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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Democratic tensions rise over lifting immigration restrictions

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Good morning, Early Birds. Tomatoes are bad, but “some fruit is a lot worse.” Send us your tips: Thanks for waking up with us.

In today’s edition … The Post’s Michael Scherer, Josh Dawsey and Mike DeBonis look at how House Minority Leader Kevin McCarthy sought to contain the damage from the leaked Jan. 6 audio … Democrats renew their push to pause the gas tax and punish energy giants to lower prices at the pump … Jackie, Josh and Tom Hamburger dig into the Jan. 6 committee’s focus on the talk of invoking martial law and the Insurrection Act after the 2020 election … but first …

On the Hill

Advocates of scrapping Title 42 push back against the pushback

Some Democratic lawmakers facing tough reelection races this fall have appealed to President Biden to reconsider his plan to roll back pandemic-era border restrictions next month, which they fear will lead to a surge of migrants crossing the southern border.

Now Democrats who’ve been pressing the administration for months to scrap the restrictions — known as Title 42 —are pushing back.

Rep. Veronica Escobar (D-Texas) spoke up about the issue in House Democrats’ caucus meeting Wednesday morning. Immigration advocates are lobbying the administration to stay the course. And Rep. Pramila Jayapal (D-Wash.), Escobar and three other House Democrats will hold a news conference today backing Biden’s approach.

Escobar, who represents a border district, said she was concerned about the “unsustainable” number of migrants seeking to cross the border. But leaving Title 42 in place for longer, she said, isn’t the answer.

  • “We've tried the Republican strategy,” Escobar told the Early. “The Republican strategy has been to build walls and harden the border. That hasn't worked. And if you look at Title 42 over the last two-and-a-half years that it's been in place, it has not slowed migration, deterred it, or eliminated it. So we have to do something different.”

The Trump administration imposed Title 42 at the start of the pandemic, giving border officials the authority to turn away migrants to slow the spread of coronavirus. Centers for Disease Control and Prevention Director Rochelle Walensky announced earlier this month that the agency would abandon the policy, effective May 23. Her decision is being challenged in court by Republican attorneys general, and a federal judge in Louisiana moved on Wednesday to block the Biden administration’s plan temporarily.

Republicans have seized on the issue to bolster their argument that Biden is overseeing a lawless border. But the decision to end Title 42 has also split Democrats worried about losing control of the House and the Senate in what's expected to be a tough election year.

While many Democrats have been critical of Title 42, more and more of them have raised concerns about scrapping the policy as the date grows closer.

Five Democratic senators — Sens. Mark Kelly (Ariz.), Kyrsten Sinema (Ariz.), Jon Tester (Mont.), Joe Manchin (W.Va.) and Maggie Hassan (N.H.) — teamed up with five Republicans to introduce a bill that would delay the administration from axing Title 42 for at least 60 days. Kelly and Hassan are two of the most vulnerable Democratic senators up for reelection this fall.

Other Democrats have said they’re concerned the administration hasn’t come up with a plan to deal with an expected surge in migrants once the policy is lifted. 

“My argument would be you can’t lift Title 42 until you’re ready to do so,” Rep. Sean Patrick Maloney (D-N.Y.), who as chairman of the Democratic Congressional Campaign Committee is responsible for protecting vulnerable House Democrats in the midterms, told our colleague Leigh Ann Caldwell.

“I’m not saying never,” he added. “I’m saying not yet. And not until we’re ready. And that’s something everyone should agree on.”

Reasonable or stalling tactic?

Not everyone agrees.

While Escobar said she thought seeking more details on the administration’s plans for carrying out the policy shift was “completely reasonable,” some immigration advocate view it as a little more than a stalling tactic.

“They're just buying time [ahead of the] midterms,” said Claudia Flores, the associate director for policy and strategy at the Center for American Progress, a leading liberal think tank. “And I think that’s where they’re doing themselves a disservice, because at that point you have Republicans driving the narrative entirely.”

  • “I really think that there a number of Democrats that are continuing to fall to what we see as just plain and simple xenophobic pandering around election concerns,” said Amy Fischer, Amnesty International's advocacy director in Washington.

The White House has said it’s following the CDC’s lead, and the administration has tried to allay fears that it doesn’t have a plan.

The Department of Homeland Security put out a new memo this week outlining the agency’s strategy for dealing with an expected increase in migration once Title 42 is lifted, and Homeland Security Secretary Alejandro Mayorkas answered lawmakers’ questions in hearings on Wednesday.

Those efforts are unlikely to satisfy Senate Republicans, who have refused to vote for a $10 billion covid relief bill unless Democrats allow a vote on an amendment to prevent the administration from rolling back Title 42 — which Democrats might not have the votes to block.

