With only three days to avert government shutdown by passing a spending bill, any day that Congress doesn’t move closer to a solution is a day it moves closer to shutdown.
The biggest point of contention appears to be over immigration — specifically what to do about President Donald Trump’s decision to wind down the Deferred Action for Childhood Arrivals program in September.
Democrats say they won’t sign on to any spending bill that doesn’t address the fate of the 690,000 unauthorized immigrants who are losing their protections from deportation and work permits over the next two years. Many are asking for a straight passage of the DREAM Act (essentially a means of codifying the DACA program and providing a path to citizenship).
Republicans are taking the opposite stance, asking for hardline immigration restrictions in a massive bill introduced by Sen. Chuck Grassley (R-IA) on Tuesday afternoon, which includes billions in funding for border enforcement (including “physical barriers,” i.e., a wall) and restrictions on family-based legal immigration lifted from Sen. Tom Cotton’s RAISE Act.
But as far apart as these demands are, the desire to find a DACA solution as soon as possible has more bipartisan support than you might think. Thirty-four House Republicans sent a letter to Speaker Paul Ryan on Tuesday, urging him to address the issue by the end of the year.
Leadership in both chambers appears uninterested in addressing the issue before the March “deadline” — but they need at least eight Democratic votes to keep the government open after Friday.
None of this is to say that a DACA fix can’t come together, or even that it can’t come together in time to avert a government shutdown (especially if Democrats are willing to support a two-week Band-Aid spending bill in the meantime). This is, after all, a legislative body that passed a tax reform bill it had just finished writing that night. But both Democrats and the Republicans interested in tackling DACA are facing tough questions about how far they’re willing to stick their necks out.
A disagreement about urgency
The fundamental problem with the current debate in Congress about DACA is that the people in control of the legislative calendar — Republican leadership in the House and Senate — think of DACA as something that has to be addressed by March 5, the “deadline” imposed by the Trump administration.
Leadership is treating the DACA deadline of March 5 as if it’s the same sort of deadline Congress faces on other things — the spending bill deadline of December 8, for example. When the government faces a funding deadline (or a deadline to raise the debt ceiling), business continues more or less as usual right up until that deadline — so it really doesn’t matter whether Congress beats the deadline by three hours or three months.
And with the December 8 shutdown deadline looming — and a conference committee to convene on tax reform — Republican leadership doesn’t see any reason to treat DACA as equally urgent.
“There is no crisis. There is no emergency. The president has given us until March to address it,” Senate Majority Leader Mitch McConnell said on ABC’s This Week on Sunday.
But Democrats and some sympathetic Republicans don’t see DACA that way at all. They see it as something that should have been addressed as soon as possible after September 5, when the administration started winding down the program. So the urgency is building every day.
There’s a policy reason for this: Thousands of people have likely already lost their DACA protections due to missing the sudden deadline the administration set for final renewals, and thousands more are running up against the expiration of their current round of DACA protections as they wait to hear if their renewal applications have been approved. Then, of course, there are the difficulties faced by the tens of thousands of immigrants who are on track to lose their DACA protections in the weeks after March 5 — who had no opportunity to renew them — in making plans for the next months of their lives.
But there’s also a legislative reason. Congress takes some deadlines more seriously than others; funding for the Children’s Health Insurance Program expired more than two months ago and still hasn’t been renewed. The spending bill is the one “must-pass” bill remaining between now and March 5.
As a result, some Democrats and advocates have taken the stance that it’s now or never for DACA. They don’t see the current fight as building urgency for a legislative battle in January and February — they see it as the only chance they have to keep Republicans in Congress from slow-walking a legislative fix until it’s far too late.
That’s pushed some Democrats into an unfamiliar position. While for the past several years they’ve been the party cooperating with moderate Republicans to keep the government open (as conservatives in the House Freedom Caucus and elsewhere have demanded concessions), they’re now the ones attempting to get a policy concession out of Republican leadership.
Senate Minority Whip Dick Durbin, one of the seniormost members of the Democratic caucus, is hardly a firebrand. But he’s also been pushing for the legalization of young immigrants for 15 years, and his interest in protecting DREAMers appears to have won out. Durbin is openly urging his colleagues to vote against any spending bill that doesn’t protect DACA recipients. “We have to assert ourselves in the minority,” he told the Chicago Tribune Monday.
Senate Republicans’ “offer”: temporary assurances for DREAMers in exchange for permanent restrictions on legal immigration and asylum
Last week, according to reports, Senate Majority Leader John Cornyn and Judiciary Committee Chair Grassley approached Durbin with a proposal for a deal. They would allow immigrants who qualified for DACA to get temporary “provisional” status — essentially codifying DACA legislatively — for three years. In exchange, they would pass a slew of reforms to increase border enforcement (per a bill introduced by Cornyn earlier this year), expand the government’s capacity to arrest and detain immigrants, and make some reforms to reduce “chain migration” by cutting family-based immigration.
Durbin rejected the deal. He told news outlets that he wasn’t interested in making such sweeping concessions if it wasn’t even going to include a pathway to citizenship for DACA recipients.
