The DACA stalemate is forever
Without a deadline, nothing is ever going to get done on immigration
Writers and politicians have this much in common: Neither usually accomplish much without a deadline. The Supreme Court's decision Monday not to review lower courts' injunctions preventing the White House from ending the Deferred Action for Childhood Arrivals (DACA) program has basically eliminated the deadline imposed by President Trump almost six months ago, a deadline that would have arrived next week. The ruling gives Congress and DACA recipients a reprieve — but it's hard to see how that will help Democrats and Republicans make a deal.
This stalemate might just last forever.
First, the Supreme Court's refusal all but ensures that DACA's final legal status will not get adjudicated until at least the summer of 2019, as the Supreme Court's term will end too soon for an appellate court to rule in time to be added to the 2017-18 docket. That means DACA will remain in operation and remain a political issue through the midterm elections, if not all the way into the 2020 presidential election cycle.
In the short run, that benefits Democrats. Senate Minority Leader Chuck Schumer (D-N.Y.) fired up DACA advocates in January and put the issue at the top of his party's budgetary agenda. That backfired spectacularly when Schumer forced a government shutdown over DACA, only to discover that voters in swing states didn't have the same priorities. Schumer then decoupled DACA from budget talks, angering the activists Democrats had stoked and surrendering their leverage for a promise from Senate Majority Leader Mitch McConnell (R-Ky.) to get a vote on DACA. When the votes in early February failed to produce any compromise on DACA, the upcoming Trump deadline on the program would have put Schumer and his fellow Democrats under tremendous pressure to surrender and take Trump's deal on the border wall and "chain migration" to prevent DACA-related enforcement actions from beginning next week.
However, Democrats don't appear to be terribly keen on pressing that advantage without the deadline in place. Republicans don't seem anxious to move on DACA either, although some are still working on potential compromises between Trump's "four pillars" proposal — which would entail a pathway to citizenship for young immigrants brought to the U.S. as children, full funding for a border wall, an end to "chain migration," and an end to the visa lottery system — and Democrats' refusal to link immigration policy to a DACA deal at all. Sen. Jeff Flake (R-Ariz.) is working on a deal where the White House will get 30 percent of its border-wall funding up front in exchange for a statutory version of DACA, while Sen. Lindsey Graham (R-S.C.) tells The Washington Examiner that Trump had better scale down his expectations.
"The bottom line is it's going to be wall funding for DACA," Graham insists. "It's going to be a two-pillar approach, not a four-pillar approach." Changes to family-reunification and visa-lottery programs will have to wait for broader immigration reform.
However, it's unlikely that the White House will feel anxious to sign onto that deal either, at least without a deadline to force the issue. That gives Trump almost nothing in hand while coughing up all the leverage he has for bargaining up front. Besides, as Trump rightly argues, Congress authorized the building of the border wall 12 years ago with a significant number of Democratic votes, due at least in part to criticisms from the bipartisan 9/11 Commission over the lack of security on both borders. Waiting another 10 years to fund a wall that Congress authorized makes little sense, either pragmatically or politically. Without the full funding in place up front, Congress would be asking Trump to approve DACA on credit when they have a long history of not paying the bill.
Furthermore, a statutory form of DACA that envisions new applicants for the foreseeable future sets up an incentive for illegal entries by parents who understandably want better lives for their children. Most such parents work through the legal immigration system to achieve that, and most Americans welcome them. However, DACA applies specifically to illegal immigrants; deferred action on prosecutions are hardly needed for legal immigrants. Creating that incentive without securing the border will eventually make the DACA issue a permanent fixture in American politics rather than providing a comprehensive resolution of an unfortunate set of circumstances from earlier failures to address immigration policy and border security.
The best compromise would be to settle for three pillars rather than four or two. Regularize the DACA program in statute with a path to citizenship as Trump has proposed, in exchange for full and immediate funding for the border wall ($25 billion) and an end to so-called chain migration specifically for those within the DACA program. The visa lottery system can wait for broader immigration reform. That would satisfy the constituents for all sides while actually providing solutions rather than more opportunities for failure.
How long will it take before Congress and the White House come up with a workable and effective compromise? That's anyone's guess … but a deadline would sure come in handy.