It's not the Right that frames it that way.

If everybody agrees on a fence, why not vote on a fence? Why MUST the fence be held hostage to an argument about who can use the gate?

We don't hold up construction of skyscrapers until every office is leased....a thing can be built, without definite ideas of who can use it...

The risk they take is being blamed for killing the deal. The deal they demanded.

It is like real estate, you make an offer, the other party makes a counter offer and so on and so forth.

You do not say this is my final word and then get all shocked when the other party says ok bye then.

It seems there has to be a way. Even if they start the fence first, or appropriate the money first, there will need to be more courts and detention centers and agents and some kind of workers program to take pressure off the wall. And these folks who are here have to be dealt with sooner or later. I mean I listen to people complain about them, they don't like them not paying taxes and not contributing..well then what? Most Americans support some sort of program in place to make at least some of these people legal. Most Americans do not want to bust up families or see millions of people deported in some big roundups. Things like that have a tendency to get ugly.

There has to be a way to make a workable compromise here that can actually pass. These people are supposed to be lawmakers not demogagues. I hope this does not turn into another ANWR where nothing ever goes any where.

The Yell:

If everybody agrees on a fence, why not vote on a fence? Why MUST the fence be held hostage to an argument about who can use the gate?

Because the Democrats don't "agree on a fence." They don't want a fence; they will reluctantly accept a fence, if that's the only way to get some form of normalization.

But they're not going to give it to the conservatives for free.

Would you, as a conservative, trust the word of the Democrats or the moderate Republicans in the Senate? If they promised that, if you'll just give them normalization and a guest-worker program, they will absolutely vote in favor of a fence later, some time down the road?

Of course you wouldn't. You'd figure that as soon as they got what they wanted, they would lose all interest in giving you what you want.

By exactly that same reasoning, Democrats and moderate Republican senators do not trust you. They believe that if conservatives get their fence first, "first" will end up meaning "last" as well.

Thus, the only way you will ever get your fence is if it's part of a comprehensive bill that also -- in the same bill -- includes the other stuff.

That's the deal: take it and get a fence; or spurn it and get no fence. Nobody is going to give you a fence on credit, Yell.

Dafydd

There has to be a way to make a workable compromise

I wonder if my American Indian ancestors had similiar thoughts when the Europeans started showing up in droves on the Eastern Seaboard,

What are some of the figures for Immigration under these new plans over the next 20 years?

I have heard 66 million, 100 million?

Dafydd if things get REALLY bad, we might end up with a fence and a for sure militarised border.

So this is the Pence and a Fence deal is it? Sounds pretty flaky. And yeah, what ABOUT those millions already here?

By the way, nicely turned phrase (and a wink to Golda Meier):

"...I can only conclude that Mike Pence hates illegals already here more than he fears future waves pouring across an unprotected border..."

Most Americans support some sort of program in place to make at least some of these people legal.

That's indeed what some highly questionable polls show. They usually go something like, "would you support regularization, or would you support turning every immigrant into a felon and shipping them in cattle cars back where they came from?"

Hey, I just noticed. That's the same false choice you offered in the rest of the paragraph.

Other issues with the Pence scheme are discussed here.

BigMediaBlog:

That's indeed what some highly questionable polls show. They usually go something like, "would you support regularization, or would you support turning every immigrant into a felon and shipping them in cattle cars back where they came from?"

Let's test your characterization of recent polling questions as being "questionable" and biased. Here are the most recent immigration polling questions about normalization that I can find:

• CBS News poll, 5/15 - 5/17:

"Would you favor or oppose allowing illegal immigrants who have done the following to stay and work in the United States: paid a fine, been in the U.S. for at least five years, paid any back taxes they owe, can speak English, and have no criminal record?"

Favor: 77; Oppose: 19; Unsure: 4.

• CNN Poll, 5/16 - 5/17:

Would you favor or oppose each of the following proposals? Creating a program that would allow illegal immigrants already living in the United States for a number of years to stay in this country and apply for U.S. citizenship if they had a job and paid back taxes:

Favor: 79; Oppose: 18; Unsure: 3.

• Fox News Poll, 5/16 - 5/18:

Fox News asked "There have been several proposals regarding how to deal with the issue of illegal immigration. Please tell me if you favor or oppose each of the following." But then they did not ask about normalization!

Instead, one of the choices was:

Trying to send as many illegal immigrants back to their home countries as possible.

Favor: 55; Oppose: 31; Depends: 11; Unsure: 3.

I found it rather curious that they didn't even offer legalization of some illegals as an option; I wonder what result they would have gotten? It's such a curious lapse that I almost suspect the "desk-drawer" fallacy... but I wouldn't go so far as to accuse them of that.

I wish they would just straightforwardly ask. But even so, notice how much weaker support is for this option (which is also oddly worded, avoiding the dreaded "d-word"): Favor only wins by 13% over (oppose plus depends); while with the more straightforward proposals, normalization wins over non-normalization by a whopping 58% and 61%.

Nope; I just don't see any references to felonies and cattle cars... can you cite some examples?

Dafydd

Dafydd, I know you don't like to consider the point of view of the 'Fence Builders', but the point you made is broken. You said:

"By exactly that same reasoning, Democrats and moderate Republican senators do not trust you."

