DACA Update
CONTENTS
* "DACA deal state of play" By Tal Kopan, CNN (November 17, 2017)
* "DACA backers move to avert Supreme Court fight over records" By Josh Gerstein, Politico (November 19, 2017)
DACA deal state of play
By Tal Kopan
STORY HIGHLIGHTS
- The real sprint will begin after Thanksgiving recess
- Most lawmakers who want to save DACA are pushing for something by the end of the year
- Washington (CNN)Time is ticking away for a legislative solution on the Deferred Action for Childhood Arrivals program that protects young undocumented immigrants who came to the US as children and that President Donald Trump has chosen to end.
Here's where things stand today.
Prepare for a December sprint
The past few months since Trump announced the end of DACA have been spent largely on getting organized for the real negotiation crunch time.
Several groups, with a range of formality, have been meeting and having conversations in both chambers and on both sides of the aisle.
In the House, there's Speaker Paul Ryan's working group, made up of key committee chairs and leaders on immigration from a wide range of viewpoints, but there are also other offshoot efforts, including the Problem Solvers Caucus and conservatives like the Freedom Caucus.
In the Senate, similarly, Senate Majority Whip John Cornyn and Judiciary Chairman Chuck Grassley are leading talks with other leading Republicans from across the spectrum.
Democrats have largely staked their request on a "clean" Dream Act, which simply isn't going to happen, but have also acknowledged they will likely need to agree to some border security. Just what they can live with, though, hasn't fully been decided.
Senate leading the way
The House talks have thus far not produced a clear path forward, and attention is increasingly turning to the Senate to lead the way.
Senate Minority Whip Dick Durbin is the Democrats' chief emissary on this, and he and Republican Sen. Lindsey Graham have been in very close contact throughout this process. But Graham himself lacks the juice to get DACA through his party, thus the Cornyn-Grassley talks.
Republicans have started to coalesce around a proposal that isn't quite as far right as the White House immigration priorities, but is still something Democrats will hate, including elements of Cornyn's border bill and an effort to cut back on "chain migration," or family-based visas. As of now, it appears to be an opening offer as both sides stake out their negotiating position.
When's the deadline?
Right now, it's shaping up as end of the year.
March 5, 2018 may be the day that Trump intended for DACA permits to begin expiring, but most members of Congress who want to save DACA are pushing for something by the end of December. Not only are they concerned about waiting until the last minute, but experts also warn that any program will need implementation time, and recipients could be at risk in the interim.
Democrats are also fully aware that their best, and likely only, leverage on this is with government funding, which runs out in mid-December.
The Senate will need 60 votes and Ryan likely will need Democrats in the House to make up for spending hawk defectors to pass the spending bill.
House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer have yet to echo their left flank yet that they will take it to a government shutdown if they don't get DACA, but they're definitely not ruling it out. Pelosi said she doesn't expect Democrats will go home for Christmas without a DACA resolution.
"Kicking the can to next year is just to say, 'We're not doing this,'" Pelosi said Thursday.
This is going to be a serious game of chicken up until funding is resolved.
Democratic Rep. Zoe Lofgren, a key immigration leader for Democrats, summed it up for me thusly the other day.
"They have the majority, if they have the votes, they can just go ahead. If they need Democrats, then there's things we're going to look at. I mean, we don't have an S-CHIP bill, we don't have any resolution for the DACA kids, we don't have a resolution for the subsidies, for the Affordable Care Act, there's a number of things they've screwed up, and that we need some resolution on."
What happens next?
Forget all the working groups when we get to crunch time. This has all the makings of a leadership decision.
There's been suspicion for some time that Ryan formed his working group to pave the way for him to make a game-time decision, allowing him to say: We gave it an honest try, folks, but here's how we have to move forward now. That's not to say the group didn't make an effort and there wasn't hope there could be a deal, it just was never very likely to have something that Rep. Bob Goodlatte and Rep. Mario Diaz-Balart and everyone in between were all going to fully agree on.
Expect after Thanksgiving, and after we get some clarity on tax reform (which is a big wild card in this, of course), that leadership and a few key members of either party to get down to nuts and bolts of what they can and can't live with.
Who are the key players?
Ryan, Pelosi and their teams in the House, plus veterans of this fight like Goodlatte, Diaz-Balart and Mike McCaul, and representatives of other factions like the Freedom Caucus, Republican Study Committee and Tuesday Group.
On the Senate side, Chuck Schumer and Mitch McConnell are obviously engaged, but this is really going through Durbin, John Cornyn, Chuck Grassley and Lindsey Graham. Watch a few other Republicans on this, too, including moderates like Thom Tillis and James Lankford and hardliners like Tom Cotton. On the left, keep an eye on California Democrat Kamala Harris. She's new to this fight in Congress, but California has the highest number of DACA recipients in the country, and she happens to be a progressive favorite, who was the first senator to publicly state she wouldn't support government funding without progress on DACA.
And last but not least, Trump himself. "You don't need a discharge petition. It'll take one presidential tweet and we'll get the bill out," said Texas Rep. Joe Barton at a GOP press conference rallying for a DACA fix the other day.
