7 Reasons Why Border-Ukraine Negotiations Are Unlikely to Succeed

It was a good idea, but it probably won’t work out. Last year, Republicans offered to go along with another funding package for Ukraine, if Democrats would go along with commonsense measures to secure our own southern border. As House Speaker Mike Johnson (R-La.) said last month, “I don’t think it’s a radical proposition to say that if we’re going to have a national security supplemental package, it ought to begin with our own national security.”

The proposal is exactly what we should expect to see in periods of divided government. With Democrats controlling the U.S. Senate and U.S. Republicans controlling the House, members of both parties must agree to any legislation that reaches the finish line. “This is how negotiation works,” wrote National Review’s Jim Geraghty. “You get something you want, but the other side gets something they want, too.”

It was a good idea in theory, but it appears unlikely to yield any practical results. After months of negotiations between Senate Democrats and Senate Republicans, not only have the two sides failed to pass a compromise bill, or even produce the text for one, but it seems they haven’t been able to reach a negotiated compromise satisfactory to both parties.

This became clear following two Senate Republican meetings on Tuesday and Wednesday, at which few minds were changed and tensions reportedly flared. On Wednesday, Senate Minority Leader Mitch McConnell (R-Ky.) proposed splitting up negotiations on Ukraine and the border, a move that would effectively terminate the failed negotiations. “I think the border portion is dead,” The Hill quoted an anonymous GOP senator.

Senate conservatives are frustrated over the negotiations’ failure to produce meaningful policy changes that would stem the flood of illegal immigrants across the southern border. Although the details of the deal remained in flux, it reportedly included making it harder for migrants to claim asylum and easier to deport them. But it would still allow as many as 5,000 (or possibly 3,000) illegal immigrants per day to enter the country, before a “triggering mechanism” would authorize government agents to close the border. Senator Ted Cruz (R-Texas) wrathfully mixed metaphors to describe the bill as, “a kamikaze plane in a box canyon with no exit headed for a trainwreck,” while Senator Mike Lee (R-Utah) complained it “could cause as many problems as it solves.”

It was a good idea, which was caught by contrary political currents and now seems in danger of being dashed against the rocks. There’s a host of complex reasons why the negotiations failed; here is my attempt to enumerate seven.

1. Democrats Don’t Want to Fix the Border

“I think it just goes to [the fact that] the White House really doesn’t want to fix the problem at the southern border. They could if they wanted to. They really just don’t. And that’s why the negotiations continue to stall,” said Senator Pete Ricketts (R-Neb.) on “Washington Watch.”

“To govern is to choose,” insisted Geraghty, arguing that Biden has effectively prioritized keeping the border open over securing additional funding for Ukraine.

The Biden administration doesn’t want to fix the border, because political pressure coming from certain segments of the president’s base insists that it remain open. United Farm Workers communications director Antonio De Loera-Brust, who formerly worked as an aide to Secretary of State Antony Blinken, argued last month, “Reimplementing former president Donald Trump’s border policies, in turn, could weaken support for Biden among Latino and young voters” and thereby “alienate important parts of the Democratic Party’s coalition.”

President Biden already changed his Israel policy (from a more popular position to a less popular one), at the behest of pro-Hamas student rioters. Now it appears that the same dynamics hold on the border. Biden is implementing an overwhelmingly unpopular policy out of fear of alienating a tiny sliver of his base.

2. For Months, Biden Refused to Negotiate

The U.S. Senate cannot pass legislation all by itself. Any bill they pass must also win approval in the House of Representatives and survive the president’s veto pen. So, even though senators opened preliminary negotiations among themselves months and months ago, there was only so much progress they could make without outside input from the other actors who had a say. But, just like on the debt ceiling debate, President Biden refused to engage for months. “He didn’t really start seriously engaging on this issue until the middle of December,” said Ricketts, “and that’s one of the reasons why this is taking a long time.”

Geraghty wrote in December, before the deal’s failure appeared so likely, “whatever deal emerges probably could have been reached last month, or in October, or perhaps even earlier. The crisis on our southern border did not suddenly appear recently.”

Even after sitting down at the negotiating table, the White House preferred to blame Republican intransigence for the lack of progress, instead of making any concessions themselves.

3. Biden Refuses to Follow the Law

“It is the law of the United States — you know, that thingy that President Biden took an oath to faithfully execute — that a non-American who enters our country without legal authorization … is to be detained until a ‘final determination’ over his status has been reached. (See §1225(b)(1)(B)(iii)(IV) of the immigration laws),” wrote former federal prosecutor Andy McCarthy. “There are facilities only for 30,000 people to be held. … The logical implication is that the border should be closed once we have maxed out detention capacity.”

“That being the case,” he continued, “why isn’t the border being closed when the law forbids catch-and-release?” McCarthy said, “The starkest implication of the bipartisan negotiations” is that “the border can be closed.” The U.S. has the ability to close the border, but the Biden administration won’t do it. In fact, Texas did close the border, and the Biden administration wants to cut their razor wire to the let the migrants through.

