Courts and Law

3 Paths For Congress To Replace DACA

Don’t put your money on a stand-alone Dreamer bill.

President Trump’s order rescinding DACA supposedly was designed to give Congress six months to come up with legislation to take its place.

Or not. In the immortal words of Jeff Sessions, Congress has six months to act “should it so choose.” Translation: a heartfelt “Whatever.”

As has become his custom, Trump has broadcast mixed, and sometimes inconsistent messages about what, if anything, he wants Congress to do.

By framing his action primarily as the restoration of legal order in the face of the Obama administration’s allegedly unconstitutional usurpation of Congressional authority, Trump creates the impression that it is not so much DACA itself that he objects to, but the way it was enacted. That, by itself, suggests that Trump might support DACA-like legislation if it were packaged as a bill passed by Congress.

At the same time, however, Trump sent out his Attorney General to announce the rescission of DACA in terms dripping with contempt for DACA itself, not just the way it was passed. When anti-immigrant Republicans brand something as “amnesty,” they are not dishing out a compliment or inviting Congress to enact it into law.

Those mixed messages can best be reconciled by assuming that Trump has absolutely no idea what he wants Congress to do. He just wants to one-up Barack Obama any way he can.

So rather than undertaking the thankless task of trying to divine what Trump is thinking, it might be better to think about what, if anything, Congress might be able to do.

Maybe I’m missing something, but I see only three potential paths for Congress to enact legislation providing Dreamers with some measure of the protection they just lost when Trump killed DACA.

First, Congress could pass a clean, stand-alone DACA-like bill.

That should be easy, right? Public opinion overwhelmingly supports legislation protecting Dreamers, and if put to a vote in the House and Senate, a DACA-like bill almost certainly would get enough Republicans to vote along with the Democrats to get through.

Indeed, a stand-alone Dreamer bill already has been introduced in the House. Last March, House Republican Carlos Curbelo of Florida introduced a bill they call the Recognizing America’s Children Act, or RAC. More than 16 other Republicans have co-sponsored the bill, and it has some Democratic support as well.

RAC would create a “conditional permanent resident” status that would protect young undocumented immigrants from deportation for five years. After five years, Dreamers who have met the conditions of the bill would be eligible to apply for lawful permanent residence (green card) status.

The RAC bill, of course, is far from perfect, and probably unacceptable in its current form. Still, it could be a starting point for negotiating a bill that could muster enough bipartisan support to pass.

But even though a stand-alone Dreamer bill likely would get more than enough votes to pass in both the House and the Senate, it would run into the eternal truth of Congressional legislation: a bill can’t be passed if it never gets to the floor for a vote.

And this one won’t, for at least two reasons.

First, Speaker Ryan won’t allow the Democrats to cobble together a majority consisting of all the Democrats and a handful of Republicans. He has made it clear that no bill will get to the floor unless it has the support of a majority of the House Republicans. It is highly doubtful that a majority in the Republican House would support a stand-alone Dreamer bill. On Wednesday, Ryan himself made it clear that he favors attaching enhanced border security provisions to any bill replacing DACA.

Second, Ryan is not about to launch a bloody civil war within the Republican party. Even if a majority of House Republicans supported a stand-alone Dreamer bill, the Freedom Caucus and other right-wingers would raise holy hell. They may be in the minority, but they have enough juice with the Republican base to make life miserable for any Republican who might support such a bill, and they could cost Ryan and others their jobs.

So don’t put your money on a stand-alone Dreamer bill.

The second path would be to include provisions protecting Dreamers in a comprehensive immigration reform bill. But that path is no more promising than the stand-alone path. Maybe even less so.

We’ve been there. We’ve tried that. And all we got out of it was confirmation that immigration is indeed the third rail of electoral politics.

Remember the Gang of Eight? Eight senators, four Republicans and four Democrats, were actually able to agree upon a comprehensive immigration reform framework in 2013. They got a bill through the Democratic-controlled Senate, but couldn’t sell it to the Republican-controlled House. The attempt created rifts within the Republican party, cost Republican legislators their jobs, and framed much of the presidential campaign that brought Donald Trump into the White House.

The odds of getting comprehensive immigration reform are even worse now than they were the last time such an attempt failed. Democrats no longer control the Senate, and Republicans who supported comprehensive reform in the past have backed off. They now insist that reform can be addressed only after they obtain much stricter border security measures.

While the White House gives lip service to comprehensive reform, it does so in terms that have no chance of gaining bipartisan support. In her White House briefing on Tuesday, Sarah Huckabee Sanders suggested that Trump would prefer that any Dreamer protection be passed as part of comprehensive immigration reform. What would that package look like? Sanders said that the administration’s priorities are “to control the border, to improve vetting and immigration security, to enforce our laws, and do things that protect American workers.”

In case you’re wondering, when Trumpers say “control the border,” “enforce our laws” and “do things that protect American workers,” they aren’t talking about protecting immigrants. They’re talking about deporting them, and keeping others out.

At the end of the day, it is hard to see how any comprehensive bill that has the support of a majority of congressional Republicans could glean any Democratic support.

And it is doubtful that congressional leaders will have the will, the energy, or the courage to even try.

That brings us to the third path, an old-fashioned horse trade. “You give us money for a wall, and we’ll give you Dreamer protection.” Or, more likely, “You give us border security funding that we can pretend is for a wall, and we’ll give you something that you can pretend is a substitute for DACA.”

There are countless variations of this kind of deal. Dreamer protection could be attached to anything. Democrats and Republicans alike will look for a package that gives them cover with their respective bases.

The smart money may be on “none of the above,” but if I had to bet, I’d put my money on path three, an old-fashioned horse trade.

The bazaar is open. Democrats, try not to get your pockets picked.

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