On Tuesday, Grassley — alongside Cornyn and other Senate Republicans, including Sen. Tom Cotton (R-AR), a close Trump ally and the Senate’s foremost immigration hawk — introduced a bill called the SECURE Act.
It strongly resembles, to say the least, the deal Durbin already rejected on behalf of Democrats.
The SECURE Act includes the proposal for three years of provisional status for DACA recipients (called the “BRIDGE Act,” after a bipartisan bill that was proposed in January as a potential stopgap before Trump actually ended DACA). It doesn’t provide a way for those “provisional” immigrants to get permanent legal status, much less citizenship, and it would put those immigrants in exactly the same position three years from now that they’re currently.
On the enforcement side, however, it would hire thousands of new agents at the border and in the interior. It would overhaul the laws governing unaccompanied minors who enter the US without papers — making it much easier to send Central American children back to their home countries, encouraging the government to deport unauthorized immigrant parents whose children arrive unaccompanied, and making it much harder for children or families to claim asylum.
And it would cut family-based immigration by 60 percent from current levels, while prohibiting US citizens and green card holders from sponsoring their parents, adult children, or siblings to immigrate to the US.
None of these provisions are directly related to the fate of DACA. And none of them are things that Democrats are asking for, or that Republicans would oppose; the changes to family-based immigration are lifted from Cotton’s RAISE Act, but the RAISE Act’s changes to employment-based immigration — which are more contentious among Republicans — are left out. It is, in other words, a consensus Republican immigration proposal, attached to a temporary assurance for DACA recipients.
Few members of Congress, however, are willing to say outright that they shouldn’t pass any bills that would allow DACA recipients to keep working and living lawfully in the US. But while Democrats and many Republicans see a need to pass something that would protect DACA recipients as quickly as possible, other Republicans see the end of DACA as an opportunity to force Democrats to approve other changes to immigration law and policy. Sen. James Lankford (R-OK) went so far as to call the end of DACA a “very good gift” on Tuesday.
That’s the position the SECURE Act represents. It is, fundamentally, less interested in addressing the fate of DACA recipients (whose ultimate status would be unresolved) than in making these other changes.
Republican leadership is prepared, at least for now, to fight Democrats both on the timing of a DACA fix and on the policy of it. Cornyn characterized the bill as a starting point for “good-faith negotiations” — making it clear that those negotiations “do not belong in the end-of-year spending appropriations debate.”
But their insistence on making the SECURE Act their opening bid doesn’t appear to be weakening Democrats’ resolve. Durbin issued a statement rejecting the bill almost the minute Grassley introduced it — which makes sense, since it was basically the same deal he rejected last week. Instead of a negotiation, the SECURE Act has become evidence that both sides are digging in their heels.
The wild card: the pro–DACA fix Republicans
One reason for Durbin’s frustration is that there are Republicans who want to resolve the DACA issue sooner rather than later. Durbin said last week that he had been negotiating with other Senate Republicans on a deal (though it’s not clear who they are).
And in the House, where junior and moderate Republicans have been pushing since September for some sort of DACA solution, a group of 34 Republicans sent a letter Tuesday to Speaker Ryan. “While we firmly believe Congress must work to address other issues within our broken immigration system,” the letter says, “it is imperative that Republicans and Democrats come together to fix this problem now and not wait until next year.”
On the face of it, that aligns those 34 Republicans with Democrats both on the timing of when a DACA fix must pass and on the policy of what it must include — though Republicans are generally much more amenable to including enforcement trade-offs as part of any deal. “Even a temporary solution should involve provisions that would enhance border security,” Rep. Mike Coffman (R-CO), one of the letter signers, told Vox.
The question is what they’re going to do about it.
If enough of the 34 House Republicans were willing to join all House Democrats and vote no on a government spending bill that didn’t address DACA, they could keep the bill from passing.
But the letter signers aren’t promising to fight the shutdown battle — far from it. Coffman, for his part, appears resigned on timing: “I just don’t think, unfortunately, this is [leadership’s] focus right now,” he told Vox about DACA. “I do think that once we get beyond a spending bill and tax reform, then I think that the attention will immediately turn to DACA. Certainly that’s my hope.”
The alternative for the pro–DACA fix Republicans is to try to move the needle on policy. If they propose a deal that Democrats could actually stomach — one that pares down the expansion of border enforcement and jettisons changes to family-based immigration — they’d lose some of the Republicans who worked on the SECURE Act, but they might retain other Republicans in each chamber. And if there were a bill that were gathering momentum as a legislative compromise, Republican leadership might feel that they had a way to avert shutdown without simply acceding to Democrats’ demands.
Without a way forward on policy, the fight over DACA in the coming days will come down to whether Democrats are willing to hold the line. Even without any GOP support, Democrats can still shut down the government by denying Republicans the 60 Senate votes needed for cloture. It’s not clear at all whether every Senate Democrat — many of whom are facing tough races in 2018 — will be willing to do that. And the more partisan the fight becomes, the more pressure will build on Democrats both to hold the line for the DREAMers and their base, and to fold to keep the government running.
Correction: This article originally misstated whether a potential House measure with support of 34 Republicans and 193 Democrats could pass a majority vote. The measure would pass with that level of support.