Well, I submit to you Dafydd that it is NOT the exact same reasoning. The fence builders already DID trust the Democrats and moderate Republicans, and got burnt. The *mn*sty passed, and the Border Security never happened. We just don't trust the *mn*sty folks because of their track record... they lied in the past, and we expect that they are lying now.

I also think you conflate 'normalization' with 'citizenship'. A lot of conservatives I talk to would be happy to allow people already here to work here legally, but draw the line at offering them Citizenship. Some want to make Citizenship impossible for them forever on the grounds of their lawbreaking (making them felons) I just think they should get in line BEHIND those already working their way through the system legally.

Remember the LEGAL immigrants, and the applicants who are following our rules? Process them first, THEN address the applications of those already here. Want to mollify the Fence builders? Don't reward illegal behavior by providing them with the highest award we can bestow while ignoring those who obey the law.

...and of course, after I wrote my last post, I finally get to Sachi's post on Sgt. Walt Gaya.

This whole blog design where the most recent post is on the top means I have to read the posts in reverse order... grrr....

Anyway, I retract any snark I posted about you remembering the legal immigrants. I still support them vigorously over the illegal ones for a 'path to citizenship', but I retract the snark.

And apologize.

Mr. Michael:

Well, I submit to you Dafydd that it is NOT the exact same reasoning. The fence builders already DID trust the Democrats and moderate Republicans, and got burnt. The *mn*sty passed, and the Border Security never happened. We just don't trust the *mn*sty folks because of their track record... they lied in the past, and we expect that they are lying now.

No, that doesn't contradict what I said at all, MM. I don't expect conservatives to trust moderates at all (and for God's sake, not Democrats!)

That is why I say only a comprehensive bill will work: you will only be satisfied by a bill where the fence is already enacted, fully funded, and appropriated.

Harry Reid will only be satisfied by a bill where normalization is already enacted, fully funded, and appropriated. See how it works?

That's the whole point: the only person you have to trust is the administration -- and not this one but the next. But you have to trust the administration anyway, even with a bill that is nothing but enforcement... if the president (whoever he or she is) wants to sabotage it, there's nothing you can do about it.

But as far as Congress is concerned, I don't expect you to trust the liberals or the moderates; and you shouldn't expect them to trust you. Be suspicious; nail down every important point.

Then you'll have a bill that you may not like... but one you can live with.

By the way: no, I don't conflate normalization with citizenship; I presume citizenship will always have a much higher standard than mere legal residency... as it should.

I suspect a lot of those granted residency won't even want to be become citizens; it should take a lot of work -- and if all they want to do is work, there's no need. Their kids will be citizens by birth.

But I want the path open for those who can prove that they really will make good citizens... even if they felt driven by circumstances to circumvent a capricious law.

Make the standard tough; but don't make it impossible.

Dafydd

Here is another way of looking at the problem. We have about 12 million people he who are here contrary to our laws. There are probably at least a couple hundred million around the world who would like to be here, even given the current illegal immigrant status. So what do we do about them.

A gestapo rounding up and export of all the illegal immigrants is a non-starter practically, politically, morally, ethically and just about every other -ally you can come up with. Yeah there are some who call for it, but they aren't likely to have really thought it out. Or to put it another way, we probably have at least that many if not more people who committed a crime and haven't been caught (a lot more if we include speeding, jay walking, etc). Imagine if we tried to round up and throw in jail everyone who had broken a law. Yeah, they broke the law, but lets be part of the reality based community for a while.

On the other hand, we have those hundreds of millions who would like to be here (most prevented from getting here by their own poverty and geography). We also have a screwy proposal on whether you get amnesty based on how long you have been here (does the term 'undocumented' just total escape your grasp). We need to do something, but what? And just as another aside, while there is truth that some of the jobs the illegal aliens could be done by our own unemployed, the reality is that if our own unemployed spoke english, would be willing to work as hard as the illegal alien and willing to work for the same wage, then they wouldn't be unemployed. There is nothing stopping our unemployed from competing with the illegal aliens and realisticly, all things being equal, the ability to speak english would give them a leg up. So realistically thinking about it, we as a nation will probably need to have some sort of transition period for the jobs the illegals are doing now.

A corallary to the law of unintended consequences is to not make major changes quickly as that is like to make any unintended consequences worse. So if we could keep gain control of the border so we would realistically control how many people are coming across, persuade those here now to leave peacefully, persuade a new batch (okay it can be the same batch we don't really care) to come do the same jobs and not produce incentives to get more people from comming in illegally, that would be ideal. Regularizing those already here is more about the reality of what do we do with them and less about the wisdom of encouraging illegal behavior (see paying ransom to terrorists).

So start with a fence. This is part of getting control of the border. Second have a guest worker program that allows processing through multiple ways (not just brick and mortar). Add employer sanctions that raise the cost of hiring illegals to the point that American unemployed and guest workers make a much better solution for employers. Have the federal government reimburse state and local governments for the cost of enforcing immigration laws (yeah there probably needs to be some provisions for towns not to make this the new speed trap funding scheme), Have the federal government stop funding state and local governments that provide services to illegal immigrants (they can continue to provide it, they just won't get federal funding to the amount that they do). Let nature take its course.

Under that scheme, illegal alliens will gradually be squeezed out. Many will deport themselves. The smart ones will arrange with a current employer to come back as a guest worker, once they manage to deport themselves. Some will stay illegal no matter what we do. And over the generations, the problem will resolve itself if the border is secure.

