Congressional leaders appear to have worked out a budget plan with President Trump that is expected to get through both chambers in the coming days. The budget bill, H.R. 1625, titled the “Consolidated Appropriations Act of 2018,” helps Trump move forward with his border wall plans, but also imposes limitations on DHS’s immigration policing practices. The bill pays for federal government activities through September 30, 2018. Below is a quick summary of key provisions affecting DHS and the Justice Department’s immigration operations.
DHS’s two main immigration law enforcement agencies, CBP and ICE, make out very well. CBP receives a budget of $11.5 billion, of which $2.3 billion can be used to buy more boats, aircraft, and unmmaned aerial systems (i.e., drones). Id. at Division F, Title II, pp. 651-652.
For its part, ICE receives $6.9 billion, of which $4.1 billion is dedicated to enforcement, detention, and removal operations. Id. at 653. Despite this substantial sum, the Secretary of Homeland Security is granted permission to reallocate additional appropriated funds to detention operations. Id. at 666 § 209.
There is no requirement that ICE pay for any minimum number of detention beds. In other words, the so-called “detention bed quota” that has received migrants’ rights advocates’ ire for many years does not reappear in this budget document. This isn’t the only goal pushed by advocates to find its way into the budget. DHS will be barred from continuing to a contract with a detention center that has been deemed less than “adequate” in the two most recent performance evaluations. Id. at 666 § 211. This is a small victory for advocates because every existing facility received an adequate evaluation from fiscal years 2013 to 2016. DHS, Immigration and Customs Enforcement Agency, Budget Overview, Fiscal Year 2018, Congressional Justification ICE-13. It’s also not the first time that Congress includes such a provision in a budget.
Similarly, DHS can’t spend money operating a 287(g) agreement with a jurisdiction that the DHS Inspector General found has “materially violated” the agreement’s terms. H.R. 1625 at 666 § 210.
As has been reported, the bill includes $1.6 billion for border wall funding. Id. at 673 § 230. This covers barriers in the vicinity of San Diego, my native Río Grande Valley in South Texas, and planning and design work. Interestingly, the budge doesn’t let DHS implement new border barrier designs. Rather, the money can be used only to pay for more of the same type of border barriers already used. Id. at 674 § 230(b). This limitation suggests that Congress is skeptical of Trump’s vision for a border wall. I suppose it’s not surprising given that the president has mentioned some outlandish options.
A second limitation on the border wall funds is worth noting. Congress appears to have heard the loud complaints of border residents in South Texas who have expressed deep concern about plans to construct a wall in the Santa Ana National Wildlife Refuge. This is a beautiful preserve of native plants and one of the region’s few remaining habitats for indigeonous wildlife. I know Sana Ana well having grown up nearby. The budget bill appears to bar DHS from using any of the funds allocated for border wall construction to build a barrier in Santa Ana. Specifically, the bill states: “None of the funds provided in this or any other Act shall be obligated for construction of a border barrier in the Santa Ana National Wildlife Refuge.” Id. at 674 § 230(c).
There is some room to wonder about what Congress actually means when it says that none of the funds “shall be obligated” to build a barrier in Santa Ana. In budget bills, Congress usually indicates a prohibition on use with the phrase “none of the funds…shall be obligated or expended.” Here, Congress hasn’t included “or expended.” A quick search of federal cases turned up nothing addressing the relevance of the “or expended” phrase. My guess is that the lack of “or expended” is a simple oversight and that “none…shall be obligated” means that Congress is barring DHS from spending money on border wall construction inside Santa Ana. This conclusion is supported by the fact that in the very next section of the bill, Congress orders DHS to produce a risk-based border security plan and submit it for Congressional review. Id. at 675 § 231. Part of that plan, Congress instructs, must include an assessment of how border wall construction would affect the environment and wildlife in Santa Ana. Id. at 677 § 231(a)(10).
Lastly, Congress ordered DHS to issue a report about how many people overstayed visas in fiscal year 2017. DHS has issued similar reports for FY 2015 and 2016, both of which have been remarkably informative.
Separately, Justice Department immigration spending received robust support as well. Congress allocated $240 million for the State Criminal Alien Assistance Program, an initiative that reimburses state and local governments for the cost of jailing unauthorized migrants. Id. at Division B, Title II, p. 178. It also provided $415 million for the Edward Byrne Memorial Justice Assistance Grant program, one of the federal government funds that the Trump Justice Department has threatened to withhold from so-called “sanctuary” jurisdictions–that is, localities that don’t cooperate with the administration’s immigration priorities. Notably, Congress doesn’t appear to have included a provision requiring compliance with 8 U.S.C. § 1373 to receive SCAAP, Byrne JAG, or any other federal grant.
The Executive Office for Immigration Review, the agency that houses the nation’s immigration courts, received $505 million. Id. at 154. This is an increase of approximately $75 million over FY 2016’s $420.3 million budget and FY 2017’s $421.5 million budget.