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Transferring FEMA funds to ICE at start of hurricane season carries risks for Trump

The Trump administration is transferring $155 million from FEMA to build temporary facilities for immigration proceedings near the southern border. (CNN Newsource)
The Trump administration is transferring $155 million from FEMA to build temporary facilities for immigration proceedings near the southern border. (CNN Newsource)
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As the Trump administration defends its move to transfer funds from the Federal Emergency Management Agency and other parts of the Department of Homeland Security to immigration enforcement and detention, Democrats and some immigration experts say the White House is defying the will of Congress and possibly federal law.

DHS notified Congress in late July that it will reprogram $271 million from other departments to Immigration and Customs Enforcement to address “the ongoing border emergency crisis,” according to a statement issued Tuesday after NBC News first reported the transfer. The plan to take some of that money from FEMA has drawn criticism from Democratic lawmakers and immigrant rights activists.

The reprogrammed funds include $116 million for ICE beds and transportation and $155 million to build temporary facilities to hear Migrant Protection Protocol cases. The $155 million comes entirely from FEMA’s disaster relief fund, while the rest of the money is drawn from several agencies, including FEMA, the Transportation Security Administration, the Coast Guard, and programs countering weapons of mass destruction.

DHS documents detailing the transfers also explain how departments intend to make up for the lost funds, with some asserting there will be no impact and others acknowledging it will limit their resources and create additional risks. The FEMA dollars come from funds carried over from previous years, and DHS projects the disaster relief fund will still carry over $447 million into 2020 “absent significant new catastrophic events.”

The $155 million amounts to well under 1% of the disaster relief fund’s current $26 billion balance, but critics are already raising concerns about undermining the federal government’s ability to respond to an emergency. The Trump administration insists the transfer of funds is necessary to address the tide of migrants arriving at the southern border from Central America hoping to seek asylum.

“The U.S. is facing a security and humanitarian crisis on the Southern border. The Department of Homeland Security (DHS) is using all appropriate resources and authorities to address the crisis and execute our missions to secure the borders, enforce immigration and customs laws, facilitate legal trade and travel, counter traffickers, smugglers and transnational criminal organizations, and interdict drugs and illegal contraband,” DHS said in a statement Tuesday.

Apprehensions of migrants trying to cross the border illegally have soared this year, mostly driven by a rise in family units and children seeking entry. This has led to severe overcrowding in some ICE facilities, and DHS warned it could run out of money and have to release new border violators without moving funds from elsewhere in its budget.

Democrats pounced on the news Tuesday, portraying the reprogramming of disaster relief funds as an ill-timed result of the Trump administration’s overzealous effort to detain and deport as many undocumented immigrants as possible. House Speaker Nancy Pelosi, D-Calif., called it “cruel” and “deeply dangerous.”

“Stealing from appropriated funds is always unacceptable, but to pick the pockets of disaster relief funding in order to fund an appalling, inhumane family incarceration plan is staggering – and to do so on the eve of hurricane season is stunningly reckless,” she said in a statement.

In addition to buying more detention beds, DHS wants to build new facilities to handle a growing docket of Migrant Protection Protocol cases, the result of the so-called Remain in Mexico policy that involves sending asylum applicants and others to Mexican border cities to await their court dates. Democrats dismissed the transfer of FEMA funds as a waste of resources.

“Donald Trump and his administration are not just endangering the lives of the children and families they seek to harm in the name of deterrence. By shortchanging preparedness, they’re endangering the lives of millions of Americans who live in hurricane zones as well,” said Sen. Jeff Merkley, D-Ore.

However, allies of the president argue congressional Democrats failing to provide sufficient resources to address the challenges at the border left the administration with little choice.

"ICE's priority caseload is growing, but the Democratic majority in the House does not support the level of enforcement that they consider to be the bare minimum for public safety and maintaining the most basic integrity of the law," Jessica Vaughan, director of policy studies at the Center for Immigration Studies, told NPR Tuesday.

Immigration advocates say there is another choice, though. As of the end of July, ICE had 9,000 asylum-seekers in custody who had passed their initial credible fear screening and could be released until their case is resolved.

“They’re not actually paroling people that don’t need to be detained... If you have people subjected to mandatory detention, that would be one thing, but the issue here is they just prefer to detain people rather than do case management programs,” said Jennifer Quigley, director of refugee advocacy at Human Rights First.

Quigley sees no need for new facilities dedicated to MPP proceedings and bringing in judges from other jurisdictions to hear the cases closer to the border when the administration can just use the existing court system to process detained migrants.

“You don’t need to create these facilities,” she said. “You don’t need to move judges around the country. This is 100% a political choice they’ve made because they want to punish people for coming here It boggles the mind as we are in hurricane season why anyone in this administration thinks it’s a good idea to take money from FEMA to create this docket.”