But all of that (and any other scheme I have heard proposed) fails if we can't control the influx of other illegal aliens. Those who are insisting on a fence are generally not doing it because they are racist, hate immigrants, can't understand about political bargaining or whatever. It's that no one has presented a plan that won't just cause us to have the same or worse problem 10 years later unless we have control of the borders. And we have history that shows this along with common sense.

Better to have nothing from this bill, and kill thisbill, and then send them a fence bill by itself. As many times as it takes, until the moderates accept the political reality that they don't have the numbers to get away with packing a straightforward bill with stowaway provisions.

The Yell, it sounds to me like you're willing to go along with the scorched-earth tactics of Tancredo than to actually solve the problem.

Which, in my opinion, makes you part of the problem.

The Yell:

Better to have nothing from this bill, and kill thisbill, and then send them a fence bill by itself. As many times as it takes, until the moderates accept the political reality that they don't have the numbers to get away with packing a straightforward bill with stowaway provisions.

That would work -- if there were any chance that the 2006 election would result in the House and Senate dumping moderate Republicans in favor of conservatives.

I don't think even you imagine that is at all likely.

Clearly we disagree on one point: you believe that if the House conservatives stubbornly refuse even to consider anything but enforcement, if they stick to their guns come hell or high horse, if they give the back of their hands to the Senate... then voters will be really impressed by their steadfastness and reward them in November.

The guys at Power Line think the same, as does Captain Ed, as does Michelle Malkin. But I recall previous predictions of theirs about elections, and I didn't think they did very well.

I, contrariwise, believe that if the Republicans fail to come together on a bill, the Democrats will have a lot to celebrate on November 7th. I believe in that case, they will take the House and pick up seats in the Senate.

Which, if it happens, makes an absolute dog's breakfast out of your scenario of the House sending an enforcement-only bill to the Senate "as many times as it takes." The Democrats -- who will control the House -- are not likely to follow your strategy.

I hope very much that we never get to find out which of us is right; I hope that the House Republicans bend, and the Senate Republicans bend, and we actually get a bill neither likes but that both can live with.

I'm a political thrillseeker; but the alternative scenario is more thrill than I care to seek.

Dafydd

Dafydd and Readers-

The President recently acted to beef up border security by having National Guard troops sent to the border and promising to replace the NG with border patrol agents in the future. It now looks like it is going to happen, because California and Arizona are cooperating. So my question is: Just how far can the President, acting on his own, go to improve border security?

Border security is certainly a law enforcement (executive) function. I don’t think there are any legal impediments for the President acting unilaterally (i.e. without enabling legislation) to do most, if not all, of the things that have been discussed to reinforce the border -- guards, fences, virtual fences, electronic surveillance, even flying drones.

Of course there are funding limitations. At some point, probably sooner rather than later, the President would have to ask Congress for more money. But there obviously is SOME mad money jingling around in the Federal piggy bank to at least get started -- as indicated above, it has started already.

So the scenario could be this: The House and Senate both dig in their heels, and either no Conference Committee bill emerges or the bill fails in one or both houses. The President then goes before the nation and announces that, as long as the children on Capitol Hill can’t learn to play nicely, he’s going to do what he can, using his executive powers, to see that the problem at least doesn’t get any worse before Congress can finally get their act together. (Well, his address to the people might be worded a bit more delicately, but…) (And set aside for the moment any concern that the President might be wrong and this wouldn’t serve to prevent the problem from getting worse.) He then basically challenges Congress to fund his law enforcement effort for border security.

This could create a very interesting political situation. Nearly everyone thinks we need improved border security. Many, including some highly regarded reptilians, think border security alone is a bad idea. But some of those folks (presumably not including our genial head iguana) may well think that half a loaf (or less than half, if you prefer) is better than none. The House would probably snap to and pass the funding legislation. What would be the political ramifications if the Senate held out for “comprehensive or nothing”? Could this be a case where failure to act would be seen as Democratic, rather than Republican obstructionism? And could we thereby keep Nancy Pelosi and Harry Reid firmly ensconced in their minority roles for at least another two years?

PLEASE NOTE: THIS POST DOES NOT, REPEAT, NOT PROPOSE THAT THE ABOVE WOULD BE SUPERIOR TO COMPRHENSIVE IMMIGRATION REFORM!!! I just wonder if there would be a way to turn the sow’s ear of Congressional failure to act into a silk purse for the Administration and Republicans. And if the above series of events induces the Senate to pass a comprehensive bill that the House can stomach, how bad would that be?

Dick E:

Of course there are funding limitations....

You've touched it with a needle. Congress must appropriate the money for the fence before the feds can build it.

Bush isn't the owner of America; he's just an employee. He can't just spend Treasury money any old way.

Congress appropriates money for specific purposes, then authorizes the actual expenditure. If they appropriate and and authorize spending on, say, Hurricane Katrina recovery, the president cannot legally use that money to build a fence instead.

That would be criminal; Bush could be sued, and the court would issue an injunction on the illegal use of the money; all kinds of horrible things.

So unless Congress specifically authorizes spending on building a fence, Bush can't just build one.

