Editors’ note: Sarah Binder has updated this analysis, originally posted on Sept. 7, 2017, after the announcement that the Trump administration was rescinding DACA, to illuminate the difficulties facing Congress in passing an immigration bill.
On Monday afternoon, senators took some initial steps towards launching debate on the fate of the Obama-era program, Deferred Action for Childhood Arrivals (DACA), which protects from deportation young undocumented immigrants who were brought to the United States by their parents. Last fall, President Trump called on Congress to “legalize” DACA before he phases out the program in March.
Many lawmakers are eager to act: Ending DACA puts at risk of deportation some 800,000 “Dreamers” who received temporary work permits and other benefits through DACA, as well as several hundred thousand other young, eligible immigrants who never applied for permits.
But prospects for Senate passage remain uncertain. Given strong popular support for protecting the Dreamers, why is legislating on DACA so difficult?
1. Polarized parties
Three decades ago was the last time Congress and the president reformed the nation’s immigration laws — a bipartisan deal struck by a Democratic House and a Republican Senate and White House.
Since then, any such efforts have been blocked by growing partisanship and ideological sorting of conservatives and liberals into the Republican and Democratic parties. A Democratic Senate in 2013 did cobble together a bipartisan immigration deal by combining three elements: the increases in border security that conservatives wanted; the provisions for temporary agricultural workers that businesses wanted; and the path to citizenship for undocumented individuals that liberals wanted. But that bipartisan deal died when the House GOP leadership refused to bring the bill to the floor.
Why is Congress so divided by party on immigration? It is because members’ constituents are just as divided along party lines. What is more, Republican and Democratic congressional districts have starkly different concentrations of Hispanic voters.
As you can see below in the figure based on census data, only a handful of House districts represented by Republicans include large communities of Hispanic or Latino voters. (The 2010 Census uses the terms “Hispanic” and “Hispanic or Latino” interchangeably.) Look at the districts where Latinos make up more than 20 percent of voting-age residents and you’ll see that they more often elect Democrats than Republicans. Only about 10 percent of GOP-held districts have that many Latinos, while about a third of Democratic-held districts do.
That means that only a handful of GOP lawmakers have constituents pressuring them heavily for comprehensive immigration reform. You won’t be surprised, then, that these are the dozen or so members who have signed onto bills to legalize DACA. Nor should it be surprising that the rest of congressional Republicans have few incentives to advance comprehensive immigration reform — despite general public support for protecting DACA beneficiaries.
2. Republicans are divided
Immigration has been missing from the GOP legislative agenda for good reason: The GOP is fractured over reform.
Even before Trump pledge during the 2016 campaign to build a border wall between Mexico and the U.S. to stop illegal immigration, Republicans have been divided over reform. Business-friendly Republicans tend to favor comprehensive reform, arguing — as many businesses do — that creating clear and stable systems that allow the entry of needed workers will bring economic benefits to all. Social conservatives tend to oppose any proposals that they deem “amnesty” — forgiving individuals who are in the United States without papers and giving them a way to stay. You could see those divisions in 2013, after John McCain and several other prominent Republican senators worked in a bipartisan “Gang of Eight” to craft an immigration bill — which in the end got the votes of only 11 Republicans on the Senate floor.
Republican conservatives this fall spied a chance to exploit divisions within the GOP and reframe the DACA debate. Instead of focusing exclusively on the Dreamers—a highly sympathetic population– conservatives hiked the price of their votes to legalize DACA. No action on the Dreamers unless it was matched to deep cuts in legal and family-based immigration, alongside billions for border security and building the wall.
Trump has thrown his support to the conservatives, vowing in his State of the Union address last month that he would only accept a DACA proposal as one of four “pillars” of reform (including the conservatives’ demands). In fact, Trump has rejected out of hand more streamlined, bipartisan plans that match legalization for DACA with enhanced border security.
3. Everything will need 60 votes
With the parties polarized and Republicans divided, Senate Majority leader Mitch McConnell has ginned up an unorthodox process for the Senate’s consideration of immigration reform this week.
Most bills come to the floor after adoption by committee or endorsement of one or both parties. Senators then often have the chance to amend bills on the floor. But when the Senate votes to begin debate this week, there won’t a be baseline bill for senators to debate. Instead, McConnell will call up an unrelated House bill to serve as a hollow shell on which senators can build a bill from the bottom up.
What’s the hitch? McConnell plans to seek an agreement that would require amendments to the shell bill to secure 60 votes for adoption. Getting to 60 will not be easy for conservatives seeking cuts to legal immigration, since few Democrats are likely to sign on to their proposals. But Democrats could also struggle to get 60 votes for more liberal Dreamer proposals. Nor has a bipartisan “Common sense” working group yet formulated a proposal. And while some senators believe scaled-down legalization plus border security is a natural compromise position, Trump has already rejected that approach.
What’s more, McConnell’s legislative strategy means that if no amendment garners 60 votes, immigration reform dies on the floor. So while McConnell’s approach may be “fair to all sides” as he promised, disagreements within and between the parties could leave the Senate in stalemate, tied up in knots for days or even weeks.
Even if a bipartisan Senate agreement can be reached, its prospects remain cloudy in the Senate, where the Speaker has vowed only to consider a proposal that Trump will support. Although nearly three dozen House GOP have signed a letter supporting action on DACA, House GOP leaders seem unwilling to buck the president on an issue of signal importance to Trump voters.
Still, there remains strong public pressure to act on behalf of the highly sympathetic “dreamers” — with pressure mounting as Trump’s March 5th deadline approaches. But Trump and his top staff have made conflicting statements on whether Trump can or will extend the deadline. Absent an action-forcing deadline, it’ll be especially difficult for Congress to find a bipartisan path forward.