Mike Lee, Title 42 drama holds up omnibus passage

An effort led by Sen. Mike Lee (R-Utah) to maintain Title 42 is threatening efforts to pass a sweeping government funding bill before a shutdown deadline later this week.

Congressional negotiators on both sides say the biggest holdup is ongoing negotiations to decide what the voting threshold would be to pass the amendment.

Lee’s amendment to the bipartisan deal would cut funding for Homeland Security Secretary Alejandro Mayorkas’s office unless the Biden administration reinstates the border control policy known as Title 42, a Trump-era policy that allows for migrants to be quickly expelled at the border without asylum processing.

The administration may not be able to fully reinstate the policy, as its permanence is currently under review by the Supreme Court, after having been found illegal by a federal judge.

Sen. Chris Murphy (D-Conn.), chair of the Senate Appropriations Homeland Security Subcommittee, took aim at the push, while raising concerns about its chances of passing a Democratic-led House.  

“We have a difference of opinion on immigration policy. We’re not going to solve that in this budget,” he told reporters late Wednesday. “And to let that disagreement take down aid to Ukraine to keep people alive during a cold winter, especially tonight, is pretty unthinkable.”

The hold-up scuttled tentative hopes the Senate would be able to vote on the government funding bill overnight, though late Wednesday Senate Minority Whip John Thune (R-S.D.) said he thought the chamber may be able to move forward on the bill Thursday morning.

“There’s been some progress made. … I wouldn’t say breakthrough yet,” he said.

Title 42 was due to end Wednesday, but a group of GOP-led states successfully got Chief Justice John Roberts to delay that sunset on Monday.

On Tuesday, the Biden administration, which had appealed the federal judge’s order to end Title 42, asked Roberts to go ahead with ending the policy, which was based on an expired public health order issued by the Centers for Disease Control and Prevention (CDC).

Title 42 was originally put in place in 2020 by the Trump administration under the guise of pandemic public health protections, but subsequent reports have revealed that the CDC was pressured politically to issue the public health order by then-White House adviser Stephen Miller.

Under the policy, many migrants who arrive at the border can be summarily expelled without being screened for asylum claims.

U.S. officials have carried out around 2.5 million expulsions under the policy, nearly 2 million of which have been carried out by the Biden administration.

While Title 42 allowed for speedy expulsions, the regular border protocol known as Title 8 allows for expedited removals of certain migrants, and also allows for border officials to refer migrants for criminal prosecution for repeat illegal entries.

The Biden administration had staunchly implemented and defended Title 42 until Tuesday, when it asked Roberts to lift his stay, but Republicans have nonetheless consistently used the policy to attack the administration.

A Senate Democratic aide said conversations are still ongoing with Republicans, while claiming Lee’s “goal is to kill” the omnibus amid speculation such an amendment couldn’t pass the House.

Lee’s latest push comes as Republicans have once again pulled attention to the border, and as Lee and a group of Senate Republicans look to sidetrack the long-term budget deal.

GOP backers behind the push say the delay is necessary to allow the incoming GOP-led House more sway in government funding talks. However, there are many Republicans in the Senate who are pushing instead for Congress to pass an omnibus before year’s end, citing concerns about funding for areas like defense. 

Thune said Democrats were working on a “side-by-side” amendment to potentially counter the GOP amendment and give centrist Democrats political cover to vote against the measure.

–Updated on Dec. 22 at 8:36 a.m.