It’s So Cute How You Write Laws and Stuff
I get why Congress could be a good gig for a social climber or a rich dude looking for flattery and prestige and stock tips. As an entity for managing the country and meeting its challenges, today’s Congress is rather inert, especially when the biggest challenges come from within. Since the beginning of Trump’s term one year ago, I have been studying the tools available to Congress to assert itself as the primary institution of American government, expressed in Article I of the Constitution. Sadly, most of those tools have not found their way out of committee.
Democrats shut down the government last October, for instance, but did not demand that they would only agree to pass appropriations if they were guaranteed to be spent. As a result, Donald Trump continues to block required funding in deliberately vengeful ways, like withholding welfare spending from blue states. Some of these pauses get reversed eventually amid pressure, either by the agencies or by the courts. But the cycle continues, causing fits and starts, anxiety for grantees, and large gaps in delivering money that’s already been approved by the legislative branch.
You’d think the lessons from this debacle would be applied to today’s challenge, the occupation of American cities by a loyal paramilitary force known as ICE. But after the last shutdown fight, Democrats begged off threatening further obstruction for any reason, preferring to come up with a series of “guardrails” to apply to the Department of Homeland Security (DHS) appropriation. We actually got the text of that bill out of a House-Senate conference on Monday, but the basic requirement that all spending decisions are solely directed by Congress is not present. Therefore, even the guardrails attached to DHS are unlikely to change much of what the agency has been doing, because of Congress pulling its punches on the power available to it.
THE DHS ACCOUNTABILITY MEASURES were demanded by Democrats in the wake of the murder of Renee Good. The total agency budget is cut slightly, and Customs and Border Protection’s budget was cut by roughly $1.3 billion. ICE’s budget remains flat, but there are some limitations imposed. For example, ICE can spend no more than $3.8 billion on detention throughout the fiscal year. In theory, this will lower detention capacity to 41,500 beds, down from the 50,000 the president sought. DHS can transfer funding across its agencies, of course, but it has to publicly post reports on the shifts. There are restrictions on what can go in and out for some agencies, including ICE. DHS is also banned from instituting a fee for border crossing or even studying the concept.
Of course, ICE still has a $75 billion reserve, more than seven times its $10 billion annual budget, from the One Big Beautiful Bill Act (OBBBA). This is why the shutdown didn’t shut down ICE; they just drew from that reserve. Democrats note this as a defense for not shutting down the government over ICE’s reign of terror. But the “check” on that pot of money is entirely along the lines of transparency: monthly reports to Congress on how it’s being spent and a little bit of money for the inspector general. (A separate provision says that no funds can be used to deny inspectors general across the government any documents they seek.)
As for the vaunted “guardrails,” there’s $20 million for independent oversight of detention facilities and another $20 million to buy body cameras for ICE agents, as well as mandates for more training for agents interacting with the public, including that they must allow Americans to record any interactions.
I don’t think that ICE enforcement interactions have a lack of filming, so I’m not sure what the body cameras will accomplish. And while I’m sure more training can be offered, if the trainees don’t really pay attention to it, I doubt its value. Meanwhile, top Democratic appropriators admitted that some of the reforms they actually wanted, like blocking the detention and deportation of U.S. citizens or borrowing enforcement personnel from other agencies, weren’t added to the bill.
But importantly, what is the mechanism to ensure that this money will be spent? The Trump administration has turned on and off funding at its discretion, and Congress has not tied violations of its directives to anything that would hit the president where it hurts. To use an extreme example, they could require that any changes to its funding prerogatives would lead to the immediate cessation of funding for the White House budget, including all valets and chefs and personnel who work in the residence. Every time Congress fails to use this kind of maximalist power, it cedes responsibility to the president.
This is also true of the ICE detention budget. The agency has apparently stopped paying for medical treatment for detainees, thereby freeing up money to warehouse more people. Medical funding for detainees was actually increased in the appropriations bill by $108 million, but without accountability measures, who’s to say it’ll be spent?
There are a couple of instances where appropriators seek penalties for a lack of compliance with their directive. For example, if DHS delays FEMA reimbursements for disaster costs, penalties can ensue. But none of that exists for ICE operations. There is no real punishment if, and I should say when, the agency thumbs its nose at Congress.
LET’S WAVE A TINY FLAG for what is in this package, which is likely to pass Congress before the January 30 funding deadline. In both this set of full-year funding bills and ones passed earlier this month, the appropriations committees have ignored several funding cuts sought by the White House, including funding for basic science, democracy promotion abroad, the District of Columbia, and the Department of Housing and Urban Development, which got a 9 percent increase over its prior-year budget. Other agencies got smaller increases over the current budget, including Labor, Health and Human Services, and even the Department of Education, which the Trump administration has vowed to dismantle.
But again, these are largely numbers on paper without verifiable language that the money will get spent. A simple line stating that “no funds from this act can be used to withhold any grants approved by this act, or be used to dismantle any agency authorized by Congress” would be sufficient. It’s not in there.
A ban on mass layoffs of federal workers that Sen. Tim Kaine (D-VA) inserted into the last continuing resolution in November was reportedly scheduled to be extended in the new round of funding bills. A review of the most recent four-bill appropriations package does not contain any language on that. Sen. Kaine’s office did not respond to a request for comment. (Meanwhile, it’s not clear the original language even worked, as some General Services Administration employees complained they were not rehired after being laid off during the shutdown.)
There are some other decent things in the bill, the biggest being a long-awaited reform of pharmacy benefit managers. This was actually slated for a year-end bill in 2024, a whole president ago, until Elon Musk decided that all bills had to be a certain page length and blew up the bipartisan agreement. Now it’s back, and while this bill is 1,000 pages, it appears more secure. There are also extensions of health measures like lifesaving community health centers.
But there are a couple of catches. The PBM reform bans companies from skimming rebates intended for the health plans they work for, but as Hunterbrook discovered earlier this month, PBMs appear to have figured out how to technically give back all rebates while inventing new shell companies that take some of those rebates in the form of “fees.” PBMs would also not be allowed to exclude independent pharmacies from their networks, and would have to give full price transparency to plan sponsors. But enactment of these measures is delayed until 2028, giving PBMs more time to reap excess profits from prescription drugs and almost certainly facilitate the closure of more independent pharmacies.
So what have we learned here? Congress, like the model Congresses that high schools put on in social studies classes, are interesting exercises in coalition-building and teamwork, but as an actual mechanism for running the United States, it falls short in taking the steps necessary to prevent an out-of-control mad king. I’m sure the institution will celebrate passing all 12 appropriations bills for once (albeit four months late), but when Trump decides not to spend on agencies that are written out in law, the question will return: Why didn’t Congress use its power to do anything about it?
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