Talks over border security break down, imperiling effort to prevent shutdown

From left: Democratic Senator Dick Durbin of Illinois with Democratic Senator Jon Tester of Montana while Republican Senator Richard Shelby of Alabama spoketo an aide before the start of a Homeland Security Appropriations Conference Committee meeting Jan 30.
Erin Schaff/New York Times
From left: Democratic Senator Dick Durbin of Illinois with Democratic Senator Jon Tester of Montana while Republican Senator Richard Shelby of Alabama spoke to an aide before the start of a Homeland Security Appropriations Conference Committee meeting Jan 30.

WASHINGTON — The nation faces the real possibility of another government shutdown at the end of the week, after bipartisan talks aimed at averting that outcome broke down in a dispute over immigration enforcement, lawmakers and aides said Sunday.

President Trump’s border wall demands, which precipitated the record 35-day shutdown that ended late last month, were a secondary issue in the impasse that developed over the weekend, according to officials in both parties.

Instead, after looking promising for days, the delicate negotiations collapsed over Democrats’ insistence on limiting the number of unauthorized immigrants who can be detained by the US Immigration and Customs Enforcement agency. The breakdown in talks made it unlikely that lawmakers will be able to finalize an agreement on Monday, as they’d hope to do so it could pass the House and Senate before Friday night’s deadline.


‘‘I think the talks are stalled right now,’’ said Senate Appropriations chairman Richard Shelby of Alabama, the lead Republican negotiator, on Fox News Sunday. ‘‘I’m not confident we’re going to get there.’’

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The stalemate left the path forward to keeping the government open unclear.

There were some behind-the-scenes efforts to salvage the talks Sunday evening, but it was uncertain whether they would be successful.

The Homeland Security Department along with State, Agriculture, Commerce, and a number of other federal agencies are operating on a stopgap spending bill that Trump signed Jan. 25. There’s little appetite for another short-term funding extension, but without some action by midnight on Feb. 15, those agencies will run out of money and begin to shut down again.

Another funding lapse could affect many Americans within days, because one of the agencies that would go unfunded during the shutdown is the IRS, which is processing tax returns for millions of people. During the 35-day shutdown that began in late December, thousands of IRS officials refused to show up for work without pay, backlogging the tax filing process.


The president, who is scheduled to hold a rally in El Paso on Monday night that is likely to focus on his demands for more border security, referenced the disagreement in a tweet on Sunday.

‘‘I don’t think the Dems on the Border Committee are being allowed by their leaders to make a deal. They are offering very little money for the desperately needed Border Wall & now, out of the blue, want a cap on convicted violent felons to be held in detention!’’ the president wrote.

Lawmakers on the 17-member conference committee had been trading offers over how much money could go to barriers along the US-Mexico border, and were looking at between $1.3 billion and $2 billion. The White House had begun to signal flexibility on that issue, even though Trump would end up with much less than the $5.7 billion he has sought, and the enhanced fencing or other barriers would fall short of the 200-plus miles of steel walls he had wanted.

But throughout the talks, Democrats had also been focused on limiting ICE’s ability to detain unauthorized immigrants, which has become a major issue for the party because of their opposition to the Trump administration’s aggressive detention tactics. The Democrats’ proposal included a new limit on detention beds for immigrants picked up not at the border, but in the interior of the country.

Democrats wanted to cap that number at 16,500, which they said is around the level of interior detentions in the final years of the Obama administration, although it’s fewer than the number currently detained under the Trump administration’s enforcement policies.


Republicans want to exclude a range of immigrants from the cap. These would be people convicted of, or charged with, a variety of crimes, ranging from violent felonies to misdemeanor drug offenses.

But Democrats said that would make the cap toothless, because it would allow ICE to round up numerous people who don’t have criminal records and hold an unlimited number of people who, in some cases, have been charged with misdemeanors.

Representative Lucille Roybal-Allard, a California Democrat on the conference committee, defended the Democratic position on bed space.

‘‘A cap on ICE detention beds will force the Trump administration to prioritize deportation for criminals and people who pose real security threats, not law-abiding immigrants who are contributing to our country,’’ Roybal-Allard said in a statement.

Democrats, newly in control of the House, have faced pressure from some liberals in their ranks to draw a much harder line in their negotiations over the border. Liberals including Representative Alexandria Ocasio-Cortez, a New York Democrat, have proposed entirely cutting funding to ICE, and refusing any additional money for border barriers whatsoever.

‘‘Now, apparently, not only is it enough they want to abolish ICE. They want to abolish the bed spaces available to the country to house violent offenders, so they can be held and deported,’’ said Senator Lindsey O. Graham, a South Carolina Republican, said on Fox News Channel. ‘‘I promise you this. Donald Trump is not going to sign any bill that reduces the number of bed spaces available to hold violent offenders who come across our border.’’