Most significantly, the executive branch (so called because its duty is to execute laws passed by Congress) should not have the luxury to treat this behavior as optional. “We’re not talking policy negotiations. We’re talking about the law,” exclaimed McCarthy. “What Biden most deserves to be impeached over is the gross dereliction of his duty to secure our borders.”

Ricketts also lamented the Biden administration’s abuse of parole. He said during the Obama and Trump administrations, “about 5,600 people [were] paroled into this country” each year. This was a relatively small number because parole is only “to be used in case of extreme humanitarian need or our national defense.” By contrast, “Joe Biden last year paroled 1.2 million people who were trying to get into this country illegally,” amounting to “about 85%” of detained border-crossers.

The Biden administration is offering tweaks to the border that amount to putting a band-aid on a spigot. Opponents of the deal are rightly questioning what the point of that would be, when Biden could more easily fix the problem by turning off the spigot. What is the point of passing more legislation when the administration already refuses to administer the legislation that has already been passed?

4. Senate Republican Negotiators Ceded Too Much Ground

During the Obama administration, then-Homeland Security Secretary Jeh Johnson said more than 1,000 illegal border crossing per day “overwhelms the system” and causes a crisis, McCarthy noted. Now, “we are no longer courting crisis; we have a raging crisis,” he said, with as many as 10,000 illegal crossings per day. In the recent Senate negotiations, Democrats offered to close the border at 5,000 illegal crossings, while Republican negotiators said it should close at 3,000 illegal crossings. This was one reason why Cruz objected to the deal.

“I understand why Democrats would want to normalize illegal crossings total[ing] five times what Johnson conceded was too overwhelming,” said McCarthy. “But why would Republicans counter with overwhelming times three?”

The negotiators were happy with the number, but the rest of the Republican party wasn’t.

5. Senate Republican Negotiators Are Going Along with Lawlessness

To return to a point mentioned earlier, McCarthy noted that negotiations over when to close the border imply, “the border can be closed,” but the “two sides are just haggling over the price.”

“I’m not surprised that Democrats are saying: We want to indulge lots and lots of lawbreaking,” McCarthy added. “What I find astonishing is that the Republican response seems to be: We’ll go along with lots, but not lots and lots.”

Republican senators negotiating the deal would likely counter that we don’t live in an ideal world, and they are fighting to get the best deal they can, under the circumstances. Given the current Democratic commitment to indulging lots of lawlessness, this means getting the Democrats to agree to place restraints on their lawless behavior.

While there’s some merit in that position, it is ultimately unpalatable to many congressional Republicans. “Republicans are not so much being asked to compromise as to conspire in Biden’s lawbreaking — and not petty lawbreaking but rather a betrayal of the core security duties of the presidency,” said McCarthy. Many simply refuse to do that.

6. Senate Republican Negotiators Are Not Consulting their House Colleagues

Last week, McConnell insisted, “It’s time to act” on the border-Ukraine deal, indicating “that he was done trying to placate Ukraine skeptics in [House Speaker Mike] Johnson’s conference,” according to The Washington Post. Days later, the deal has apparently crashed on takeoff, as most one-winged planes tend to do.

It’s great that Democratic senators and Republican senators have invested months in trying to find a bipartisan way to achieve important priorities. Washington could use a bit more of that.

However, given the current congressional makeup, what Republican senators think about a bill is less important than what Republican representatives think about a bill. This is because Republicans hold a majority in the House and a minority in the Senate, and majorities are required to pass legislation.

In fact, at least seven Republican senators opposed the bill because it would likely face opposition in the House. Cruz rated the negotiated compromise bill’s chance of passing the House at “0.000%.” “We should not be voting for anything as Republicans in the Senate if the Republicans in the House don’t support it,” said Senator Rick Scott (R-Fla.).

7. House Republicans Holding Out for Something That Will Work

Meanwhile, House Republicans remain committed to actually securing the border. “I do think it’s past time to secure the border. And that’s what H.R. 2 reflects,” Mike Johnson said Wednesday. He added that he was skeptical of any Senate bill until he saw the text.

While Washington efforts to secure the southern border remain paralyzed, it has become “a top issue among voters,” Ricketts recognized. According to a recent Harvard-Harris poll, immigration was the top policy concern for 35% of voters, beating out even inflation. Overwhelming majorities told pollsters that conditions were deteriorating, and that they wanted to see better border enforcement.

“Republicans now hold an 18-point lead in public-opinion polling about which side is more competent to handle immigration,” McCarthy reported, a 24-point swing since Trump’s administration. “Why on earth would Republicans agree to a number of illegal alien crossings that, until Biden’s presidency, would have been regarded as historically catastrophic?”

“Given how boiling angry much of the country is over this issue,” McCarthy added, “I don’t understand why Republicans aren’t driving a much harder bargain.”