There were three legislative areas of focus this week: military construction & VA funding, punishing the International Criminal Court, and whether there should be a statutory right to contraception. The White House also announced executive action purporting to "close the border". These are all areas where there is significant intra- or inter-party disagreement and we're going to talk about them all.

Appropriations for Military Construction and VA Funding

The House passed these appropriations 209-197 along with several amendments. However, the White House says it will veto the bill if presented in this form because of a host of anti-abortion, anti-LBGTQ+ and anti-immigrant provisions within it. House Republicans tried this last year and the result was that the controversial provisions were stripped in order to pass the bill in the Senate and have the President sign it. Expect the same, but maybe in a more protracted form this year.

Punishing the International Criminal Court

On May 20, a prosecutor for the International Criminal Court issued arrest warrants for three leaders of Hamas (Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh) and the Israeli Prime Minister Benjamin Netanyahu and the Israeli Defense Minister Yoav Gallant for various actions beginning with the Hamas terrorist attack on October 7, 2023.

Initially, this caused a very bipartisan stir among House members even though the U. S. is not directly implicated in the issue. However, since the announcement, tempers appear to have cooled enough that when the H.R. 8282: Illegitimate Court Counteraction Act came up for a vote, only 45 Democrats voted in favor. It passed 247-155. According to CBS News, not only does the White House not support the bill as passed, but it's likely to simply be ignored in the Senate.

Statutory Right to Contraception

Right now, the right to contraception rests on two Supreme Court decisions: Griswold v. Connecticut 1965 (contraceptives for married people) and Eisenstadt v. Baird 1972 (contraceptives for unmarried people).

In 2022, as part of his concurrence for the Dobbs opinion which struck down Roe v. Wade and ended nationwide access to abortion, Justice Thomas suggested that other decisions relying on similar logic and precedents should also be reconsidered. This included Griswold, Eisenstadt and Obergefell (same sex marriage) among others.

In response, also in 2022, Congress passed and the President signed, the Respect for Marriage Act providing statutory protection to same sex marriages by repealing statutes defining marriage as between one man and one woman.

Since then, there have been efforts to pass laws providing statutory protection for access to contraception as well. These haven't been successful so far. This week, the Senate's bill, S. 4381: A bill to protect an individual’s ability to access contraceptives and to engage in contraception and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception could not clear the filibuster requirement of 60 yes votes to come to the Senate floor for a vote. It failed 51-39. It was 9 votes short of the threshold and 9 Republicans simply did not vote. Would it have made a difference if they did vote? Possibly not; non-voters included very conservative Sens. Britt (AL), Sullivan (AK), Braun (IN), Moran (KS), Kennedy (LA), Vance (OH), Graham (SC), Hagerty (TN), and Romney (UT). The one Democrat not voting was Sen. Menendez who is on trial for bribery and acting as an unregistered foreign agent.

Limiting Asylum Claims

There was a lot of hoopla this week about how "President Biden is closing the southern border and doing what Congress won't". Except that no President has, or indeed could, close the U.S. border. Not only would it wreck the economy if we suddenly ceased all trade with Mexico, but a lot of that border is in extraordinarily remote and geographically challenging areas where you simply can't physically block access to the U. S. Plus, managing the border and immigration requires action from both the President and Congress.

So what did happen this week? Before we can attempt answer that question, we need to review how things work at the border first.

When someone arrives at the U. S. border between ports of entry, Border Patrol will, in accordance with existing law, be looking for reasons to deport that person. If someone stays in the U. S. it can be because they've successfully initiated the process for asylum screening or other lesser forms of protection, but mostly it's because there's only so many resources available to handle migrants who arrive at the border between ports of entry. In lieu of immediate resolution to their cases, these immigrants are given a Notice to Appear at an Immigration Court and released into the U. S. Some immigrants wait out the process in Mexico, but that agreement has limitations, so many people end up staying in the U. S. for years without a resolved immigration status because of the backlog due to limited resources.

Why are resources limited? Because only Congress has the power of the purse to allocate funding to pay for all of the elements of managing the border which includes staff from multiple agencies, space to detain potential immigrants, and planes and fuel to fly deportees back to their home countries and Congress hasn't been willing to allocate those funds lately. The last bill to include expanded funding was the one negotiated by Republican Sen. James Lankford that failed when former president Trump said Republicans should kill it.

The President's executive action this week, a Proclamation and a DHS regulation, attempts to tweak the asylum seeking process by a) forcing the potential asylee to ask for protection instead of having Border Patrol ask if they're looking for asylum and b) use an untested but supposedly higher standard to decrease the number of people who are granted asylum.

The President's executive action makes no new law, repeals no existing law, and provides no new funding for the wide range of resources needed to more speedily remove immigrants from the U. S. because, and we can't stress this enough, only Congress can do those things.