Politico
By Elana Schor and Heather Caygle
February 26, 2018
The already-dwindling political urgency for Congress to reach an immigration deal all but collapsed on Monday when the Supreme Court took a pass on the issue.
The high court declined to take up the Trump administration’s request to quickly weigh in on the Obama-era program shielding young undocumented immigrants from deportation. It’s a blow to President Donald Trump, whose order to dismantle the Deferred Action for Childhood Arrivals program has already been put on hold by two federal court rulings.
And now there’s little bite left in the March 5 deadline Trump gave to lawmakers. In a Congress that is already at a stalemate over how to balance relief for DACA recipients with tougher border security, the ruling appeared to further dampen prospects for a legislative compromise — and leave the fate of Dreamers to the courts for months to come.
“I think it’s going to take a longer time to get it addressed now” that the issue will have to work its way through the judiciary without speedy Supreme Court action, said Sen. Lindsey Graham (R-S.C.), who helped steer bipartisan talks on an immigration compromise that failed on the Senate floor earlier this month.
Asked if he was concerned about Congress taking its time on immigration, Graham suggested lawmakers would benefit from the break: “I don’t know — maybe we need a little breathing spell.”
Indeed, the House and Senate returned from a weeklong recess Monday with both parties already digging in on another controversial issue — gun control — after the fatal Valentine’s Day shooting of 17 students and faculty members in Parkland, Florida.
In recent weeks, lawmakers had been eyeing the March 23 expiration of current government funding as the next opportunity to address Dreamers, possibly through some kind of temporary solution that would allow both sides to claim a modicum of victory in the monthslong debate.
But with Trump nudging Congress to act on guns, no immediate immigration pressure on the horizon and lawmakers preparing to pivot to the November midterms, the Supreme Court’s decision means congressional action on DACA could be shelved for months — if not longer.
“There’s no question that having the injunction stay in effect takes away a little bit of the urgency of some people to act,” Sen. John Kennedy (R-La.) told reporters Monday.
Kennedy added that he’s still prepared for immigration to reemerge as the March government funding vote draws nearer. “I hope it doesn’t — I think you’re mixing apples and oranges — but I wouldn’t be surprised,” he said.
Rep. John Larson (D-Conn.) predicted Monday night that “we’ll kick the can down the road,” adding that “it’s going to be past another election cycle” before the courts reach a final decision on DACA.
In its decision Monday, the Supreme Court said it expected the 9th U.S. Circuit Court of Appeals to move “expeditiously” to decide the DACA case. But with the appeals court not expected to hear the case until later this spring, it’s unlikely the Supreme Court would weigh in until this fall, at the earliest.
Congressional aides in both parties Monday said gambling on the courts — and allowing Congress a break from the immigration stalemate possibly until after the midterms — may be the least painful option for both sides.
Trump himself suggested Monday that he would wait on the courts.
“I mean, it’s really sad when every single case filed against us is in the 9th Circuit. We lose, we lose, we lose, and then we do fine in the Supreme Court,” Trump said during a meeting with a bipartisan group of governors. “So DACA is going back, and we’ll see what happens from there.”
The court’s decision risks giving Trump “a false sense of security,” Senate Minority Whip Dick Durbin (D-Ill.) said in a Monday interview. He said the short-term reprieve from the threat of deportation would be cold comfort to the Dreamers whose future now rests with “the next court ruling — and how do you build a life around that?”
But asked about the prospects of taking up the issue during next month’s spending fight, Durbin again urged Trump to embrace the compromises already on offer. “The ball is in the president’s court, and he’s rejected six different bipartisan proposals,” Durbin said.
Some GOP lawmakers and White House officials had expressed confidence before Monday that the Supreme Court would overrule the lower courts and take up the issue, giving Republicans more leverage in negotiations with Democrats.
The issue has bitterly divided Congress since early September, when Trump first announced he would rescind DACA protections for nearly 700,000 Dreamers. Since then, lawmakers have struggled to coalesce around a solution, culminating in a three-day government shutdown in January and bitter divisions inside both parties about what to do next.
The spending bill due in late March — the result of a massive bipartisan budget deal Congress passed earlier this month — is expected to fund the government through Sept. 30, the end of the fiscal year. The legislation is also expected to be one of the last major bills Congress passes before lawmakers turn their focus to the November midterms.
For that reason, lawmakers in both parties have quietly discussed an idea to attach a proposal to the omnibus spending package that would temporarily extend DACA protections in exchange for an equal amount of border wall funding. The bipartisan Senate accord the White House worked to defeat earlier this month envisioned a much bigger trade-off: $25 billion in wall funding for a path to citizenship for more than 1 million undocumented immigrants.
One proposal from Sen. Jeff Flake (R-Ariz.) would codify DACA protections for three years and provide about $7.6 billion in border wall funding over that same period. Before Monday’s Supreme Court decision, multiple Democrats said privately the three-year patch, which would secure the fate of Dreamers until after the next presidential election, might be the best and last chance at tackling the issue this year.
Flake said he still plans to roll out his so-called three-for-three plan on Tuesday with the hope that it can be attached to the omnibus in late March.
“We do better with a deadline. This is an emergency, so it doesn’t help,” Flake told reporters Monday night. “I hope we can still move ahead with what I’m proposing tomorrow.”
But with the courts expected to take months to settle the DACA battle, there’s little pressure for Congress to act in the meantime.
“Unfortunately I do” think the high court’s decision has lessened the urgency of congressional action, Sen. Brian Schatz (D-Hawaii) said Monday. “I wish I could give you a better prognosis but as long as the president is playing such an unproductive role, I don’t see an avenue.”
Some advocates for the Dreamers noted the tangible upside of the Supreme Court’s move. The immigrants’ fate had been “held hostage,” Sen. Sheldon Whitehouse (D-R.I.) said Monday night, and “the fact that they don’t have to have that fear is a plus.”
Still, lawmakers in both parties insisted that they wouldn’t let the Dreamers’ dilemma drop while the courts sort out the viability of Trump’s bid to kill DACA.
“It would be foolish to take false confidence or hope that somehow the courts are going to save us from making a decision,” Senate Majority Whip John Cornyn (R-Texas) told reporters Monday night.
Sen. Thom Tillis (R-N.C.), who also engaged early on in bipartisan immigration talks before ultimately endorsing the White House’s framework, said he doesn’t see the Supreme Court dampening the interest of lawmakers who are truly interested in reaching an agreement.
“We still need to be focusing on a short runway,” Tillis said. “People [who] genuinely want to solve the problem ought to stay at the table.”
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