Nor could he do it with private money. The fence must necessarily be on either federal land, state (or county or city) land, or private property:

• Private citizens can't build on federal land without permission from Congress.
• You cannot seize private property under eminent domain unless you have the legal authority to do so, which Bush wouldn't have if there were no congressional authorization to spend the money.
• And as for state land, states certainly would not be required to allow federal use of state land in the absence of any legal (congressional) authorization.

Moderate Gov. Arnold Schwarzenegger of California, Democratic Gov. Janet Napolitano of Arizona, and Democratic Gov. Bill Richardson of New Mexico would probably all three say "no," not wanting to get in the middle of a war between the president and Congress.

(Republican Gov. Rick Perry of Texas might let it slide, but it would still be a screaming mess.)

Oh, and most of the Republicans in Congress would oppose Bush doing that -- even those who support the wall; there is nothing that will stir up Congress more than being dismissed as irrelevant by the Executive. Remember Hastert's and Sensenbrenner's reaction to merely searching a Democrat's offices with a warrant?

The Democrats would threaten impeachment en masse, and at least half the Republicans would join them.

It's a clever idea, but it wouldn't work out the way you hope: you would end up uniting the House and Senate and three of the four border governors against the president.

Whatever Bush does, he must have congressional approval for it. (I believe Congress voted to authorize the NG thing, by the way.)

Dafydd

Dafydd-

I Googled to find out what I could about Congressional action regarding Bush’s deployment of National Guard troops to the border. Of all the articles I looked at (ABC, CBS, CNN, WaPo, MSNBC, among others) the only reference to Congressional funding was on ABC, which said “[Bush] called on Congress to provide funding for dramatic improvements in manpower and technology at the border.” They don’t specifically say so, but it sounds to me like they were talking about future efforts, over and above the NG deployment.

This stands to reason. Sure, Congress controls the President’s budget. But they don’t specify exactly how every dollar must be spent. In the Army’s budget, for example, there might be a line item for small arms. I would be very surprised if the budget specified how many rifles, pistols, and machine guns the Army must buy and what models they must be. (Although Congress may very well get involved when new models are proposed; but this may be more about pork barrel politics than serious budgeting.) The same line item might also include ammunition, and there it is even less likely that Congress would be able to divine in advance the Army’s needs. And what would happen if, ten months into the year, the Army runs out of guns or ammo? Do they just have to stop shooting? Do they need to run to Congress for a supplemental appropriation for every line item they might run short on while other categories may be under spent?

Not likely. A budget is not a straight-jacket. It must allow some flexibility in how funds are spent. Budgets normally set maximum spending limits for categories of expenditures, but do not usually specify not-to-exceed maximums for each line item, nor do they designate exactly how the money is to be spent.

The question, then, is how broad are the categories within which budget dollars can be shifted? I assume that shifting between the Defense and State Departments would not be allowed. And shifting between the National Guard and border security budgets would likely also be verboten.

But what really happened in the NG deployment is that the President cleverly used already appropriated NG funds to send the NG troops to the border for their regular annual active duty assignment. No Congressional appropriation required. At first, there was a bit of a fuss from some Congressprimadonnas, but that died down pretty fast.

Bottom line: Congress did approve the funds for the NG deployment, but that was just part of the NG’s regular annual budget. No separate Congressional approval was given OR REQUIRED for the border deployment.

* * * * *

“Congress appropriates money for specific purposes, then authorizes the actual expenditure.”

Don’t think so. Congress does indeed appropriate money, but once appropriated (by passing a bill that the President signs into law) it’s up to the President to spend the money as he sees fit, within the parameters of the authorizing legislation. Once the law is passed, the President doesn’t need to send a “request for expenditure” for Congress to sign every time he wants to spend appropriated funds.

Congress appropriates (i.e. authorizes) money to be spent, but that is not necessarily a command that it MUST be spent. If they appropriate a gazillion dollars for Katrina relief, but the job only costs half a gazillion, the President is NOT required to be stupid and spend the money anyway. (There may be some exceptions where Congress can require every nickel to be spent, but I can’t think of any. Besides, in government, such a requirement would generally be superfluous.) But you’re absolutely correct, the excess Katrina-designated funds could definitely not be used to build a border fence.

And using private funds? Don’t know where you came up with that one, but you’re right, it’s really dumb.

* * * * *

So no, I’m not proposing that the President play a shell game with his budget. Within his border security budget, there is probably very little he can do other than shift funds from one pocket to another. But he can use money creatively. I don’t think there is anything preventing him from using money that was appropriated for border guards to build a fence. While the first part of the fence is being built, National Guard troops fill in for the border guards who have been laid off. Once the first section of fence is completed, the need for border guards would be reduced somewhat on that part of the border. That would either free up more funds for fence building or reduce the need for NG troops. Then build another section of fence, further reducing the need for guards, etc., etc. Remember that border guards must be employed continuously with a never-ending cost. A fence is built just once. It would require maintenance and would certainly not eliminate the need for border guards, but fewer should be needed.

OK, I may be totally wrong, and it’s really impossible to use border guard money for a fence. And even if it could be done, there would be a great hue (ab Hugh?) and cry from Congress over such imperious behavior. Next budget cycle our legislators would write the appropriation guidelines so tightly that the dimes would squeak. End of creative spending.

