New and Improved Government Shutdowns

David Super

      The news about the Department of Homeland Security’s war on peaceful communities and the craven politicization of the Department of Justice keeps getting worse.  Congressional Democrats, however, are getting much better at strategic pushback.  This post dissects what has happened, with particular attention to its lessons concerning leadership, negotiation, and unity. 

     After causing considerable harm for no gain in the Fall government shutdown, congressional Democrats’ leverage this month was substantially impaired.  They could have done much more, much sooner if they had not persuaded many reachable voters that were irresponsible with a shutdown for which they had neither unity nor a compelling explanation why those actions were needed to address the healthcare problem. 

     The horrific behavior of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), the Bureau of Prisons (BOP), and others have changed that situation.  To their credit congressional Democrats recognized the change and responded. 

     Initial grassroots demands were overly simplistic, as is often the case:  get Members of Congress to pledge not to vote for another dime for ICE.  This was both over- and under-inclusive.  Literally voting down any appropriations bill with any money for ICE likely would have triggered a broad government shutdown in which vulnerable people bore the brunt of the pain and the public might well have turned against Democrats.  And because the One Big Beautiful Bill Act (OBBBA) diverted many billions from Medicaid and the Supplemental Nutrition Assistance Program (SNAP) into a slush fund for ICE not dependent on further appropriations, simply barring new money for ICE would not have curbed its abuses.  The simple message, however, was highly accessible to ordinary voters, and it proved an effective vehicle to secure commitments from the vast majority of Democratic Members.

     Were the Democratic leadership as cynical and cowardly as they often are portrayed, one could imagine them simply staying with that message and allowing another bungled government shutdown to unfold over a largely symbolic demand.  Fortunately, the leadership applied their insider understanding to shift the debate toward eliminating the slush fund and enacting restrictions on the Department of Homeland Security’s (DHS’s) most sensationally abusive practices.  And, remarkably, most grassroots activists appear to have accepted this switch. 

     Democratic leaders also recognized that they could reduce the harm that a shutdown would cause, and increase their chances of winning, if a shutdown could be limited to appropriations for DHS.  Refusing to approve any further money for ICE would have triggered a shutdown involving six of the twelve annual appropriations bills, including the important Labor-Health and Human Services-Education bill.  By offering to fully fund five bills and provide a two-week continuing resolution for DHS, Democrats put the Republicans in position where they would trigger a shutdown, and absorb most of the public’s anger, if they refused.  Thus, approving two more weeks of funding for ICE and the rest of DHS did not meaningfully expand what ICE could do on the streets but greatly improved the playing field for an eventual confrontation. 

     And, as an added bonus, House Speaker Mike Johnson triggered a brief government shutdown over the next few days with an unsuccessful effort to bully the Senate into accepting the House-passed appropriations package.  By sending the House home despite the impending appropriations deadline – and refusing to bring the House back or to try to pass the Senate’s modified appropriations legislation by unanimous consent – the Speaker contributed to the narrative that the Republican-controlled House is indifferent toward the responsibilities of governing. 

     One big question is why the Administration did not try to negotiate a final DHS bill this week:  the political climate is surely getting steadily worse for them.  Lacking a direct line to Stephen Miller I cannot be sure, but my suspicion is that the Administration did not want to be the one making any proposals.  Even proposals inadequate to close a deal could enrage the bloodier xenophobes in their coalition.  And then there are the old warnings about negotiating against oneself.  I suspect the Administration thought it would have a better chance of avoiding a political whipsaw if it let congressional Democrats try to extract concessions from Republicans on the Hill with the possibility of a veto threat if something it particularly despised started moving. 

     This strategy gives Democrats a real opening.  Unlike the Fall government shutdown, which Democrats entered without unity, Friday’s vote on eliminating OBBBA’s ICE slush fund secured the vote of every Democratic senator as well as two Republicans, Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME).  One can imagine that leaders carefully massaged the amendment’s language to ensure that all Democrats would be on-board and to make it easier to attract Republicans. 

