Depending on how you see it, Wednesday afternoon’s meeting between congressional leaders in both parties and the White House about immigration — and, specifically, about the future of the 690,000 unauthorized immigrants who are losing their work permits and deportation protections thanks to President Donald Trump’s September decision to end the Deferred Action for Childhood Arrivals (DACA) program — is either great news or a sign of despair.
On one hand, this is usually the way things get done under Trump (and before him Obama): last-minute negotiations among congressional leadership. But in the case of DACA, it seems like more negotiations are kind of the last thing the debate needs.
A bipartisan group of senators, led by Sen. Dick Durbin (D-IL) and Sen. Jeff Flake (R-AZ), is working together to hash out a deal that will get 60 votes in the Senate and a majority of votes in the House and sail to the president’s desk a few days after it’s announced. But those negotiations have been ongoing for months, without a vote of confidence from leadership or the White House.
And then there was the meeting two weeks ago, in which White House Chief of Staff John Kelly met with the entire Republican Party — or at least, the whole immigration spectrum of Republicans in the Senate, from Flake to leading immigration hawk Sen. Tom Cotton (R-AR).
The fact that Republicans, specifically, don’t appear to have agreed on who is even responsible for negotiating on DACA is the key: Ultimately, the Republican Party is still negotiating with itself about how badly it actually wants to make a deal.
There are two different ways to approach a negotiation. You can decide that your first priority is getting to yes — to making a deal — and work backward from there to versions of a deal that enough people would accept.
Or you can decide that your first priority is winning the deal — that you only want to make a deal if it accepts certain conditions, and that if those conditions aren’t met, it’s better to have neither the deal nor the conditions at all.
It doesn’t seem like the Trump administration and Republican leadership have decided which approach they actually want to take.
If they decide they want to get to yes on a DACA deal, the policy can fall into place pretty easily — thanks to the ongoing bipartisan Senate negotiations, and the fact that, frankly, it’s pretty easy to imagine a compromise both sides would be happy with. But they have to decide they want to, first.
And if they want to make the January 19th deadline — or the “end of January” McConnell deadline, or the March 5 thousands-of-people-losing-work-permits-a-day deadline — they don’t have much time left to hesitate.
If they wanted to hammer out a bill, they would have options
Solving the DACA problem would require some amount of effort from Congress. It would have to pass a bill that actually made changes to immigration law.
The Trump administration started winding DACA down in September, and thousands of people have already lost their work permits in the months since then; come March 5, if Congress hasn’t acted yet, several hundred DACA recipients will lose their work permits (and become vulnerable to arrest, detention, and deportation) every single day. Congress can’t stop that from happening just by extending a deadline, or by throwing money at the problem. It would have to pass a bill that made it possible for the immigrants protected by DACA to become legally eligible to work and remain in the US by some other means.
The most straightforward way to do this, of course, would be to allow the people who were covered by DACA to apply to be legal immigrants — an option they don’t currently have. (Usually, politicians call this “legalizing” immigrants, but it’s not an automatic thing — the immigrant would have to take initiative.)
Luckily for Congress, legalizing DACA recipients is incredibly popular among the American public — and even the immigrant-skeptical “Trump base” is pretty okay with immigrants like the DREAMers, who are English-speaking longtime residents educated in American schools. Many conservative Republicans are on the record saying that something needs to be done to allow DACA recipients to stay in the US; very few, in recent months, have gone on the record against it.
There doesn’t even appear to be a great deal of debate over whether they should ultimately be allowed to apply for citizenship — a big intra-Republican sticking point in previous immigration debates. Of the three(!) bills that currently exist in Congress to allow DACA-eligible immigrants to apply for legal status, two have a path to eventual citizenship. (The third would legalize DACA recipients for three years, kicking the question of what happens after 2021 to the next Congress.)
Instead, the disagreements this go-round are about what Congress should do on immigration in addition to legalizing DACA recipients — what sort of “tradeoffs” should be demanded, in the form of increased funding for the US/Mexico border; increased enforcement in the interior of the US; and restrictions on future legal immigration.
In theory, that’s what the current negotiations are about. But it’s hard for negotiations to make enough progress when some of the people negotiating haven’t decided what, exactly, their demands are — because they haven’t decided whether they’re trying to get to yes, or shoot for the moon.