* * * * *

But back to the broader point. The President has ALREADY done something unilaterally to improve border security (the NG deployment), and the expected squawking and wing flapping was very short lived. What if, after Congress fails to pass an immigration reform bill, the President just says, in more moderate tones than in my last post, that we really need to move forward on border security, even if we can’t agree on all the related issues? He already has gone a step in this direction -- see the first paragraph of this post.

If the situation plays out this way, there would be no reason for the border state governors to be upset, the House probably would get on board, and the Senate could well be seen as obstructionist if they don’t act.

(Consider the last 2 paragraphs of my previous post to be replicated here.)

Dick E:

Don’t think so. Congress does indeed appropriate money, but once appropriated (by passing a bill that the President signs into law) it’s up to the President to spend the money as he sees fit, within the parameters of the authorizing legislation. Once the law is passed, the President doesn’t need to send a “request for expenditure” for Congress to sign every time he wants to spend appropriated funds.

I was going by memory, and I should have looked it up; I reversed the two terms:

1. First, Congress must vote to authorize spending on certain projects, agencies, or other areas.
2. Next, Congress must vote to appropriate money "within the parameters of the authorizing legislation," as you put it.

But once they have done that, the president cannot simply take money appropriated for, say, hiring more members of the Border Patrol and blithely use it to build a fence instead, in the absence of any Congressional authorization or appropriation to do so.

The feds don't have to consult Congress on how much of the Border Patrol money to spend on advertising to get recruits or how much to spend on sending recruiters to various places. But every bit of the money spent by the Executive, pursuant to that appropriation, must be spent for increasing the number of Border Patrol agents.

What you appeared to be suggesting -- perhaps I misunderstood your point -- was for the president to take funds appropriated by Congress for some other border-related purpose (such as the Border Patrol or for employer enforcement) and instead use it to build a fence... in the event Congress considers and rejects building a fence.

The Executive is legally bound to follow the congressional authorizing and appropriating legislation as it spends money appropriated by Congress. They cannot simply go joyriding.

I don’t think there is anything preventing him from using money that was appropriated for border guards to build a fence.

He definitely cannot. Money authorized and appropriated for hiring more Border Patrol agents is specifically directed to the United States Border Patrol, a federal agency, and it doubtless includes language that incorporates the budget submitted by the White House. Bush cannot say "only kidding!" and instead use it to build a fence.

Border Patrol agents cannot build the fence; that would be a different department or agency entirely... something involved in construction, whether it was the Army Corps of Engineers or something handled through Interior or DHS. And it wasn't in the submitted budget for the USBP anyway.

The fence will also have to go through the normal EIS procedure, and a federal court can issue an injunction in response to the inevitable lawsuits.

If Congress authorized the fence and included Hugh Hewitt's "notwithstanding any other laws" formulation, even that itself would have to be litigated; the courts would have to decide that such legislation was not unconstitutional. (I think they would, but it would take time and appeals.)

Bottom line: the executive cannot undertake vast projects without congressional approval -- or worse, if Congress considers and explicitly rejects them. They must stay within the congressional authorization and spend money only for the purpose it was appropriated.

I believe the Court has held that the Executive can refrain from spending some of the appropriated funds; but they cannot then be shifted to other projects entirely.

(Imagine if a future Congress finally authorized drilling in ANWR, appropriated the money, the president signed it... and then announced that the funds would instead be used to construct caribou shelters, on the theory that, "hey, it's still being spend on a big construction project in ANWR!")

The President has ALREADY done something unilaterally to improve border security (the NG deployment), and the expected squawking and wing flapping was very short lived.

You're probably correct that the NG thing was entirely the president's idea; but in reality, Bush didn't order them anywhere: he got the border governors to go along with telling their own guard units to deploy to the borders, which is well within their purview.

I remember headlines about California Gov. Arnold Schwarzenegger first being reluctant, then after talking to Bush, grudgingly agreeing to send the CNG down south.

They reached an agreement under which California will contribute about 1,000 Guardsmen for border duty and the federal government will pick up the full cost, Schwarzenegger said....

However, in a separate act that was not part of the agreement with the federal government, Schwarzenegger will sign an executive order that ends the California National Guard's participation on Dec. 31, 2008, state officials said....

Schwarzenegger's decision ended an awkward period for the Republican governor. He held out longer than Democratic governors in Arizona and New Mexico before saying he would send troops....

Arizona Gov. Janet Napolitano signed an agreement Thursday for her state to participate in Bush's plan, with 300 Arizona National Guard soldiers set to take part beginning in mid-June.

The president cannot order the National Guard to do anything unless he federalizes them; and if he does, they become the equivalent of the Army, and they cannot be used for civilian law-enforcement purposes because of posse comitatus.

All Bush did was persuade the governors to send their guard units to the Mexican border. Congress has no say over that -- and neither does the prez. It's entirely voluntary.

Theoretically, I don't think there is anything stopping the states from building their own walls, either; California, for example, has several miles of fencing.

But it's very expensive (especially including the litigation); and no state is likely to undertake such a task without federal funding. So we're right back to the U.S. Congress.

...And the Senate could well be seen as obstructionist if they don’t act.

The best thing is if the comprehensive bill is passed.

But if no bill ends up being passed, the second-best scenario is if the House already passed it; then in the Senate, the Republicans have more than 50 votes... forcing the Democrats to filibuster the legislation.

Then the Republicans can run against the Democrats' refusal to take border control seriously. Alas, I highly doubt that will happen.

