On Monday night, the US Senate will start debating immigration.
It’s not debating any specific bill or a specific set of policy proposals. The debate is likely to range from the scope of a legalization program for unauthorized immigrants brought to the US as children to asylum policy to cuts to future legal immigration. But the heart of the debate is a pair of questions. First, how — if at all — should Congress protect young immigrants facing the end of the Deferred Action for Childhood Arrivals (DACA) program? Second, what restrictionist policies are an appropriate “trade-off” for those protections?
Most senators have been doing everything they can to avoid those questions. This week, in theory, they’ll have to confront them. Here’s your guide to how we got here and what happens next.
1) Why is the Senate debating immigration?
In September 2017, the Trump administration announced it was winding down the DACA program, which protected 690,000 unauthorized immigrants who’d come to the US as children from deportation and allowed them to work legally in the US. The administration set a date six months in the future — March 5, 2018 — as the date after which no work permits expiring under DACA could be renewed. President Donald Trump said he was doing that so Congress would have six months to solve the problem of what to do with DACA recipients.
DACA recipients are a politically sympathetic population, and many Republicans weren’t eager to take the heat for young people who’d grown up in their states losing their jobs and getting deported. So most members of Congress, including many conservatives, agreed that it would be a good idea to do something to allow DACA recipients to stay in the US without fear of deportation.
In theory, that’s still the consensus opinion — no one in the Senate is saying explicitly that DACA recipients should leave the country. But in the months after September, it’s become clear that there isn’t anything close to a consensus on whether helping DACA recipients (and other DREAMers who came to the US as children) is something that Congress should do because it’s important for its own sake, or something that Republicans should accept as a trade-off for accomplishing other parts of their immigration agenda, like increases to border enforcement or cuts to legal immigration.
The lack of progress on policy has made it clear that there are some Republicans in Congress who are okay with not passing any bill at all to help DACA recipients if it isn’t a bill they would approve of for other reasons. But for other Republicans, and nearly all Democrats, that’s not an acceptable option.
2) Why is the debate happening now?
In January, Senate Democrats shut down the government for a weekend to try to force action on immigration. Senate Majority Leader Mitch McConnell was able to get them to vote to reopen the government again by promising to debate immigration. Specifically, he promised that if a bipartisan deal were struck on the issue by February 8 — the next shutdown deadline — he would bring that deal to the Senate floor for a vote. If no deal were made, he’d start a “full and open” immigration debate on the Senate floor — but only after Democrats voted to keep the government open again past February 8.
Democrats kept their end of the bargain last week. So McConnell is keeping his, by starting an immigration debate this week.
He’s not giving the debate much time, however. The Senate is supposed to leave on Friday for a week-long Presidents Day recess. So in theory, the Senate is expecting to conduct an entire immigration debate — from start to finish — in the course of a single week.
3) What are the current options on the table?
This is at the heart of what makes this immigration debate so weird: There are plenty of bills and proposals floating around the Senate, but none of them are serving as the starting point for the debate.
Each proposal that has come out, on the right or left, is swiftly rejected by the other side. McConnell himself has continued to wait for a bipartisan breakthrough (or try to engineer one behind the scenes). So it can be hard to tell the difference between existing bills that will have substantial support in the upcoming debate, and abandoned bills cluttering the debate like litter.
There are at least four proposals that appear to have support among at least some senators:
- The DREAM Act itself includes no border enforcement.
- A bill introduced in the Senate last week by Sens. John McCain (R-AZ) and Chris Coons (D-DE), which closely echoes a House bill proposed last month by Reps. Will Hurd (R-TX) and Pete Aguilar (D-CA), offers a path to citizenship in exchange for authorizing a study of border enforcement needs and providing more resources to immigration courts, which are currently suffering enormous backlogs.
- A bill proposed by Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL), along with a small bipartisan working group, would offer legal status to DREAMers and include a few billion dollars in funding for a border wall. It would also legalize parents of DREAMers (while making them ineligible for citizenship) and make some tweaks to legal immigration — replacing the diversity visa lottery with other visas for underrepresented countries, and visas for immigrants facing the loss of Temporary Protected Status.
