Can't anybody in Congress play the game of governing?

MAGA Republicans dismiss a rare opportunity to improve order at the border. Biden throws a wild pitch with a log-rolling supplemental.

Watching Congress flounder attempting to address military assistance to Ukraine and Israel and border security brings to mind manager Casey Stengel’s lament about his 1962 expansion New York Mets team: “Can’t anybody here play this game?”

The game, in this context, is governing. That requires finding the right mixture of policy and politics that actually gets something done. And being willing to act on it.

The most prominent, and craven, act of not governing is the unwillingness of congressional Republicans to engage with Democrats willing to tighten asylum processing, to admit fewer non-eligible asylum seekers and render that judgment much more quickly.

The GOP rationale for not engaging is contradictory. On the one hand, they claim that no new laws are necessary. That President Joe Biden just has to enforce the laws that are already on the books and his unwillingness to do so is the sole cause of border disorder. 

On the other hand, they say that the bipartisan border security provisions negotiated by Arizona’s independent senator, Kyrsten Sinema, aren’t tough enough. Instead, what is required is the more comprehensive border security bill House Republicans passed on a party-line vote last year, H.R. 2. 

Now, existing law cannot be both sufficient and insufficient. And the reality is that the border problem has changed significantly in the last few years, in a way that existing law is insufficient to manage in an orderly fashion.

The old problem, which still lingers, was attempted illegal immigration, border crossings by people seeking to avoid capture. The new problem, which has eclipsed the old one, is people showing up, turning themselves in, and asking for asylum.

The numbers showing up and seeking asylum are overwhelming the capacity to process them. Under current procedures, an immigration official makes an initial assessment of whether the asylum applicant has a credible fear of persecution based upon asylum eligibility categories, such as race, ethnicity, religion. If the answer is yes, then the applicant is admitted into the country and given an immigration court date for a final adjudication of asylum eligibility.

There is a huge discrepancy between the results of the credible fear initial screening and the final court adjudication. According to a fact sheet from Sinema’s office, four of five applicants pass the initial screening, but only one in five are determined to be actually eligible for asylum in the final adjudication. The immigration court is badly backlogged, so the court hearing is several years from the initial screening. In the meantime, the applicant is admitted into the United States.

Now, there is nothing illegal about this, except not showing up for the final adjudication, which happens frequently. U.S. and international law grants the right to seek asylum. Migrants are taking advantage of the low bar for the initial screening and the lag in a final adjudication to, for some considerable stretch of time, be legally admitted into the United States. 

The Sinema bipartisan proposal tightens up the asylum process in a number of ways. The standard for passing the initial screening purportedly would be elevated, about which more anon. Immigration officers would be added and the initial screening process rendered more thorough. According to the bill, ineligible asylum seekers would be largely weeded out and deported within 90 days, rather than many of them being admitted into the country for years.

If border encounters exceeded an average of 5,000 a day, asylum seekers would be turned away except for those with appointments at ports of entry. This is essentially a trigger for the Remain in Mexico policy of the Trump administration.

A critical mass of congressional Democrats are apparently willing to support tightening up the asylum process without demanding reciprocal concessions on legalization for those currently in the country illegally. This is a remarkable retreat from the political stalemate that has blocked significant immigration legislation for decades.

Republicans engaging with Democrats on asylum reform wouldn’t mean accepting the Sinema proposal as an immaculate conception. It would mean accepting the idea of isolating tightening up the asylum process as something that, in the current political configuration, can actually get done. In other words, accept the idea of governing.

As an example of the potential for engagement, there is a legitimate question about the extent to which the Sinema proposal actually elevates the standard for the initial credible fear assessment. Current law sets the standard as a determination that there is a “significant possibility” that the applicant is eligible for asylum. Sinema’s proposal changes that to a “reasonable possibility”. The difference between a significant and a reasonable possibility isn’t crystal clear. 

The elevated initial assessment standard in the GOP’s H.R. 2 is far clearer and substantial. Rather than a “significant possibility” of asylum eligibility, H.R. 2 would require that eligibility be assessed as “more likely than not”. It would be entirely reasonable for congressional Republicans to insist on their clearer and more substantial higher standard. 

But, instead, congressional Republicans are refusing to engage at all. And the reason is quite transparent. Donald Trump wants to ride border disorder back into the White House and a critical mass of congressional Republicans are Trump supplicants. 

Now, the willingness of Democrats to engage in tightening up the asylum process is also driven by politics. Border disorder is an increasingly salient political issue and Democrats, particularly Biden, are highly vulnerable on it.

However, governing means cashing in on political leverage when you have it. Democrats are willing right now, before the election, to meaningfully tighten up the asylum process and create a trigger for essentially closing the border, without demanding reciprocal concessions, particularly on legalization. After the election, that probably won’t be the case, irrespective of the outcome. If the relatively open invitation, under existing law, to spend a few years legally in the country while an asylum claim is processed is to be withdrawn, the time to act is now. 

While the MAGA Republican inability to play the game of governing is particularly glaring at the moment, the Biden administration’s opening pitch of a log-rolling supplemental has also proved to be a wild one. The issues of military aid to Ukraine, military aid to Israel, and border security funding are separate ones, deserving of independent decisions by the legislative branch. The Biden administration sought to wrap them up into one package, use the popularity of aid to Israel to carry the provisions with weaker support, do so through a supplemental that avoids budget caps, and get some political cover for border disorder in the process.

This turned out to be too clever by way more than half. There’s no reason why border security funding should be in a supplemental rather than considered as part of the usual budget process, or whatever irregular process Congress uses to fund the whole of government. By including it in the supplemental, Biden invited the immigration policy reform the GOP demanded that, in turn, has led to the present impasse over everything.

So, Ukraine has to curtail offensive and defensive operations as it runs low on munitions. Domestic support in the U.S. for Israel’s military operations in Gaza is eroding. And a rare opportunity to actually act to make border operations more orderly is derisively dismissed. 

Meanwhile, Twitter and the political gabfest circuit are afire with the outraged proclamations of our performative politicians. 

I’m not much of a baseball fan, but I presume the New York Mets got better. Can’t say I expect the same for the U.S. Congress.

Reach Robb at robtrobb@gmail.com.