The spectacular demise of immigration legislation last week in the Senate failed to provide any clarity on where this issue is headed in the coming months. Here are a few thoughts on the current state of play:

  • Most likely the next legislative action would be a mini-package attached to the omnibus spending bill that is likely to move through Congress before the expiration of the current continuing resolution on March 23. Expect that when the Senate returns to hear more about the path forward early next week. Senate Republican leaders including John Thune (R-SD) and John Cornyn (R-TX) have floated including a permanent extension of the current DACA program along with $25B in enhanced border security funding. It is too soon to know whether the divisive feelings stirred up by the Senate debate last week make it more likely that Senate Democrats will play handball on the omnibus and DACA, and thus would prefer to have no deal than one that provides extra money above the underlying appropriations process for border fencing. Meanwhile, Sen. Jeff Flake (R-AZ) is making a lot of noise about his “3+3” plan that would statutorily extend DACA for three years and provide three years of enhanced border funding (but far less than the Thune bill). However, the White House has indicated it prefers the ‘skinny’ Thune approach.

  • From the Senate Democratic view, after last week’s debate in the Senate, it is clear that the administration’s immigration policy is still being driven by the hard-liners like Stephen Miller, and that the chances of any real comprehensive legislative compromise are slim to none. Minority Leader Chuck Schumer (D-NY) and the Democrats feel that they were able to stay unified and maintain a focus on the DREAMers and border security – and not allow Majority Leader Mitch McConnell (R-KY) to make the debate just about sanctuary cities, diversity visas, and family-based immigration. Schumer and the moderates Dems forged a compromise with some moderate Republicans around the amendment offered by Sen. Mike Rounds (R-SD) and feel as though they offered a good faith solution – but it was rejected by Trump and his Department of Homeland Security. Senate Democrats think few will believe Trump’s rhetoric on who would be to blame for an end to DACA, and see the blame falling squarely on the shoulders of McConnell and Republicans. There are certainly some moderate Senate Democrats (like Joe Manchin(D-WV)) who will remain open to Trump priorities like border wall funding – but McConnell won’t be able to peel off more than a handful of Democrats, most of whom see last week’s failures as a big loss for Trump.

  • House conservatives continue to push Speaker Paul Ryan (R-WI) to move H.R. 4760, the Securing America's Future Act, which has a wide range of immigration enforcement provisions and a limited set of benefits for the current DACA population. It is more conservative and less generous than the Administration-backed amendment offered by Sen. Chuck Grassley (R-IO) last week and has around 100 cosponsors, but probably does not have 218 votes yet due to defections from centrist Republicans and the ultra-far right and no Democrat support. The Goodlatte-backed contingent really wants the House on record in support of a bill for fear of being rolled by the Senate at some point later in the year.

  • House Democrats continue to be frustrated with some of the compromising agreements reached, although unsuccessfully, In the Senate without much consultation with House leadership. The possibility of pushing an limited agreement on the omni in late March has not been attractive to Minority Leader Nancy Pelosi (D-CA) or Minority Whip Steny Hoyer (D-MD). As with some House Republicans, the House Democrats do not think the Goodlatte bill can pass the House, much less the Senate.
  • The Supreme Court met on February 16 to discuss whether to accept the Trump Administration’s request to decide an expedited appeal of a lower court ruling requiring DHS to maintain the DACA program as it existed before the September 2017 wind-down announcement. If the court does not take the case on this expedited basis, it presumably would wind slowly through the 9th and possibly 2nd Circuits, or possibly could be placed on the Supreme Court’s normal and slower appeal process. We may hear something after this Friday’s internal court discussions which could be announced on Monday, February 26. For a deep analysis of the court’s options, click this link. Until something happens on this litigation, the current court injunction makes the Administration’s planned March 5 end to DACA a deadline with no actual changes to the program.
  • In light of the tragedy in Florida, the focus on gun control / mental health set of issues in Congress and in the press may divert attention away from immigration. Many of the same players in Congressional leadership, the Judiciary Committees, and the DOJ will be spending considerable focus on whether and what to do on gun and mental health issues – note Senators Cornyn, Grassley and Dianne Feinstein (D-CA) are talking about a bill to improve the FBI’s background check process that could spill into other issues (gun shows, mental health screening, etc.). The promised march on Washington on March 24 by students further could drive down the relative focus on immigration.

  • A few links of note:
        • United We Dream statement: ““Today’s Senate vote makes clear that Trump’s racist mass deportation plan has zero mandate for becoming law. The only thing Trump succeeded in doing today was killing bipartisan work.”
          • statement: “[T]he Senate brought to the floor two amendments that would have granted amnesty to between 1.8 and 3.2 million illegal aliens and another that extended protections for 10-12 million. In return, those amendments would have done little or nothing to end illegal immigration or end our failed system of family chain migration. Ultimately, they all failed because they deserved to fail.”
          • Washington Post tick-tock story on the Trump Administration mobilizing against the Rounds amendment.