The fight over how many immigrants can be detained at once became extremely problematic in recent days, just as the White House began signaling to negotiators that it would be more flexible on how much money Congress appropriated for a wall along the Mexico border.

White House officials have become increasingly confident that by declaring a national emergency, Trump will be able to redirect billions of dollars in other federal funding to be used for a wall or barriers. One scenario they had prepared for was for Congress to pass a bill appropriating some money for border security and then use the national emergency declaration to loosen even more funds.

This could draw legal challenges from Democrats, landowners, and other groups, but White House officials and some external advisers have said it was the best way to proceed.

A total breakdown in talks poses a new set of challenges, however. It dramatically increases the odds of another partial government shutdown beginning Saturday. This would prevent roughly 800,000 federal workers from being paid indefinitely.

During the last shutdown, which began Dec. 22, the White House relied on hundreds of thousands of federal employees to continue coming to work unpaid for more than a month in order for key government services to continue, including Border Patrol agents, Secret Service officers, airport screeners, and air traffic controllers.

Many of the federal employees, however, refused to show up for work and called in sick, including airport screeners and IRS officers, and it’s unclear what they would do if there’s another shutdown.

Though the odds of a government shutdown have increased markedly in the past 24 hours, negotiators have not said for certain that one will occur.

‘‘There are bumps in the road, but as long as we stay focused in a bipartisan way, bicameral way, to get this done, I’m hopeful we can get it done,’’ said Senator Jon Tester, a Montana Democrat and one of the negotiators, on Fox News Sunday.

Bipartisan talks to reach a border security agreement have stalled, lawmakers and aides said Sunday, imperiling efforts to prevent another government shutdown days before the Friday deadline.

Senator Richard Shelby of Alabama, the Republican chairman of the Senate Appropriations Committee and a key figure in the negotiations, confirmed the impasse Sunday, saying he was “not confident we’re going to get there.”

“I’ll say 50-50 we get a deal,” said Shelby, speaking on “Fox News Sunday.” “The specter of a shutdown is always out there.”

The 17 House and Senate lawmakers negotiating, known as a conference committee, had set an informal deadline of Monday to reach a deal, because Congress would need that much time to consider the legislation without waiving procedural rules and still pass it by Friday, when funding for several departments and agencies expires.

But an aide familiar with the talks said lawmakers had stopped communicating, hung up primarily over Democrats’ demand for a hard limit on the number of beds given to Immigration and Customs Enforcement for housing detained immigrants already in the country.

While Democrats refused to entertain the prospect of fulfilling Trump’s $5.7 billion demand for a border wall, lawmakers had grown closer to accepting a number between $1.3 billion and $2 billion for physical barriers.

But they also demanded the limit on ICE beds, as a way to force the agency to focus on detaining migrants with criminal records instead of people who have overstayed their visas.

Democrats want a cap at 16,500, which would fold into an overall existing cap of 40,520 already funded in the spending bill for the last fiscal year.

But Republicans balked at the limitation, refused to accept the latest offer from Democrats, and have yet to offer a counteroffer, according to an aide familiar with the negotiations.

“How in the world after that speech does he sign a bill that would reduce the bed spaces available for violent offenders?” said Graham, referring to Trump’s State of the Union address.

Speaking on “Sunday Morning Futures” on Fox News, he added, “He can’t do that, he won’t do that and you can take that to the bank.”

Still, Shelby and Tester said Sunday that they had not given up on reaching a deal. Democratic conferees held a conference call Sunday morning to discuss options, according to a Democratic aide, but did not settle on a final decision on how to move forward.

The breakdown in negotiations came as Pentagon and administration officials were preparing for two situations: another partial government shutdown, or the president, unsatisfied with an agreement produced by the bipartisan panel, fulfilling his threat to declare a national emergency.

Trump has told allies that although he would grudgingly accept a border security figure of about $2 billion, he was still considering using his executive authority to declare an emergency.

“The Wall will get built one way or the other!” Trump wrote on Twitter on Saturday afternoon.

In what one Defense Department official described as a surreal scramble over the weekend, Pentagon officials met Friday and over the weekend to identify which Army Corps of Engineers construction projects would be tapped for money to help build Trump’s wall if the president declared a national emergency.

Officials pored over the language of multiple draft declarations that Trump might invoke if a deal is not reached or he rejects what lawmakers agree upon. Trump’s top national security aides — the so-called principals committee — are scheduled to meet on Monday to discuss that matter. Trump is then to convene a full National Security Council meeting on Tuesday, officials said.

If Trump declares a national emergency to build the wall, critics are expected to file suit in court to block construction and halt any funds shifted to the project. Democratic lawmakers, particularly in the House, are also preparing legislation that would limit the president’s ability to do so.

To stave off a court challenge, one proposal circulating among some White House officials, including those close to Stephen Miller, the president’s top domestic policy adviser, is to claim that the wall would be built to protect the more than 5,000 active-duty troops now operating near the southwestern border or deploying there soon.