Democrats are in a tough spot, with Republicans working to force a choice between keeping the government open or enacting a draconian border reform package.
House Republicans are openly pursuing an "H.R. 2 or bust" funding negotiation strategy that leaves Democrats with few palatable options.
H.R. 2 is a GOP border package approved by the House in May. At the time it was seen as a messaging bill chock-full of politically unviable, hawkish provisions, but it now stands a chance at becoming law.
That chance lies within the struggle for Congress to fund the government before a partial shutdown on Jan. 19 and a full shutdown on Feb. 2. Republicans, led by Speaker Mike Johnson (R-La.), say they want H.R. 2 or H.R. 2-like provisions in order to play ball on passing a budget.
On Sunday Congressional leaders announced they had reached a top-line spending deal to fund the federal government for the rest of fiscal 2024, the first step to avoid a partial government shutdown. The deal still has to pass both chambers while some hard-line House Republicans are still calling to force a government shutdown over the border.
Johnson has touted the support of his conference, most recently at a border press conference attended by more than 60 Republican lawmakers, including border representatives from competitive districts such as Reps. Juan Ciscomani (R-Ariz.) and Tony Gonzales (R-Texas), in whose district the conference was held.
H.R. 2 crosses a litany of red lines for Democrats, but they're entering an election year with low poll numbers for President Biden, and they don't want to be blamed if the government does shut down.
The standoff is reminiscent of two key moments in border policy legislation: the 1996 shutdown threat engineered by former Speaker Newt Gingrich (R-Ga.) against then-President Clinton that led to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the preelection Senate scramble to pass the 2006 Secure Fence Act.
Both those bills, rushed through to meet a political moment, are reviled by advocates, who see them as the core of what's broken in the immigration system.
That view drove opposition to Senate negotiations in December — a rush to hash out border legislation on deadline — and drove a wedge between leadership and immigration advocates on the Hill, led by the Congressional Hispanic Caucus (CHC).
In some ways, finding a common enemy in Johnson's proposals has helped heal that wound, allowing Democrats to focus their fire on the House GOP.
“House Republicans are now holding American families hostage alongside the critical funding our allies desperately need by threatening to shut down the government to pass extreme immigration policies,” said CHC Chair Nanette Barragán (D-Calif.).
And while the Senate negotiations meant aid to Ukraine, Israel and Taiwan were held up over border policy, the threat of government shutdown is a significant escalation.
“Republicans are manufacturing yet another shutdown crisis in order to strong-arm policies that are politically charged, and worse, not effective. They’ve already rejected $14 billion to address the border yet state they want to improve conditions — adding to their hypocrisy,” said Barragán.
But Democrats are on thin ice.
Advocates may hate H.R. 2, but the general public has never show much interest in immigration policy minutiae, and Democrats will have to make the case for why stopping the bill is worth a shutdown.
“If Republicans maintain this stance of H.R. 2 or nothing, the government's going to shut down over this. The question for Dems is are they going to be able to articulate why H.R. 2 would be a policy and political disaster? How are they going to put up a fight that defines H.R. 2?” said a source familiar with the negotiations who asked for anonymity to speak frankly.
The GOP bill would slash asylum, mandate border wall construction, supercharge interior enforcement, decrease legal protections for migrant minors and reinvigorate the E-Verify program.
Those provisions are toxic among many immigrant communities in large part because similar policies have led to serious human rights violations around the world and because of the chilling effect they can have on immigrants and Latino communities targeted by authorities.
But it's uncertain how the general public will judge those provisions, and public sentiment is already primed against migrants.
“The politics are so toxic right now toward new arrivals that even if the policy doesn't happen and the government shuts down, it's not going to set up good political conditions for better policy development later,” said the source familiar with negotiations.
While attrition-fueled xenophobia is likely to bolster the House GOP's position, H.R. 2's most fervent advocates want to strike while the iron is hot.
Rep. Chip Roy (R-Texas) on “The Sean Spicer Show” on Thursday accused Biden and Homeland Security Secretary Alejandro Mayorkas of "lawlessness" and painted a picture of urgency to approve H.R. 2.
“So we have to not do this for political purposes. We can’t just say, ‘Oh, we’ll win elections if we just fight, but we’ll figure it out next January.’ No, we have an obligation right now, to actually stop them. So we need to withhold funding and force Biden to the table. There’s no other choice. It’s now or never,” said Roy.
Restrictionist border and immigration bills, like IIRIRA and the Secure Fence Act, have come at key "moments of inflection" in a longer-term trend of militarization, according to Alexander Aviña, a historian at Arizona State University who focuses on 20th century Mexico.
"Militarization of the border goes back to the Mexican Revolution of 1910," said Aviña, who is also Ciscomani's brother-in-law and has been sharply critical of the Arizona Republican's positions.
"This gradual hardening and militarization of the border has been constant," he added.
Advocates worry that if Democrats cave and enact the Republican proposals hardening the border, there's little evidence that the reforms will reduce migrant arrivals in the long term, creating a lose-lose scenario for the Biden administration.
“It’s setting the stakes for a very nasty situation where either some Republicans shut down the government or you allow them to move through policies that will likely make conditions on the ground even worse in an election year. We’ve seen this kind of hostage-taking for funding packages before, but this is very significant now, because the politics of the issue has changed so significantly,” said Andrea Flores, vice president for immigration policy at FWD.us.
But Johnson is also in a delicate position, where he can't afford to lose any votes, meaning he has little if any wiggle room to move away from H.R. 2, a package that Senate Majority Leader Chuck Schumer (D-N.Y.) has already said is a non-starter in the Democratic-controlled upper chamber.
Some advocates read into that an intent to seek a shutdown.
"I just think it's obvious that they are playing politics, they're moving the goal posts and they don't plan to actually really negotiate," said Kerri Talbot, executive director of the Immigration Hub.
"I think this is all going to lead to a shutdown. You know, and I think that's what Republicans want. They wanted a shutdown; they wanted it in the fall. And now they're going to use the borders as an excuse to shut down the government so they can finger-point, instead of actually legislating."
Updated at 5:23 pm.