Congress's DACA Tango Is About to Begin

By Andrew R. Arthur on September 14, 2017

My phone gives me news updates as they occur. Last night, they began with "Trump, top Democrats reach an agreement to protect young immigrants and boost border security that excludes wall funding" at 10:28 PM, before going to "Democrats say they've reached a tentative deal with Trump to 'quickly' advance legislation protecting Dreamers from deportation" at 10:46 PM, to "After Democrats say outline of DACA agreement reached, White House says talks constructive, but short of a deal" at 12:17 AM, to "Trump denies deal was made with Democrats on young immigrants, says 'massive border' security needed" at 6:27 AM.

Thus begins the DACA Immigration Legislation Tango.

The last major immigration legislation occurred in May 2005, with the passage of "The REAL ID Act", Pub. L. 109-13 (2005). It should be noted as an aside that "REAL ID" is not an acronym, and therefore it is not clear to me why it is in capital letters. Despite the fact that I drafted major portions of it as well as most of the conference report as it related to that bill, I did not get to name it.

That act should provide important insight into how the DACA dance will go.

REAL ID started as part of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458 (2004). One of the main drivers behind that act was the 9/11 Commission Report, and an interest in implementing the recommendations of the Commission.

While many provisions of that bill enjoyed bipartisan support, immigration provisions included in the House version of that bill by then-House Judiciary Committee Chairman F. James Sensenbrenner, Jr. became a sticking point, as did concerns voiced by then-House Armed Services Committee Chairman Duncan Hunter "that giving the newly created National Intelligence Director authority over Pentagon intelligence as recommended by the Commission could interfere with critical information being sent to commanders in the battlefield."

Together, they held up the conference until "Hunter gave his support to the measure when new language in the bill directed the president to issue guidelines for the intelligence director 'in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments.'"

Then-Speaker of the House Dennis Hastert's promise to make immigration reform a priority did not placate Sensenbrenner. But then, in early 2005, the powerful chairman got his opening.

On January 26, 2005, he introduced the rejected provisions as HR 418, the REAL ID Act of 2005, which eventually gained 140 cosponsors. It passed the House on February 10, 2005, by a vote of 261 (including 42 Democrats) to 161 (including eight Republicans), but languished in the Senate until it was appended via H. Res. 151 to HR 1268, the "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005".

That bill both made emergency appropriations for the Department of Defense and "emergency supplemental appropriations for emergency relief, rehabilitation, and reconstruction aid to countries affected by the tsunami and earthquakes of December 2004 and March 2005, and the Avian influenza virus."

At the time, American troops were fighting in both Iraq and Afghanistan, and the world was reeling from pictures of devastation that had occurred on December 26, 2004, when an Indian Ocean tsunami wrecked parts of 11 mostly underdeveloped countries. In other words, it was the definition of a "must-pass bill". Everybody wanted something, and that was to appear to support the troops and make a humanitarian statement with a tough election year looming.

Although six Democratic senators refused to sign on to the provisions of the conference report that related to the REAL ID Act, their actions had no real effect, and the bill became law on May 11, 2005. Hastert had kept his word, largely because he needed to accede to a powerful chairman and a significant portion of his conference.

Which brings us to today and DACA.

As with REAL ID, both parties want something from any DACA legislation. Democrats want to legalize hundreds of thousands of DACA recipients, knowing that the vast majority will become Democratic voters when they get the chance. And Republicans have waited years to put needed immigration-enforcement laws into place, and to provide additional tools that Immigration and Customs Enforcement and Border Patrol agents need.

House Judiciary Chairman Bob Goodlatte has clearly made immigration enforcement reform a priority, as demonstrated by his co-sponsorship (and shepherding) of HR 2431, the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act" (Davis-Oliver). I have written previously about this act, which contains multiple amendments to the Immigration and Nationality Act (INA) that are critical to beefing up immigration enforcement and making changes that are needed to clean up the mess left by eight years of Obama administration neglect on the issue.

Goodlatte's assent to any DACA/Dream Act legislation is crucial to its passage, because under Rule X(1)(l)(9) of the House of Representatives, the Committee on the Judiciary has jurisdiction over "Immigration policy and non-border enforcement".

There are two caveats to this conclusion. The first is that Speaker Paul Ryan will comply with the so-called "Hastert Rule", which is "[a] philosophy that requires the 'majority of the majority' to bring up a bill for a vote in the House of Representatives."

