By JONATHAN MILLER and DEAN DeCHIARO
Donald Trump’s administration will feature a host of emboldened immigration hard-liners plucked from Congress, chief among them Sen. Jeff Sessions of Alabama, the president-elect’s pick for attorney general.
Trump’s transition team includes several aides with ties to Sessions. Danielle Cutrona, his chief counsel on the Judiciary Committee, is leading the “Immigration Reform & Building the Wall” policy implementation group. Cindy Hayden, another former Judiciary aide, is guiding the transition team at the Department of Homeland Security. Hayden was widely credited with helping to defeat a 2007 immigration overhaul.
But if anyone thinks Republicans can jam through hard-line measures, Rep. Mario Diaz-Balart told Roll Call: think again. A bill that deals strictly with border issues or enforcement is a loser mathematically, he said.
“The only way there is a shot at getting border and interior security through the Senate is if you also deal with the issue of the undocumented,” said the Florida Republican, a principal House negotiator during the failed attempt at a comprehensive immigration bill in 2013-2014.
The new administration promises a sharp, rightward turn on immigration that could result in ramped-up deportations for those with criminal histories, a slowing of legal immigration, increased fencing on the U.S.-Mexico border, and a loss of funding for so-called sanctuary cities.
But it has also left many questions on how Congress will now deal with the issue after years of stalemate, and how much influence the hard-liners will actually wield.
“We went from a state of clarity to a state of chaos,” said Ali Noorani, executive director of the National Immigration Forum, a group that backed the Senate’s comprehensive immigration package in 2013. “I’m not getting the sense that there’s a clear vision from Republicans on how to proceed.”
And yet, out of this chaos, battle lines are already being drawn.
Lawmakers on the right, including Senate Majority Leader Mitch McConnell of Kentucky, have signaled that they’ll look to deal with the southern border in some way — though it’s unclear whether that means building Trump’s much-promised wall.
Currently, there are 702 miles of mostly single-layer fencing along the roughly 2,000-mile border. Legislation passed in 2006 authorized two layers of fencing but was later amended to give flexibility on the matter. Republicans, and Trump himself, are now talking about a combination of fencing and wall.
Some lawmakers and conservative advocates say they would be in favor of expanding a voluntary system for employers known as E-Verify to check an employee’s legal status — a Trump campaign pledge.
Senate Democrats and some Republicans have staked out an early position, saying they would likely fight any bill that does not in some way address the plight of the children of undocumented immigrants.
Some 740,000 of these children have received benefits under a 2012 Obama executive order establishing a program known as Deferred Action for Childhood Arrivals, or DACA. Most commonly, they are referred to as “Dreamers,” derived from an acronym for failed 2010 legislation. Every Dreamer, though, is not part of the DACA program.
During the campaign, Trump vowed to end the program, though Democrats and advocates say doing so could put at risk of deportation those who should be held blameless.
“If they start deporting these innocent, young people, they’re in for a fight, and I take it personally,” said Senate Minority Whip Richard J. Durbin of Illinois. Durbin was an original co-sponsor of a 2001 bill that sought to give legal status to Dreamers.
Durbin and GOP Sen. Lindsey Graham of South Carolina have announced legislation that seeks to extend legal status to Dreamers for three years while the next Congress seeks to tackle other immigration issues. Arizona Republican Sen. Jeff Flake, a bill co-sponsor, introduced a separate effort that would pair protection for Dreamers with language expediting the removal of undocumented criminals.
Durbin holds out hope that Trump may be softening on this issue and is “open to the notion that this is a special class.” Trump praised the Dreamers in a recent Time magazine interview and seemed sympathetic, saying, “They’re in never-never land because they don’t know what’s going to happen.”
Despite the insistence of Democratic leaders, it is unclear whether moderate Republicans in the Senate and red-state Democrats will hold firm in blocking action on an immigration bill that does not deal with the undocumented population.
If Republicans want to get something through the Senate to show voters for the 2018 midterm elections, they’ll need to hold the entire GOP conference together and peel off at least eight Democratic votes to break the 60-vote filibuster threshold.
If Republicans are able to persuade vulnerable Democrats up for re-election in 2018 like Jon Tester of Montana and Joe Manchin III of West Virginia and consolidate GOP support, it’s entirely possible they could jam through a border wall, increased enforcement and expanded E-Verify. Tester told Roll Call that it would be difficult for him to vote against a standalone border security bill.
Advocacy groups are aware of this dynamic.
“It’s pretty obvious that we’ll be working on finding eight Democrats who will break the filibuster,” said Roy Beck of NumbersUSA, a conservative group that has long opposed a pathway to citizenship for undocumented workers. “Because they don’t want to stand against the working man in the next election.”
Perhaps the biggest question mark is Speaker Paul D. Ryan. In 2013, he signaled he favored some way to move the undocumented population to legal status, but that prompted a backlash on the right.
As he was shoring up support to become speaker, Ryan promised the hard-line House Freedom Caucus in 2015 that he would not bring up an immigration bill for the remainder of President Barack Obama’s term that did not have the support of more than half the caucus.
Most notably, the House GOP’s “Better Way” plan released earlier this year dealt only with border security and was silent on legal status for the estimated 11.1 million undocumented immigrants already in the United States.
GOP Rep. Carlos Curbelo of Florida said he and others are working on a bill addressing “all of our immigration issues in this country, which includes border security, a visa program, maybe guest worker, and obviously a way forward for undocumented individuals who have not committed any serious crimes.”
If the border security and legal immigration issues are resolved, Curbelo said, it could be easier to sway Republicans on providing the undocumented a path to legal status.
Given Trump’s victory, it’s easy to write that view off as a pipe dream. But in even the most conservative of circles, there are discussions happening now that envision a scenario in which Trump can secure the border and solve visa issues, and then proceed to address amnesty programs for the undocumented.
“We know the Democrats want an amnesty, and we know Paul Ryan wants an amnesty,” said Beck.
“The question will be: Do you have all the other things in place? [Trump] may be more likely than Obama or Bush to get an amnesty through.”