- The Secure and Succeed Act, set to be introduced Monday, is a conservative bill supported by the Senate’s leading immigration hawks (including Senate Judiciary Committee Chair Chuck Grassley (R-IA) and Sen. Tom Cotton (R-AR)) based on the immigration framework released by the White House on the eve of the State of the Union. It would create a path to citizenship for DACA recipients and some other DREAMers, in exchange for a $25 billion border “trust fund”; substantial changes to asylum policy at the US border, and some increases to interior enforcement; the elimination of the diversity visa lottery (with those visas going to reduce backlogs in other categories instead); and the elimination of visa categories for adult children and siblings of US citizens, and parents of green card holders (as well as preventing parents of US citizens from becoming citizens themselves through their children).
None of these are officially serving as the starting point for the debate. The debate will start with a neutral “shell” without any immigration provisions. At some point, it’s expected that McConnell will replace this with an actual immigration bill, but observers expect that he’s trying to figure out what will actually get 60 votes before deciding what to put on the floor. What that is simply isn’t apparent before the debate begins.
4) What do Democrats want?
This one’s easy. Democrats want to pass a bill that allows unauthorized immigrants who came to the US as children to become US citizens — not only current DACA recipients, but other DREAMers who were too old or too young for DACA; whose DACA expired and didn’t renew; or who didn’t apply for DACA (the people Chief of Staff John Kelly characterized last week as “too lazy to get off their asses”).
Ideally, they’d want to pass a “clean DREAM Act”: a bill that provided a path to citizenship for DREAMers but didn’t escalate enforcement funding or policy, or cut future legal immigration. But while some progressive Democrats like Sen. Kamala Harris (D-CA) are still putting the “clean DREAM Act” demand front and center, many other Democrats have signaled that they’re willing to make some trade-offs to get citizenship for DREAMers.
Democratic leaders in the Senate have already shown they’re willing to throw some money at the border to get what they want. Senate Minority Leader Chuck Schumer reportedly offered the White House $19 billion in funds for the “wall” in exchange for a path to citizenship. But Democrats might not be willing to make the changes to asylum policy that Republicans call enforcement “loopholes” — since that would, in essence, reduce the number of humanitarian immigrants able to come to the US in future.
Most Democrats are firm that they don’t want serious cuts to legal immigration. Many are okay with proposals (like Graham-Durbin) that eliminate the diversity visa lottery, but only if those 45,000 annual visas are allocated to other types of immigrants — and preferably, only if some visas are still being set aside for immigrants from countries that don’t send many people to the US.
And Democrats are holding firm against plans, like the White House’s framework, that would simply eliminate whole categories of family-based immigration and redefine “immediate family” to exclude adult children or siblings of US citizens.
5) What do Republicans want?
If Republicans had a unified immigration agenda, it would be much, much easier to strike a deal. But they really don’t.
- Some Republicans — like Graham and Flake — really want to make sure that DACA recipients are protected past March 5. That means that they’ve been willing to present bills that don’t have aggressive enforcement trade-offs; but it also means that after months of attempts at dealmaking, they’re not sure whether it’s worthwhile to try to pass a permanent bill, or to pass some sort of temporary “punt” to protect DACA recipients for a year or three while Congress works out the issues.
- No Senate Republicans are actually enthusiastic about Trump’s border wall. But some of them (including Sen. Thom Tillis (R-NC)) do think that spending money on border security is the most urgent priority to pair with the legalization of DACA recipients.
- Senate Majority Whip John Cornyn (R-TX), backed by Trump’s Department of Homeland Security, 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.
This isn’t exhaustive. For example, Sen. Grassley has traditionally focused on interior enforcement, but he seems willing to adopt the White House’s border- and legal immigration-focused framework for this debate. And Sens. Graham and Tillis both think that Congress ultimately needs to take up a comprehensive reform of immigration, including expanding some legal immigration for workers (as well as, possibly, legalizing the rest of the 11 million unauthorized immigrants in the US).
6) How does Donald Trump fit into all this?
He doesn’t, yet. The question is whether he’ll try to.
As president, Trump hasn’t been much of a dealmaker. When Congress took up health care in early 2017, and tax reform later in the year, Trump toggled between two modes: He would make public statements telling Congress to pass a bill but remain uninvolved in the actual legislative process; or he would try to get involved in the legislative process, with mixed results at best.
Immigration is, theoretically, different — it’s an issue that the Trump White House cares about, as policy, much more than most Republicans in Congress. But the Trump White House doesn’t always speak with one voice on immigration, and when it does, it’s the voice of hardliners like Kelly and Miller that the public hears — which is far to the right of a 60-vote consensus in the Senate.
