking it up in his committee. Senate precedent allows budget resolutions to skip committee consideration after April 1.

Once the budget resolution is on the floor, there’s a maximum 50 hours of debate that ends in a vote-a-rama. Senators can offer an unlimited number of amendments, and consideration of them typically goes all night as the minority seeks to extract as much physical and political pain from the party in power as possible. Amendments on the budget resolution are non-binding, but can be politically uncomfortable.

Once the Senate adopts the budget resolution, it goes to the House, which would need to similarly approve the spending targets. Trump doesn’t need to sign the budget resolution, which is primarily an agreement between the two chambers rather than an attempt to change a statute.

Some House Republicans have been agitating for a more comprehensive package by funding non-immigration components of DHS to avoid the appearance that they are defunding ICE and Border Patrol. GOP lawmakers are also casting about for ways to save money to avoid the overall deficit impact to placate fiscal hawks.

Byrd Rule Challenges

Once the two chambers agree on the same budget resolution, the relevant committees write the underlying legislation. They don’t need to precisely meet the spending targets in the budget resolution, but they can’t exceed them.

The Senate has strict standards around the budgetary impact of anything included in the package. “The Byrd Rule,” named for the late Sen. Robert Byrd (D-W.Va.), dictates reconciliation legislation can’t include policies without fiscal impact—including “merely incidental” effect—or increase the deficit outside the 10-year budget window absent offsets.

Provisions the parliamentarian finds to be in violation of those restrictions are often dropped from the bill because they’d require 60 votes to be included.

Republicans funded ICE and Border Patrol through reconciliation last year, indicating they’ll have little issue doing so again.

After each policy committee writes its respective portion, the Budget Committee staples them together and sends them back to the floor in both chambers.

Senators once again go through a vote-a-rama, though amendments to the final version have the force of law. Leadership often uses what’s called a wraparound amendment at the end of that process to negate any amendments that get adopted.

Calendar Crunch

Lawmakers face a tight timeline ahead of Trump’s June 1 deadline, and spring holidays don’t help.

Senators return from Easter recess Monday and are scheduled to be in session for the rest of the month. They’ll get a one-week reprieve before returning for two weeks in May.

The House comes back Tuesday for two weeks before another week-long recess.

The House is slated to be in session for three weeks in May before both chambers plan to leave for Memorial Day, a week before Trump’s deadline.

Read more: BGOV Cheat Sheet: Budget Reconciliation