Harris, Colleagues Urge Appropriators to Block Administration Attempts to Unilaterally Transfer DHS Funds to ICE/CBP

WASHINGTON, D.C. , Sept. 13, 2019 U.S. Senator Kamala D. Harris (D-CA) on Friday joined U.S. Senator Chris Van Hollen (D-MD) and 18 Senate Democrats urging Senate Leadership and Appropriators to assert Congress’s role in crafting federal appropriations and ensure that any funding measure for the Department of Homeland Security (DHS) prevents the Administration’s unilateral transfer of funds to U.S. Immigration and Customs Enforcement (ICE)/Customs and Border Patrol (CBP). The letter also calls on them to reject any anomaly in the upcoming Continuing Resolution (CR) for ICE or CBP agents, detention beds or facilities, or wall construction beyond that approved by Congress in Fiscal Year 2019.

The Senators write, “DHS has seen significant budget increases under the Trump Administration and has achieved much of this growth in contravention of the expressed intent of Congress. This manipulation of the appropriations process undercuts our democratic system of checks and balances, bypassing Congress’ constitutional authority to appropriate funds, and has fueled the implementation of cruel policies harming immigrant communities on the border and throughout the United States.”

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They continue, “In order to ensure that funds are spent in a manner consistent with the Constitution, we urge you to include proper accountability mechanisms to ensure that the Administration adheres to the amounts of appropriations set by the Congress and does not act unilaterally to increase funds for ICE and CBP. CRs are intended to require flat funding unless Congress specifically authorizes a change. Toward that end, ICE and CBP must be held to their appropriated budgets for detention and enforcement as set forth in the FY19 bill.”

They close the letter stating, “By the power of the purse entrusted to us by the Constitution we are responsible for appropriating funds to meet national needs and priorities. We must not allow this president, or any future Executive, to flout the will of Congress.”

In addition to Harris and Van Hollen, the letter was signed by Senators Dick Durbin (D-Ill.), Tom Udall (D-N.M.), Jeff Merkley (D-Ore.), Tammy Baldwin (D-Wis.), Amy Klobuchar (D-Minn.), Cory Booker (D-N.J.), Ed Markey (D-Mass.),  Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.), Ron Wyden (D-Ore.), Kirsten Gillibrand (D-N.Y.), Tammy Duckworth (D-Ill.), Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Mazie Hirono (D-Hawaii), Sherrod Brown (D-Ohio), Jacky Rosen (D-Nev.), and Martin Heinrich (D-N.M.).

The text of the letter can be found here and below.

We write today to express concerns regarding likely efforts by the Trump Administration to circumvent congressional intent in funding decisions for the Department of Homeland Security (DHS) in Fiscal Year 2020. DHS has seen significant budget increases under the Trump Administration and has achieved much of this growth in contravention of the expressed intent of Congress. This manipulation of the appropriations process undercuts our democratic system of checks and balances, bypassing Congress’ constitutional authority to appropriate funds, and has fueled the implementation of cruel policies harming immigrant communities on the border and throughout the United States.

In recent years, we have seen the Trump Administration take advantage of Continuing Resolutions (CR) to spend significantly more than the amounts appropriated for detention and enforcement at U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). We appreciate that the Senate has remained focused on achieving regular order in Appropriations and strongly support that goal for Fiscal Year 2020. The Committee’s leadership and oversight is essential to ensure that taxpayer dollars are spent and managed in accordance with congressional priorities.

In order to ensure that funds are spent in a manner consistent with the Constitution, we urge you to include proper accountability mechanisms to ensure that the Administration adheres to the amounts of appropriations set by the Congress and does not act unilaterally to increase funds for ICE and CBP.

CRs are intended to require flat funding unless Congress specifically authorizes a change. Toward that end, ICE and CBP must be held to their appropriated budgets for detention and enforcement as set forth in the FY19 bill.  Specifically, we urge that the following two issues be prioritized during negotiations on a Continuing Resolution or any other appropriations for DHS: First, to ensure accountability, we must reject any anomaly, or lump sum provided to the agency at the outset of the CR, that would increase the DHS budget for additional ICE or CBP agents, detention beds or facilities, or wall construction beyond that approved by Congress in FY19. Second, the CR must include explicit language limiting ICE’s spending in the Enforcement and Removal Operations account to the amount equivalent to a normal appropriation for the period of the CR per the FY19 bill. This necessary language would preclude the use of an exception apportionment, a device at ICE’s disposal which could be used to borrow forward on its detention funding, growing its detention system at a time when it should be holding steady or contracting in accordance with congressional intent. We should always demand that agencies provide justification for their appropriations requests and ensure that Congress exerts its authority under the Constitution to evaluate the merits of those proposals and write the law.

As many Members of Congress have observed and watchdog agencies have reported on, this Administration fails to treat migrants in detention humanely and turns a blind eye to horrific detention conditions. Any CR must include strong guardrails on the treatment of individuals in CBP custody, specifically including a clear limit on CBP’s use of detention to a 72-hour period.

The Administration’s disregard for congressional intent should trouble all of us. Just this year, the President signed into law the FY19 DHS appropriations bill, which directed ICE to drop its daily population from 49,060 to 40,520 by the end of the fiscal year.  Over the course of the past year, the Trump Administration has thumbed its nose at Congress, ramping up its use of long-term detention to reach the historically unprecedented number of 55,220 people jailed daily in mid-August—just six weeks before its deadline to ramp down to 40,520.  Funds that Congress appropriated to DHS for other purposes have been redirected toward policies that systematically harm migrants, including the endemic abuse of solitary confinement in ICE custody,  the continued separation of families,  and the return of tens of thousands of asylum seekers to face homelessness and danger in Mexico.  Indeed, just weeks before the end of the fiscal year and on the eve of Hurricane Dorian, DHS announced plans to divert $271 million in funds from FEMA and the U.S. Coast Guard, among other critical agencies, to pay for even more ICE enforcement and detention and to support the Administration’s dangerous new policy of forcing asylum seekers to wait in Mexico.

Just a few months ago, Congress passed a supplemental appropriations bill to provide additional funding to address an influx of immigrants seeking asylum at the border, including children. While we did not agree with every provision in that bill, it followed the appropriate process – a request, evaluation of need, and bipartisan negotiation. Should the Department of Homeland Security have additional needs, it should submit them to Congress as a supplement to their budget request rather than circumventing Congressional intent through transfers, reprogramming, and other exceptions.

By the power of the purse entrusted to us by the Constitution we are responsible for appropriating funds to meet national needs and priorities. We must not allow this president, or any future Executive, to flout the will of Congress.

Sincerely,