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The Early 202

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

Democrats’ divide over border grows more intense

The Early 202

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

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In today’s edition … Supreme Court to weigh in on challenge to student loan forgiveness program … What we’re watching: Republicans and the lab leak report … The week ahead … House Republicans target federal workers … but first …

On the Hill

Democrats’ divide over border grows more intense

Democrats are increasingly divided over new immigration rules that the Biden administration proposed last week that would make it harder for migrants to apply for asylum.

Nearly 80 Democratic lawmakers — 13 senators and 64 representatives — wrote to President Biden last month to express concern about the proposed asylum rule, which was included in a broader package of new immigration measures that Biden debuted in January.

Now many of them are outraged he is ignoring their concerns and plowing ahead with the rule.

  • “This is a racist policy, because the majority of the people — a disproportionate number of people who are going to be most impacted by this are coming from Black and Brown countries,” Rep. Jamaal Bowman (D-N.Y.) said in an interview on Friday.
  • Rep. Ayanna Pressley (D-Mass.) and Bowman said they saw little difference between the rule Biden proposed and Donald Trump’s immigration policies when he was president. “We fought hard to end harmful Trump-era policies like Title 42, which were weaponized against Black and Brown immigrants, so it is deeply disappointing that the Biden administration would put forward a similarly restrictive and discriminatory proposal to turn away vulnerable migrants fleeing violence,” Pressley said in a statement to The Early.
  • Bowman also raised concerns about the administration’s plan to direct migrants to use an app to schedule asylum appointments.

Bowman this week plans to discuss how to push back against the administration with lawmakers, who are in Washington again after a recess.

Much of the most stinging criticism has come from members of the Congressional Progressive Caucus, but other Democrats have criticized the proposed rule, too. Sens. Robert Menendez (D-N.J.), Cory Booker (D-N.J.), Ben Ray Luján (D-N.M.) and Alex Padilla (D-Calif.) said in a statement last week that they were “deeply disappointed.”

The White House doesn’t appear to have tried to assuage their concerns. Menendez and other Democratic senators met with Homeland Security Secretary Alejandro Mayorkas earlier this month, but the White House has not responded to the letter that Menendez and other Democrats sent in January raising concerns, according to a Democratic Senate aide.

What the new rules would do

The proposed asylum rule “would make it easier for the government to deport border-crossers who express a fear of harm, potentially reducing the number who are allowed into the United States pending a hearing in swamped U.S. immigration courts,” as our colleague Nick Miroff has reported.

The White House has bristled at the suggestion that the rule bears any resemblance to Trump’s efforts to block migrants from seeking asylum.

The administration is providing “expanded legal pathways” for migrants to enter the United States, White House press secretary Karine Jean-Pierre told reporters on Thursday — a reference to Biden’s move to expand a “parole” program to admit more migrants from Cuba, Haiti, Nicaragua and Venezuela.

  • “That is something that the past administration didn’t do,” Jean-Pierre said.

Biden felt the need to take action, she added, due to the impending end of Title 42, a public health measure limiting migration that’s been in place since the Trump administration. The policy is due to expire on May 11, stoking fears of a surge of migrants to the border.

But Lee Gelernt, the American Civil Liberties Union lawyer who argued successful challenges to Trump administration asylum policies, said he planned to deploy the same legal arguments if the Biden administration moves forward with putting the new rule in place.

Like Trump’s, Biden’s rule asks migrants seeking asylum to try to get asylum in another country before coming to the United States.

  • “That was sort of Trump’s sound bite, and now Biden’s using it,” Gelernt told The Early. “But the truth is that the Biden administration knows that there's not a realistic chance of being able to apply for asylum in those countries without enormous, enormous waits, and that you're going to be in danger during that time.”
'This will definitely help him'

The coming end of Title 42 isn’t the only reason for Biden to pursue tougher border rules despite angering members of his own party.

Republicans have stepped up their attacks on his administration’s handling of the border since they took control of the House — and polls show that Biden’s approach has been consistently unpopular since he took office in 2021.

  • A Washington Post-ABC News poll three months after Biden took office found that 37 percent of Americans approved of Biden’s handling of the border, while 53 percent disapproved. When pollsters asked the same question this month, only 28 percent approved and 59 percent disapproved.

Rep. Henry Cuellar (D-Tex.), a moderate who represents a competitive district that abuts the border, supports the proposed rule and said he thought it would help Biden politically.

  • “This will definitely help him with the moderate Republicans and the independent voters,” Cuellar said in an interview Saturday.

Cuellar has been trying to persuade Biden to take a more aggressive approach to the border since before he took office, he said.

When he met with White House officials early in Biden’s tenure, Cuellar came away convinced that there were “too many immigration activists working there at the White House, because they were interested not on border security, but more on, ‘How do we move people from the border into the interior?’ ”

Asked what had changed, Cuellar pointed to the unceasing flood of migrants coming to the border — and the polling.

“If you look at poll after poll after poll that shows that Republicans are better at handling the border than Democrats [plus there’s] a presidential election coming,” Cuellar said. “I think it was a combination of things,” he added.

From the courts

Supreme Court to weigh in on challenge to student loan forgiveness program

Happening tomorrow: The Supreme Court will hear oral arguments for two cases challenging Biden’s student loan forgiveness program: Biden v. Nebraska and U.S. Department of Education v. Brown.

The cases are yet another test of the Biden administration’s rulemaking authority and “bring together a string of combustible issues: an ambitious program aimed at fulfilling a campaign promise for Biden’s political base; heightened suspicion by the Supreme Court’s conservative supermajority about the ability of federal agencies to act without specific congressional authorization; and the power of Republican-led states to use the judiciary to stop a president’s priorities before they even take effect,” our colleagues Robert Barnes and Danielle Douglas-Gabriel write.

