01:09 - Source: CNN
Trump: Border protection is a 'moral issue'
Washington CNN  — 

Optimism … abounds?

That may be an overstatement, but there’s no question there’s been a shift among negotiators on Capitol Hill about the prospects for an agreement on border security that would keep the government open beyond February 15. The odds are still long, but the negotiations are both real and progressing.

There are two primary issues: the clock (and an unofficial end-of-week deadline for an agreement), and the policy, for which the primary ideological and political differences still haven’t been ironed out.

Bottom line

The reality is the most difficult issues – and there are more than one – have not been ironed out yet, so approach the optimism with proper perspective. But proposals have been traded by both sides, sources tell me, and beyond just at the staff level. It’s clear there’s a legitimate effort afoot to find a pathway to a deal – and negotiators in both parties said Tuesday they’d moved off their initial positions on the border barrier funding.

Nobody, at least at this point, can answer the key question: will they get there? But things are in a better place than they have been in a long time, multiple sources involved in the process say.

Disclaimer

The optimism came before President Donald Trump’s State of the Union address and his comments on immigration, which were received quite poorly by Democrats in the chamber. There’s no sense right now, from aides involved in the negotiations, that it will have any broader effect on the conference committee, but expect Democrats to make their displeasure quite clear on Wednesday.

What to read

Read Ted Barrett and Manu Raju’s excellent piece reflecting the tonal shift on Capitol Hill regarding the current negotiations.

What to watch

House Democratic Caucus closed-door meeting, 9 a.m. ET.

Closed-door briefing on border security for conferees, 10 a.m.

House Democratic Caucus news conference, 10:15 a.m.

House Republican leadership news conference, 11 a.m.

One positive, if small, sign

Members of the conference committee are expected to attend a closed door briefing by career border security officials at some point on Wednesday. The closed-door nature of the meeting – and the fact it was originally proposed as a briefing conducted by career officials, instead of political appointees – was seen by some as a positive signal from Republicans.

A good reality check

There’s a finite amount of time remaining to reach a deal – Thursday night or Friday morning is the timeline most on Capitol Hill are working under, lawmakers say, which in a best case scenario could possibly slip a day or two and still give both chambers time to pass any final agreement.

But it’s worth remembering the divide isn’t exclusively over Trump’s border wall funding request. There are also sharp disagreements on the types and levels of increased border personnel and things like the number of detention beds available for undocumented immigrants detained at the border. There are stark divides over these issues, too – divides considered no less divisive inside the respective parties.

A second good reality check

The timeline is tight, no question. But in Congress – even in the Senate – things can move very quickly when an agreement is reached. Or, as Senate Majority Leader Mitch McConnell put it to reporters on Tuesday: “When you reach an agreement, things happen rapidly around here. And we are hoping they are able to do that and the President indicates he’s willing to sign the bill.”

The Trump card

Republican lawmakers and staff, to a person, acknowledge a reality that seemed unthinkable only a few weeks ago: they’re moving forward without knowing what Trump would support or sign. In the words of McConnell, who held firm for weeks to the position that nothing would move forward in the Senate without the President’s signoff: “I think we don’t yet know what his view is on this, but I think the conferees ought to reach an agreement and then we’ll hope that the president finds it worth signing.”

While the White House has been kept in the loop on the current discussions – acting chief of staff Mick Mulvaney has spoken to many of the conferees, sources say – and Vice President Mike Pence and the legislative affairs team receive regular updates, the administration hasn’t proposed any numbers or language of their own, two sources familiar with the talks tell me.

It is, to some degree, exactly what lawmakers on both sides have requested: for the President to stay out of things and let the negotiators work their will. But that cuts both ways – it sets up the very real possibility that negotiators reach an agreement the President rejects.

What Trump said in the SOTU

Trump, in his State of the Union address, cited his proposal sent to Congress that included $5.7 billion in border wall funding, describing the wall as “a smart, strategic, see-through steel barrier – not just a simple concrete wall. It will be deployed in the areas identified by border agents as having the greatest need.”

Of note, that proposal failed to advance in the Senate 50-47. Sixty votes were needed to move the proposal forward. Beyond the policy, the immigration was sharply reflective of the position – and tone – the President has taken on the southern border for years. Anyone looking for a grand gesture (or even the smallest twig of an olive branch) on the issue, well, this wasn’t the speech for that on immigration.

