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The immigration debate at the center of the government shutdown, explained

The shutdown won’t be resolved without an immigration breakthrough. It looks shaky.

President Donald Trump... Jabin Botsford/The Washington Post via Getty Images

President Donald Trump sits at the center of the fight to reopen the federal government, and it’s posing a major problem.

“Negotiating with President Trump is like negotiating with Jell-O,” Senate Minority Leader Chuck Schumer said on the Senate floor on the first day of the government shutdown.

Republicans and Democrats are stuck in a standoff over the future of the Deferred Action for Childhood Arrivals program, which the Trump administration has promised to fully sunset by March 5. Frustrated with Trump’s unwillingness to accept a bipartisan proposal to address the nearly 700,000 DACA recipients in legal limbo, Democratic — and some Republican — senators voted against the short-term spending bill on Friday to force a sense of urgency over immigration negotiations. The conversation about reopening the government has become hopelessly entangled with the conversation about what to do on immigration.

But each side is also solidifying its resolve. The White House said talks would only continue after Democrats agreed to vote in favor of funding the government, but Democrats are holding out for assurances that immigration negotiations will actually deliver results.

For weeks, Republican leaders have slow-walked immigration negotiations in the name of Trump; they still didn’t know what he wanted on a DACA deal and have said they won’t move forward with a bill unless the president gives his approval. But with a government shutdown hovering, in the early hours of Saturday morning, Senate Majority Leader Mitch McConnell appeared to make a major concession: He told lawmakers that if they voted to open the government, he would promise to allow votes on immigration proposals with or without Trump’s approval.

That’s a substantial step forward, but not enough to assure Democrats that the House would do the same.

The state of immigration negotiations encapsulates the fundamental reason this shutdown happened: Immigration is a messy, controversial issue. Between the Senate, the House, and the White House, Republican leaders have made promises that are impossible to keep.

This won’t be resolved easily.

There’s a major promise on the table — and it’s being held hostage by conservative hardliners

It was nearly 2 am on Saturday when Sens. Jeff Flake (R-AZ) and Lindsey Graham (R-AZ), who have run point on bipartisan immigration negotiations, said they had the contours of an agreement: a short-term spending bill to keep the government open until February 8, and a promise from McConnell to move forward with an immigration bill, regardless of whether Trump approves of it.

It’s similar to what Flake agreed to during the tax reform debate, when leadership told him he would see an immigration vote on the floor by the end of January, in exchange for his vote on the GOP tax bill. But leadership added a condition to that deal after the fact, saying they wouldn’t vote on an immigration bill that the president didn’t support. Since no one, including Republican leaders, appears to know what Trump wants on immigration, negotiations have stalled.

This offer from McConnell appears to promise that an immigration bill — or multiple bills — would be debated on the Senate floor (instead of in closed-door meetings), allowing for lawmakers to bring up their proposals and let them be judged by the entire body.

But Democrats don’t have much reason to believe this promise will bring them closer to putting a bipartisan immigration bill on Trump’s desk: They want something to be attached to a must-pass piece of legislation, like a government spending or debt ceiling bill, to ensure the House passes it and Trump signs it.

But in the House, Speaker Paul Ryan’s only assurances on immigration have been to hardliners, who threatened to shut down the government themselves if they weren’t given a vote on a conservative immigration bill. Ryan has promised that an immigration bill passed in the House would be done so with the support of the “majority of the majority” and his leadership team would whip the votes for a conservative proposal.

The bill would likely look something like a proposal put forward by Rep. Bob Goodlatte (R-VA) that would criminalize all unauthorized immigrants in the US and curb legal immigration by 25 percent, while giving legal status — but not green cards — to current DACA recipients. Goodlatte’s bill has become the consensus choice of conservatives but is too far to the right for any Democrat to support.

Meanwhile, Trump, who has continually engaged Congress’s archconservatives on DACA, told Rep. Mark Meadows (R-NC), who leads the far-right Freedom Caucus, and his immigration hawk counterpart in the Senate, Sen. Tom Cotton (R-AR), that he wouldn’t agree to any bill that doesn’t have their blessing.

If there’s going to be a DACA deal on the president’s desk, some of these promises will have to be broken. But as long as Trump and Republican leaders are intent on keeping their word with conservatives, there’s no deal to be had.

That’s why Flake and Graham’s proposed deal falls apart for Democrats. McConnell says he won’t bind Ryan or Trump to an immigration deal, and Democrats won’t sign on to a deal that has an uncertain future in the House.