Administration officials have alleged setting undocumented immigrants and asylum-seekers free in the U.S. incentivizes more to make the dangerous journey north trying to get in. A backlog in immigration courts means it can take years for a case to be resolved, and some stay in the U.S. illegally after they are ordered deported or skip their court dates entirely.

According to Quigley, the presumption that making the entry process more difficult will discourage migrants reflects a failure to comprehend the factors motivating them to leave their home countries in the first place.

“There seems to be this lack of understanding that no matter what our system looks like, whether it’s very draconian or humane, that doesn’t impact a person’s decision to come when they have to flee for life-or-death reasons,” she said.

Government agencies reprogramming funds is not new, and it is often uncontroversial. President Barack Obama shifted money to cover shortfalls in ICE’s budget, as well, including taking $405 million from disaster relief funds to deal with a surge in unaccompanied migrant children at the border in 2014 after Congress failed to pass a supplemental appropriations bill.

"This reprogramming is not sustainable and leaves the nation vulnerable to unacceptable homeland security risks," then-DHS Secretary Jeh Johnson said at the time.

During negotiations on DHS funding earlier this year, Democrats pushed to cap ICE detention beds, but Republicans objected. Lawmakers ultimately provided funds for fewer beds than DHS requested, but Democrats were unable to insert language preventing additional dollars from being reprogrammed.

“Most appropriations bills and some authorization bills provide authority to reprogram funds between accounts in an agency and/or transfer funds between agencies,” said Richard Arenberg, a former Capitol Hill senior staffer and author of “Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress.

While Congress granted DHS significant leeway to move money around in response to an emergency, some experts say at least one of these latest transfers could violate the law. Language in the 2019 DHS appropriations bill limited circumstances in which funds could be reprogrammed after June 30.

Heidi Altman, director of policy at the National Immigrant Justice Center, said the bill does make an exception for detention beds so the transfer of $116 million for that is likely legal, but the $155 million from FEMA to construct MPP hearing facilities raises significant questions.

“We don’t see any justification in law that allows DHS to evade that timeliness [requirement],” Altman told reporters on a conference call Tuesday.

DHS insists both transfers fall under the authority provided by the 2019 appropriations bill. Even if it is legal, immigrant rights groups say this is just the latest example in a yearslong pattern of ICE flouting the appropriations process to get more money than Congress wants to give it.

“It’s not an isolated incident or an accident. It’s part of a concerted multi-year effort by ICE to write their own appropriations for deportation and detention,” said Gabriela Viera, advocacy associate at Detention Watch Network.

According to Viera, ICE has repeatedly exceeded its budget and turned to Congress to bail it out since well before the latest uptick in migrant activity at the border, and lawmakers have never held the agency accountable for it.

“It’s not a reaction to a need but more of a long-developed calculated strategy...,” she said. “This is ICE purposely mismanaging its money and abusing its authority to subvert congressional intent.”

Although DHS notified lawmakers about the planned transfer last month, it was confirmed publicly Tuesday as Hurricane Dorian barreled toward Puerto Rico and Florida. Around the same time, President Trump was complaining on Twitter about having to provide federal assistance for Puerto Rico in the wake of previous storms.

“Wow! Yet another big storm heading to Puerto Rico. Will it ever end?” Trump wrote, falsely claiming Congress had authorized $92 billion in disaster relief funds for the island.

With hurricane season just getting underway, Arenberg expects Democrats on the 2020 campaign trail and in Congress will continue to hammer President Trump for reprogramming disaster relief funds. Given a lack of political or legal consequences for previous controversies, though, there may not be much they can do about it.

“One would hope, and expect, that shifting funding from addressing disasters to emergencies almost entirely created by the Trump administration on the southern border would be the subject of a political firestorm,” he said.

Gary Nordlinger, a political media consultant and professional in residence at the George Washington University Graduate School of Political Management, acknowledged the optics of Trump taking money away from hurricane relief efforts days before a storm hits U.S. territory are not great, but he doubts doing so will carry much political cost for the White House at this point.

“People’s attitudes are so firmly entrenched now toward Trump, it’s not going to matter,” he said.

Democrats accuse Trump of endangering Americans in the path of a hurricane, but many Republicans will applaud the president for taking matters into his own hands after a gridlocked Congress failed yet again to address the crisis at the border. Institutionalists may complain that the administration is subverting the will of Congress, but that concern is unlikely to resonate with the general public.

One thing that could change the political calculation is if a worse-than-expected hurricane season forces FEMA to go back to Congress for more money after Trump raided its relief funds for immigration enforcement.

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“Where the problem would develop is if a hurricane does exceed the funds available,” Nordlinger said. “Then Congress will be in a terrible position of having to decide whether to appropriate additional funds. I don’t know what Democrats do then, other than say we told you so. They can’t be letting people suffer.”

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