More likely, if there aren't enough carrots, the nays will comprise 44 Democrats, one independent (Triple-J), and seven Republicans, for a total of 52; and the Dems won't have to filibuster.

The rejection will be "bipartisan," preventing the Republicans from using it in the campaign.

Dafydd

Dafydd-

“The best thing is if the comprehensive bill is passed. *** But if no bill ends up being passed, the second-best scenario is if the House already passed it…”

I won’t dispute (for now) your choice for “best”, but I think you have already shown why your “second-best” is, at best, a very distant second.

But what is the likelihood of either scenario?

The real question is what will come out of the Conference Committee? I think we can be certain that, while the committee members will be interested in bringing forth a good bill, they will also be very much aware of what is likely to pass in each house -- what cynics might call “political realities”. Would the Republican majority on the Conference Committee really want to shoot themselves in the foot by sending up a bill that meets the fate you describe in your “second-best scenario”? I suspect that they can read the tea leaves at least as well as the head gecko.

For the same reason, I doubt that they would want to send up a comprehensive bill that the House would be sure to reject. Again, Republicans would be viewed as “obstructionist”.

Given how different the House and Senate bills are, how LIKELY is it (not how good would it be) that the committee comes up with a bill that would satisfy the Senate’s desire for comprehensiveness, while answering the House’s call for enforcement?

And I don’t think much political capital needs to be spent in conference. We hear lots about what happens on the House and Senate floors and in committees, but when is the last time a Conference Committee’s action (or failure to act) became a big political issue?

So I repeat (and I know you don‘t think this is the “best” solution, but it may be the best we can get for now): The Conference Committee deadlocks and doesn’t report a bill. The President seizes the opportunity and calls on Congress to fund improved border security. He probably wouldn’t want to ask for so much that it looks like he’s abandoning his “comprehensive” strategy. If he doesn’t get it, the Democrats are being obstructionist. If he gets it, we at least make some progress, and the dance continues next year.

Dick E:

Given how different the House and Senate bills are, how LIKELY is it (not how good would it be) that the committee comes up with a bill that would satisfy the Senate’s desire for comprehensiveness, while answering the House’s call for enforcement?

That depends entirely upon the attitude of the hotheads in the House and Senate. A compromise bill is quite doable... but is either house in the mood to compromise?

That will depend upon what they think is the price for failure. It doesn't much matter whether the conference reports a bill and one or the other house rejects it, or whether the conference fails to report a bill: either way, since the Republicans control both chambers, they will be blamed.

(The only exception is if there is a majority in both chambers, but the Democrats filibuster in the Senate; then the Democrats will be blamed.)

If the chambers think the penalty for botching the immigration bill is nothing much, then they just sit on their respective thrones, each glowering at the other.

If they perceive the penalty as severe, I think they'll swallow their tongues and find some circumlocution to make it seem they're standing fast, when in fact they're rolling over like an insomniac.

I'm in the latter camp. I would give much for two things: a dam with a spillway... and significant rational reform of the legal immigration system.

For those, I would accept almost anything. (Almost anything.)

Dafydd

Dafydd-

Time out.

Do you think the MSM do things to TRY to make us mad? (Silly question.)

Tonight on “60 Minutes”, Ed Bradley had a penetrating presentation on illegal immigration. The highlight was footage of illegal aliens storming the border en masse at one of the regular (apparently urban) border crossing stations. He described what happened a few years ago: Mexicans (et al) figured that if they just ran across the border in large enough groups, say 50 or 100, we couldn’t catch them all. It worked. We caught a lot of them, but far from all.

So we built sections of fencing along some of the major border crossings. The result, of course, was that people just avoided the major crossings and went out into the desert to cross over. Naturally, that is much more dangerous, so the coyote industry grew to accommodate the new demand.

Now, says Mr. Ed (I couldn’t resist), illegal immigration is much higher than it was before we built the fences, so we just wasted our money, didn’t we, Mr. Expert Guest?

Of course, nods Mr. Expert Guest, obligingly.

I’m sure the Border Patrol longs for the good old days, but updated, so that they could be chasing hundreds (thousands?) of people running through the streets of El Paso and Imperial Beach.

Dafydd-

I heard something on the news today that made me think again about the border fence issue we’ve been jousting about. I Googled [“national guard” border fence] and found some interesting hits. It seems that Bush’s plan all along has been for the NG to work on fence building.

From CNN today:
http://cnn.netscape.cnn.com/news/story.jsp?floc=ne-main-9-l1&idq=/ff/story/0001%2F20060605%2F1226475069.htm&sc=1110

From CBS last month:
http://www.cbsnews.com/stories/2006/05/24/politics/main1653802.shtml

And I just returned from a medical appointment where an issue of US News from late May (the story with a picture of Bush riding in a Border Patrol vehicle) said the NG would be used for, among other things, fence building.

Now, I don’t know what Federal budget dollars are being used for the NG to build fences, but I’m pretty sure it wasn’t budgeted exactly that way -- “Funds for National Guard troops to build border fences”. So I think that pretty definitively answers the question as to whether Federal dollars can legally be used for purposes (well, at least THIS purpose anyway) not specifically detailed in the budget. If it were illegal, you know there would be plenty of whooping and hollering from the left.

