With the Supreme Court’s conservative majority casting serious doubt this week on the future of the Obama-era Deferred Action for Childhood Arrivals, Congress is facing the very real possibility of having the issue dumped on its doorstep.
The court is expected to make a ruling sometime next spring — right in the middle of an election year, when the politics of immigration will be even more difficult. And there is simply no recent evidence that points to Congress coming to a deal, throwing into doubt the deportation protections for hundreds of thousands of immigrants brought to the country as children.
Since passing a comprehensive immigration overhaul in 2013 that was ignored by the House, the Senate has been unable to put 60 votes together for any substantial immigration bill. The chamber did pass a spending bill delivering aid to the border this year, but Democrats battled each other so fiercely over the matter that it only made the party more skittish to deal with the Trump administration.
Perhaps the biggest hurdle is the massive trust deficit between Senate Democrats and the president himself. They feel so burned by past negotiations — on transportation, gun safety and immigration reform, among the issues — that many in the party seem not to have it in them to try again.
“It is exceptionally difficult to make any deal that sticks. For a man who is supposed to be a great dealmaker, we have yet to see a great deal,” said centrist Sen. Chris Coons (D-Del.).
Coons said when he tries to re-engage Democrats on immigration, they remind him of the 2018 debacle, when the president rejected a bill that would have provided a massive $25 billion for border security in return for protecting DACA recipients and their parents. That bill failed 54-45, and the president’s plan to cut legal immigration in addition to dealing with DACA and the border wall fared even worse, dying 39-60.
Trump tweeted this week: “If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!”
But Democrats aren’t the only ones who are skeptical of the president’s negotiating style on immigration.
Just eight Republicans joined the Democrats on the compromise immigration proposal in 2018, a number advocates say could have been much higher without Trump and his aides intervening to oppose it.
“The night before it had 60. … And overnight we lost six Republicans,” said Sen. Susan Collins (R-Maine). “I read different things and hear different things that [Trump] is actually sympathetic to the DACA population. But he’s obviously under pressure from hardliners like Stephen Miller to do the wrong thing.”
Though the House has passed legislation dealing with DACA protections earlier this year, the Senate has ignored it. And on legislation, the bar is so much higher in the Senate, with its 60-vote requirement. Under the current party splits, the chamber’s supermajority threshold on the filibuster would either require seven Democrats or 13 Republicans to cross party lines on any immigration bill.
Sen. Joe Manchin (D-W.Va.) put it simply: “We don’t have the votes in the Senate, OK?”
“I truly believe in my heart of hearts that the president liked the 2013 immigration reform. … His staff around him and the base will not let him go there,” Manchin said. “It hasn’t happened, and it doesn’t look like it’s going to happen. And that’s a shame.”
And though the Senate is controlled Republicans, the GOP is generally more divided than the Democratic Party on the issue. Trump lost 14 votes from the Senate GOP on his 2018 immigration bill, revealing that any legislation providing a path to citizenship for some undocumented immigrants is a bridge too far for some Republicans.
That said, the GOP still remains generally sympathetic to the DACA population and McConnell said earlier this year he’d like to take up immigration. Some senators said the chamber should begin working now on a plan rather than wait for the Supreme Court to force Congress’ hands just months away from a presidential election.
“If they strike it down there’s going to be chaos,” said Sen. John Cornyn (R-Texas). “It would be unfair to a lot of these young people who have done nothing wrong. And I’m going to see if we can find a way to head that off.”
Sen. Marco Rubio (R-Fla.), a supporter of the 2013 comprehensive immigration bill, said that Congress’ best hope of success is narrowing legislation as much as it possibly can to cover only the 660,000 young people whose status could be thrown into uncertainty.
“It’s important to remind everybody that the president offered a bill that dealt with Dreamers. … Where it got tangled up is Democrats insisted that it also include their parents,” Rubio said. “The challenge here on immigration at large, is that any limited bill is never enough. People want to tag more stuff on it and that’s what weighs it down.”
Yet this time, there’s more than the typical number of hurdles. Lawmakers’ primary legislative objective is to fund the government, a task that’s proving exceedingly difficult. And impeachment is bearing down on the Capitol, with a trial likely to paralyze the Senate for weeks and make tackling other legislation even more difficult.
Not to mention that the Democratic presidential primary is heating up now, and the general election will be in full swing when the Supreme Court decides whether to let Trump terminate President Barack Obama’s executive action protecting the immigrants. Trump has campaigned as an immigration hard-liner, and a pivot to the middle would surprise most everyone in Washington.
Still, the biggest problem might be getting votes from Democrats for any plan that doesn’t first have Trump’s full and explicit support.
The bipartisan immigration deal cut by Sen. Angus King (I-Maine) and Sen. Mike Rounds (R-S.D.) last year got the votes of every Democrat but three. And King says he couldn’t replicate that today after Trump torpedoed it.
“We had a bill, he could have his whole wall and DACA would have been fixed and he killed it,” said King, who caucuses with the Democrats. “It was one of the toughest [caucus meetings] I’ve ever been in to get the votes for that compromise. I don’t believe I would do it today.”