While the mainstream press keeps on desperately demanding “bipartisanship”, the Republican insurrection, which began with their refusal to accept Biden’s victory and culminated with the January 6th insurrection, continues largely under the radar. It is now two weeks since Democrats theoretically took control of the Senate but Republicans still control the committees. And, thanks to another absurd ruling out of the Fifth Circuit and sabotage by Trump’s DHS, ICE is continuing deportations at an accelerated pace in defiance of the directives of the President. While the January 6th insurrection may have failed, the Republicans’ refusal to permit the actual transfer of power continues.
Back in early 2016, within hours of Justice Scalia’s death, Mitch McConnell announced that he would not let the Senate consider Obama’s nominee to replace Scalia on the Supreme Court until after the election. That nominee turned out to be Merrick Garland, who waited for over 300 days without even getting a hearing, much less a vote, on his nomination. His nomination effectively ended when Trump was sworn is as President.
Today, Merrick Garland is Biden’s nominee for Attorney General, and with Democratic control of the Senate, he would be expected to get a rather quick vote on his confirmation, especially considering the DOJ’s need to not only rebuild after the Trump administration but also deal with the aftermath of the January 6th insurrection. But, once again, Garland can not get a hearing because Mitch McConnell is filibustering the Senate’s organizing resolution that would finally allow Democrats to take control of Senate committees. In Garland’s case, that would be the Senate Judiciary Committee. Dick Durbin, who should be chairing that committee, has asked Lindsey Graham, who remains chair until the organizing resolution is agreed to, to schedule Garland’s hearing for February 8th. Graham has refused, saying, “A one-day hearing as you are proposing the day before the impeachment trial of a former president is insufficient…The reason we can’t give Judge Garland two days next week is, of course, that Senate Democrats voted to proceed with former President Trump’s impeachment trial on February 9”. Unless something changes or the Democrats decide to pass the organizing resolution unilaterally, Garland may not get confirmed until after the impeachment trial, which could be weeks from now.
Beyond blocking Biden’s nominee to lead the DOJ, McConnell’s obstruction is also delaying the work that Democrats need to get done in every other Senate committee in order to enact Biden’s agenda. According to the Senate legislative calendar, the body will only be in session for 158 days this year. Already, nearly 14 of those days have gone by with Democrats still not being able to take full control of the Senate. As Ezra Levin writes, “Expect this story to repeat continuously for the next year: McConnell is running out the clock. There are a very limited number of days to actually get legislation done before the next election, and he will eat them up one by one if he can”.
On January 21, Biden issued a 100 day moratorium on deportations in order to study the existing enforcement policies. That moratorium was challenged by the Texas Attorney General in the notoriously bad Fifth Circuit. There, a Trump-appointed judge issued a temporary restraining order preventing that moratorium from going into effect for 14 days. Texas was claiming irreparable harm from increased education and health care costs that the state would incur if those scheduled deportations did not go ahead. The judge ruled that the moratorium violates federal law that says immigrants with deportation orders must be removed within 90 days. He also said that the Biden administration had “arbitrarily and capriciously departed from its previous policy without sufficient explanation”. An ACLU lawyer who supported the moratorium challenged the assertion that Biden’s actions were arbitrary and capricious, noting, “The administration’s pause on deportations is not only lawful but necessary to ensure that families are not separated and people are not returned to danger needlessly while the new administration reviews past actions”. The Biden administration will appeal the ruling.
While the judge’s decision may have been questionable, the subsequent actions by ICE bordered on insubordination. The judge did not block the administration’s guidelines for deportations, which focused only on suspected terrorists, felons deemed a threat to public safety and immigrants who had entered the country after November 1, 2020. Instead, ICE appears to be ignoring those guidelines and directives and instead accelerating the deportations of many who do not match the administration’s criteria. Over the prior week, ICE has deported over 300 immigrants, including a woman who is a witness in the El Paso shooting massacre case. Many of those deported did not meet the administration’s new criteria. Even worse, immigrant rights groups are reporting that ICE is effectively torturing immigrants into forgoing their rights and signing their own deportation papers. And many of those deported face death or imprisonment upon return to their home countries. As newly elected Democratic Representative Mondaire Jones said, “Ice is a rogue agency. With the help of rightwing operatives on the federal bench, Ice is choosing to ignore President Biden’s deportation moratorium”.
ICE’s defiance comes after Trump’s DHS signed an agreement with its union on the last day of the Trump administration that effectively gives the union veto power over any changes in immigration enforcement implemented by the Biden administration. The contract states that “no modifications whatsoever concerning the policies, hours, functions, alternate work schedules, resources, tools, compensation and the like of or afforded employees or contractors shall be implemented or occur without the prior affirmative consent” of the union. Such language may provide the union with legal grounds to defy Biden’s changes in enforcement priorities.
Biden may have been sworn in as President, but the insurrection continues in its own subtle way. McConnell is refusing to let the Democrats form a functioning Senate and may be trying to force the Democrats to kill the filibuster over a process most voters don’t understand rather than on an important issue further down the road. Rogue right-wing elements within the government are defying the directives from their superiors in Washington. And right-wing judges will continue to prevent or delay the Biden administration from actually governing. Republicans have used the transition period not to pave the way for a smooth transition but instead to sabotage and even overthrow the Biden administration. More importantly, their actions reflect the continuing Republican attitude that Democratic governance is, by definition, illegitimate.
Originally published at https://thesoundings.com on February 3, 2021.