The warring tribes that will decide Dreamers’ fate

Politico

By Ted Hesson

January 24, 2018

The warring tribes that will decide Dreamers’ fate

As Congress and the White House wrangle over an immigration deal, with not much to show for it, all sides — from liberal Democrats to President Donald Trump — insist they want an agreement that offers protections to undocumented immigrants brought to the United States as children.

But unlike most partisan disputes, which have two sides — Democratic and Republican — the fight over how to codify the Deferred Action for Childhood Arrivals program has five. Complicating matters further, some players straddle two or more of the five rival factions.

You can’t follow the action without knowing all points of this five-pointed star. Herewith, a guide:

The Doves

The public faces of this bipartisan group are Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.), both of whom have come under fierce personal attack from the White House as they’ve sought to wrangle a compromise that would offer legal status and a path to citizenship for Dreamers. The coalition also includes Sens. Jeff Flake (R-Ariz.), Cory Gardner (R-Colo.), Michael Bennet (D-Colo.) and Robert Menendez (D-N.J.).

Reps. Will Hurd (R-Texas), Pete Aguilar (D-Calif.) and Jeff Denham (D-Calif.) are also Doves, though they’ve been working separately from the Graham-Durbin group through a bill introduced last week. Rep. Carlos Curbelo (R-Fla.) is a Dove, too: He introduced a bill in March to deal with Dreamers.

The Graham-Durbin Doves pledged $2.7 billion for border security, including the $1.6 billion that the White House requested for border wall construction in its 2018 budget. Their proposal would allow Dreamers to obtain citizenship within 12 years but would not allow Dreamers to sponsor their undocumented immigrant parents for citizenship — a concession to Trump’s opposition to so-called chain migration. The Hurd-Aguilar proposal would direct the Department of Homeland Security to employ technology and physical barriers to secure the border, but didn’t specify any dollar amount.

Within the Trump administration, White House legislative affairs director Marc Short and Ben Cassidy, Homeland Security assistant secretary for legislative affairs, are — or, at least, were — crypto-Doves. Within the White House, they were the only players amenable to the Graham-Durbin compromise, according to a source briefed on the negotiations, and it was they who persuaded Trump to negotiate directly with that group on Jan. 9 at a meeting that was partly televised. Trump was initially sympathetic, but two days later he dismissed the Graham-Durbin proposal in a racist outburst (“shithole countries”).

At a White House press briefing Tuesday, Sarah Huckabee Sanders said the Graham-Durbin plan is a nonstarter. “It’s totally unacceptable to the president,” she said, “and should be declared dead on arrival.”

The Hawks

The leader of this group, depending on whom you ask, is either Stephen Miller, White House senior adviser for policy, or White House chief of staff John Kelly. Supporting players include Senate Judiciary Chairman Chuck Grassley (R-Iowa), Senate Majority Whip John Cornyn (R-Texas), and Sens. Tom Cotton (R-Ark.) and David Perdue (R-Ga.). On the House side, members include Judiciary Chairman Bob Goodlatte (R-Va.) and Homeland Security Chairman Michael McCaul (R-Texas). Among the congressional contingent, Cotton plays Robespierre, consistently taking the hardest line.

Another member of this group is Homeland Security Secretary Kirstjen Nielsen, who at the Jan. 9 meeting passed out a four-page memo with the administration’s “must-haves,” only to be rebuffed, mysteriously, by Trump. At the meeting, Trump said he hadn’t seen the list of demands and told the group to ignore its contents. Make of that what you will.

The DHS memo, which is backed by Kelly and Miller, nonetheless appears to represent the Trump administration’s bargaining position on immigration, to the limited extent that any such position can be identified. It’s a pared-back version of a wish list that the White House released in October. The DHS proposal calls for “an initial down payment” on the border wall of $18 billion over a decade. The proposal would also limit family-based immigration to spouses and minor children; eliminate the diversity visa lottery program, which offers 50,000 visas annually to countries that send few people to the U.S.; raise the standard of proof to make an asylum claim; and fund 10,000 additional U.S. Immigration and Customs Enforcement agents and 8,000 U.S. Customs and Border Protection personnel.

Goodlatte and McCaul on the House side, and Grassley and Cornyn on the Senate side, have introduced bills that take the same general approach as the DHS proposal.

Frank Sharry, executive director of the pro-immigration America’s Voice, said Hawk-only bills don’t stand a chance with Democrats and moderate Republicans. “A Cotton- or Goodlatte-anchored proposal — which is clearly where the White House and I think many Republicans are — wouldn’t get enough Republican votes to pass and would get zero Democratic votes,” Sharry said.

The Lefties

At the Jan. 9 White House meeting, Sen. Dianne Feinstein (D-Calif.) told Trump that she thought Congress should pass a “clean” DACA bill and then address other immigration matters in a separate follow-up bill. To everyone’s astonishment, Trump initially agreed, until House Majority Leader Kevin McCarthy gently instructed him not to. Nobody knows why Trump said this, and the White House initially omitted Trump’s conciliatory words from a transcript of the meeting, even though it was televised.

Feinstein’s dazzling act of momentary hypnosis situates her with the Lefties, who just want the president to sign the DREAM Act, a bipartisan bill that would extend statutory protection to undocumented immigrants who arrived as children. Feinstein voted against this week’s bill to reopen the federal government because it lacked a DACA fix.