Ryan appears to be in a more tenuous position as speaker than Hastert was, and acts such as forcing a bill to the floor that could only be passed with opposition party votes on the most contentious issue between the parties in years would not be smart politics. And you don't get to be speaker unless you are smart at politics, so expect the Hastert Rule to be in effect on this bill.

The second is that the bill will follow "regular order", a process that would require it be referred to the committees of jurisdiction. In this instance, the referral would be to Chairman Goodlatte's House Judiciary Committee, where it would require a vote (with a possibility of amendment) before it goes to the House floor.

Here again, smart politics would militate in favor of referral. Because of the issues that it handles, the House Judiciary Committee is one of the most, if not the most, ideologically divided committees on Capitol Hill. Old-line immigration hawks Steve King and Louie Gohmert face off with traditional open-borders advocates Luis Gutierrez, Zoe Lofgren, Jerry Nadler, and Sheila Jackson-Lee, among others, on a weekly basis. In addition, the committee has attracted emerging thought-leaders Martha Roby, Mike Johnson, and Matt Gaetz for the Republicans and Pramila Jayapal and Jamie Raskin for the Democrats.

The committee also boasts skilled litigators like Trey Gowdy, Ron DeSantis, and Ted Lieu. Most importantly, however, it has senior members who are skilled in procedure like Sensenbrenner, Goodlatte, and John Conyers, dean of the House of Representatives. These members have all served in the minority and know how to obstruct when they have to. To paraphrase Sinatra, if a bill can make it there, it can make it to the Rose Garden.

Forget "House of Cards" — House Judiciary is real, open to the public, and playing for keeps.

Referral would also tee up issues that will arise on the House floor, assuming that the bill is referred out of Committee.

The Senate will not be as important to this legislation, at least not initially. Because of the filibuster, whatever comes out of the "upper chamber" will likely be watered down as it relates to immigration enforcement.

Assuming Senate passage (or passage of a companion bill), the next stop would be a conference committee, and Ryan's choice for conferees will bear notice. Expect Goodlatte and immigration subcommittee Chairman Raúl Labrador to definitely be included, as well as House Homeland Security Committee Chairman Mike McCaul, even assuming that his committee does not also receive a referral. McCaul would likely push for more border enforcement if none is in the base bill. The other House Republican conferees will really indicate Ryan's true stance on enforcement.

In particular, a choice of Jim Jordan, an influential member of the House Freedom Caucus (as well as a member of the House Judiciary Committee and Chairman of the House Oversight and Government Reform Committee's Subcommittee on Health Care, Benefits, and Administrative Rules) would reflect Ryan's willingness to fight for the House version of the bill. Jordan still carries himself like the two-time NCAA wrestling champion he was, and stakes out and holds his positions tenaciously; his agreement to the ultimate bill would carry great weight with the Freedom Caucus, and ensure that their concerns were adequately addressed.

Senate conferees will also be important. Senate Majority Leader Mitch McConnell's choice of Tom Cotton and David Perdue will show a hard-line stance on immigration, while the choice of Jeff Flake and Lindsey Graham would be reflective of a willingness to compromise on immigration enforcement. Whatever comes out of conference will still face a vote in the Senate, so perhaps some combination will be chosen. Depending on the choices, the most important immigration fight in a dozen years may take place behind closed doors.

The wild card in all of this is the president. Today he has tweeted: "No deal was made last night on DACA. Massive border security would have to be agreed to in exchange for consent. Would be subject to vote"; as well as "The WALL, which is already under construction in the form of new renovation of old and existing fences and walls, will continue to be built." Of course, he also tweeted: "Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!....."; and "...They have been in our country for many years through no fault of their own - brought in by parents at young age. Plus BIG border security."

The press is reporting, however, that the White House plans on leaving any DACA legislation to Congress, so it is possible that the president is simply setting the terms of the debate. He is, most of all, a skilled negotiator, so any statements from him that a border fence would not be a deal breaker (as the press has also reported) could simply be posturing.

That said, as FiveThirtyEight recently explained: "hardline immigration policy ... helped put Trump in the White House," and "immigration tends to be an issue that is more important to Republicans than Democrats." For these reasons, Trump will likely push at the end of the day for increased enforcement as part of any bill, or risk alienating his base.

The band is warming up. The DACA tango is about to begin.