What Democrats didn’t appreciate

Speaker Nancy Pelosi’s response to Trump’s border security and wall portion of the State of the Union:

“Instead of fear-mongering and manufacturing a crisis at the border, President Trump should commit to signing the bipartisan conference committee’s bill to keep the government open and provide strong, smart border security solutions.”

Parsing the wording

Aides on Capitol Hill made clear they didn’t see any part of the President’s remarks as a move toward a compromise, but several pointed out that strategic deployment, at the recommendation of border agents, could conceivably pair with the Democratic position that any security measures must be evidence-based and recommended by the professionals who work at the border.

That said, how either side would define “strategic” is both unknown and central to any agreement. And the President’s pitch of a steel barrier is not, on its face, something Democrats would accept, aides involved in the talks say. Nor is the central focus on a wall itself, as the President again made clear is his stance: “Simply put, walls work and walls save lives,” he said Tuesday.

One senior Democratic aide responded simply: “Oh, c’mon,” when I asked if anything in the President’s speech provided any movement toward a possible deal. The point, the aide said, was this: one of the chief complaints from Democrats is there is little insight into what, exactly, the President would accept in terms of any kind of compromise on a border barrier.

A Democratic view

“It’s all atmospherics, and let’s be honest, the words barely even matter at this point,” the aide said. “The actions do.”

Laying the groundwork

In keeping with consistent messaging from the Trump administration of recent weeks – messaging many on Capitol Hill view as laying the groundwork for a potential national emergency declaration – the President referred to illegal immigration on the southern border as an “urgent national crisis.” That said, there was zero mention of a national emergency declaration in the President’s remarks. Only a call to “work together, compromise and reach a deal that will truly make America safe.”

That’s a far cry from his comments last week, which included the proclamation that if any agreement didn’t have a wall, “I don’t even want to waste my time reading what they have because it’s a waste of time.”

About a national emergency

02:44 - Source: CNN
Trump on immigration: 2018 and today

The Senate Republican apprehension about Trump declaring a national emergency as a route to fund the border wall has become a common theme, but the extent of the jam such a move would put the party in is perhaps less so – and underscores why Republicans are so wary about it.

McConnell garnered some headlines for refusing to declare how he would vote on an effort to block such a declaration, saying: “I’m going to withhold judgment about that until we see what he does.”

But McConnell’s general opposition to the idea isn’t a secret – he’s said as much publicly. The real issue now – one that has been communicated to the White House and directly to the President – is the precarious position any declaration would likely put his conference in in the weeks that followed.

Rank-and-file Republicans have voiced concerns about the move on ideological grounds, on constitutional grounds and on precedent-setting grounds. Those Republicans, should they be confronted by a resolution of disapproval, would be forced to vote for something they appear to oppose and stick with the President on his central policy issue or vote against him.

“We’ve not had the procedure before because the national emergencies that have been issued in the past have not been contentious. I’m pretty sure that this one would be,” McConnell said with a chuckle. “It’s a fairly rapid process, with a simple majority vote in the Senate, so all I’ve discussed with the administration is simply the process.”

The process, if needed

McConnell makes one point there that’s worth keeping in mind: this isn’t something the Senate has been confronted with before, so there isn’t necessarily a hard and fast roadmap for what would occur, but the topline process is outlined in the law (see: 50 U.S. Code § 1622).

In short, if the President pulls the trigger on a national emergency declaration to fund the border wall, House Democrats could quickly move on a resolution of disapproval to block the declaration. Given that Democrats hold the majority, its passage is virtually assured.

Then it would move over to the Senate, where there simply isn’t a viable way to block the resolution from coming to the floor. According to the law, the Senate would have 15 days to consider the resolution in committee, then another three before it would reach the floor (though it could be moved to the floor sooner). The resolution would be privileged and subject to a simple majority threshold.

That is a vote – and an issue more broadly – Republicans have made crystal clear they’d like to avoid. Trump, meanwhile, has made exceedingly clear the option remains on the table if no deal is reached on legislation to fund his border wall.

That, of course, doesn’t even account for the fact Democrats have made clear they’d take any national emergency declaration to court as soon as one was made.

As one senior GOP aide put it to me: “At some point very soon, something has to give. Let’s just hope the give is some kind of conference committee agreement.”