At the same time, Trump has always claimed to be sympathetic to DREAMers, and he says that he and Republicans are the party that actually wants to help them — which should, in theory, indicate that he’d want to spend political capital to pass a bill that would do just that.
The White House tried to get involved in January with its one-page framework, which Senate Republicans have now turned into a bill. But the framework was pitched as a bipartisan compromise, and the Senate bill based on it is sponsored only by conservative Republicans.
If Donald Trump really wanted to help the DREAMers and supported a bill that’s to the left of the lines his White House has drawn so far, he could almost certainly bring some Republican votes with him. Conversely, if Trump decided that the most important thing was to blame Democrats for inaction on DACA (as his tweets of the past few weeks indicate he’s gearing up to do), he could probably keep some Republicans from wavering.
But it’s not even clear right now that Trump knows there’s an immigration debate happening in the Senate this week. His White House is trying to gather media attention for his budget and infrastructure plan — crowding out the immigration debate. And politically, it looks like Trump’s team is less interested in securing legislative victories than in finding some new culture-war fights to pick, which is extremely bad news for anyone hoping that the president would turn dealmaker on the issue.
7) What happens if the Senate can’t agree on a bill?
McConnell didn’t promise to pass a bill, only to debate one. So if the Senate can’t reach a 60-vote majority on any proposal, it might just let the issue die.
And that would mean a lot of people could start losing the deportation protections and work permits they’ve had for years.
The March 5 “deadline” doesn’t mean that 690,000 immigrants will lose their protections at once. The loss of protections is gradual — and it’s already started. Since September, approximately 19,000 immigrants have lost DACA protections. By March 5, that number will rise to 22,000. What changes after that is the pace: 975 or more immigrants each day will start to lose DACA protections beginning on March 6.
The good news for DACA recipients is that they are currently able to apply for a two-year renewal of DACA protections, due to a January court order forcing the Trump administration to partially revive DACA.
The bad news is that the federal government usually takes about 90 days to process DACA applications; an immigrant whose work permit expires in March or early April, therefore, runs a serious risk of falling vulnerable to deportation before a renewed work permit arrives, even if he applied the minute applications reopened in mid-January.
8) Is there any hope of a Senate-passed bill passing the House?
It’s really hard to imagine this happening.
Remember, the Senate is only going to pass a bill if it gets 60 votes — which means a large handful of Democrats, in addition to dovish Republicans like Graham and Flake, would have to sign on. So it’s not going to be the bill that immigration hawks would desire. And in the House, the immigration hawks hold sway — and Ryan has promised that on immigration, he’ll stick to the Hastert Rule — a House Republican tradition that says bills will only be brought to the floor if a majority of House Republicans support them.
It’s not even clear that a Senate-passed immigration bill would make it to the House floor. Unlike McConnell, Ryan hasn’t made any promises to Democrats on immigration. The only promise he’s made is to the conservative House Freedom Caucus to hold a vote on (and whip Republicans to vote for) a bill called the Securing America’s Future Act, written by Rep. Bob Goodlatte (R-VA). (Goodlatte’s bill is far more aggressive on interior enforcement and far more restrictive in legalizing DACA recipients than anything being pushed in the Senate.)
9) So why does any of this matter?
Just because it’s hard to see a path forward on immigration in Congress doesn’t mean there isn’t one. While the floor debate is going on this week, McConnell and other Senate leaders from both parties will be trying to cobble together some sort of proposal that can get 60 votes. Once that deal is struck, it could be passed very quickly — and even if it doesn’t look like it could pass the House right now, that calculus might change if, say, President Trump were to back whatever bill the Senate passed.
But that doesn’t make the floor debate a distraction. The floor debate is going to be what makes that possible.
Right now, it’s hard to figure out what bill could get 60 votes because many senators simply aren’t on the record about what their immigration priorities are, while others have been unwilling to give any ground from the right or left. A floor debate will provide an opportunity to make clear what immigration hawks want most badly in exchange for legalizing DREAMers, and which concessions immigration doves are least unwilling to make.
If a deal gets made, it probably won’t be made, in the open, on the Senate floor. But the debate is forcing senators of both parties to take immigration seriously as a policy issue, which is the only way a bill could ever be passed.