This week, the US Senate embarked on a strange, rarely seen approach to policymaking. Rather than coming up with his own solution to the impending expiration of the Deferred Action for Childhood Arrivals (DACA) program, which is currently protecting from deportation some 690,000 people who arrived in the US as children, Senate Majority Leader Mitch McConnell threw the matter to the Senate floor, letting any senator offer amendments addressing the issue.
Some amendments were hardline, designed to reduce levels of legal immigration. But the most interesting ones were bipartisan compromises, some of which seemed capable of earning 60 votes and making it to the House of Representatives.
Then on Thursday, those amendments failed, and the process, such as it was, died. There is still a little bit of time left before March 5, the date the Trump administration has set as the de facto deadline for passing a fix. But hopes of reaching a deal that protects DACA recipients, and potentially millions of other unauthorized immigrants, are fading.
Here’s who gained from the stalemate, and who ended the debate worse off than they were before.
Winner: Donald Trump and Stephen Miller
This entire showdown was Donald Trump’s choice — a choice heavily influenced by Miller, who has emerged as his main adviser on immigration policy.
Trump could have chosen to continue DACA if he wanted to do so. It was an executive action undertaken by President Barack Obama, and Trump had just as much authority to maintain the policy as Obama had to institute it in the first place. There were judicial conservatives who doubted Obama’s order was legal, but if Trump wanted to maintain the policy he could’ve defended the order in court and obeyed whatever the Supreme Court’s ultimate judgment on the matter was.
Instead, he took matters into his own hands, canceled DACA in September, and essentially turned the fates of the 690,000 people the program is helping into bargaining chips.
He could’ve used those chips for any number of things: to get Democratic support to make parts of last year’s tax cuts bill permanent, to dismantle more of Obamacare, to get his infrastructure plan passed.
Instead, he has tied support for DACA recipient relief (and relief for the larger group of 1.8 million DREAMers who arrived as children) to massive funding for a border wall with Mexico and some of the sharpest limitations on legal immigration since the 1920s.
The Secure and Succeed Act of 2018, Trump and Miller’s preferred solution backed by a group of seven Republican senators led by Chuck Grassley (R-IA), would commit $25 billion to build a wall, eliminate the 55,000-person diversity visa program (which is responsible for most African immigration to the US), and eliminate the ability of parents, adult children, and siblings of US citizens to join their family members here.
That is, Trump and Miller offered Democrats and moderate Republicans relief for DREAMers — but their price was a gutting of the legal immigration system, a dramatic reduction in the number of people who can legally move to this country.
In case you worried they weren’t serious, they issued a veto threat against the competing plan that was likeliest to pass the Senate: the “Common Sense Caucus” proposal, produced by Sens. Mike Rounds (R-SD), Angus King (I-ME), and Susan Collins (R-ME), which would provide relief for the 1.8 million who came as children and $25 billion for border security but not gut the legal immigration system.
All the proposals failed, and the Grassley proposal failed particularly badly, gaining only 39 votes, compared to 54 for the Common Sense plan. So Trump has not been successful, yet, in trading DREAMer relief for cutbacks on legal immigration.
But he and Miller have nonetheless succeeded in taking complete control of this debate. They could’ve conceded that they were out of step with the Senate and endorsed the Rounds-King-Collins plan. It was a genuinely moderate proposal that some conservative Republicans like Rounds had endorsed. It would’ve gotten Trump his border wall and stopped DREAMers from sponsoring their parents for citizenship. At the same time, it would’ve signaled that Trump personally is not running the show and is willing to take cues from Republicans in Congress rather than sticking up for his own vision.
Instead, Miller’s hardline stance won out, Trump retains the 690,000 DACA recipients as bargaining chips, and he demonstrated that he could shut down compelling, popular compromise plans in the Senate by threatening a veto. Even if he doesn’t ultimately get all the legal immigration cuts he wants, achieving them looks far more possible now than it ever has before.
“It’s now clear that the most contentious question in Congress is one that’s been dormant in legislative fights for years: whether or not to cut legal immigration,” my colleague Dara Lind explained. “This is almost entirely the doing of President Donald Trump. Over the course of two and a half years, as a candidate, nominee, and now president, he’s turned a fringe right-wing view into the heart of the current congressional debate over immigration.”
If that’s not a victory for a political actor, I don’t know what is.
Winner: Paul Ryan
One of the hardest parts of being a Republican speaker of the House is that, for reasons that remain mysterious even to the GOP caucus, you have to obey a decades-old rule named after a child molester that makes it impossible to get tough compromises passed.