A ruling in favor of either party will have a profound effect on millions of Americans. Here’s what to expect:

What each side is saying

  • The Biden administration: Education Secretary Miguel Cardona says the administration has the authority to forgive student loan debt under the Higher Education Relief Opportunities for Students Act of 2003. The Heroes Act — passed after the Sept. 11, 2001, terrorist attacks — “allows the secretary to waive or modify loan provisions in response to a national emergency — in this case the coronavirus pandemic,” per Robert and Danielle. The Trump administration used the same law to pause student loan payments.
  • The GOP (Nebraska): Republican officials in Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina, argue that Biden is “overstepping his authority and threatening the revenue of state entities that profit from federal student loans with the forgiveness plan,” Danielle writes. The case hinges on the argument that the Missouri Higher Education Loan Authority, a quasi-state entity that owns and services federal student loans, could suffer revenue losses from the relief plan.
  • Student loan borrowers (Brown): The Job Creators Network Foundation, a conservative group, argues that the Biden administration deprived student loan borrowers Alexander Taylor and Myra Brown of their “procedural rights” by not allowing the broader public to weigh in on the scope of the student loan forgiveness program. Taylor is only eligible for $10,000 of debt relief, while Brown is ineligible altogether.

Two things to keep in mind, per Robert and Danielle:

  • The Biden administration has a poor track record with the Supreme Court: “The court has lifted a pandemic-era moratorium on rental evictions put in place by the Centers for Disease Control and Prevention. It threw out a coronavirus vaccination-or-testing mandate imposed on large businesses by the Occupational Safety and Health Administration. And in a ruling unrelated to the pandemic, it cited the ‘major questions’ doctrine to limit the Environmental Protection Agency’s options for combating climate change.”
  • What the experts are saying: “Many experts believe the administration’s best chance in the student-loan plan is to convince the court that neither the Republican-led states nor two individuals in a separate case from Texas have legal standing to challenge the initiative. Such a conclusion would relieve the court of having to rule on the merits of the case.”

What we're watching

Covid: We expect covid to turn into a main topic this week with reports that the Department of Energy said it has “low confidence” that the virus was the result of a lab mistake in China. Many conservatives who have been pushing this theory took a victory lap on Sunday. We expect to see the announcement of more House hearings on the origins of the virus and new legislation with this development.

Jan. 6: Will Fox News opinion host Tucker Carlson show any footage of the Jan. 6 tapes tonight on his show? He announced last week that he had access to them and would “bring you what we find” this week.

East Palestine: Teams from the Environmental Protection Agency, the Federal Emergency Management Agency and the CDC knocked on doors in East Palestine, Ohio, this weekend to check on residents weeks after a train derailment caused a toxic spill. They reaching about 350 households, according to a White House official. Will Biden himself visit the town soon?

The week ahead


Biden and Vice President Harris will speak tonight at a Black History Month reception at the White House.


The newly created House China select committee will hold its first hearing, which will be in prime time.

The Senate Foreign Relations Committee is taking up the stalled confirmation of former Los Angeles mayor Eric Garcetti to be the U.S. ambassador to India. Garcetti’s confirmation was stalled last year amid allegations that he ignored sexual harassment complaints about one of his advisers. Sen. Marco Rubio (R-Fla.), however, has said he placed a “hold” on his nomination.

The Supreme Court will hear Biden v. Nebraska and U.S. Department of Education v. Brown about the administration's student loan relief program.

Chicago voters will head to the polls to elect the city’s next mayor. Democratic Mayor Lori Lightfoot is angling for a second term but faces challenges from eight people, including Rep. Jesús “Chuy” García (D-Ill.).


Biden will give a speech about health care in Virginia Beach and speak to House Democrats at their annual retreat in Baltimore that night.

U.S. Attorney General Merrick Garland will testify before the Senate Judiciary Committee, where he is likely to be pummeled with questions about a range of topics, including the criminal investigation into the Jan. 6, 2021, attack on the U.S. Capitol, classified documents and Trump’s residences and local school boards, to name a few.

The Senate Health Education, Labor and Pensions Committee is holding a hearing on Moderna proposing quadrupling the cost of the coronavirus vaccine. Stéphane Bancel, Moderna’s chief executive, is expected to testify.


Biden will travel down Pennsylvania Avenue to speak to Democratic senators.


Biden will meet with German Chancellor Olaf Scholz at the White House on Friday.

On the Hill

House Republicans turn up the heat on federal workers

The apple of their ire: The newly empowered GOP House majority has set their sights on a new investigative target: Federal workers.

  • “The effort includes seeking testimony from middle- and lower-level workers who are part of what Republicans have long derided as the ‘deep state,’ while some lawmakers are drafting bills that have little chance of passing the Democrat-led Senate but give Republicans a chance to argue for reining in the federal bureaucracy of 2.1 million employees,” our colleagues Lisa Rein and Jacqueline Alemany report.

Here’s what House Republicans have done in recent weeks, per Lisa and Jackie:

  • Passed legislation requiring federal employees to return to the office.
  • Rescinded $80 billion for the cash-starved IRS to hire 87,000 employees.
  • Allowed House members to reduce or eliminate federal agency programs or slash the salaries of individual employees.
  • Subpoenaed agency heads and alerted the Biden administration to impending requests for testimony from multiple mid-level career employees.
  • Told almost all of their committees to come up with plans by March to slash spending and beef up oversight of federal agencies in their jurisdiction.

The Media

Must reads

From The Post:

From across the web:


Happy Monday!

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