Whose deal is it anyway?
The senators leading the negotiations — Durbin and Flake — have both been clear that they are trying to make a deal that can actually pass: something that a) McConnell and Ryan will agree to bring to the floor, b) at least 60 senators and a majority of House members will vote for, and c) President Trump will sign.
It’s not hard to imagine a bill that would satisfy (b). Most Republicans in Congress haven’t made specific demands for DACA tradeoffs, and so some amount of funding for “border security” could be enough to get them on board if they knew they had the backing of leadership and the president.
But (a) and (c) are trickier.
McConnell himself hasn’t made any demands on immigration. But he has endorsed the Secure Act, a bill introduced somewhat abruptly by a group of conservative Republicans (and written by Senate Judiciary Committee chair and legalization opponent Chuck Grassley) that offered three years of temporary protection for DREAMers in exchange for slashing future legal family-based immigration (“chain migration”).
The Secure Act was introduced as a Republican counterproposal, but no Democrat was willing to engage on it — in fact, Sen. Durbin said it was a proposal that had already been sent to him, and he had rejected. Even Republicans like Flake have pretty much ignored it.
People around the Hill tend to agree, though, that ultimately McConnell — and Ryan — will be willing to support whatever the White House demands?
So ... what does the White House demand?
The only official answer is a several-page “framework” the Trump administration put out in October, which demanded fulfillment of its entire immigration agenda — including slashing legal immigration by 50 percent and booting 8 million unauthorized workers out of the workforce — while hinting that even that wouldn’t be enough to allow DACA recipients to become citizens.
If the White House plans to stick to those demands, no deal is possible. No Democrat would be willing to vote for it. Many Republicans wouldn’t, either.
The more hopeful, but also more vague, answer comes in offhand comments and tweets from President Trump himself.
The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!— Donald J. Trump (@realDonaldTrump) December 29, 2017
Democrats are doing nothing for DACA - just interested in politics. DACA activists and Hispanics will go hard against Dems, will start “falling in love” with Republicans and their President! We are about RESULTS.— Donald J. Trump (@realDonaldTrump) January 2, 2018
The president, whose understanding of policy is limited at best, appears to have seized on a few talking points’ worth of immigration demands: building “the wall” on the US/Mexico border, “ending chain migration,” and ending the diversity visa lottery.
Those talking points could be the framework for a pretty straightforward compromise. Or they could be total dealbreakers. It depends on how you interpret them.
It’s very easy to see Democrats and the White House coming to a compromise on “the wall” — it would just be a question of how much money or how many dozens of miles to put toward constructing fencing (which the White House is already calling a “wall” when it suits them).
It’s harder, but not impossible, to see Democrats agreeing to get rid of the diversity visa — a program that doesn’t directly affect voters, and that there therefore isn’t a natural political constituency for.
And while there’s no way Democrats would be willing to end family-based immigration — the source of literally half all legal immigration to the United States — in exchange for legal status for 690,000 people, it’s possible to imagine some sort of compromise Republicans could spin as a restriction on future “chain migration.” (One possibility, floated by Flake on Twitter last week: allowing DACA recipients to become citizens, but barring them from sponsoring their parents for green cards as other citizens can do.)
If the White House wants to make a deal, that’s the kind of deal it could demand. If the White House wants to demand as much as possible, it won’t have any interest in accepting any less than the RAISE Act (or the Secure Act) as a condition for “ending chain migration.”
Right now, the White House is acting as if it wants to make a deal, but it’s not clear if Trump — or Kelly — have accepted that making a deal is going to require negotiating with Democrats. There is no such thing as a GOP-only deal that will actually pass — and there is no such thing as a deal that can actually pass that everyone in the GOP will like. There is such a thing as a bipartisan DACA deal that could actually pass, but it’s going to require compromise — likely giving up the support of more hawkish members like Cotton, and certainly giving up some of the many demands that Republicans would like to make on enforcement.
Going into Wednesday’s meeting, at least, neither the White House nor Republican leadership in Congress appears to want passage badly enough just yet to start pressuring the other branch to accept a bipartisan compromise.