Under the Hastert Rule, the speaker won’t allow a vote on legislation unless it has the support of a “majority of the majority” in the House. That means that legislation that, say, a minority of Republicans and all Democrats support cannot come to the floor even if it could pass the House. There have been times when speakers violated the rule (John Boehner memorably did so both to pass a deal to avert the “fiscal cliff” at the end of 2012 and to end the 2013 government shutdown), but they’re relatively rare.
And the rule has a particularly tortured history when it comes to immigration. In 2013, bipartisan immigration reform passed the Senate with 68 votes, a truly massive margin. It would’ve provided a path to citizenship for the 11 million-odd Americans who came here illegally, cleared the visa application backlog, expanded visas for both low-skilled agricultural and high-skilled STEM workers, and spent more on border security and employer verification of legal status.
The plan likely had majority support in the House too — but because it didn’t have majority support among Republicans, Boehner didn’t bring it up for a vote, and it died. It was the last best shot for comprehensive reform, and it died because the House leadership took a hard line.
Taking that line wasn’t always easy for Boehner, who faced criticism from normal allies like the Chamber of Commerce and knew that killing a popular bipartisan bill could hurt his public image.
And with the current debate, Speaker Paul Ryan has found himself in Boehner’s shoes. He doesn’t want to run afoul of Trump by backing a more moderate deal. But he also doesn’t want to be blamed for deportations of DACA recipients if it comes to that. If push came to shove, he most likely would’ve chosen not to schedule a vote on anything the Senate passed that fell short of Trump’s standards and taken the heat. That said, if he could avoid the situation entirely, that would be even better.
By defeating every proposal, the Senate gave Ryan a massive out and allowed him to avoid having to exercise agency — to show actual leadership of some kind — in this debate. He can continue trying to avoid the topic, bragging about tax cuts, and twiddling his thumbs while hundreds of thousands of Americans’ fates hang in the balance.
Loser: parents of DACA recipients
Parents of the 690,000 Americans threatened with deportation if DACA lapses without replacement are, in general, in a tough situation. Many, if not most, of them are in the US without authorization themselves, which puts them at risk of deportation unless a broader legalization program (like the 2013 bill the Senate passed) is adopted. And even if they still live abroad, their children face the prospect of being uprooted from the only home they ever knew, which should concern any parent.
But worse than that, during the current debate, DACA parents have found themselves identified as villains — or, if not villains, then a problem that policymakers are trying to avoid. Due to Trump administration concerns about “chain migration,” the Grassley bill would have completely eliminated the ability of children to sponsor their parents for green cards. That takes away the possibility of DACA parents gaining permanent residency after their children achieve permanent residency or even citizenship.
Suppose a mother moved from the Philippines to the US with a 2-year-old daughter and overstayed her visa. Now, living in the US, she has another daughter. Her older daughter might be eligible for DACA — but her second would definitely be a US citizen and under current law could, potentially, sponsor her for a green card. If the Grassley bill passed, that avenue would have been foreclosed too.
The Grassley bill went down in flames. But even the much more plausible Common Sense Caucus plan would’ve placed limits on familial migration by barring DACA recipients from sponsoring their parents for legal status. So that Filipino mom would have to be sponsored by a US citizen kid — and if she didn’t have one, she’d be out of luck.
As the Migration Policy Institute‘s Julia Gelatt and Randy Capps explain, many DACA parents are likely not eligible for sponsorship regardless. “Realistically, only parents who overstayed legal visas or those residing outside of the country would likely be able to obtain a green card,” they write, because parents who entered illegally are required to leave the country and wait for three or 10 years to apply for another visa.
Even given that limitation, they estimate that on average, each DACA recipient or DREAMer who is formally legalized will sponsor 0.28 parents for legal status, after they wait five years or more to gain citizenship themselves. If only the 690,000 people now on DACA do this, that’s still nearly 200,000 parents who wouldn’t be sponsored if a measure like the Grassley or Common Sense Caucus bills passes. Some of them could be sponsored by a US citizen child of theirs, but others would simply be out of luck.
These measures aren’t law yet. But when even the moderate one promises to make life more difficult for parents of DACA recipients, that’s reason for worry.
Loser: the Supreme Court
In January, Judge William Alsup of the Northern District of California issued an injunction blocking Trump temporarily from overturning DACA, saying there’s reason to believe that Trump violated the Administrative Procedure Act by using such a hasty decision process to rescind the program. It was a shocking decision that kept the program on temporary life support, without ensuring its long-run survival.