Senate Majority Leader Chuck Schumer has pressed the Biden administration for months to scrap Title 42, but even he has acknowledged the blowback within his caucus. “We’re going to be working through this to see if we can come to a position that our caucus can agree on,” he told reporters on Wednesday. “There’s divisions there now.”

More harm than good

The Democrats who want to end Title 42 are trying to make the case that it does more harm than good. 

Escobar told House Democrats during their caucus meeting on Wednesday that the number of times migrants have been expelled under Title 42 — 1.8 million — is misleading since some migrants have been turned back again and again. And Sen. Robert Menendez (D-N.J.) has argued that Title 42 is “part of the problem, not the solution.”

“There is no immigration law on the books that allows people to cross the border multiple times without consequence,” Menendez said in a statement to the Early. “Why would any lawmaker who supports border security want to preserve such a policy?”

How McCarthy sought to contain the damage from leaked Jan. 6 audio

Survivor: “House Minority Leader Kevin McCarthy said he thought then-President Donald Trump should resign in January 2021 after a mob of Trump’s supporters ransacked the Capitol — and then denied it until he was caught on audio released last week,” per our colleagues Josh Dawsey, Michael Scherer and Mike DeBonis.

  • “He suggested in separate audio released Tuesday that some of his own members should be kicked off Twitter, despite publicly railing against censorship of Republican politicians by the social network. And he also blamed some of them for fueling violence after the Jan. 6 riot.”
  • “But as he defended himself Wednesday at a closed-door meeting of House Republicans — saying his past comments were part of a ‘conversation about scenarios’ — he received a standing ovation.”
  • “The applause marked a moment of validation for McCarthy after a week of harried damage control that resulted in more statements of praise than criticism from fellow lawmakers and a clear nod of approval from Trump.”

Democrats renew push to pause gas tax, punish energy giants to lower prices

Dreaming of a gas tax holiday: “Top congressional Democrats are exploring new proposals to suspend the gas tax and penalize giant energy corporations, hoping to lower prices as part of a broader effort to blunt the financial and political fallout from soaring inflation,” our colleagues Tony Romm, Leigh Ann Caldwell and Mike DeBonis report.

  • “The legislative push reflects a growing sense of urgency among party lawmakers, who returned to Washington this week after hearing from voters who have seen the costs of housing, groceries and other goods spike at their highest rate in roughly four decades.”
  • “Democrats specifically have expressed renewed interest in pausing the roughly 18-cent-per-gallon federal gasoline tax, which Rep. Hakeem Jeffries (D-N.Y.) described at a news conference early Wednesday as ‘part of the discussion’ around a more ‘comprehensive’ solution to rising prices.”
  • “Party lawmakers also are eyeing new ways to combat price gouging, saying oil-and-gas conglomerates have manipulated markets to pad their bottom lines.”

What we’re watching: “Senate Majority Leader Charles E. Schumer (D-N.Y.) has asked his caucus in recent days to craft proposals that ratchet up federal enforcement targeting the energy sector.”

  • “A wide array of Democrats, including Sens. Maria Cantwell (Wash.), Ron Wyden (Ore.), Elizabeth Warren (Mass.) and Tammy Baldwin (Wis.), are now finalizing measures that would impose steep fines for abuse, crack down on corporate consolidation or set up new taxes on oil and gas companies’ profit windfalls.”
  • Some are pushing to adopt the bills before Memorial Day weekend.

Talk of martial law, Insurrection Act draws notice of Jan. 6 committee

Martial law: “Three days before Biden’s inauguration, Rep. Marjorie Taylor Greene texted White House Chief of Staff Mark Meadows. She told him that some Republican members of Congress believed the only path for Trump to change the outcome of the 2020 election and stay in power was for him to declare martial law,” our colleagues Jacqueline Alemany, Josh Dawsey and Tom Hamburger report.

  • “The text from Greene (R-Ga.), revealed this week, brought to the fore the chorus of Republicans who were publicly and privately advocating for Trump to try to use the military and defense apparatus of the U.S. government to strong-arm his way past an electoral defeat.”
  • “Now, discussions involving the Trump White House about using emergency powers have become an important — but little-known — part of the House Jan. 6 committee’s investigation of the 2021 attack on the Capitol.”
  • “Interviews with committee members and a review of the panel’s information requests reveals a focus on emergency powers that were being considered by Trump and his allies in several categories: invoking the Insurrection Act, declaring martial law, using presidential powers to justify seizing assets of voting-machine companies, and using the military to require a rerun of the election.”

⚠️: Rudy Giuliani is expected to appear next month before the House select committee investigating the January 6, 2021, insurrection,” CNN’s Paula Reid, Annie Grayer, Ryan Nobles and Zachary Cohen first reported.

The Media

What we’re reading: 



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