Days after Congress skipped out of Washington for recess last month, Homeland Security Secretary Jeh Johnson announced plans to shift some $400 million in funding from other agency programs to manage the Southwest border crisis.
Johnson outlined what was akin to a funding Band-Aid: a set of budgetary contortions aimed at providing the two agencies with the brunt of the department’s immigration jurisdiction with enough funding to limp through the remainder of the fiscal year. He said the action was necessary since Congress could not agree on a way to give agencies emergency funding to cope with the surge of Central American child migrants.
The federal agencies on the front lines of the crisis could be left with more of the same in the months ahead if Congress passes a stripped-down continuing resolution without additional funding to manage the surge, as some Republicans have recently suggested.
Such a stopgap would avoid a shutdown and keep the federal government operating past Sept. 30. But by stretching prior-year spending levels and policy directives into the early months of fiscal 2015, a CR could leave federal officials with old guidance and little flexibility as they look to respond to a rapidly changing situation.
“A CR is always a disaster for agencies and departments just in doing routine functions. Now add an unprecedented humanitarian crisis on top of it, and it’s really going to be a challenge,” said Julie Myers Wood, who runs Guidepost Solutions, a consulting firm, and who headed Immigration and Customs Enforcement during the George W. Bush administration.
Before leaving for the August recess, lawmakers considered drastically different border spending bills (HR 5230, S 2648) but did little to compromise on the issue.
The White House and immigration overhaul advocates continue to push Congress to act on the supplemental when lawmakers return from recess. However, the widening chasm between the parties on immigration — exacerbated by the administration's deliberations over new executive actions on the issue — and waning press coverage of the border crisis could diminish the odds for a compromise.
If Congress cannot agree on special funding provisions — known as anomalies — to direct toward border agencies, a “clean” stopgap would help relieve front-line agencies by replenishing their coffers. That would aid programs that have seen their accounts run dry, as well as agencies like the Transportation Security Administration, which had some of its funding siphoned away in order to help buoy Customs and Border Protection and ICE.
But the benefits would likely stop there.
For starters, a CR would lock in fiscal 2014 funding levels and policy directives with few new resources for managing the migrant crisis for the first months of fiscal 2015. Since the Office of Management and Budget and federal agencies typically start preparing their budget proposals about 12 months before the start of a new fiscal year, that means agencies would continue to work off directives developed back in 2013, well before the events at the border were perceived as a crisis.
For DHS, a stopgap without any border anomalies could force officials to continue to raid other agencies' coffers, including Federal Emergency Management Agency disaster relief accounts and the Coast Guard, to prop up ICE and CPB if border apprehensions continue to remain high.
“Given Congress’ failure to act, the department is left with no good choices,” Johnson said in an Aug. 7 written statement describing the first set of funding shifts.
For the Department of Health and Human Services, which houses and cares for many of the unaccompanied minors as they await legal proceedings, that could mean once again holding back funding from its refugee programs in case the migration numbers surge. The Department of Justice may have even more trouble keeping up with its growing caseload of immigration hearings, recently put on an accelerated schedule by the administration.
A stopgap could be particularly dire for the Justice Department's Executive Office of Immigration Review, according to Doris Meissner, a senior fellow at the Migration Policy Institute and former commissioner of the U.S. Immigration and Naturalization Service during the Clinton administration. She said the office has been "significantly under-resourced for years,” and now, with a larger caseload of immigration hearings and an accelerated docket it must adhere to, a CR would do little to help its already significant backlog.
"The Justice Department has real limits in its judge resources, and that will be intensified by a CR and the absence of any larger appropriation that builds the judge corps in a way that is at all commensurate with this new caseload," she said.
Lots of Uncertainty
After lawmakers return next week, they are expected to advance a two-and-a-half-month CR that would extend through the middle of December. That would clear Congress through midterm and leadership elections in November and open the door for potential omnibus negotiations in the lame duck. But there's a good chance the CR could be extended beyond then.
Like last year, appropriators could huddle in December to cobble together a wrapup spending package for the entire federal government. But if Republicans capture control of the Senate in November, or if lawmakers simply can't reach a deal, they could punt fiscal 2015 appropriations work into the new Congress and pass another CR in the interim.
In the meantime, agency heads will have to tread cautiously under a CR, essentially hoarding money to pad their budgets to protect against the unknown.
“Since you don’t really know how much money you’re going to end up with, I think agencies have a tendency to be more conservative, especially at the beginning of the year because they don’t know what their final budgets are going to look like,” said Philip Joyce, a University of Maryland professor and interim dean who has written several books on budgeting, including “Government Performance: Why Management Matters.”
Federal offices have at least some certainty knowing that last year's budget deal (PL 113-67) locked in discretionary funding at $1.014 trillion for fiscal 2015, which could help with agency planning post-December.
Reprogramming and Transfers
In order to protect immigration-related programs from drying up early, Cabinet officials have some ability to shift funding and priorities within individual program accounts under a CR.
But agencies need to seek approval from House and Senate appropriators if they are looking to reprogram certain amounts of money or if they want to move funds between different accounts, known as transfers. The Justice Department earlier this month asked appropriators for a $13.2 million transfer of funds from other accounts, for example, to help expand video-conferencing, legal orientation and translation services for migrants, as well as funding for temporary immigration judges.
While transfer and reprogramming authority means that agencies won’t run out of money, the practice is problematic for other agency accounts that could be once again raided, especially if apprehensions pick back up at the border in the colder autumn and winter months.
“The problem is that the money needs to come from somewhere. You have to defund something in order to fund the other priorities,” said Dan Mendelson, CEO of Avalere Health, who ran OMB’s health office during the Clinton administration. For HHS, “what are they going to defund? FDA? CDC’s Ebola efforts? It just gets really, really hard. In the end, relying on transfer authority is very iffy.”
Apprehensions, Executive Actions
Perhaps the best relief that the border and immigration-related agencies can hope for under a CR would be securing spending anomalies.
The White House submitted its agency-by-agency anomalies wish list to the House and Senate Appropriations subcommittees last week and folded in several border-related requests. However, securing even those spending exceptions will be an uphill climb, especially if the migrant issue is not viewed as a particularly urgent crisis by lawmakers as they return from recess.
DHS announced recently that apprehensions had sharply decreased in July. If the number of apprehensions stays down, there may be little incentive to mount a fight over including any special resources to address the border crisis in the CR.
The administration has publicly tried to keep the heat on Congress to pass a compromise supplemental. Officials note that the number of border apprehensions is still significantly higher than in recent years and that the number could spike again once the weather cools down in the Southwest.
"We submitted a supplemental funding request to Congress to address the humanitarian situation at the border and we urge Congress to act on it when they return,” Melanie Roussell Newman, OMB's associate director for communications and strategic planning, said in a statement to CQ Roll Call. She added: “We are also reviewing contingency and operational options.”
Another major factor that could determine how Congress proceeds is whether the Obama administration moves ahead this month on executive actions it's planning that could allow millions of illegal immigrants currently in the United States to remain without the threat of deportation. Some Republicans, including Rep. Steve King of Iowa, have said that they would try to use a CR to reverse any such actions.
“That puts another wild card into the mix that will surely generate a political reaction that could then affect the supplemental for the end of this fiscal year, as well as ... a continuing resolution for the next fiscal year,” Meissner said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.