The Senate Fails to Act on DACA, and the Immigration Debate Moves to the Right
by Foster LLP, on News
By Jonathan Blitzer, The New Yorker
Democrats wanted this debate,” Mitch McConnell, the Senate Majority Leader, said Thursday, after the Senate spent the better part of a week trying, and failing, to reach a deal on immigration reform. Last month, to corral enough votes to keep the government running, he promised to dedicate some time to the fate of Dreamers, undocumented immigrants who were brought to the U.S. as children. In September, Donald Trump cancelled Deferred Action for Childhood Arrivals, the Obama-era policy that protected seven hundred thousand of them from deportation—then called on Congress to pass legislation to reinstate the protections he’d just eliminated. After six months of floundering talks, McConnell gave the Senate a single week to come up with a solution. The debate began with low expectations. Several factions of lawmakers put forward proposals more or less on the fly. McConnell told colleagues that whatever bill he could pass in the Senate probably wouldn’t earn Trump’s support anyway. On Wednesday, the President proved McConnell right by threatening to veto any bill other than his own proposal, which offered a path to citizenship for 1.8 million Dreamers in exchange for overhauling the legal-immigration system and drastically increasing border security. When a centrist alternative appeared to be gaining broad bipartisan support on Thursday, the Administration attacked it in dramatic fashion to scare off Republican backers. It worked, and the week ended as it had begun, with no deal.
This outcome could only have pleased the anti-immigrant hard-liners in the White House and Senate. Stephen Miller, the President’s senior adviser, helped push Trump to cancel DACA last year and has worked to scuttle congressional negotiations over the issue ever since. The Republican senators Tom Cotton, of Arkansas, and David Perdue, of Georgia, who last year proposed a bill to curb legal immigration that was considered extreme even by the standards of the Republican Party, this week saw key parts of their proposal come up for a vote. Other conservative Republicans, such as Chuck Grassley, of Iowa, who has typically occupied the extreme edge of G.O.P. opinion on immigration, found themselves in the middle of the debate.
Four immigration measures came up for a vote on Thursday. Three were bills that dealt with the fate of Dreamers, while the fourth, an amendment introduced by Pat Toomey, the Pennsylvania Republican, was meant to punish sanctuary cities. All failed. The vote counts tell the real story, though. For all the extremist rhetoric coming from the White House, it was the moderate proposals that came the closest to passing.
The first measure, proposed by John McCain and Chris Coons, resembles what advocates have been calling a “Clean DREAM Act,” a proposal to legalize the status of Dreamers without attaching any conservative-friendly concessions such as increasing funding for border security and immigration enforcement. The bill received fifty-two votes, which wasn’t enough to clear the sixty-vote threshold necessary for it to survive the Senate. A second measure, proposed by a bipartisan group of lawmakers known as the Common Sense Caucus—which was led by Susan Collins and had the support of Lindsey Graham, Jeff Flake, and Dick Durbin—was designed as a middle-of-the-road alternative. It, too, would create a path to citizenship for Dreamers, but it would also allocate twenty-five billion dollars to border security, and would prevent Dreamers from eventually sponsoring their parents for legal status. This bill got fifty-four votes. The third bill, the President’s preferred plan, was introduced by Grassley, and would have created protections for Dreamers while also redrawing the legal-immigration system and massively increasing border-security measures; it received only thirty-nine votes in favor.
One Republican senator, speaking anonymously to Politico, summed up the week: “The Administration made it difficult for some Republicans to try to publicly support anything.” In addition to the President’s repeated attacks, the Department of Homeland Security entered the political fray. On Thursday, it released a startlingly aggressive statement vilifying the bill supported by the Common Sense Caucus. One of the bill’s provisions called for immigration authorities to target for arrest only those undocumented immigrants who recently arrived in the country. This proposal, D.H.S. said, “would be the end of immigration enforcement in America” and “would effectively make the United States a Sanctuary Nation where ignoring the rule of law is encouraged.” Lindsey Graham, of South Carolina, a supporter of Dreamers who has lobbied Trump for months on a compromise measure, was livid. “Who the hell wrote this?” he asked. “It sounded like something that came from a political hack, not D.H.S.” By the end of the week, moderates like Graham, whose proposals had the most support, nevertheless seemed marginalized. As a result of the pressure and rhetoric from the Administration, the legal-immigration system is a central subject of debate in Washington for the first time in years.
On Friday, the Supreme Court held a closed-door conference to consider a highly unusual appeal from the Department of Justice. In the months since Trump’s decision to end DACA, immigrants-rights groups, DACA recipients, and a handful of state and municipal governments have brought lawsuits against the Administration, and two federal judges have issued injunctions in their favor, halting the cancellation of the program. The Administration, according to these judges, failed to adequately consider the consequences of abruptly ending DACA. The federal government wants the injunctions lifted so that DACA can be fully phased out after March 5th. But it challenged the first injunction, issued by a federal judge in California, by skipping over an appeals court and petitioning the Supreme Court directly. It now looks increasingly likely that the Justices will not take up the case, and that, instead, they’ll allow it to play out in the lower courts. The legal battle could take several months.
In the meantime, the injunctions mean that DACA recipients can apply to renew their status, which lasts for two years, until the courts provide further clarity. The open-endedness buys Dreamers much needed time, but the uncertainty over their status remains agonizing. It takes the government roughly three months to process DACA applications. For those whose status has expired, even if they re-applied immediately after the first injunction was issued, early last month, they will have to live without protection until their paperwork is processed, meaning that they can’t work legally and are vulnerable to deportation. Congress could still step in to resolve this situation by simply extending DACA for another year or two as a temporary fix. By March 23rd, Congress will have to vote on another funding resolution to keep the government open, and advocates hope that DACA will be part of these funding negotiations. But McConnell has already declared that, after this week, he’s ready to move on.