Last week, the Trump administration announced the phasing out of the Deferred Action for Childhood Arrivals (DACA) program. For a two-year period starting on March 5, more than 1,000 DACA recipients could see their permits expire every day. At the end of two years, all permits will have expired — that is, unless Congress acts.
As troubling and disheartening as last week’s developments have been, they just might provide the urgency needed to push Congress into passing protections for Dreamers — something that it has been trying, unsuccessfully, to do for over 15 years.
Congressional action is no sure thing — far from it, in fact. But there is room for cautious optimism thanks to the unique confluence of three key political factors: enforcement credibility from the executive, the expectations that arose out of DACA, and the introduction of a Republican-led conservative bill. Not to mention, President Trump has expressed apparently genuine sympathy and support for such action.
Despite the administration’s official stance, the president has given cause to believe that he is personally sympathetic to Dreamers, even though some of his political allies and advisors are not. For months, he has refused to rescind DACA, despite having run on a campaign that promised to do so on his first day in office. And for all the talk that culminated in the final decision to phase out the program, Trump’s options were severely limited: DACA has been living with a terminal diagnosis since May, when officials from 10 states threatened a lawsuit against the program that would likely have been successful.
Now, however, with new urgency surrounding DACA likely to spur Congressional action, these officials may see their plan backfire. Although Congress has considered legislation that would give legal status to this population many times since 2001, each time — whether it was attached to comprehensive immigration legislation or proposed on its own — the effort failed.
But present circumstances may provide the ideal conditions for successful legislation.
First, whether he intends it or not, President Trump’s administration is perceived as a more credible threat to Dreamers than previous ones. Credibility on the enforcement side is paramount in these discussions. Credibility can get both sides to make concessions: from enforcement hawks to win enforcement provisions, and from immigration doves to avoid possible worst-case scenarios.
If there is any doubt that enforcement credibility is vital to negotiations, look to former President Obama. He was willing to make record numbers of deportations — for which he acquired the nickname “deporter-in-chief” from immigration activists — in an attempt to build enforcement credibility among Republicans to accomplish comprehensive immigration reform. That strategy ultimately proved ineffective. But President Trump’s party affiliation, history of nativism, coupled with the immigration crackdown he initiated at the start of his presidency, and the rumors of large upcoming enforcement operations renders the threat of deportation of Dreamers credible to this Congress.
On the Right, this gives Trump an opportunity to take a “Nixon goes to China” approach on immigration, as my colleague Samuel Hammond has said. Just as with Nixon, Trump’s credibility on the Right could give him political cover to consider many more options than would be feasible to a politician on the other side of the aisle.
On the Left, Trump’s credibility as staunchly anti-immigration is an incentive to accept compromises to avoid even worse outcomes. Adding to the credible threats facing inaction is the chance that DACA would facilitate removal of former DACA recipients. Now, the Department of Homeland Security has indicated it will not use data acquired through DACA to find people to deport, but it may use DACA data against Dreamers to expedite their removals. Further, Trump’s attempt to reassure Dreamers by saying he will revisit protection by executive action should Congress fail to act is less than reassuring when new executive action would prompt renewed legal challenges.
Second, DACA’s former existence has established an expectation of protection. In short, it was much easier, politically speaking, for Congress to avoid passing protections that have never existed than it is to ignore protections that are being stripped away.
Third — and most important — is a factor that has received less attention than other dynamics facing Congress, although that is likely to change very soon. Conservatives now have a Republican-branded solution: the Recognizing America’s Children (RAC) Act. Although Dreamer legislation has long been a bipartisan effort, there was always an upper limit on GOP support, which is why, since 2001, the legislation has gone nowhere.
Conversely, the RAC Act, introduced by Rep. Carlos Curbelo (R-FL26) in the House and to be introduced soon by Sen. Thom Tillis (R-NC) in the Senate, is a conservative proposal to protect Dreamers. The bill is gaining traction: Since the president’s announcement, it has secured 11 more House co-sponsors. As a conservative approach, it could bring a greater number of Republicans to the table on the issue than the broader, more liberal alternatives, thereby growing the coalition that could get behind legal status.
The uncertainty that has befallen Dreamers living in this country following the rescinding of DACA is cruel and distressing. But, perhaps paradoxically, this uncertainty might just prove to be what’s needed to cut through longstanding Congressional morass and protect Dreamers’ future once and for all.
Jeremy L. Neufeld is an immigration fellow at the Niskanen Center.