That is a commonly held feeling in Congress, but it goes both ways. Trump could make this a lot easier or a lot harder, depending on how he wants to play it. But there's also a strong expectation that if Congress can actually pass something, he'll sign it and be happy with a wiin.
What could go wrong?
It's Congress -- everything could go wrong.
The Senate group has mostly taken mandatory worker verification (e-verify) off the table, which is one of the biggest nonstarters there is.
But there's still a lot of interest in doing something on "chain migration," or restricting the family members who can be sponsored to come to the country (a pet issue of Trump's). It's not impossible for Dems to agree to something on that, but it's tough.
Other potential issues: How much Republicans want a "wall" vs. border "security" like technology and infrastructure, how hard they push for interior enforcement ("deportation force" to Dems) and also issues like sanctuary cities and criminal penalties.
How likely is a deal?
Today, it's a toss-up.
The news in favor of a deal is that a clear majority of Congress (and it seems the President) really wants to see something done. The trick is, they don't quite all agree what that something is and no one has blinked yet on what they can stomach that they don't love.
Diaz-Balart had a good summary of what he calls the "complexity" of reaching a deal yesterday (though he is sworn to silence on the working group's specific efforts), but he still leaves it at a "possibility" that the finish line gets crossed.
"It would be easy potentially to do something that gets 218 Republicans in the House, potentially easy -- that doesn't get out of the Senate. It would be theoretically easy to get something with mostly Democratic votes, but it clearly wouldn't pass the House nor would it get a presidential signature," he said. "The good news is there are a lot of conversations, real serious conversations, by a myriad of different folks who are talking in good faith. ... Do I think there's a possibility of doing something? Yes. Are we there? No. Can we get there? We have to."
DACA backers move to avert
Supreme Court fight over records
By Josh gerstein
Advocates for so-called Dreamers made an unexpected move Sunday to head off a looming Supreme Court battle over their demands for more records on the basis for President Donald Trump's decision to end the program offering quasi-legal status and work permits to undocumented immigrants who arrived in the U.S. as children.
The attempt to shelve the records fight came just three days after a federal appeals court panel sided, 2-1, with those seeking more details on Trump's move in September to wind down the Deferred Action for Childhood Arrivals program, also known as DACA.
The Justice Department had indicated it planned to file an emergency application at the Supreme Court on Monday in an attempt to block DACA supporters from getting access to a broad set of records about the administration's deliberations, research and legal advice on the issue.
However, in a filing Sunday afternoon with a federal court in San Francisco, litigants pressing five separate lawsuits over the DACA cancellation asked U.S. District Court Judge William Alsup to lift his demand that the Trump administration place the internal records in the public court docket by Wednesday.
Lawyers for the DACA backers said they feared that their request for an injunction preserving the program could be delayed or derailed by litigation over the records consulted prior to the Sept. 5 announcement.
"Defendants' continued pursuit of interlocutory review of the Court's well-founded. ... Orders is unfortunate and distracts from this Court's effort to reach a prompt judgment on the merits," the DACA supporters' attorneys wrote. "However, the immediate and vital issue before the Court is Plaintiffs' Motion for Provisional Relief, as that motion, if granted, will enjoin the Rescission of DACA and thereby avoid disruption in the lives of hundreds of thousands of people."
One of those lawyers told POLITICO on Sunday night that those suing the Trump administration over the decision are not abandoning the fight for the records, but simply postponing it. Trump's plan to stop renewing expiring DACA permits beginning March 5 adds to the urgency of the litigation, the attorney said.
"We are definitely not throwing in the towel, just taking it one step at a time. We have strong arguments in our motion for preliminary relief and want to ensure that a preliminary injunction is in place well before the March 5 deadline," said the lawyer, who asked not to be named. "Our goal here is simply to sidestep the government's efforts to create distractions and slow things down. We plan to aggressively pursue these documents as soon as the court enters an order on our injunction request."
The new filing also says the Justice Department indicated that it was unable to meet Alsup's Wednesday deadline and predicted it would need about three more weeks to finish the job.
A Justice Department spokesman declined to comment on the development.
While Alsup seems likely to acquiesce in the attempt to postpone the records fight, the Clinton appointee could decide the information is essential for the case to proceed. In that event, the Justice Department seems certain to seek emergency relief at the Supreme Court.
A similar fight has played out in a pair of lawsuits in federal court in Brooklyn, New York, mounting parallel challenges to the DACA cancellation. A 2nd Circuit Court of Appeals panel has halted discovery in that case pending a final ruling from that court. Despite the limited official record provided by the administration, litigation in those cases is proceeding toward a decision on blocking the scheduled wind-down of the immigration program.
Trump administration officials have said the administration decided to end the DACA program because it appeared to be unconstitutional and faced a threatened legal challenge from conservative states. However, immigrant rights advocates say those explanations are contrived and pre-textual.
While Attorney General Jeff Sessions has publicly insisted the program is unconstitutional, Trump muddied the waters by tweeting on the day of the September announcement that if Congress couldn't pass legislation to address the Dreamers' predicament by March 5, he would "revisit the issue."
Josh Gerstein is a senior reporter for POLITICO.
