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The real immigration split in Congress isn’t on policy. It’s on urgency.

With the clock ticking, there’s a flurry of activity on immigration. But is Congress really ready to buckle down?

Left: Alex Wong/Getty; Right: Kena Betancur/VIEWpress/Corbis via Getty

A pattern is emerging in Congress’ immigration debate: every time it looks like legislators are actually gearing up to have a full legislative debate on the issue, someone suggests kicking the can down the road instead.

The newest suggestion comes from Sen. Jeff Flake (R-AZ), who said Thursday that when the Senate starts its floor debate on immigration next week, he’s going to propose a bill that would allow unauthorized immigrants who’ve been protected from deportation under the Deferred Action for Childhood Arrivals (DACA) program to stay protected for another three years, while Congress figures out what it ultimately wants to do with them and what other changes to immigration policy it wants to make.

The fact that immigration reformers in the GOP (including both Flake and Sen. Lindsey Graham (R-SC)) are already entertaining the idea that Congress won’t be able to find a permanent solution for “DREAMers,” even before the floor debate starts, reveals the ugly truth: Congress isn’t any closer to an immigration deal than it was on January 22, when Democrats agreed to keep the government open until February 8 in exchange for McConnell’s promise of allowing a debate on immigration.

For that matter, Congress is not all that much closer to a deal than it was on September 5, 2017, when the Trump administration announced that it was ending the Deferred Action for Childhood Arrivals (DACA) program and told Congress it had until March 5 to prevent the 690,000 unauthorized immigrants covered under the program from losing their work permits and deportation protections in large numbers.

The state of play is driven by a fundamental divide on immigration in Congress — not between supporters and opponents of a particular bill, but between people who feel an urgent need to act on immigration to protect DACA recipients and those who feel no such urgency. And with Democrats losing their appetite for another shutdown over immigration, right now it looks like the inaction caucus has the upper hand.

Thousands of immigrants will start to lose work permits soon if Congress doesn’t act

If Congress doesn’t act soon, 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.

Propelled by a sense of urgency, Democrats and Republicans sympathetic to DREAMers have tied the immigration issue to government funding deadlines — something that requires Congress to act — as a way to force Congress to confront the DACA issue.

In January, congressional Democrats, emboldened by their progressive base, refused to keep the government open without some sort of firm assurance that Congress would pass something to legalize DREAMers.

That stance ultimately led to a 60-hour government shutdown. And what Democrats got for it was McConnell’s promise — which was contingent on Democrats agreeing to keep the government open again on February 8.

There are more than enough proposals, but no policy breakthrough in sight

When McConnell made his promise to Democrats three weeks ago, he said he hoped there would be some bipartisan consensus on immigration before February 8 — but that if there wasn’t, Democrats would have to cooperate in keeping the government open after February 8 before he’d agree to open the floor to an immigration debate.

It’s pretty clear, days before that deadline, that no such bipartisan agreement is forthcoming — at least, not one that could pass both the Senate and the House.

That’s not to say there aren’t proposals out there. Immigration doves — a rough term for members who want to legalize DREAMers, which encompasses all Democrats and a handful of Republicans in each chamber — have proposed several types of bills. All of them offer legalization and a path to citizenship for DREAMers; they vary in the extent of border enforcement they offer in return.

  • The DREAM Act itself includes no border enforcement.
  • The bill introduced in the Senate Monday by McCain and Coons, 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.

Immigration hawks, meanwhile — including conservatives in Congress and White House staff — have offered bills that demand large cuts to legal immigration across the board, and that vary in how far they’re willing to go to legalize DREAMers:

  • The one-page “framework” released by the White House before the State of the Union offers eventual citizenship for up to 1.8 million immigrants (DACA recipients and those eligible for DACA who did not apply) in exchange for large and substantial cuts to family-based migration, the end of the diversity visa, and $25 billion for the wall.
  • The Securing America’s Future Act, proposed by Rep. Bob Goodlatte (R-VA) and championed by House conservatives, would offer temporary renewable status (without citizenship) only to current DACA recipients — while criminalizing the presence of the 10.5 million other unauthorized immigrants. It would also extend the reach of immigration enforcement over employment and policing, and pair a substantial cut to family-based immigration with a modest increase to employment-based immigration.

McConnell hasn’t said whether he’s bringing any of these bills to the floor as the basis for the Senate “debate.” The reformers don’t appear to have a consensus either. Graham and Sen. Jeff Flake (R-AZ), who also worked on the Graham-Durbin bill, think the McCain-Coons bill isn’t “neutral” enough to be the vehicle; of course, plenty of Republicans say the same thing about Graham and Flake’s bill.

Maybe McConnell will avoid the logjam by using some totally different bill. He could use one that doesn’t include any legalization provisions, like Sen. John Cornyn’s (R-TX) RESULTS Act (which substantially increases border enforcement but doesn’t address other areas), to provide a clean slate to discuss who should be legalized and how. Or one of the many groups of legislators who are still supposedly working on an immigration deal could actually come up with a proposal in which each side gets something it wants badly enough to vote yes without having to swallow anything toxic.

But with each new proposal that comes out — and is swiftly rejected by one side or the other — it becomes increasingly apparent that the real problem is urgency. The current pace of negotiation might ultimately yield some kind of policy breakthrough (even if it’s not clear what on earth that would look like), but not in a matter of days or weeks.

Congress could “punt” on DACA — but it’s not clear that any bill, no matter how short-term, has the votes

This is why, for some in Congress, the answer is just to let the negotiations play out — even though the March 5 inflection point for DACA is looming.

Flake’s bill would give Congress three years to work out the issue; Graham and others have floated the idea of a one-year punt. It’s not clear how an extension pf any duration could work. Congress would have several options:

Order the Trump administration to keep accepting renewal applications for a year. This would be the easiest way to “extend” the program as it currently exists. But by officially approving of DACA, it could undermine the argument made by Republicans that the program wasn’t constitutional to begin with — and interfere with the Trump administration’s effort to get the Supreme Court to weigh in on DACA.

Create a new one- or three-year visa for DACA recipients or DREAMers more broadly. A version of this proposal, offering a nonrenewable three-year visa, was proposed last year as the BRIDGE Act — but at the time, few wanted to settle for so temporary a solution. Now Congress could settle for something even more temporary.

A temporary visa might sound appealing to both Democrats and Republicans (who both have reason to believe they’ll be in a stronger position in the House and Senate, respectively, after the November midterm elections). But as policy, it would be a disaster — it would force the Trump administration to process hundreds of thousands of applications it wasn’t expecting over the course of a handful of weeks, or else result in tens of thousands of people losing their work permits while they waited for their visas to get approved.

Do nothing. Because DACA applicants are eligible to apply for renewal, some, like House Majority Leader Kevin McCarthy (R-CA), maintain there’s no urgency for Congress to act.

At present, many of the Republicans who want to pass an immigration bill to legalize DREAMers aren’t willing to settle for a punt; Marco Rubio called it “Plan Z.”

More importantly, though, no one on the other side seems to support a bill that would extend DACA recipients’ work permits even temporarily.

Which brings us back to the root of the problem: There are people in Congress who believe this issue is urgent, and there are people who believe it isn’t. As long as there are enough of the latter, Congress won’t do anything. And as long as Congress does nothing, DACA will continue to disintegrate, slowly, on its own.