In theory, Donald Trump’s plan to “phase out” the Deferred Action for Childhood Arrival (DACA) program is a logical step in what Barack Obama was trying to do when creating it five years ago. That is, attaching a deadline to force Congress to act on the comprehensive immigration reform Obama wanted DACA to jump-start.
After all, Obama himself declared, when announcing DACA in June 2012, that it was “a temporary stopgap measure.” The DREAM Act, intended to address the same population of child immigrants as DACA, had stalled in Congress after nearly passing in 2010; more comprehensive immigration reform had come close in 2006.
Obama made clear that he meant DACA to restart both of those legislative projects. “There’s no reason that we can’t come together and get this done,” he said.
Of course, there were plenty of reasons; there always are. And in fact, by creating DACA by executive order, Obama made it much easier for Congress to not act on the issue. Even as he declared it temporary, Obama established a perpetual solution to the most compelling piece of the immigration conundrum.
Perhaps if Obama had imposed an end date on DACA from the beginning, Congress really would have come together to pass the DREAM Act, or even more comprehensive reform.
Deadlines can help overcome a lot of resistance. The end of a legislative session often breaks the negotiating logjam surrounding a bill. The end of a fiscal year — and with it the possibility of a government shutdown — usually forces compromises on spending plans.
Many pieces of legislation set up deadlines for their own reauthorization. This month, the Children’s Health Insurance Program (CHIP) will expire, forcing Congress to decide whether to maintain or alter certain controversial provisions.
Congress faces another type of deadline at the end of this month, on repealing and replacing Obamacare under the budget reconciliation process it established in January.
Trump, in this case, is creating a deadline where none existed, by establishing a timeline for phasing out DACA. In effect, he is telling Congress that the executive branch will begin dropping DACA participants on March 5, 2018 and the legislative branch needs to have a law in place by then to catch them.
The trouble is, Congressional deadlines work great, except when they don’t.
I often think about the strategy that was supposed to ensure passage of climate change legislation in 2010. The plan: force the Environmental Protection Agency (EPA) to begin regulating greenhouse gases on its own, if Congress didn’t do it. Nobody wanted the EPA issuing those kinds of regulations, as then-Senator John Kerry and others assured me at the time, so the deadline would force Congress to act before the end of the 2009-2010 session.
And that, boys and girls, is how the EPA ended up issuing (and delaying, and fighting in court) regulations on greenhouse gas emissions for the past seven years.
In that instance, too many individual senators judged that the consequences of not acting by the deadline would hurt them less than the risk from voters if they supported the climate bill.
There are plenty of signs suggesting that the same will be true for Trump’s DACA deadline.
For one thing, the immediate consequences of missing that March 5, 2008 deadline aren’t likely to loom all that large to many lawmakers. That’s when DACA enrollees will begin losing their protections, at a rate of tens of thousands a month — a significant, but not politically overwhelming number.
Furthermore, Attorney General Jeff Sessions, and others within the administration, made a point of saying that those newly vulnerable individuals will not be targeted for deportation. In essence, the 800,000 DREAMers, as they are called, will be phased back to their wink-and-nod pre-2012 status.
That provides too little incentive for both hard-line nativist conservatives and more moderate Republicans in Congress to bite the bullet on legislation that would hurt with their political base. I mean, if the threat of leaving Obamacare intact hasn’t been enough to scare them into action, why would the inconvenience of several hundred thousand immigrants?
Most worrisome for the likelihood of legislative action, however, is the lack of skill within Trump’s administration for making legislative deals happen.
That’s been glaringly apparent in the first eight months of the Republican-controlled government, which has produced no substantial legislation and appears far from completion on any of Trump’s top priorities.
And, that’s on items that he and his team care about, including tax reform, infrastructure, defense spending, deficit reduction and regulatory reform.
There is little to suggest that Trump particularly cares one way or another about the status of DREAMers, beyond his desire to follow through on a campaign promise to end DACA.
In fact, his press secretary, Sarah Sanders, suggested at her Tuesday briefing that Trump did not want Congress to pass the DREAM Act or a similar bill that only resuscitates DACA — that he would only welcome a comprehensive, and far less likely, immigration reform package. A package that he and the administration have given little direction on to date and seem disinclined to lay out in any detail now.
If Congressional Republicans take Sanders’s statements to mean that Trump might veto a standalone DACA-replacing bill, they will almost certainly not stick their necks out to vote on it or even to begin the drafting process.
Frankly, they have good reason to think that Trump is setting them up for the blame, when the deadline passes without any legislation passed.
It doesn’t need to be that way. Democrats in Congress are now almost universally supportive of the DREAM Act, which was not the case 10 years ago, and there are plenty of Republicans who would gladly go along with that poll-friendly piece of the immigration puzzle. Both Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan have indicated their willingness, and a lot of their rank-and-file members realize that opposing DACA hurts the party unnecessarily.
And amazingly, within hours of establishing the deadline, Trump was already undermining it. Tuesday evening he tweeted that if Congress fails to pass DREAMer protections in six months, "I will revisit this issue."
A strong deadline and a guiding hand from the White House could get Congress to finally accomplish what Obama could not. More likely, Trump’s deadline will simply lead to tearing down Obama’s work-around solution.