President Donald J. Trump signed into law late Friday a three-week spending bill to fund about a quarter of government operations. That ended the longest government shutdown in history. More than 800,000 federal employees did not get paid during the shutdown, plus the interruption in revenue for federal contractors, including tribes and nonprofits.
Yet the White House is already talking about another shutdown unless Democrats on Capitol Hill agree to his original pitch for $5.7 billion wall along the U.S. and Mexico border.
“No one wants a government shutdown, it’s not a desired end,” said Mick Mulvaney, the White House acting chief of staff on “Fox News Sunday.”“But when the president vetoes a bill that’s put in front of him as a spending package, sometimes that has effect of shutting the government down. We don’t go into this trying to shut the government down.” He said the president will push for a wall where it’s needed “the quickest” and not a 2,000 mile structure.
Let’s look at three big questions: What’s next in this fight? Will there be another government shutdown? And what about the border?
The practical takes over this week. Government agencies have to catch up on a month of work piling up. Contracts, phone messages, decisions, even collecting garbage, basically the works. This will take time.
There will be a lot of demand, for example, from tribes and non-profit organizations to get cash flow restarted to pay for self-governance and other contracts with the Bureau of Indian Affairs and the Indian Health Service.
As for employees, Mick Mulvaney, the White House acting chief of staff, said on CBS’ “Face the Nation,” that the government will move quickly to pay employees. "Some of them may be later this week, but we hope that by the end of this week, all of the back pay will be made up and, of course, the next payroll will go out on time.”
One issue that must be sorted out: overtime. In in order to make due during the shutdown some agencies required overtime from the employees that did work. How will that overtime be paid? And what will that do to agency budgets since the furloughed employees will also be paid? In the lawsuit filed by federal Indian Service employees, for example, the documents said some law enforcement agents exceeded 70 hours in a work week.
In Congress the next step is a conference committee. The House will argue for its language, which includes funding for border security but not a new wall, and the Senate which would give the Trump administration wide latitude about where to spend $5.7 on a border wall. (A wall along the entire border has additional cost and legal hurdles, as much as $70 billion, plus the cost of buying what is now private property.)
The conference committee will look for language that can pass both the House and the Senate. It could split the difference or try for a larger immigration bill that adds priorities from the Democrats, such as permanent legal status for residents who arrived in the United States as children without authorization.
The committee could ask for more time with an additional temporary spending bill or a continuing resolution.
Will there be another government shutdown?
The president remains a wild card. Any deal that results from the conference committee is likely the product of a give and take between the Senate and the House. It will not be the president’s demand for a wall or else. So will he shut the government again?
The White House is already saying yes. That started Friday when the president made the announcement about the government reopening. “So let me be very clear: We really have no choice but to build a powerful wall or steel barrier,” he said. “If we don’t get a fair deal from Congress, the government will either shut down on February 15th, again, or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency. We will have great security.”
That leaves the White House with the option of trying to build a wall using emergency powers instead of an appropriation from Congress.
The potential of a shutdown could unite Republicans who think that is a poor way to govern.
Congress has the power of the purse. It can override the president on spending or on legislation. That could happen if there is another shutdown fight.
There is also a new found support for members of Congress wanting to take federal employees out of the equation, perhaps even coming up with legislation that would prevent a future shutdown.
Sen. Lisa Murkowski, R-Alaska, for example, apologized to federal workers and said she is supporting measures to make certain that it does not happen again. “If there was every any silver lining to this, it was to understand that there was no good reason for a shutdown ever, but also I think we gained a little bit of appreciation for the good work that our federal employees do for us, -- the work that they do is important and we appreciate it,” she said.
This idea could include the legislation introduced by Sen. Tom Udall, D-New Mexico, that would protect the revenue to tribes through the Bureau of Indian Affairs and Indian Health Service. (A measure that tribes have long supported.)
And what about the border?
Later today the Tribal Border Alliance will host a press conference outlining their ideas for the border. There are 26 federally–recognized tribes with homelands that include the southern border.
But in Congress and in the White House there remain deep divisions about immigration policy, enforcement, and even the definition of a crisis on the border. That’s even before there is a debate about the wall.
At the Rose Garden, the president said, “I believe that crime in this country can go down by a massive percentage if we have great security on our southern border. I believe drugs, large percentages of which come through the southern border, will be cut by a number that nobody will believe.”
However as the Brookings Institution reports: “The crime statistics, with few exceptions, tell a very different story. In 2014, 14,249 people were murdered, the lowest homicide rate since 1991 when there were 24,703, and part of a pattern of steady decline in violent crime over that entire period.”
Brooking found no evidence “that undocumented residents accounted for either the rise in crime or even for a substantial number of the crimes, in Chicago or elsewhere. The vast majority of violent crimes, including murders, are committed by native–born Americans.”
Brookings also points out that drug smuggling will continue. Most of it now is through border points and a wall would have to be at least 70 feet deep to prevent tunnels from being constructed.
And this comes at a time when unauthorized immigration is shrinking. According to Pew Research, “the nation’s unauthorized immigrant population grew rapidly between 1990 and 2007, reaching a peak of 12.2 million. Since then, the population declined to 10.7 million. Unauthorized immigrants from Mexico make up half of all unauthorized immigrants and have been a driver of the group’s population decline – the number of unauthorized immigrants from Mexico fell from a peak of 6.9 million in 2007 to 5.4 million in 2016.”
The White House continues to raise the possibility of declaring a national emergency in order to build the wall without Congress. But that raises other questions, too. An emergency order will be challenged in the court system and that will prevent construction immediately. What’s more an emergency order might only work for this year’s funding, money that would have to be spent before Sept. 30, 2019. After that Congress would have to appropriate more funds. Another concern by many conservatives is that if Trump does use emergency powers to build a wall, the next president could use the same authority to use federal resources for climate change or another priority of the Democrats.
Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports