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The immigration negotiations Congress just gave itself 3 weeks to do, explained

Democrats know what they want. Republicans have no idea.

CR passage or Government Shutdown Melina Mara/The Washington Post via Getty Images

Congress just gave itself three weeks to solve US immigration policy.

Ostensibly, they agreed to a deal that would reopen the federal government and keep it funded through February 8. Senate Majority Leader Mitch McConnell appears to have promised that at some point during that period, he will bring a bill to the floor that will address the fate of the 690,000 young unauthorized immigrants facing the loss of their protections under the Deferred Action for Childhood Arrivals (DACA) program. This is something both parties supposedly agree Congress needs to do.

But in the months Congress has spent working on this problem since the Trump administration announced in September that it would wind down DACA, the negotiations have gone around in circles.

Democrats know exactly what they want — legalization, with a path to citizenship, for the generation of unauthorized immigrants who’ve grown up in the US known as DREAMers. Republicans haven’t even decided whether anything short of an overhaul of the entire US immigration system will satisfy their needs.

McConnell could bring existing bills to the floor — but the only ones that can pass the Senate might not make it to the floor of the House

McConnell just promised to hold a vote on a bill to deal with DACA. But he didn’t specify which bill — and that could mean a great deal.

There are, after all, bills that already exist to address the problem, worked out by groups of legislators over the past several months. But 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 sponsorship by their children).

On the restrictions side, the plan 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 Rep. Pete Aguilar (D-CA) and Rep. Will Hurd (R-TX). That bill would allow DREAMers to get a potentially quicker path to citizenship (without making any accommodations for their parents).

Instead of directing the construction of a border wall, it would set the framework for the Department of Homeland Security 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 bottlenecked that it can take months, or even years, for someone to be deported after getting arrested.

Both of these bills have meaningful Republican support. And their supporters maintain that if the bills actually went to the floor, in an up-or-down vote, they’d get majorities in both houses. But even if McConnell brings one or both of these bills to the floor to satisfy his promise, Paul Ryan, in the House, hasn’t made any promise to do the same. And because neither bill is likely to get a majority of House Republicans supporting it, he’d have to break the informal “Hastert Rule” to bring them to a vote.

Senate Minority Whip Richard Durbin (D-IL), on left, has lambasted President Trump for his disparagement of certain countries that supply the US with immigrants Chip Somodevilla/Getty Images

What probably would satisfy the Hastert Rule, meanwhile, is a much more conservative proposal offered by Rep. Bob Goodlatte (R-VA) — one that, if McConnell brought it to the Senate floor, would be guaranteed to fail.

Goodlatte’s bill offers legal status to anyone whose work permit under DACA is current as of the day the bill is signed — likely fewer than the 690,000 immigrants who had DACA when the Trump administration started winding down the program — but they won’t be able to get green cards, or become citizens, unless sponsored by an employer.

That relatively strict and narrow legalization proposal is paired with a crackdown on immigration in all three major areas of immigration policy: at the border, in the interior of the US, and in legal immigration.

There’s so much in the Goodlatte bill that it’s hard to summarize succinctly. It would make it a federal crime to be in the US without papers, turn millions of immigrants out of work (by forcing employers to electronically check the status of all workers), and establish a legal standard that could force local jails to turn immigrants over to Immigration and Customs Enforcement. It would tighten asylum law and reduce protections for unaccompanied children entering the US. It would reduce overall legal immigration by 25 percent by eliminating the ability of US citizens to bring over their parents, adult children, or siblings.

In other words, it’s a bill so hawkish that many Republicans who want to expand skill-based immigration (or who understand the value of low-skilled workers to business) might balk at it. And it’s extremely hard to imagine any Democrat being willing to support it in the name of helping DREAMers.

Or negotiations could go “back to the drawing board” — but Republicans haven’t agreed on what they want to draw

Congress has other options. It could wait for the “No. 2” members of each chamber in each party — Senate Majority Whip John Cornyn (R-TX), Senate Minority Whip Durbin, House Majority Leader Kevin McCarthy (R-CA), and House Minority Whip Steny Hoyer (D-MD) — to finish the negotiations they were having before the shutdown and see what kind of deal emerges from that. Or they could continue negotiating multilaterally with the White House in the hopes that, eventually, Trump will figure out what he wants.

But for either of those options to generate a bill that both chambers can pass, Republicans will have to solve two interrelated problems: the policy and the president.

There no consensus among Republicans on what their demands are for a DACA fix; there isn’t even agreement on what areas of immigration policy most need to be toughened. Cornyn suggested last week that Congress go “back to the drawing board” on immigration; if anything, that understates the lack of agreement.

So far, Republicans have tried to avoid that problem by looking to the president for leadership — after all, if President Trump, who won the election with promises to get tough on immigration, said he’d be okay with a deal that met certain standards, it would provide political cover for members worried about their base and limit members’ ability to introduce other issues into negotiations.

But it has become abundantly clear by now that the Trump administration is not unified on immigration.

President Trump Attends GOP Senate Policy Committee Luncheon On Capitol Hill
How many immigration positions can you spot in this photo?
Photo by Chip Somodevilla/Getty Images

To oversimplify tremendously:

  • Reports indicate that President Trump himself really cares about building something he can call a “wall” on the US-Mexico border, while his own Department of Homeland Security couldn’t care less about that.
  • DHS, along with Cornyn, appears particularly interested in tightening asylum laws and reducing protections for unaccompanied children at the US border, so that more people who come to the US without papers can be quickly deported.
  • Some immigration hawks, including Sen. Tom Cotton (R-AR) and White House senior adviser Stephen Miller, have long viewed reducing legal immigration as a top priority, and criticized the Graham-Durbin bill for not doing enough to curb it.
  • Other immigration hawks, including Goodlatte and Senate Judiciary Committee Chair Chuck Grassley (R-IA), appear to believe that any deal should beef up interior immigration enforcement. And Chief of Staff John Kelly reportedly rejected a deal between Trump and Senate Minority Leader Chuck Schumer Friday on the grounds that it didn’t do enough in this area.

Really, though, it’s not even clear that the factions break down this way. Because whenever asked directly what their demands are, Republicans have demanded everything. The Republican-only congressional negotiations resulted in comprehensive enforcement bills (Goodlatte’s and one from Grassley); DHS has apparently narrowed its seven-page immigration “framework” to a mere four pages of demands, but Trump himself reportedly instructed members of Congress to ignore the shorter list because it didn’t include everything he wanted.

The only real attempt to narrow the scope of negotiations was during the televised meeting two weeks ago, when the White House appeared to agree to focus on “border security” and two specific areas of legal immigration (“chain migration” and the diversity visa lottery) as the top priorities. But Democrats and Republicans disagree on whether asylum tightening counts as “border security.” And besides, the day after that meeting, Goodlatte introduced his bill — which went way beyond those parameters.

In other words, the entire immigration system is up for debate.

Democrats and Republicans may not actually agree on how to help DACA recipients

The debate over enforcement trade-offs has obscured the fact that Democrats and Republicans don’t actually agree on what a “DACA fix” — the part they both claim to support — should look like.

Chelsea Guglielmino/Getty Images

Democrats point to the timeline of DACA rescission as the reason that Congress needs to act in the coming weeks — even though, as it stands, immigrants who could lose their work permits after the March 5 “deadline” have a chance to apply for a two-year extension because of a judicial ruling.

But the proposals Democrats have actually backed, including Graham-Durbin and Hurd-Aguilar, go beyond current DACA recipients to people who would have been eligible for DACA but didn’t apply, as well as those too young to qualify for the program. Either bill could legalize as many as 2 million people — a far cry from the 690,000 currently covered by the program.

There could be disagreements over what kind of legal status is available to those people. The Republican-only bills don’t have any way for a legalized DREAMer to apply for a green card unless an employer agrees to sponsor them; the bipartisan bills do allow legalized DREAMers to apply for green cards and eventual citizenship.

There are some hints that the White House wants to limit any legalization deal to current DACA recipients (this is an opinion that DHS Secretary Kirstjen Nielsen has voiced, for example). And neither the White House nor Republican leadership has committed to supporting a bill that would allow DREAMers to qualify for citizenship on their own.

Ironically, DACA recipients’ temporary window to renew their work permits eases pressure on Democrats to agree to a deal that would simply codify the DACA program as it exists — a program that provides work permits, but no path to anything more permanent, for fewer than 700,000 people.

These debates could easily take up three weeks on their own. But they can’t happen until both parties acknowledge that they don’t “agree on fixing DACA” to begin with.

Congress has tried to overhaul immigration before. It’s been unable to do it over two years. It just gave itself three weeks.

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