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Another government shutdown looms -- Monday is a crucial day for talks

It's now days before another government shutdown -- and this is the day bipartisan negotiators were supposed to announce a deal to avert just that.

Posted Updated

Phil Mattingly
CNN — It's now days before another government shutdown -- and this is the day bipartisan negotiators were supposed to announce a deal to avert just that.

Instead, there are no clear answers as to how, or if, another can be avoided.

Bottom line: There is no agreement on the path forward on the conference committee. There is no agreement on what, if any, alternatives could pass both chambers and be signed by the President if the conference committee fails. Monday is a crucial day as lawmakers try and figure a way out of another mess, all as the clock ticks away. At this point, each day leading into the February 15 deadline is enormously consequential.

What to watch

The House and Senate are scheduled to come back on Monday afternoon, but all eyes will be on what, if anything, the 17 conference committee members have to say publicly. The top four members of the House and Senate panels are expected to meet at some point to make a final push toward a deal, two sources familiar with the matter said. Also keep an eye on if House Democrats post a stopgap funding bill of some sort as a backstop if things continue to move toward failure. And President Donald Trump has a campaign rally in El Paso, Texas, on Monday night.


In order to get something done by the Friday deadline, House Democrats will likely have to post something Monday or Tuesday (reminder: the chamber has a 72-hour rule). As is always the case, Congress can move quite quickly when it wants to, but at this point there's zero agreement about a backstop or alternative plan between the two parties and chambers. Conference negotiators basically have until the end of Monday to figure something out, aides in both parties say. Then it's on to finding a Plan B (or C or D, etc., etc.).

Some context

As has been noted here for much of the last week, these talks are more complicated than just whether and what kind of border wall barrier could be agreed upon by both sides. There are significant splits, particularly given the Trump administration's immigration enforcement posture, on how the Department of Homeland Security and its components, namely Immigrations Customs Enforcement do their work. An under-appreciated issue, at least in the broader "border wall" conversation, has been just how central detention beds for detained undocumented immigrants sits as an issue -- and an extremely divisive one at that -- for both parties.

So this is what happened: Current government funding levels allow for just north of 40,000 detention beds (40,520, to be exact). The Trump administration has already surpassed the number, which it views as the floor, not the ceiling, and largely front-loaded the spending on beds (and reprogramming of funds from other agencies) to fund detention beds throughout this year.

To put a finer point on things: Democrats view detention beds as central to a Trump administration immigration policy that is harsh and needlessly aggressive. Republicans view the detention beds as central to limiting the ability of detained undocumented immigrants from being released into the US as they await hearings.

Democrats entered the negotiations pushing to reduce the number of detention beds funded in the measure to 35,520. The White House and Republicans sought an increase to 52,000.

What blew things up over the weekend was an additional Democratic demand, which came Friday, that a cap be put in place on detention beds used for interior enforcement, or in other words, a cap on the number of beds that could used to detain undocumented immigrants inside the US and not at the southern border. Democrats proposed capping the number of beds at 16,500. That the cap, which would be a new policy restriction, would be proposed in the talks at such a late stage was considered a non-starter by Republicans on the panel.

Chairman Richard Shelby, R-Alabama, of the Senate Appropriations Committee declined to negotiate further until the cap proposal was dropped, an aide said.

The Democratic rationale: From Rep. Lucille Roybal-Allard, a Democrat on the conference committee and one of the lead House negotiators: "A cap on ICE detention beds will force the Trump administration to prioritize deportation for criminals and people who pose real security threats, not law-abiding immigrants who are contributing to our country."

How this all ties together: The cap on detention beds is seen by Democrats as part of any deal to increase funding border barriers, multiple aides involved with the process say -- an issue where both sides had actually been making some meaningful progress in the days prior to the breakdown.

But as a Democratic aide briefed on the topic told CNN's Manu Raju on Sunday:

"We had been making progress on both border barriers and ICE beds, but Dems cannot agree to physical barrier spending above the current level we want without GOP concessions on ICE," the aide said.

What's next

There is truth to the theory, pitched by the few (only) people involved in the talks who choose to find some semblance of optimism in the current breakdown: in negotiations with stakes this high, there often has to be a dramatic breakdown before a deal can come together. Add to that the reality that nobody CNN has spoken to in either party has any appetite for a second government shutdown, and perhaps the will to get something done, which was so pervasive late last week, will come back to the forefront.

The problem with that theory in this case was just how explosive and public the breakdown was between the two parties Sunday. For more than a week, only snippets, if even that, of the proposals traded between the two sides leaked out. Talks remained very close to the vest. That changed entirely on Sunday, when both sides moved quickly to get out the details of their proposals -- and why the other side was responsible for the breakdown in talks.

One person involved said cooler heads were starting to prevail later Sunday afternoon as lawmakers attempted to reconnect and restart the talks, but the weekend represented a significant break between the two sides.

The backup plans

House Democrats, according to two people involved, are considering moving forward on the package on the six non-Department of Homeland Security appropriations measures, at full-year levels, plus a continuing resolution for DHS. The expectation is the CR for DHS won't be clean however, and will include restrictions on detention beds and language to prevent reprogramming of funds for a border wall.

In other words, it's non-starter for the White House and, likely, Senate Republicans.

Senate Republicans are also working through options as well, but it's unclear at the moment what they're willing to move forward on, aides said, as they wait to see first what House Democrats go with.

The President

All eyes on Capitol Hill will soon be on Trump's rally in El Paso. Multiple GOP aides have become more certain in recent days that Trump will pull the trigger on executive action and an emergency declaration to fund the border wall himself, regardless of what Congress does. But will that help clear the way for Congress to keep the government open?

Mulvaney's view: Mick Mulvaney, acting White House chief of staff, said this on NBC's "Meet the Press" Sunday, which was pinging around aides in both parties on Sunday:

"You asked me a question: is the shutdown entirely off the table? I would say no."

Context from the weekend: The tentative plan going into this past weekend, according to some people involved in the border security negotiations, was to have conferees sign the agreement on Monday morning. Instead, conferees are struggling to get one another on the phone to try and salvage something -- and leadership in both chambers is now actively looking toward backup plans to fund the government.

"Life comes at you fast whenever you start feel positive about immigration talks in this place," one Republican aide, who has worked on immigration issues for years, told CNN on Sunday.

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