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Tuesday, December 7, 2021
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Embattled House, Senate, Agreed to Fund DHS … One More Week. What Went Down

As the clock ticked down to midnight last night when the Department of Homeland Security (DHS) ran out of money that’d earlier been appropriated through Feb. 27 via a continuing resolution (CR), the House finally caved in to agree to yet another CR proposed by the Senate that would continue funding DHS for … one more week, when the DHS funding debate begins all over again.

The Senate passed the one-week extension to fund DHS in an attempt to prevent the shutdown of DHS in an adamant show of defiance against the Fiscal Year 2015 Department of Homeland Security Appropriations Act (H.R. 240) passed by the House in December that contained controversial amendments politicians on both sides of the aisle knew along would sabotage the House funding bill in the Senate, despite GOP control of the chamber.

Senate Democrats and some realistic and pragmatic senior Republicans had stated from the beginning that they would not vote for the bill if the amendments were attached. But they were anyway.

Nevertheless, the House passed its FY DHS funding bill despite the bipartisan opposition to the amendments attached to it by a cadre of Republicans backed by the Speaker of the House intended to defund the President’s Deferred Action for Childhood Arrivals (DACA) program and other presidential executive orders related to immigration some of the more ultra-right wing members of the House wanted attached to the bill because they believe the executive orders are unconstitutional.

Their belief was buttressed on February 17 when Texas US District Judge Andrew S. Hanen temporarily blocked the Obama administration’s executive actions in response to a lawsuit filed by 26 Republican-run states. The judge ruled the administration does not have the power “togive 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence.’ In fact, the law mandates that these illegally-present individuals be removed.”

With the opinion behind them, House Republicans seemed to believe they had momentum on their side to get the Senate to pass their FY 2015 DHS funding bill with the “poison pill” amendments. But that was not to be, as the federal judge’s ruling is being appealed by the administration and undoubtedly will be taken all the way to the Supreme Court.

So, the Senate continued to stand its ground, warning the House that its funding bill would stall because it was evident it would face inevitable opposition and unlikely to get the 60 votes required to be passed – never mind Obama’s announcement he’d veto it if the House version somehow made it through the Senate.

Consequently, the whole politicized mess came down to the long, late night battle yesterday.

DHS had earlier been funded under a CR through February 27 at the FY 2014 spend rate of $39.270 billion under the 1,600-plus page Consolidated and Further Continuing Appropriations Act (HR 83) passed in December.

The House FY 2015 funding bill was set at $39.7 billion and would have funded DHS for the remainder of the current fiscal year. The $39.7 billion in discretionary funding for the department would have been an increase of $400 million compared to the FY 2014 enacted level. The bill prioritized operational, counterterrorism and threat-targeting activities and essential tactical equipment, “and [would save] taxpayer dollars by reducing overhead costs and cutting funds for lower-priority programs.”

But, the "Poison Pill" amendments attached to the funding bill clearly didn’t bode well for the DHS funding package being passed by the Senate.

The "Poison Pill" amendments would have prevented "any funds from whatever source to be used to carry-out the executive actions announced on November 20, 2014 to grant deferred action to certain unlawful aliens and for other purposes, and four of the [Department of Justice] memos on prosecutorial discretion and immigration enforcement priorities issued in 2011 and 2012 that effectively prevent certain classes of unlawful aliens from being removed from the country."

It also required “no funds may be used to carry-out any substantially similar policies to those defunded; declares that the policies defunded and any substantially similar policies have no statutory or constitutional basis and therefore no legal effect;" and, "Provide[d] that no funds may be used to grant any federal benefit to any alien as a result of the policies defunded."

It also "provide[d] that no funds may be used to consider new, renewal or previously denied DACA applications" and "require[d] that DHS treat any alien convicted of any offense involving domestic violence, sexual abuse, child molestation, or child abuse or exploitation as within the categories of aliens subject to DHS’s highest civil immigration enforcement."

The "Poison Pill" amendments were never going to be agreed to in the Senate, which is what brought DHS to the brink of being unfunded at midnight last night.

After a month of bipartisan combat between House Republicans and Senate Democrats over the amendments, Democrats unsurprisingly blocked consideration of the House bill, which Senate Majority Leader Rep. Mitch McConnell (R-Ky.) and Minority Leader Sen. Harry Reid (D-Utah) had agreed to strip from the legislation in order to get the now “clean” bill passed in the Senate, which it was with bipartisan support. But that move also paved the way to last night’s last minute near stalemate.

House Republicans, though – despite the federal judge’s stay on implementation of Obama’s executive orders giving them an out to address separately the amendments they were adamant be kept intact knowing full well they’d never be agreed to in the Senate, or, if through some divine act did manage to be passed, would still be vetoed by Obama – nevertheless refused to accept the Senate’s clean DHS funding bill. But, with dozens of hardcore House conservatives refusing a clean funding bill without the provisions defunding Obama’s executive action and the majority of Democrats opposing nothing but a clean FY 2015 funding bill, the bill was shot down.

