Minnesota: policy, personnel, and procedure
The Trump administration is making policy adjustments with regard to ICE in Minnesota. New personnel in charge, new conciliatory tone of cooperation with Minnesota officials. New willingness to send officials to the Hill to testify.
Whatever got Trump to that positionāpublic opinion, the anger of gun rights groups, pressure from GOP Senators, pressure from Fox News, or just his own conscience, policy preferences, and/or political instinctsāisn't particularly relevant. It's a directionally good policy adjustment!
The old policy was failing and, frankly, dumb. Nothing about Operation Metro Surge made much sense as an implementation of immigration policy, and putting a made-for-TV militarized cowboy lawdog in charge of it more or less guaranteed a street-theater circus.
Personnel is policy, executive discretion is at the heart of governance, and elevating the Homan crowd while putting the Noem/Lewandowski/Bovino crowd on the outs is more than just window-dressing; you will get a different approach to deportation policy. Again, that's good!
In some sense, this is core job of the presidentādelegating executive discretion to the correct subordinate officers, and adjusting that delegation when things aren't working.
Obviously, it won't satisfy the liberals/lefties who are squarely against the underlying mission. But even if you believe there's no humane way to conduct a mass deportation mission, there are obviously more and less humane ways to do it. And a good start is deciding that street confrontations with protesters are a waste of resources and something you want to avoid, and that itās smart to put people in charge who don't relish that fight.
It also won't satisfy the Soap Opera Politics crowd, the people who see contemporary public policy as an existential fight between good and evil. On the right, it's the folks who hate the liberals more than they hate the immigrants and find the videos of the street theater a titillating display of commies getting what they deserve. On the left, it's the people who believe Trump must be opposed in abnormal ways, and any compromise or political adjustment is akin to autocratic appeasement. Both groups see defusing the situation in Minnesota as a surrender rather than a smart adjustment.
It's disturbing to me how many people hold the Soap Opera view.
It's also true that if you want rock-solid permanent policy adjustment, you can't rely on personnel, you need to put it in law. Senate Democrats are angling to put various red line policies into the DHS funding bill this weekārequirements that state officials be involved in investigations, bodycams be worn by ICE/CBP agents, no more masked agents, judicial warrants be required for home searches, and so forth. They have the votes to block the 6-bill appropriations package that needs to be passed by Friday night to avoid a partial government shutdown. And they seem intent on not budging until they get a deal, even if it means a shutdown. And they donāt trust executive-side reforms.
Congressional Republicansāand presumably the administrationāseem very cool to these ideas. A surprisingly large number of GOP Members have come out critical of the DHS/ICE/CBP leadership and there are GOP-led oversight hearings in the works across Capitol Hill to investigate the most recent shooting and the leadership strategy. And there seems to be some actual negotiations going on about policy changes for immigration enforcement. But I don't see any GOP interest right now in making any changes to the appropriations package.
Some of this is undoubtedly the administration and its allies wanting to maintain flexibility, and hoping that promises of executive-side reform of tactics will be an acceptable substitute for inflexible limitations hard-wired into the appropriations bills. And until the administration budges on that front, I just can't see the Senate Republicans budging; this isn't going to come to a presidential veto, because that's the stupidest possible politics of all for the GOP. Why would the Republican Senators sign off on these things before the White House, given that both of them seem comfortable with some adjustments?
But there's a fair bit of this that is procedural. One problem is the House. Not only are they not scheduled to be in town until next weekāafter a shutdown would beginābut it's also not clear if there are 218 GOP votes for any DHS funding bill that came from the Senate with new policy reforms. You could have a mutiny from all sides of the caucus. Moderate Republicans are ducking for cover. The HFC is putting out press releases about communist agitators. And the leadership canāt lose more than 2 votes. And there's no way to amend the 6-bill package without it going back to the House; the presentment clause of the Constitution requires the chambers to pass the same measure in the exact same form. Change one letter, and the House has to vote again.
One obvious option would be to split the DHS bill off from the other 5-bills and pass the latter while hashing out DHS. But the split 5-bill package would still have to go back to the Houseāsee #12 aboveāand eventually so would the DHS bill. They could also pass a short-term CR for all the bills, in order to create a week or whatever to negotiate. That would also need to be approved by the House, but no one would much worry about a weekend lapse-in-funding, and OMB would probably not even begin the orderly shutdown of the agencies if the House was poised to approve the CR on Monday.
I'm long on the record against policy-hostage shutdowns. Go knock yourself completely out on my substack. They just don't work. And I'm very wary here. One problem with shutdowns is they tend to push both sides further apart on policy, as people rush to the partisan corners to fight it out politically.
Still, we are in the pre-shutdown phase, where bargaining and brinksmanship are both normal and good. Everyone wants some sort of policy change, and it wouldn't shock me if there's some sort of high-profile deal reached here. It might not be a legislative bargaināagain, see #12/#13 aboveāand there's no way it's going to satisfy 80% of the Democratic Senate caucus. But those wouldn't be the targets, anyway. An announced executive policy coming from DHS or Homan requiring, say, judicial warrants and removing the masks might tempt enough moderate Dems to sign-off on the appropriations package as is, rather than have a shutdown.
Or not. The specific temperature of the Democratic caucus is very hard to read right now, but it's obvious that many of the Senators who voted to end the last shutdown are currently no on the 6-bill package. And they might have judged that a shutdown is the best political course of action here. You can't fault the Dems for thinking they have the GOP and the administration on the run right now on this issue.
At any rate, there's no point in Senate Democrats pushing to Abolish Ice or whatever. They don't have the votes, and it's unproductive toward the compromises that could be had right now. That won't make the MSNBC crowd happy and it's going to drive the lefties nuts, but it's the truth. There's only so much leverage the Senate minority leader has and even a unified minority caucus doesn't get to dictate policy. It's gets to weakly bargain.
A key question that we don't know the answer to is how many (if any) GOP Senators are open to legislative compromise even in the absence of administration consent. Many of them are clearly angry and publicly calling for hearings and denouncing events. And the majority leader today left the door open to changing the bill. But unless that translates into procedural votes to split the bills or substantive votes to alter the DHS bill, you are looking at, at best, a 47-vote party line filibuster. Or losing Fetterman and maybe gaining Paul. And I bet that any GOP Senator who is considering breaking away is still likely to be swayed by the problems of time and the House needing to vote again.
One question I've been asked is how you actually legislate these sorts of policy restrictions. There are a number of ways to do itātraditionally you might use a stand-alone authorization bill (hereās a proposal by Senator Bennet)ābut appropriations bills often accomplish it via limitation provisions (sometimes called "riders"). These are general provisions in the bills that usually start with "None of the money provided in this act shall be used for..." and then go on to describe the policy. The core idea is that you aren't actually setting a policy, you are just proscribing what the administration can do with the money Congress is providing.
Such limitation provisions appear all over appropriations bills; they are extremely common. One rub with the DHS bill is that ICE received tens of billions of dollars in the OBBBA. Consequently, DHS has claimed that ICE does not have to follow limitation provisions in previous annual acts (such as the requirement that Members be able to visit ICE facilities on zero notice), because the funding being used is coming from OBBBA, which has no such limitation riders; the riders only apply to the annual appropriations.
Consequently, in my view any future limitation provisions put in appropriations bills related to DHS/CBP/ICE should be explicit that the limitations apply to all previous funding acts. "None of the funds in this act or any other act (including the OBBBA) shall be used to support operations that use administrative warrants rather than judicial warrants to gain entry to private residences." Or similar (I'm sure there's technically tighter language than that)."