The Washington PostDemocracy Dies in Darkness

Shutdown looms as border talks break down over immigration enforcement

Republicans and Democrats discussed on Feb. 10 the ongoing negotiations over border wall funding to avoid a government shutdown. (Video: Elyse Samuels/The Washington Post)

The nation faces the real possibility of another government shutdown at the end of this week after bipartisan talks aimed at averting that outcome broke down in a dispute over immigration enforcement, lawmakers and aides said Sunday.

President Trump’s border wall demands, which precipitated the record-long 35-day shutdown that ended late last month, were a secondary issue in the impasse that developed over the weekend, according to officials in both parties.

Instead, after looking promising for days, the delicate negotiations collapsed over Democrats’ insistence on limiting the number of unauthorized immigrants who can be detained by the U.S. Immigration and Customs Enforcement agency. The breakdown in talks made it unlikely that lawmakers will be able to finalize an agreement on Monday, as they’d hope to do so it could pass the House and Senate before Friday night’s deadline.

“I think the talks are stalled right now,” Senate Appropriations Chairman Richard C. Shelby (Ala.), the lead Republican negotiator, said on “Fox News Sunday.” “I’m not confident we’re going to get there.”

The stalemate left the path to keeping the government open unclear. There were behind-the-scenes efforts late Sunday to salvage the talks, but it was un­certain whether they would be successful.

The Homeland Security, State, Agriculture and Commerce departments and a number of other federal agencies are currently operating on a stopgap spending bill that Trump signed Jan. 25. There’s little appetite for another short-term funding extension, but without some action by midnight Friday, those agencies will run out of money and begin to close again.

Another funding lapse could affect many Americans within days because one of the agencies that would go unfunded during the shutdown is the Internal Revenue Service, which is processing tax returns for millions of people. During the shutdown that began in late December, thousands of IRS officials refused to show up for work without pay, causing a backlog in the tax-filing process.

The president, who is holding a rally in El Paso on Monday night that is likely to focus on his demands for more border security, referred to the disagreement in a series of tweets Sunday.

“I don’t think the Dems on the Border Committee are being allowed by their leaders to make a deal. They are offering very little money for the desperately needed Border Wall & now, out of the blue, want a cap on convicted violent felons to be held in detention!” the president wrote.

Lawmakers on the 17-member conference committee had been trading offers over how much money could go to barriers along the U.S.-Mexico border. They were looking at between $1.3 billion and $2 billion — far short of the $5.7 billion Trump had demanded. The White House had begun to signal flexibility on that issue, even though Trump would have ended up with much less money than he sought and the enhanced fencing or other barriers agreed to by Congress would fall short of the 200-plus miles of steel walls he had wanted.

But throughout the talks, Democrats had also been focused on limiting ICE’s ability to detain unauthorized immigrants, which has become a major issue for the party because of Democrats’ opposition to the Trump administration’s aggressive detention tactics. The Democrats’ proposal included a new limit on detention beds for immigrants picked up not at the border but in the interior of the country.

Democrats wanted to cap that number at 16,500, which they said is around the level of interior detentions in the final years of the Obama administration, although it’s fewer than the number currently detained under the Trump administration’s enforcement policies. Republicans want to exclude a range of immigrants from the cap. These would be people convicted of, or charged with, a variety of crimes, ranging from violent felonies to misdemeanor drug offenses.

Democrats said that would make the cap toothless, because it would allow ICE to round up numerous people without criminal records and also hold an unlimited number of people who, in some cases, have only been charged with misdemeanors.

Rep. Lucille Roybal-Allard (D-Calif.), a member of the conference committee, defended the Democratic position on bed space.

“A cap on ICE detention beds will force the Trump administration to prioritize deportation for criminals and people who pose real security threats, not law-abiding immigrants who are contributing to our country,” Roybal-Allard said in a statement.

The number of ICE detention beds has caused disputes since the start of the Trump administration, with the president trying to increase detention capaity and many Democrats trying to limit it.

