President Trump’s decision to cancel DACA, an executive-branch program giving work permits to illegal immigrants who arrived as minors, is a huge gamble. If the Republican caucus tries to pass a stand-alone fix along the lines of the DREAM Act (which would give full legal status to those covered by DACA), it could be in a lose-lose situation: Either it will succeed and infuriate the GOP base, or it will fail, as numerous attempts to pass the DREAM Act have in the past. If, however, the caucus unifies around a deal trading the DREAM Act for center-right immigration reforms, it could advance conservative policy goals and strengthen its political hand.
Attempting to pass a stand-alone DREAM Act is a massive political trap for Republicans. If the bill succeeds, it could cause a backlash from the Republican grassroots, who would perceive Republicans in Congress as putting a greater priority on amnestying illegal immigrants than on increasing enforcement or reforming legal immigration so that it is more sustainable. Activists might be particularly piqued to see the DREAM Act glide to passage while the reform of the Affordable Care Act languishes. Passing a stand-alone DREAM Act could also fuel more rancorous primary battles and potentially suppress turnout in 2018, especially in crucial battles. For instance, if Arizona’s Jeff Flake hopes to survive reelection, he’ll need a substantial turnout from the Republican base in both the primary and general elections.
But trying to pass the DREAM Act and failing would invite its own political dangers. Polling shows that many Americans are open to granting legal status to those who came illegally as minors. The media, with an assist from some Republicans, will provide a drumbeat of stories showing the plight of especially sympathetic “DREAMers.” In certain key races, the failure of the DREAM Act could be a wedge issue. Especially now that the president rather than the courts has ended DACA, Republicans own the decision, which puts more political pressure on them to find a replacement.
Thus, a stand-alone DREAM Act hurts Republicans whether it succeeds or fails. In a politically polarized time, depressing the grassroots probably harms the GOP’s midterm chances more than disappointing some swing voters does, but both inflict a cost.
Perhaps the surest way to mitigate these political dangers is to bundle the DREAM Act with immigration reforms that measurably advance conservative goals on immigration. What would these conservative goals be? One would be improving immigration enforcement. But an enforcement-only approach to immigration misses the broader importance of reforming the structure of the legal-immigration system. As Reihan Salam has suggested, conservatives should try to reform the immigration system so that it helps immigrants become equal partners in American society and ameliorates rather than exacerbates social divisions. Revising the legal-immigration system so that it prioritizes skills and the nuclear family would seem a crucial step in that direction.
If Republicans can package the DREAM Act with immigration policies that appeal to populist voters, they can reinvigorate their base without alienating swing voters. Moreover, they would show that they can govern.
However, some difficulties face any prospective DACA deal. The first is the exact constitution of this deal. Trading the DREAM Act for some funds for border security — even some funds for fencing — should be viewed as a bad deal. The fact that some in the federal judiciary have discovered a Trump exception to the Constitution (in which President Trump’s actions are subject to unique constitutional scrutiny) means that there is no guarantee that a funded portion of border fencing would actually be built. Lawsuits would spring up to frustrate any effort to erect that fencing, and a member of the judicial “resistance” could stymie the project for years. Moreover, border security does not begin to address the challenges of illegal immigration. A substantial percentage of illegal immigrants crossed the border legally at first — according to a recent report by the Center for Migration Studies, as many as two-thirds of recent illegal immigrants are visa overstayers. No matter how high, no wall will address this problem. This means that merely trading border security for the DREAM Act could be a substantial strategic mistake.
In terminating DACA, President Trump has invited this political battle, so the White House has a particular responsibility to be measured and careful in the way it talks about immigration.
Instead, Republicans might be wise to push for both enforcement and immigration-reform commitments in a DACA deal. Arkansas Senator Tom Cotton has offered a plausible framework for this deal: the RAISE Act and universal E-Verify for the DREAM Act. The first would reduce “chain migration” and thus make it easier to make a deal on legalizing illegal immigrants (because newly legalized immigrants wouldn’t be able to sponsor an ever-growing “chain” of relatives); the second would put in place a sustainable mechanism for internal enforcement, requiring all employers to verify the immigration status of their workers. Compromises could be made within that framework; for instance, a first pass of legal-immigration reform might cut only some family preferences in favor of increased skills-based visas. But many grassroots voters would accept a trade of the DREAM Act for an improved enforcement infrastructure and a more integration-oriented immigration system.
Many Senate Democrats up for reelection in 2018 would be hard pressed to vote against such a deal. Voting against increased enforcement and moderate legal-immigration reform could cause a reelection headache for senators such as Claire McCaskill and Heidi Heitkamp — making the DREAM Act part of that package would only increase the political pressure. Republicans have a better-than-decent chance of getting to 60 Senate votes to overcome a filibuster on an immigration package if they maintain a unified front and insist that the only way to get to the DREAM Act is through a deal that includes enforcement and legal-immigration reform.
In many ways, the ball is in the court of the immigration maximalists in the GOP: those pro-business Republicans who prioritize increased immigration, whether legal or illegal, over other immigration-policy concerns. If Senate Democrats sense that the Republican caucus is divided, Democrats — not Republicans — will be in the driver’s seat on immigration. Starting with 48 senators in their caucus, the Democrats need help from 12 of the 52 Republicans to hit 60 votes, not too different from the situation facing Republicans, who need eight Democrats. As long as Republican immigration maximalists express a willingness to pass a stand-alone DREAM Act, they give more policy leverage to the Democrats, who would very much love for Republicans to be consumed in a battle about the DREAM Act. Likewise, the more resistance maximalists offer to increased enforcement or legal-immigration reform, the harder they make it for Republicans to deliver for conservative priorities in a DREAM Act deal. If Republican immigration maximalists are willing to compromise and accept moderate reforms to the immigration system, they can strengthen the hand of their fellow Republicans and help grant citizenship to DREAMers. If they refuse to compromise, they risk torpedoing their fellow Republicans in 2018.
But immigration maximalists are not the only players here. In terminating DACA, President Trump has invited this political battle, so the White House has a particular responsibility to be measured and careful in the way it talks about immigration. Polarizing statements will only make it harder to enact center-right immigration reform.
In their botched effort at health-care reform, Republicans both disappointed the grassroots (no repeal despite many pledges of repeal) and frightened swing voters (with bills making large cuts to health-care subsidies). On immigration, Republicans can avoid making the same mistakes. But they will have to forgo open-borders bromides and instead realize that the health of the nation — and conservatism — depends upon strengthened bonds of civic trust and opportunity.