There are immigration proposals out there and no path forward

President Trump Healthcare Press Conference
Freedom Caucus Chair Rep. Mark Meadows, (R-NC) has had Trump’s ear on immigration.
Cheriss May/NurPhoto via Getty Images

The problem isn’t that no one has any ideas. It’s that the ideas that have been presented are either too far to the left to satisfy “a majority of the majority” among House Republicans or too far to the right to attract any Democratic votes in the Senate.

In the Senate, the plan concocted by Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL), among others, offers legal status (and eventual citizenship) to young unauthorized immigrants who meet certain criteria, whether they currently have DACA or not, and allows their parents to apply for three-year renewable work permits (while preventing those parents from ever becoming citizens through their children). On the enforcement side, it gives about a year’s worth of funding for the border “wall,” and eliminates the diversity visa lottery — replacing it instead with “merit-based” visas for the countries currently eligible for the lottery, and with green cards for some immigrants facing the loss of their Temporary Protected Status.

In the House, a narrower plan, focused on border security and DREAMers, has been introduced by Reps. Pete Aguilar (D-CA) and Will Hurd (R-TX). That bill would allow DREAMers to get a potentially quicker path to citizenship (without making any accommodations for their parents). And instead of directing the construction of a border wall, it would set the framework for DHS to come up with a comprehensive border strategy and make a few other small fixes to border operations. And it would hire more judges and clerks in immigration courts — which are currently so badly bottlenecked that it can take months, or years, for someone to be deported after getting arrested.

Both of these bills have meaningful Republican co-sponsorship. But neither has enough buy-in from Republicans to make it to the floor right now.

There’s a serious question whether any immigration bill on its own can pass the “Hastert Rule,” and there’s an understanding among some Republicans that pushing a conservative proposal would only give more Republicans cover for wanting to vote against a bipartisan final product.

“The Goodlatte bill will incentivize people to vote against the final product on the Republican side,” says Rep. Charlie Dent (R-PA), a moderate Republican who said he doesn’t see an immigration bill being able to reach 218 votes in the House.

“This proposal is designed not to become law — everyone knows that. I doubt it can even pass the House.”

Republicans need to decide who is in charge of immigration negotiations

It’s pretty clear that an ultimate deal may not be based on any of these bills. Trump’s negotiations with Senate Minority Leader Chuck Schumer on Friday appeared to be an attempt to start from scratch — resulting, according to Schumer, in a tentative agreement to legalize DREAMers in exchange for much or all of the money needed to build Trump’s wall.

But that agreement collapsed later on Friday in exactly the same way that two previous Trump agreements on DACA (in a September meeting with Schumer and Pelosi, and in a call last week with Schumer and Durbin) did: Trump changed his mind and started making more hawkish demands.

It’s not just that there’s no consensus among Republicans on what their demands are for a DACA fix. It’s that there isn’t agreement on what areas of immigration policy most need to be toughened.

For months, Trump appeared most interested in curbing legal immigration — especially “chain migration” and the visa lottery — in exchange for a DACA fix. Trump’s Department of Homeland Security, along with Senate Majority Whip John Cornyn, appears most concerned with not only providing more resources at the border but also closing what they call enforcement “loopholes” — in other words, tightening asylum law and eliminating some protections for unaccompanied children. And on Friday, Trump and Chief of Staff John Kelly apparently concluded the deal with Schumer didn’t do enough on the border — or enough to increase immigration enforcement in the interior of the US, something that hasn’t been a hot topic in the negotiations so far.

The lack of focus on the enforcement side has made it really hard to determine what Republicans would actually be willing to agree to for DREAMers themselves. It’s possible that the White House or conservatives will take a hard line that any DACA fix applies only to immigrants who currently have DACA — excluding not only those who were eligible but didn’t apply but also any immigrant who was younger than 15 on September 5, 2017. It’s also possible (if slightly less likely) that they’ll refuse to allow legalized DREAMers to apply for green cards on their own, or even by marrying US citizens.

The public doesn’t know what the bright lines are here because the Republican Party hasn’t gotten there yet. It’s still too unclear on what it would insist on to be willing to entertain any legalization of DACA recipients whatsoever. And that, in turn, is unclear because the White House is attempting to delegate legislative negotiations to Congress (while vetoing any deals it doesn’t like), while congressional Republicans, aware of the divisions within their party, believe the only way they’ll get enough support for a DACA deal is if Trump gives it his blessing.

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