(Incidentally, that Google search also turned up several stories about the Minutemen building fences along the border. The Minuteman web site describes a robust, multi-layer system with a road down the middle, concertina wire, trenches, cameras, etc., to be built on private land along the border. USA Today’s picture of Minutemen building a fence shows a puny 4-foot high barbed wire fence that looks like child’s play to defeat. I’m not sure which is closer to reality, but I think it’s mainly a publicity stunt. I can’t imagine being able to amass enough privately donated land and money to fence a significant portion of the border. And it might be inconsistent with what the gov’t builds elsewhere. But I guess it shows it is theoretically possible to privately fund at least part of a border fence. Not necessarily a good idea, mind you, but possible.)

Dick E:

Dick, I have no idea what point you are trying to make. If Bush could casually order 700 miles of fence to be built along the border without Congress even getting involved -- don't you think he would have done so?

Hey, who needs Congress? Bush can just spend the entire federal budget any way he chooses!

This is ridiculous. You know very well he cannot. You know very well that the National Guard setting up a few barriers, which they can do with existing manpower and a few bucks for corrigated steel, is completely different from the sort of deep, tall, wide, long, and high-tech fence that the House of Reps and the Senate are debating.

This is turning into a silly, semantic game. Go talk to a lawyer familiar with the federal budget and ask him if the president can simply hijack some other budget item -- NASA's Space Shuttle funding, or AFDC, or money appropriated for hiring Border Patrol agents -- and use it to contract with Haliburton to build a high-tech fence along the Mexican border.

Go ahead; I double dare you. But you already know what he'll say.

Dafydd

Dafydd-

Where did I say anything about Bush unilaterally building 700 miles of border fence -- or anything approaching that? Go ahead and look -- I’ll wait.

Done? OK.

The purpose of my last post was to pass on some information that was new to me. And, judging from your previous comments, I assumed it was new to you too. It just says that the President has started taking some initial steps toward building a border fence, and he didn’t need to raid anyone’s budget to do it. He was somehow able to legally use Federal dollars for the job, even if they weren’t specifically budgeted to be used in exactly the way he is using them. If you already knew, and assumed I knew, that the National Guard was destined from the start to be building fences, I’m sorry for the misunderstanding.

* * * * *

“You know very well that the National Guard setting up a few barriers, which they can do with existing manpower and a few bucks for corrigated (sic) steel, is completely different from the sort of deep, tall, wide, long, and high-tech fence that the House of Reps and the Senate are debating.”

You are probably right. Is there any existing border fence as robust as what you describe? I really don’t know. If you tell me there is, I’ll believe you.

But don’t you see? What I’m suggesting is more a POLITICAL act than an attempt to build a proper border barrier by circumventing Congress. AND THE PRESIDENT HAS ALREADY STARTED IT. He knows that this effort by the National Guard can’t possibly build the kind of fence contemplated by Congress. He might just have taken the first step down the road I TRIED to get you to navigate in my first few posts here.

If you look at what I’ve said before on this thread, my whole point is that the President could use a failure by Congress as an opportunity to start doing something that NEARLY EVERYONE THINKS NEEDS DOING: IMPROVING BORDER SECURITY. And that he could at least start the job without additional funding authorization from Congress, but that Congress WOULD have to approve major funding for the effort. As I said in my first post here, on June 2, “Of course there are funding limitations. At some point, probably sooner rather than later, the President would have to ask Congress for more money. But there obviously is SOME mad money jingling around in the Federal piggy bank to at least get started….” My latest post merely supports the last part of this statement.

* * * * *

So you are right, “This is turning into a silly, semantic game.” I have NEVER suggested that “Bush can just spend the entire federal budget any way he chooses!” or anything even close to that. YOU were the first to bring that up, not I. I have tried to say that shifts between things like Katrina relief and border security are obviously unacceptable, but that MINOR shifts of funding WITHIN a specific budgeted department MAY be possible, or that there may be a Federal equivalent of a “petty cash” fund (albeit not petty by the standards of most individual citizens’ budgets). I regret that my attempts have been unsuccessful.

And please, Dafydd, if you choose to refute the above paragraph by quoting me, I would appreciate it if you would look at the rest of the post you quote to be sure that the comment you cite isn’t clarified in the next sentence or later in the post to conform to what I say above.

Dick E:

As you wish. I suspect I'm just not as impressed with the fence-building that the NG can do; I see it more as a symbolic barrier than a real fence.

Is there any existing border fence as robust as what you describe?

No, but that's exactly what they're planning to build -- for somewhere between 400 miles and 700 miles, plus a bunch of the old-fashioned "fences," which they call "vehicle barriers" in the Senate bill.

I think we're just speaking at cross purposes. The president -- or the Border Patrol, or individual states -- can build some minor barriers, and they have done; but real fencing that will actually keep out illegals is much more complex, technological, and expensive. When I say "fence," that's what I mean; I will try to use the phrase "barrier" to mean the kind of thing you're talking about here.

The president can unilaterally order a barrier constructed; but he needs Congress in order to build a fence.

If that's what you're saying, then we're in agreement.

Dafydd

Dafydd-

“If that's what you're saying, then we're in agreement.”

Yes! Absolutely. Bravo!

OK, now that we agree on the issue of defining walls, barriers, fences, or what have you and how they may be paid for, back to the main point I was trying to make.

