Sessions then made a case against DACA on constitutional grounds, throwing in some tendentious assertions about “illegal aliens” taking jobs from native-born Americans, but he didn’t address exactly how this order would be carried out.
President Trump put out a statement today confirming that in six months, DACA recipients will begin to lose their status, and calling on Congress to pass legislation to address the fate of these nearly 800,000 young people, who were raised in the United States and are waiting to hear whether they’ll have their legal status revoked and potentially be deported to countries they barely know. That came after Trump tweeted, “Congress, get ready to do your job – DACA!” as though he were getting the crowd revved up at a rodeo. The best translation of that is, “This isn’t my problem anymore!”
But can Congress actually fix it?
There’s no simple answer — instead, there are a lot of difficult questions, multiple competing proposals and some possibly insurmountable roadblocks. So let’s try to sift through them.
The first thing to know is that there are already a number of bills circulating around Congress that could in theory be passed. The highest profile of these is the Dream Act of 2017, an updated version of the original bill that passed the House in 2010 but then fell victim to a filibuster in the Senate (saddest of all, that filibuster had the support of five Democrats — Kay Hagan, Mark Pryor, Ben Nelson, Jon Tester and Max Baucus — and had they voted for the bill, it would have passed). The 2017 Dream Act has a bipartisan group of co-sponsors (Republican Sen. Lindsay O. Graham and Democratic Sen. Richard J. Durbin are the main sponsors), and it would provide “dreamers” not only relief from the immediate threat of deportation but a path to citizenship.
It’s likely that the 2017 Dream Act will be the starting point for a lot of the discussion, but the other bills are as follows, in order from least to most generous:
- The Bridge Act (sponsored by Republican Rep. Mike Coffman of Colorado, it essentially extends DACA for three years, with no path to citizenship)
- The Recognizing America’s Children Act (sponsored by Republican Rep. Carlos Curbelo of Florida, it does contain a path to citizenship, but under somewhat more stringent conditions)
- The American Hope Act (sponsored by Democrat Luis V. Gutiérrez of Illinois, it is the most inclusive and contains the swiftest path to citizenship for dreamers)
It’s tempting to look at the bills and say that once negotiations begin, there’s no reason Congress couldn’t settle on an option such as the 2017 Dream Act, which helps these extraordinary sympathetic immigrants while also making them follow a strict set of rules in order to gain citizenship — a process that would take 13 years under that bill. And the public is likely to support it, too. In this recent NBC News-SurveyMonkey poll, 64 percent of Americans said they support DACA.
The trouble is that individual members don’t care about what America thinks nearly as much as they care about what the people in their own districts think. And most of those in the House come from firmly conservative districts where the only thing they have to fear is a primary challenge from the right — a primary challenge that could come if they’re seen as too friendly to immigrants. Let’s not forget that Trump got elected with a campaign of naked nativism and xenophobia, as every Republican member of Congress knows all too well.
Nevertheless, if you had all House Democrats voting for a bill to protect the dreamers, you’d need only 24 Republicans to sign on for it to win. Are there 24 House Republicans who would support such a bill? It depends on what’s in it, but the answer is that there probably are.
That’s not the end of the story, however. In this scenario you’d need House Speaker Paul D. Ryan (R-Wis.) to be willing to put an immigration bill up for a vote with the knowledge that it would be passed against the wishes of the majority of his caucus — and against the wishes of most Republican voters. In that NBC poll I cited, 86 percent of Democrats supported DACA, but only 41 percent of Republicans did.
And even if it passed the House, that would still leave the Senate, where the last Dream Act died and where there are more Republicans now than there were then. If you could hold on to all the Democrats — including Tester, who voted against the Dream Act in 2010, and Joe Manchin III (W.Va), who didn’t vote but said he opposed it — you’d still need to win over 12 Republicans in order to overcome the inevitable filibuster. That’s not impossible to imagine (Graham, Jeff Flake of Arizona and Lisa Murkowski of Alaska are already supporting the 2017 Dream Act), but it won’t be easy. They’ll be under enormous, angry pressure from the GOP base not to agree to anything that helps undocumented immigrants, even the most sympathetic ones.
Then there’s the question of what Republicans will add to the bill in negotiations — particularly funding for a border wall — and whether that would cause Democrats to defect. While most Democrats have been adamant in their opposition to a wall, it’s possible a deal could be worked out (as this blog previously argued) in which funding for some kind of fencing is included, allowing Trump to claim victory on the wall while allowing Democrats to argue that Trump didn’t get his wall at all. The wall as Trump envisioned it is never going to happen, and if he and other Republicans can be bought off with some kind of border security funding here and there, that’s a deal many Democrats might be able to live with.
Put all that together, and you have some complicated, tricky negotiations that would hinge on the willingness of Republicans in Congress to take a political risk in order to do the right thing. Might it all work out? Sure. But there’s plenty of reason to be worried.