And, naturally, it was immediately appealed up to the Supreme Court. The Court is set to conference this week on the matter, and to decide whether and when to review Alsup’s order, and a similar one issued by Judge Nicholas Garaufis of the Eastern District of New York, stand as legal challenges to the program make their way through the courts.
If Congress had agreed to a deal to offer relief to DACA recipients, the Court would have had a simple out: declaring the issue moot, as new laws made the debate over whether the Administrative Procedure Act was violated irrelevant. But now, it will be forced to rule on a highly contentious, partisan dispute between the branches. The Court has a small-c conservative streak, attempting in most cases to stay out of bitter partisan controversies for fear of losing legitimacy. On DACA, it looks like they won’t be able to.
Loser: Lindsey Graham
Few figures in Washington have supplicated themselves more completely, and in more humiliating fashion, to Donald Trump than Sen. Lindsey Graham (R-SC). During the 2016 primary, in which Graham briefly ran (he really did, though I forgive you for not remembering), he denounced Trump as a “kook,” “crazy,” “unfit for office,” and “the most flawed nominee in the history of the Republican Party,” even saying his nomination would mean the death of the party. Trump reciprocated the loathing, even revealing Graham’s personal cellphone number at a rally as a kind of revenge.
If we nominate Trump, we will get destroyed.......and we will deserve it.— Lindsey Graham (@LindseyGrahamSC) May 3, 2016
In November, Graham refused to vote for Trump, casting a ballot for independent conservative Evan McMullin instead.
But once Trump was in office, Graham took a different tone. He even sent out tweets about how much fun he had golfing with Trump, what a good golfer Trump is, and how great Trump’s golf courses are:
Just to be clear:— Lindsey Graham (@LindseyGrahamSC) August 11, 2017
President @RealDonaldTrump INHERITED the mess with North Korea.
He did not create it. (1)
Really enjoyed a round of golf with President @realDonaldTrump today.— Lindsey Graham (@LindseyGrahamSC) October 9, 2017
President Trump shot a 73 in windy and wet conditions!
Trump International Golf Club is a spectacular golf course.— Lindsey Graham (@LindseyGrahamSC) December 10, 2017
Great day of fun playing with @POTUS @realDonaldTrump. https://t.co/92Xjk8d8B2
At one point in November, Graham lambasted critics who tried to “label the guy some kind of kook not fit to be president,” despite the fact that he himself had called Trump a kook who was not fit to be president. More substantively, he referred Christopher Steele, the author of the infamous Trump-Russia dossier leaked by BuzzFeed in January 2017, to the Justice Department for criminal investigation, a meaningful act of loyalty to the president and sign he’ll look the other way at any possible untoward ties with Russia.
It was never super clear why Graham was suddenly sucking up to Trump. But it became clearer at an televised immigration conference in January.
January 25, 2018
At the meeting, on camera, Graham urged Trump to support a pathway to citizenship for DACA recipients, citing polls showing that Trump’s voters supported the move, noting that it would be tough and would face right-wing radio opposition but that Trump could help them finally pass something. “You have created an opportunity here, Mr. President, and you need to close the deal,” he said.
Then a couple of days later, Trump decided to call African nations “shitholes” and everything went to … well, to shit. “Tuesday we had a president that I was proud to golf with, call my friend, who understood immigration had to be bipartisan,” Graham said at a Senate hearing the next week. “I don’t know where that guy went. I want him back.”
He never came back. A week after that, White House deputy press secretary Hogan Gidley went on TV to denounce Graham as “completely dishonest,” insisting that he’d lied to the president about what a bipartisan DACA deal entailed, and concluding, “To pretend [Graham] is anything other than someone who wants open borders and amnesty is just disingenuous.”
In February, an anonymous White House official organized a press call with reporters to attack Graham, leading Graham to say resignedly (and implying a suspicion as to who that official was), “Stephen Miller is an outlier on immigration, he’s an extremist and the president who has turned the keys of the car over to him will never get anywhere.”
But Graham’s outreach effort wasn’t a complete, clear failure until all bipartisan efforts on DACA failed in the Senate. It was the final nail in the coffin of a strategy he’s been crafting for months, one that relied on flattery and sycophancy to earn Trump’s good graces to maximize the odds of a reasonable immigration deal. That strategy has gone up in flames, and Graham’s reputation, and power on the Hill, has taken a huge plunge.