Democrats, newly in control of the House, have faced pressure from some liberals in their ranks to draw a much harder line in their negotiations over the border. Liberals, including Rep. Alexandria Ocasio-Cortez (D-N.Y.), have proposed entirely cutting funding for ICE and refusing any additional money for border barriers.

Democrats on the bipartisan negotiating committee have resisted those demands. But Republicans quickly seized on the new dispute over detention beds to try to lump all Democrats in with the most liberal elements of the party.

“Now, apparently, not only is it enough they want to abolish ICE. They want to abolish the bed spaces available to the country to house violent offenders so they can be held and deported,” Sen. Lindsey O. Graham (R-S.C.) said on Fox News. “I promise you this. Donald Trump is not going to sign any bill that reduces the number of bed spaces available to hold violent offenders who come across our border. He can’t do that. He won’t do that, and you can take that to the bank.”

The fight over immigrant detention became extremely problematic in recent days, just as the White House began signaling to negotiators that it would be more flexible on how much money Congress appropriated for barriers along the border with Mexico.

White House officials have become increasingly confident that by declaring a national emergency, Trump would be able to re­direct billions of dollars in other federal funding to be used for a wall or barriers. One scenario they had prepared for was Congress passing a bill appropriating some money for border security, at which point the administration would use the national emergency declaration to loosen even more funds.

This could draw legal challenges from Democrats, landowners and other groups, but White House officials and some external advisers have called it the best way to proceed. Trump long claimed Mexico would pay for the wall.

A total breakdown in talks poses a new set of challenges, how­ever. It dramatically increases the odds of another partial government shutdown beginning Saturday. That would prevent roughly 800,000 federal workers from being paid indefinitely.

During the last shutdown, the White House relied on hundreds of thousands of federal employees — including Border Patrol agents, Secret Service officers, airport screeners and air traffic controllers — to continue working unpaid for more than a month in order for key government services to continue.

However, many of the federal employees, including some airport screeners and Internal Revenue Service officers, refused to show up and called in sick. It is unclear what they would do if there is another shutdown.

Although the odds of a government shutdown have increased markedly in the past 24 hours, negotiators have time to work something out, and deadlines often produce renewed efforts at compromise.

“There are bumps in the road, but as long as we stay focused in a bipartisan way, bicameral way, to get this done, I’m hopeful we can get it done. Is it a done deal? No, it isn’t, and we could end up in a train wreck. It’s happened before,” Sen. Jon Tester (D-Mont.), one of the negotiators, said on “Fox News Sunday.” “But I don’t think anybody has an appetite for a government shutdown, and I think everybody wants to make sure our borders are secure.”

The impasse came as a coalition of sheriffs’ groups began lobbying lawmakers against limiting detention beds, calling the proposed cap “artificial” and noting the vast majority of the current ICE detainees — 72 percent — are mandated to be detained because of convictions or for other reasons.

“Capping the number of detention beds utilized by ICE not only jeopardizes the integrity of the immigration system, but would cripple ICE’s ability to detain criminal aliens and other aliens who pose a risk to public safety or are a flight risk,” the National Sheriffs’ Association and the Major County Sheriffs of America said in their letter to congressional appropriators.

Already, ICE has regularly exceeded the current quota set by Congress on immigrant detention, which is 40,520 beds — although that figure is treated generally as a floor, not a ceiling.

For instance, the number of people detained as of Feb. 6 was 49,057, including 46,590 adults and 2,467 families, according to statistics released by the office of Sen. Jeff Merkley (D-Ore.), a top congressional critic of the administration’s immigration policies. On Jan. 30, it was 48,088 — up from 46,492 on Jan. 16.

As of Sunday, a total of 48,747 immigrants were in ICE custody, according to an ICE official.

Ray Zaccaro, a spokesman for Merkley, said the figures show the Homeland Security Department is “working outside of the framework approved by Congress” and accused the administration of “not coming to the table with clean hands” as lawmakers try to hammer out a deal to avert another government shutdown.

Felicia Sonmez contributed to this report.