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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, February 08, 2024

The Border Deal Flopped. But It Probably Wasn’t a Complete Waste of Time.

It would be tempting to describe the negotiation over the Senate’s border bill, which died this week, shortly after it was introduced, as having been a pointless waste of time. That would certainly be the view of frustrated staffers and reporters who spent long hours over the past few months working on it and covering it. “It looks to me, and to most of our members, as if we have no real chance here to make a law,” Senate Minority Leader Mitch McConnell said Tuesday afternoon as he stuck a fork in it, following a couple of days of heated meetings in which Republicans groused about the border package that Oklahoma Sen. James Lankford—acting at McConnell’s behest—struck with Democrats. But while it would’ve been nice if the proposal could have reached this outcome—instant death—on a more abbreviated timeline, this fruitless endeavor was still a necessary step in resolving the battle that underlies it: discovering the legislative path, if there still is one, toward getting additional military aid to Ukraine. This saga goes back to the aftermath of the 2022 midterm elections. Republicans took control of the House of Representatives by a far slimmer margin than they had projected, empowering a far-right faction that was always skeptical of arming Ukraine to hold disproportionate sway within the conference. Congressional leaders at the time, along with anyone who paid even vague attention to politics, could foresee the problems that Speaker Kevin McCarthy would have when he took the gavel. So, in December 2022, Senate leaders and outgoing House Democratic leaders tucked as much Ukraine funding as they could into a government funding bill that would last through September 2023. A lot happened when that September 2023 deadline arrived. McCarthy couldn’t get enough House Republicans to pass any funding bill whatsoever on their own. So, in the eleventh hour, he put a short-term spending bill on the floor that could pass on a bipartisan basis—but he threw a bone to the far right by omitting Ukraine aid from it. McCarthy had told President Biden that he would pass separate legislation later on that allowed the administration to continue transferring weaponry to Ukraine. But there was no “later on.” McCarthy lost his job Oct. 3. ADVERTISEMENT When Speaker Mike Johnson took over, he informed the Democratic Senate and White House that “supplemental Ukraine funding is dependent upon enactment of transformative change to our nation’s border security laws.” That was McConnell’s read of his own conference too, and he agreed that Republicans “are going to want something serious about the border” in order to pass an international aid bill—which, by that point, also included aid to Israel following the Oct. 7 Hamas attack. The chances of a broad immigration deal coming together, even in the best of times, are slim. And in a presidential election year, when solidifying talking points takes precedence over problem-solving, it’s exceptionally unlikely. But preventing a Russian takeover of Ukraine, an action that important people on both sides of the Senate view as essential to preserving America’s global standing, was a strong motivator. Democrats also saw a political upside to engaging on legislation to arrest border chaos, an issue that was stinging Biden’s popularity and threatening to drag down the many Senate Democratic incumbents up for reelection in 2024. Sensitive deals like this make it into law, though, only if both sides can convince their respective parties of a win. And too many Republicans, led by Donald Trump, convinced themselves that a bill with Democratic political upside was zero-sum. Trump wanted to run on an overwhelmed border and a broken asylum process, and this deal was an impediment to that. The near-certain Republican nominee’s marching orders were spread far and wide. “I had a popular commentator four weeks ago that I talked to that told me, flat out, before they knew any of the contents of the bill,” Lankford said in a Senate speech Wednesday afternoon, “that ‘If you try to move a bill that solves the border crisis during this presidential year, I will do whatever I can to destroy you. Because I do not want you to solve this during the presidential election.’ ” ADVERTISEMENT “By the way,” Lankford added, “they have been faithful to their promise and have done everything they can to destroy me in the past several weeks.” Shortly after Lankford’s speech, most Republicans, along with a few progressive Senate Democrats, filibustered the border deal. With that out of the way, though, the Senate began to see a way forward on Ukraine. Majority Leader Chuck Schumer proposed—and McConnell agreed—that the Senate should just take the border deal out of the package and pass the aid for Ukraine, Israel, and Taiwan on its own. While there was much rending of garments within the Senate Republican ranks on Wednesday about this, it’s the clearest path forward. And yes, it would bring things back to square one. Recommended for You My Stepdaughter Hates Her Father and Me With a Passion. But She’s Still Angling for His Money. Help! My Best Friend Said She Had a “Crash” and Isn’t Returning My Calls. Trump’s Supreme Court Ballot Argument Posits That Jefferson Davis Wasn’t an Insurrectionist Either Should that bill pass the Senate after an amendment or two in the coming days, it’s still unclear how it would navigate its way through the House. Democrats could offer to backstop Johnson’s speakership should hard-liners seek to oust him for allowing a vote on it; it could be folded into the (next) government funding bill in exchange for other concessions; members could seek to force a vote on it through a discharge petition. Though the border bill crashed and burned in a spectacular, cynical fashion, going through that process was a necessary step toward moving Ukraine aid. It provided proof that Republicans did not want the best border security deal they could get out of a Democratic Senate and Democratic president. They wanted the political issue of border insecurity as a talking point on the campaign trail. Establishing that shaped the ground for a “deal” that has a flying chance. Democrats and more traditional Republicans could get Ukraine aid, while MAGA Republicans could keep the border alive as a campaign issue. If that reads as insane to you, well, of course it is. Take a look around. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

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