August 19, 2019

Democrats Lose on Detention Beds as Trump Mulls Options on Border Deal

Democrats Lose on Detention Beds as Trump Mulls Options on Border Deal

WASHINGTON — The bipartisan border security compromise struck on Monday includes a provision that could give the Trump administration broad discretion to increase the number of slots to shelter detained migrants, a win for Republicans that could ease the sting of President Trump’s failure to secure full funding for his border wall.

Details of the agreement dribbled out as lawmakers waited to see if Mr. Trump would support the compromise — and if he would follow through on his threat to declare a national emergency to allocate new funding for a wall to supplement the $1.375 billion allocated for new fencing in the deal, far short of the $5.7 billion he wanted

On its face, Monday’s agreement, which still requires passage and approval by the president, authorizes Immigration and Customs Enforcement to fund about 40,000 detention “beds,” many of them in facilities run by nonprofit organizations near the border in Texas, Arizona and California.

In background briefings on the deal, House Democratic aides described the language as a “glide path” from the current level of 49,000 detention beds back down to Obama-era levels of 35,000 or lower.

But a summary of the provisions drafted by Republican staffers on the Senate Appropriations Committee presents a different picture, and one that could be a victory for the White House in an otherwise drab and wall-free deal. The document, provided by an aide to a senator who was reviewing the compromise, places the average number of beds funded under the deal at a much high number — 45,274, including 2,500 slots for families.

And that number could rise to as many as 58,500 beds, Republican aides claimed in their internal communications. That’s because federal Cabinet departments have some latitude in how they use funds.

Republicans put the deal in the best light as they sought the president’s approval.

“The notion that Congress shouldn’t spend more than one dollar on new border barriers, and the idea that we should impose a hard, statutory cap on ICE detainees in the interior of the country which would require the release of criminals into the United States” were rejected, said Senator Mitch McConnell of Kentucky, the majority leader, in a statement on Tuesday.

Democrats downplayed the Republican notion that the deal gave too much leeway to the Department of Homeland Security to move funding around to expand detention facilities.

“The only way the Trump administration will be able to ratchet up the number of detention beds is if they choose to steal funding that Congress has directed to other D.H.S. components for important Homeland Security activities,” said Evan Hollander, a spokesman for the House Appropriations Committee chairwoman, Nita M. Lowey. “Transferring funds away from national security is a reckless course that will make the country less safe.”

By midmorning, Mr. Trump was said to be weighing his options about how to proceed with the deal the conference committee came up with. One person familiar with his thinking described him as “frustrated” by months of Republicans not doing what he hoped to see done at the border.

Mr. Trump was weighing whether to sign the current deal, and then take either an executive action to reprogram dollars or even declare a national emergency, knowing both will end up in court, or ask for a yearlong stopgap spending bill that might not even clear the Senate.

One person close to the president said conservatives saw the conference committee deal as a “capitulation” by the Republican leadership, one that has put Mr. Trump in a difficult spot.

A few weeks ago, in a meeting with restrictionist immigration group leaders, Mr. Trump faulted the former Speaker Paul D. Ryan for not repeatedly deferring action on the wall, with promises of doing it down the road. “Now he’s out fishing!” Mr. Trump declared, according to an attendee.

Under the complex funding formula in the agreement, officials at the Department of Homeland Security, the parent department of ICE, would have “reprogramming authority” to transfer as much as $750 million from other Homeland Security programs into the detention program.

“In short, there is more than enough flexibility for ICE to respond to any forthcoming surges in illegal immigrations and apprehensions,” the document’s authors wrote.

Two Democratic aides with direct knowledge of the deal said the Republican memo was accurate in theory, but added that such a dramatic expansion in the number of beds was unlikely because it would require taking funds from other important D.H.S. programs, such as the Federal Emergency Management Agency’s disaster relief funds.

Democrats on the bipartisan conference committee hashing out a deal, under pressure from immigrant rights groups and the ascendant liberal wing of the party, stalled the talks over the weekend by demanding that any deal include a cap, at 16,500, on the number of beds dedicated to housing detainees apprehended through sweeps of communities away from the border. There are currently 20,000 such slots.

Immigrants rights advocates have not opposed the deal, but some are expressing disappointment that Democratic leadership could not drive a harder bargain on ICE detentions.

“For the last two years, we’ve been in a defensive posture, working to hold the line and prevent the bad, but now House Democrats have the power to start doing good,” said Lorella Praeli, deputy political director with the American Civil Liberties Union, which has sued the Trump administration over its detention policies.

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