The Lefties also include the Democrats’ “2020 caucus” — potential presidential contenders who similarly voted against reopening the government, presumably mindful that primary voters may judge them harshly for not including a DACA deal in the continuing resolution. They are: Sens. Kamala Harris of California, Elizabeth Warren of Massachusetts, Cory Booker of New Jersey, Bernie Sanders of Vermont, Kirsten Gillibrand of New York and Jeff Merkley of Oregon.

Nearly all House Democrats fall into the Lefties camp, too, if only because it was a free vote: With a Republican majority and no equivalent to the Senate filibuster at hand, nothing was to be gained politically by voting with the GOP to reopen the government. After Trump’s “shithole” comment, House Minority Leader Nancy Pelosi called on Democrats to push for a clean DREAM Act without making any further concessions to Republicans.

The Swingers

Different Republican constituencies push in opposite directions on the immigration issue, and some members of Congress resolve this paradox by keeping their options open. The lead Swinger, if only by seniority, is Orrin Hatch (R-Utah). Along with Durbin, Hatch co-sponsored the first iteration of the DREAM Act in 2001. But in September, Hatch co-sponsored the more conservative SUCCEED Act, which covers fewer people than the DREAM Act and offers a lengthier road to citizenship. At the moment, the SUCCEED Act is a nonstarter for the Hawks, but it isn’t inconceivable that it could be folded into a larger compromise.

Sens. Thom Tillis (R-N.C.) and James Lankford (R-Okla.) primarily drafted the SUCCEED Act. But they also signed on to the Hawk Grassley’s more restrictionist legislation, and they joined a lunch Monday at the White House with Hawks Cornyn, Grassley, Cotton and Perdue. They also took part in Dove meetings last year with Graham and Durbin, though they split from the group in recent weeks.

As noted, nearly all House Democrats side with the Lefties on immigration. Many Senate Democrats do as well, but it wouldn’t be a shock to see red-state Senate Democrats Joe Manchin of West Virginia and Doug Jones of Alabama move into the Swinger column. Trump met with them Monday. Manchin will face a spirited challenge from Republicans later this year in West Virginia, a state Trump won by more than 40 percentage points, and Jones wouldn’t likely be in the Senate at all were it not for the wild ride that Republican nominee Judge Roy Moore gave his party.

The Wild Cards

The Wild Cards are a caucus of one — Trump — though Senate Minority Leader Chuck Schumer seems lately to be applying for admission as junior partner.

Candidate Trump vowed on the campaign trail to “immediately terminate” the DACA program on his first day in office. Then he didn’t.

In February 2017, Trump said, “We are gonna deal with DACA with heart.”

Trump might never have addressed his campaign promise to end DACA were it not for a lawsuit threatened by 10 conservative state attorneys general that the Trump Justice Department did not expect — or perhaps simply did not want — to win.

In September 2017, Trump headed off the threatened lawsuit by beginning a phase-out of DACA that would end March 5. Even then, Trump professed “a love for these people” and even suggested that he might later change his mind. A federal court reduced the time pressure earlier this month by ordering the Trump administration to resume accepting DACA renewals. (The Trump administration did not seek a stay, to the surprise of some, but instead petitioned the Supreme Court to take the case later this term.)

Schumer and Pelosi said in September after meeting with Trump that they were close to a deal to codify DACA, but such talk evaporated swiftly — presumably after Trump got an earful from the Hawks.

The cycle repeated itself this month. Despite the hawkish stance outlined in the White House’s October wish list and the more recent, pared-down DHS memo, Trump was conciliatory enough at the Jan. 9 meeting with members of Congress to seriously alarm his right flank. “As he considers the utility of walls (and promises),” tweeted uber-Hawk commentator Ann Coulter, “@realDonaldTrumpshould consider that ‘Never Trump’ was toothless, but ‘Former Trump’ will bite.”

At a follow-up Jan. 11 meeting, Trump reversed course. “I think somebody on his staff gave him really bad advice between 10 o’clock to 12 o’clock on Thursday,” Graham said at a congressional hearing.

“He has loyalties to a base of supporters who are hard-line on this issue,” said Andrew Greenfield, managing partner at the immigration law firm Fragomen in Washington, D.C. “At the same time, I think his instincts in a vacuum are to compromise and make a deal.”

Schumer described negotiating on immigration with Trump as “negotiating with Jell-O,” but during the past week — perhaps concluding that if you can’t lick ‘em, join ‘em — Schumer has made some unpredictable moves of his own. He baffled many Democrats and infuriated liberal backers when he abruptly folded Monday on a three-day government shutdown prompted primarily by Trump’s refusal to deal on DACA.

As part of the pact to end the shutdown, Senate Majority Leader Mitch McConnell agreed to allow a vote on an immigration bill by Feb. 8 if Congress hadn’t already reached a deal. But Schumer complicated that negotiation Tuesday by withdrawing a pledge he’d made to Trump on Friday to spend significantly more on the border wall than the $1.6 billion in the Trump budget.

Perhaps Schumer calculated that he needed additional leverage. With another shutdown possibly off the table, Schumer now holds a weaker position, argues Mark Krikorian, executive director of the Center for Immigration Studies, which favors lower levels of immigration. The Democrats’ shutdown retreat may encourage the Hawks to press for more enforcement measures.

“My sense is that Miller’s hand, and Kelly’s, too, has been strengthened from this shutdown fiasco,” Krikorian said.

For more information, go to: www.beverlyhillsimmigrationlaw.com