From my first post on June 2 (please excuse the hyperbole, at least until you have read further):

“… the scenario could be this: The House and Senate both dig in their heels, and either no Conference Committee bill emerges or the bill fails in one or both houses. The President then goes before the nation and announces that, as long as the children on Capitol Hill can’t learn to play nicely, he’s going to do what he can, using his executive powers, to see that the problem at least doesn’t get any worse before Congress can finally get their act together…. He then basically challenges Congress to fund his law enforcement effort for border security.

“… Nearly everyone thinks we need improved border security. Many … think border security alone is a bad idea. But some of those folks … may well think that half a loaf (or less than half, if you prefer) is better than none. The House would probably snap to and pass the funding legislation. What would be the political ramifications if the Senate held out for “comprehensive or nothing”? Could this be a case where failure to act would be seen as Democratic, rather than Republican obstructionism? And could we thereby keep Nancy Pelosi and Harry Reid firmly ensconced in their minority roles for at least another two years?

“PLEASE NOTE: THIS POST DOES NOT, REPEAT, NOT PROPOSE THAT THE ABOVE WOULD BE SUPERIOR TO COMPRHENSIVE IMMIGRATION REFORM!!! I just wonder if there would be a way to turn the sow’s ear of Congressional failure to act into a silk purse for the Administration and Republicans. And if the above series of events induces the Senate to pass a comprehensive bill that the House can stomach, how bad would that be?”

From my June 3 post #1:

“… What if, after Congress fails to pass an immigration reform bill, the President just says, in more moderate tones than in my last post, that we really need to move forward on border security, even if we can’t agree on all the related issues? He already has gone a step in this direction …”

From my June 3 post #2:

“So I repeat (and I know you don‘t think this is the “best” solution, but it may be the best we can get for now): The Conference Committee deadlocks and doesn’t report a bill. The President seizes the opportunity and calls on Congress to fund improved border security. He probably wouldn’t want to ask for so much that it looks like he’s abandoning his “comprehensive” strategy. If he doesn’t get it, the Democrats are being obstructionist. If he gets it, we at least make some progress, and the dance continues next year.”

And from my June 6 post:

“… my whole point is that the President could use a failure by Congress as an opportunity to start doing something that NEARLY EVERYONE THINKS NEEDS DOING: IMPROVING BORDER SECURITY. And that he could at least start the job without additional funding authorization from Congress, but that Congress WOULD have to approve major funding for the effort.”

* * * * *

Some of my phraseology may have been a bit intemperate, e.g. “He then basically challenges Congress …” and “The House would probably snap to and pass the funding legislation.” And my thinking has evolved somewhat -- as has yours (viz. your thoughts on guest workers). But the point I was trying to make should be clear from the above quotes. It’s probably most concisely stated in June 3 post #2.

I know you don’t like a “border security only” approach. I’m not sure I do either. I just think the President can avoid a political fiasco by taking the kind of action I refer to above.

I wonder if it’s possible to consider this proposal by saying something other than “Yeah, but a comprehensive plan is better.”

Dick E:

I know you don’t like a “border security only” approach. I’m not sure I do either. I just think the President can avoid a political fiasco by taking the kind of action I refer to above.

I wonder if it’s possible to consider this proposal by saying something other than "Yeah, but a comprehensive plan is better."

No, this would fail for the same reason the Senate didn't just pass the House version: because there is a hard core that will not enact a stick without a carrot.

Alas, that hard core includes 45 Democrats -- and also likely seven Republicans from this list: Chafee, Collins, DeWine, Graham, Hagel, McCain, Snowe, Specter, and Warner (the usual suspects).

That means they don't even have to filibuster: the bill itself would fail by 52 to 48.

And it's no good telling them that without this, they'll get nothing; this is the crowd that doesn't care much about border security... so to them, "nothing" really is preferable -- to them and their constituents -- than a "something" that doesn't include normalization of the illegal immigrants already here.

There is no urgency to their position; they can legalize next year, in two years, or in five years.

The urgency is all on the other side: with every passing year that we don't get a super wall, another 300,000 - 500,000 illegals slip past the Border Patrol and ensconce themselves here. In five years, there will be another one or two million of them.

Border security is a "timebound" issue that must be resolved immediately -- by those who care about it. Supporters of normalization can wait until a better deal comes along. In negotiation terms, the border-security guys are "hungrier" for a bill than the normalization guys.

So if Bush does what you suggest, the latter will just fold their arms and say "nyet."

Border security only passes if a few of those normalization guys can be peeled off; and that only happens if they get normalization, naturally. With normalization of some sort -- it's perfectly fine if it's delayed until after the wall is under construction, but not forever -- you'll probably get all the Republicans and several of the Democrats... perhaps some subset of Byrd, Ben Nelson, Bill Nelson, Landrieu, Lieberman, and maybe Salazar.

Enough to make 60? I don't know: but if not, then it's a clear election issue for the Republicans, since it will be an entirely Democratic filibuster... no Republican will participate if there are 41 Democrats willing to do it; why take the heat for nothing?

So if the stiff-backs in the House will bend, we can have a bill with very strong border security... and either it gets passed, or else the Democrats are clearly shown to be obstructionists.

But if the House Republicans refuse to accept normalization in any form, then we have a mess that will be laid squarely at the doorstep of the Republicans.

Maybe it's not fair; but that's what will happen. The GOP is in charge, so the buck stops there.

Dafydd

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