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7 things the House and Senate must resolve to fix the border crisis

Sen. Tom Coburn (R-OK) with DHS Secretary Jeh Johnson.
Sen. Tom Coburn (R-OK) with DHS Secretary Jeh Johnson.
Win McNamee

Both chambers of Congress are trying to pass a bill to address the child and family migrant crisis. But those bills look very different. And they don't have much time to work out a deal.

The Obama administration is running out of funds to handle the influx of children and families coming into the US. Between handling the children and families who have already entered the US and those who are projected to come, Border Patrol is on track to run out of money in September; Immigration and Customs Enforcement, which is in charge of detaining immigrants, will run out of money in August.

The Obama administration asked for $3.7 billion in emergency funding to handle the children and families already here and try to deter future entries. The Senate is willing to give him $2.7 billion; the House, only $659 million. The two chambers hardly agree on what that money should go to: the House wants money for the National Guard to be sent to the US border, and the Senate wants money for shelter and legal representation for immigrant children.

House Republicans will only vote to give the administration more money if it comes with a change in the law governing what happens to children when they arrive in the US — but some Democrats are already saying that they consider Republicans' proposals to be "dealbreakers" that would make it impossible for them to support a bill.

Here are the seven questions the two chambers need to resolve:

1) How much money should the administration get?

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Senator Barbara Mikulski, head of the Appropriations Committee, wants to give the administration less money than it wants — but more than Republicans want it to have. Bill Clark/CQ-Roll Call

The House and Senate agree that the administration shouldn't get the $3.7 billion it requested. But that's about all they agree on.

Democratic Senator Barbara Mikulski, the chair of the Appropriations Committee, introduced a bill that would provide $2.7 billion for child migrants, in addition to money for other issues. House Republicans' bill comes to about $659 million.

2) Where should that money go?

Both the House and Senate believe that more funding is needed for facilities to house children and families at the border and while they're waiting for their cases, and that at least some money should go to hiring more immigration judges so cases can be processed faster (although the Senate would spend much more than the House). But other than that, there's very little agreement.

The House wants to give the Department of Defense $107.3 million to send the National Guard to monitor the border while Border Patrol agents are working to process children. The Senate doesn't believe that sending the National Guard is necessary — instead, they provide $320 million to Customs and Border Protection for Border Patrol agents and other support. (The House bill provides only $71 million to CBP.)

Other disparities come from House Republicans' push to deport most children and families a few days after they arrive. Their bill provides $262 million to Immigration and Customs Enforcement to detain families, and $197 million to the Department of Health and Human Services to detain children. Funding in the Senate bill, on the other hand, is based on the system as it works right now — and gives ICE $763 million for detention, and HHS $1.2 billion for long-term care for immigrant children while their cases work through immigration court.

If Congress makes no changes to the current process for dealing with immigrant children, but doesn't fund part of that process — like the part that HHS is responsible for — it will just create more overload for the administration. In turn, that will make it harder for the administration to process children quickly — or to deport them. And if the changes the House wants to make to the law were to pass, it would create more work for immigration judges, Border Patrol agents and asylum officers — and it's not clear they've provided enough funding to offset that burden.

3) Should the money come with any conditions at all?

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Rep. Kay Granger's working group identified several changes to immigration law they think are needed to deal with the crisis. Via kaygranger.house.gov

The White House and Democrats in both chambers want a "clean supplemental." That means they just want Congress to pass a bill giving the Obama administration money, without any conditions on how to spend it (beyond the administration's own plan) or any additional changes to the law. And Sen. Mikulski is making it clear that she will not permit adding "any immigration legislation" to her bill.

House Republicans think changing the law to make it easier to deport children coming to the US is an important part of the solution. That's why they've proposed changes to the law as part of their bill. And Speaker Boehner has said that a clean supplemental will not be allowed to pass the House.

4) Should Central American kids get treated the way Mexican kids are now?

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A teenager deported from the US arrives at a center for deported children in Tijuana. Omar Torres/AFP

The policy change that seems to have the broadest support — and, accordingly, made its way into the House GOP's bill — would change what happens to Central American children when they're apprehended by Border Patrol. Under this plan, Central American children would be subject to the same expedited process currently reserved for children from Mexico and Canada.

Many Democrats, including Senate Majority Leader Harry Reid, believe that would violate children's due-process rights, and could end up sending children back into danger. (That's what's currently happening to Mexican kids.) Several House Democrats have said that adding this proposal to the funding bill would be a "dealbreaker" for them, including Rep. Raul Grijalva, head of the Progressive Caucus, and Rep. Zoe Lofgren, the ranking member of the House Immigration Subcommittee. 

Supporters of this plan say that it would make the US approach to immigrant children more fair. It would also have the effect of making it much easier to deport most Central American children quickly, which members of both parties (and the administration) feel is necessary to "send a message" to Central Americans not to come to the US.

5) Should other changes be made to the way Central American children are handled?

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Much of Senator John Cornyn's HUMANE Act was incorporated into the House GOP's bill. Alex Wong/Getty

The House's bill also includes a lot of the proposals in Senator John Cornyn's HUMANE Act. These proposals are designed to resolve children's cases within ten days of entering the US — and make it harder for those cases to be resolved favorably for the child. The bill would make children go through more steps before applying for asylum (and deport them immediately if they tried and failed to pass the preliminary interview showing a "credible fear" of persecution). It would keep children in detention while they wait for their immigration court cases. And it would set time limits on judges for hearings and decisions.

Democrats who oppose any changes to due process for Central American children can be expected to oppose all of these changes. Even Rep. Henry Cuellar, a Democrat who introduced the HUMANE Act in the House, has said he won't vote for the House GOP's bill.

6) Does Border Patrol need environmental protections to be weakened?

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House Republicans think this ATV should have freer rein.

The House Republican bill would give Customs and Border Protection pretty free rein within 100 miles of the US border. House Republicans have said that attempts to protect the environment are getting in the way of attempts to keep the border secure, and have said that they'll only agree to funding if these protections are weakened. (Democrats, predictably, disagree that the change is necessary.)

7) Should Congress end the Deferred Action for Childhood Arrivals program?

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Sen. Ted Cruz thinks the only way to end the child migrant crisis is to deport young adults who have lived in the US for years. Bill Clark/CQ-Roll Call

Many Republicans say that the current crisis was caused by President Obama's Deferred Action for Childhood Arrivals program (DACA), which granted temporary relief from deportation and work permits to young immigrants who had been in the US for several years in 2012. (There is no evidence to suggest that DACA has caused children to come to the US.)

House Republicans don't mention DACA in their plan — but it might stop them from getting all the Republican votes they'd need to pass it. Sen. Ted Cruz (R-TX) and Rep. Darrell Issa (R-CA) have led a charge to insist that ending DACA be part of any solution that Congress passes to the migrant crisis. If House Republican leadership loses more than twelve Republicans who won't vote for any bill without DACA repeal, they'll need support from House Democrats to get the bill passed.

Democrats are firmly opposed to this, and Senate Democrats openly say it's a dealbreaker.