     Precedent prevents other Republicans from hiding behind House and Senate rules that nominally disfavor amending permanent legislation, such as OBBBA’s slush fund, on appropriations bills.  Republicans held a series of annual appropriations bills hostage to claw back much of the money the Inflation Reduction Act of 2022 provided the Internal Revenue Service for heightened enforcement against the affluent. 

     Grassroots activists quite rightly demand that ICE be disbanded and replaced.  Its institutional culture is profoundly toxic, beyond the capacity of even a willing administration (which this one emphatically is not) to reform.  Policymakers should listen more to what sociology teaches us about organizational dynamics.

     This winter’s battle, however, will not bring an end to ICE.  Too little of the public has been convinced of the need to do so yet, and the same ugly feelings about immigrants that helped President Trump get re-elected have not vanished.  Moreover, if we disbanded ICE now, the Trump Administration would build the replacement – and would surely create something just as malevolent. 

     So the question is what can be done.  Stripping away the slush fund is the most important step:  forcing the agency to live within a budget, to face real limits on the force it can project onto the streets of our country, and to refrain from hiring every white supremacist incel that applies for a job.  Once the slush fund is gone, more conventional appropriations restrictions become more viable. 

     The final DHS appropriations legislation also likely will include prohibitions on some of its agents’ most egregious actions, particularly ones that are documented by street videographers.  Alas, it is less clear whether it will address DHS’s more hidden abuses:  the media’s neglect of ghastly abuses in ICE detention remains frustrating.  When human beings are made completely vulnerable to hateful, violent thugs, horrible outcomes become inevitable.

     Given DHS’s manifest contempt for the U.S. Constitution, we cannot seriously expect them to care very much about an appropriations act.  Spending money in violation of an appropriations act is a felony, but Pam Bondi’s Justice Department obviously does not care and President Trump would be happy to pardon any offenses.  So what is the point?

     Enacting measures purporting to address a problem serves a valid strategic purpose even if those measures clearly will not work.  In negotiations, the other side’s inadequate proposals can become a huge stumbling block.  Whether sincerely or otherwise, counterparties may adamantly insists that what they are proposing will work and refuse to fairly assess evidence to the contrary.  Calling them out on the implausibility of their beliefs risks becoming personal and causing a rupture.  Patching ruptures often requires substantive concessions.  Far, far better is to be able to say that we tried the other side’s ideas but those ideas did not work.  Taking turns is a strong norm within negotiations, and letting moderates try out their flimsy ideas first can put heavy pressure on them to accept something bolder next time around. 

     As long as the Trump-Vance Administration is in power, the only likely path to curbing ICE/CBP/BOP abuses is through private litigation.  That would require a statute reviving Bivens liability for federal officers violating civil rights, something the Supreme Court has largely gutted.  It also likely would require abrogating the “qualified immunity” that allows law enforcement officers to escape liability by insisting that they did not realize they were violating the law.  But public sentiment is far from ready to demand these measures now; seeing ICE/CBP/BOP defy clear instructions to back off could help bring more of the public around to more forceful measures.

     If congressional Republicans or the Administration refuses to accept politically defensible proposals from Democrats, a DHS-only shutdown will ensue in two weeks.  The OBBBA slush fund unfortunately will keep ICE and CBP on the streets.  Any shutdown likely will come to a head over other DHS agencies.  Vulnerable immigrants will suffer when Citizenship and Immigration Services stops processing applications for various kinds of status changes.  The Federal Emergency Management Administration (FEMA) will shut down, too, but winter historically is the slow season for natural disasters – and a large enough disaster could drive a supplemental appropriations bill for that specific purpose.  The most likely breaking point will be when air travelers start missing their flights as Transportation Security Administration checkpoints bog down. 

     We can hope that the combination of events that has created this opportunity – strong grassroots mobilization around a simple message, largely cooperative translation of those demands into something more strategic, and careful positioning of Democrats for maximum leverage in negotiations and with the general public – will be replicated on these and other issues going forward. 

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