Instead, they opted to pass a three-week DHS funding bill under the delusion it’d give them time to exert some undefined leverage to back Democrats into a corner. Well, that notion also was quickly put to death in the House in a melodramatic move by Democrats and conservative Republicans to defy the GOP leadership, including Speaker John Boehner (R-Ohio), who is facing a brewing Republican rebellion to oust him as speaker.

Democrats on both side of the aisle, though, quickly and loudly — issuing flurries of press releases last night — lambasting the three-week funding proposal.

But with time running short, somehow, meanwhile, in the Senate McConnell and Reid were able to pass the one week extension bill by unanimous consent, meaning no one objected, allowing it to pass without a full vote.

With the House Republican leadership having failed to secure enough votes to pass the Senate’s three-week stopgap funding measure for DHS, House members – only with the majority of Democratic members’ support — agreed to pass the Senate’s one-week funding extension, which required a super majority in order to make the midnight deadline on the expiration of DHS funding. The vote was 357 to 60.

The Hill reported that, Senate Minority Leader Nancy “Pelosi … didn’t explain why she and the Democrats — who were adamantly opposed to a three-week extension — suddenly reversed course to accept the one-week deal just a few hours later … Democratic leaders declined to comment on whether their agreement to the seven-day deal came with assurances that the House would vote on the Senate’s ‘clean’ DHS bill providing funding through September."

As last night’s debate raged, DHS rushed over to the Hill the 47-page report, Procedures Relating to a Lapse in Appropriations, which pointed out that, “During a federal funding hiatus, or lapse in appropriations, the Department of Homeland Security must be able to cease its government operations in an orderly fashion. Only those functions and activities that are exempt from the work restrictions specified in the Anti-Deficiency Act (ADA) may continue during a lapse in appropriations.”

DHS said, “The ADA codifies the Constitutional requirement that ‘No Money shall be drawn from the Treasury, but in consequence of appropriations made by Law.’ Federal officials are prohibited from entering into contracts, incurring obligations, or performing activities without having a current appropriation, unless authorized by law. The Act further restricts acceptance of voluntary services or personal services beyond authorized levels ‘except for emergencies involving the safety of human life or the protection of property.’ As a result, only activities that qualify as exempt may continue to operate during a lapse in appropriations.”

“The short-term funding measure passed by Congress means one more week of anxiety, stress and distraction for the 230,000 federal employees whose jobs are in limbo as a result,” said American Federation of Government Employees National President J. David Cox Sr. “DHS employees safeguard our borders, skies, waterways, public buildings and communities. Our national security should not be compromised by these ridiculous budget games. Congress needs to stop this foolishness and provide a full fiscal year of funding at once.”

Sen. Tom Carper (D-Del.), former chairman of the Senate Committee on Homeland Security and Governmental Affairs,said, “Americans only need to turn on the television, read the newspaper, or open their email to know that the threats our nation faces are complex, persistent and very real. Over the past several months, we’ve seen horrific images of beheadings, mass murders and brutal executions at the hands of the Islamic State. We also learned of the arrest of three men in New York and Florida who were allegedly on their way to join the Islamic State in Syria. The Al Qaeda linked terrorist group in Somalia — Al-Shabaab – also vowedthat they would seek revenge against the United States and cited the Mall of America in Minnesota as a potential target. In cyberspace, some of our nation’s largest companies and federal agencies have been victims of massive data breaches.”

“And it’s not just these threats we need to worry about,” he continued, noting, “Last fall, Ebola ravaged several nations in western Africa and even came to our shores, too. Threats from Mother Nature can strike at any time, as well. Communities and cities in some parts of our country are trying to get through a winter that has already broken snowfall records, and more records are likely to fall.”

“Thanks in large part to the work of the men and women at the Department of Homeland Security, Americans are more secure from these threats. But in order for the department to efficiently and effectively carry out its critical role in combatting these multiple, and ever-changing threats our country faces, it needs fiscal certainty and the full support of this Congress.”

Carper said “the Senate did its job and passed a clean funding bill for the Department of Homeland Security for the remainder of the fiscal year. Unfortunately, my colleagues in the House of Representatives decided to kick the can down the road, meaning we will come back here next week and have this same debate — just to prove a political point. I just hope we are able to produce a better result next time, and the House is able to pass a clean funding bill for the department for the balance of the fiscal year, and give it the funding and certainty it desperately needs.

“While I am relieved that Congress avoided a shutdown of the Department of Homeland Security,” Carper said, stressing that “a short-term, stop-gap measure is not a solution. If Congress continues this stop-gap approach and keeps the department on autopilot, we leave the agency unable to adapt and evolve to the threats that we face in this country. For example, Customs and Border Protection won’t be able to replace obsolete surveillance technology along high-risk areas of our border, including the Rio Grande Valley. The Federal Emergency Management Agency will not be able to award over $2 billion in new homeland security grants to state and local governments, law enforcement, emergency response officials or fire departments.”

“These budget battles will continue to degrade morale at the department, which already ranks dead last for morale among other federal agencies,” Carper concluded, noting, “This is no way for us to treat the men and women who are working around the clock to keep us safe.”

Homeland Security Today has reported on DHS’s low morale problems.

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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