A federal judge could break a standstill in the Senate while also defusing a brutal immigration conflict between Democrats and President Joe Biden.
The administration’s plan to lift Trump-era immigration curbs instituted during the pandemic, colloquially called Title 42, is roiling the Democratic Party as candidates and incumbents alike dash away from Biden’s position. Republicans and some Democrats are beginning to insist on a vote to delay the easing of the immigration limits, even as progressives and some immigration reform advocates stand with the administration’s policy — if not its politics.
Republicans use immigration “as their weapon, the third rail of politics. And that has, in an election cycle, created some concerns from some Democrats who I think normally would have a different view,” said Sen. Robert Menendez (D-N.J.).
Yet a court ruling late Monday could give Biden some breathing room, as a federal judge signaled plans to temporarily block the administration’s decision to end the pandemic-era border restrictions. Without that decision, border politics threaten to rend the Democratic Party as well as freeze a $10 billion bipartisan coronavirus aid deal that Republicans insisted should include at least an up-or-down vote on keeping Title 42.
What’s more, Biden will soon ask Congress to deliver more money for Ukraine’s defense against a Russian invasion. That bill, unless Title 42 were preserved by other means like a court order, could be another opportunity for immigration politics to seep into the Senate’s work.
Senate Minority Leader Mitch McConnell turned the lens on Democrats on Monday when asked whether he would insist on a vote to delay the immigration policy change.
“There seems to be a lot of Democratic senators wanting to express themselves on that,” he observed.
And just a few hours later, Sen. Jon Tester (D-Mont.) said he wants the administration to take a look at bipartisan legislation he’s co-sponsoring with Sen. James Lankford (R-Okla.) that would delay any end to Title 42 without a detailed plan.
Sen. Catherine Cortez Masto (D-Nev.) said in an interview on Monday, “I’m pretty clear: I didn’t support Title 42 in the beginning, I don’t support repealing it now until there’s a plan to address the surge [in migration] and address the broken immigration system. Which nobody wants to do.” She is not yet advocating for Tester’s bill but is increasingly raising alarm at the Biden administration’s move.
In 2014, President Barack Obama’s moves to ease immigration limits similarly jolted his party and sent some centrist Democrats running away from the administration. Since then, the courts have grown only more conservative — sometimes heading off tough intraparty Democratic conflicts during Biden’s presidency.
Another contentious Biden administration Covid policy, the mandatory mask mandate on public transportation and airplanes, also got blocked by the federal courts with few Democrats publicly leaning on the administration to fight the ruling. Eight Democratic senators have voted to overturn that mask rule, suggesting that its popularity among Democratic lawmakers facing tough races had fully run its course and there was little political will to keep it.
Title 42 has been even more explosive, with relatively few Democrats defending Biden and candidates of all stripes calling for a delay, more details and a plan from the administration. Sen. Mitt Romney (R-Utah), who wrote the bipartisan Covid deal with Majority Leader Chuck Schumer, said that the courts are the “800-pound gorilla” on these issues: “And they may have something to say on this.”
But border-state Sen. Mark Kelly (D-Ariz.) signaled that even a delay from the courts won’t fully eliminate the tension between Biden and members of his own party over Title 42.
“I’d like to see a plan from the administration,” Kelly said. “The courts are separate from what we do here. It doesn’t change my requirement that I want to see them have a plan that’s workable.”
Prior to the court ruling, officials planned to roll out more details early this week on how they would handle the surge in migration that’s considered likely at the southern border should Title 42 end. That was intended to alleviate some Democratic concerns over how the administration has talked about the change, with caucus members constantly asking the administration for a better plan and better public messaging.
“One of the reasons it’s divided us is that the communication from the administration has not been clear,” said Sen. Tim Kaine (D-Va.). “We haven’t gotten our questions answered. So that puts people in some different positions.”
Despite the court ruling, senators in both parties suggested Monday that a floor vote on the policy may be inevitable, even if the vehicle to do so may not be the popular Ukraine aid or the bipartisan Covid package. In a sign that the issue is not going away, Title 42 came up during Monday night’s GOP leadership meeting, according to an attendee who spoke candidly on condition of anonymity and suggested Republicans are “committed” to bringing it up.
“We need a vote on that. This is really serious,” said Sen. Susan Collins (R-Maine). “I do believe if we got a clean vote on it, there would be strong support for keeping Title 42.”
Some Senate Democrats are betting that the court ruling could give Biden and Schumer a time cushion before they have to address Title 42 head-on. Until then, the issue is “a tough one, a very tough one,” said Senate Judiciary Chair Dick Durbin (D-Ill.).