Government shutdown: why Trump’s immigration deal won’t pass


President Donald Trump has never understood how to compromise: His definition of a deal has always been that he gets what he wants and the other guy gets screwed.

A partial government shutdown in which 800,000 federal workers are about to miss their second consecutive paycheck isn’t the ideal time to learn.

But after a weeks-long standoff, the Trump administration is — intermittently — trying to shift into dealmaker mode, working with Senate Majority Leader Mitch McConnell on a bill that will come to the floor Thursday.

The bill preserves Trump’s core demand for wall funding: It would reopen the government while allocating $5.7 billion for physical barriers (which might only be a “wall” as a matter of semantics) at the US-Mexico border.

In exchange, it offers Democrats temporary extensions of existing protections for (many) immigrants currently protected by the Deferred Action for Childhood Arrivals (DACA) program or Temporary Protected Status, whom Trump has sought to make vulnerable to deportation.

Buried in the bill — smuggled in under the guise of a (very limited) new program to let some Central American minors apply for asylum outside the US — are provisions that could punish large numbers of asylum seekers.

From the moment Trump proposed the outlines of the deal, though, Democrats weren’t biting. And the White House can’t seem to decide whether it should insist the current offer is the best chance Democrats are going to have to protect vulnerable immigrants, try to sweeten the deal, or retrench.

The problem is that the White House appears to expect Democrats to be motivated to come to the table out of a high-minded desire to reopen the government and to be willing to swallow some lumps to accomplish that goal. But Democrats aren’t budging, so far.

Any effort to entice Democrats with an actual compromise — something that would require giving Democrats something close to as important to them as the “wall” is to Trump — runs the risk of alienating conservative commentators who are actively scrutinizing Trump’s tweets for any hint of “amnesty.” The White House doesn’t appear confident that it can hold on to its base if Fox News personalities Ann Coulter and Sean Hannity turn against them.

The White House has shown intermittent interest in actually coaxing Democrats to the table and raised some legitimate questions about whether Democrats actually would accept any deal with Trump on immigration. But Republicans can’t force that question until they offer Democrats a deal that Democrats would actually want.

1) Democrats have no incentive to deal right now

Trump is losing the shutdown, and Democrats know it.

The American public blames him. His support is eroding, even among his base. And the only leverage he had on an immigration deal — the prospect of the Supreme Court siding with him and allowing him to end DACA — has all but evaporated, as the window for the Court taking up the case this term is all but closed.

Trump’s offer to Democrats over the weekend, and the bill that McConnell introduced Monday night, was an effort to shift the onus back on Democrats: to make them feel that it’s now their job to make a counteroffer or else they’ll be seen as the intransigent ones.

Democrats appear unpersuaded, at least so far. Their position remains that they will open the government first and consider anything else — extra funding for border barriers, DACA, etc. — later.

It’s possible that moderate Democrats will be ground down by the continued pain of the shutdown. But it’s more likely the continued shutdown will put even more pressure on the Trump administration. The White House can’t really count on winning a weeks-long game of attrition.

Implicit in the Trump administration’s arguments over the past few days has been the idea that Democrats need to come to the table for the greater good: Since they don’t want to keep the government closed, they should be willing to sacrifice something to reopen it. Democrats see this as hostage-taking. And because the polling favors Democrats, they’re not likely to budge from that position.

2) If Democrats were going to take a small and easy win, they would have done so already

Administration officials argue that Trump has already made a major concession: Instead of asking for a solid concrete barrier to stretch across the entire US-Mexico border, he’s asking for a few hundred miles of “physical barriers” that are the same style of bollard fencing already in use before he became president.

That both is and isn’t a real concession.

The Trump administration has consistently supported the “steel slats” fencing model — even before the shutdown, the Department of Homeland Security said that the $5 billion in “wall” money Trump was then asking for would be used for bollard fencing.

But it’s true that the distinction between a “fence” and a “wall” used to matter to members of Congress, specifically congressional Democrats. In 2018, Congress gave Trump a couple billion dollars for border barriers, but justified it by saying that they weren’t “Trump’s wall” per se because they were the same kind of fencing already in use.

If Democrats wanted to stick to that definition, they could vote to give Trump the $5.7 billion, reopen the government, and claim victory.

That is not at all what is happening.

The Democratic position on the “wall” appears to be in flux. Some members are open to building more barriers in theory but want stronger guidance on where they’re actually necessary. Other members have made it clear that anything Trump can call a “wall” will be an unconscionable defeat.

There is a genuine difference of opinion among Democrats about this. But right now, it’s academic. Any policy discussion is hypothetical, because they don’t want to negotiate until after the government is reopened.

3) The deal the White House proposed offers nothing Democrats are interested in

In theory, the bill that McConnell is putting on the floor Thursday represents an effort to give Democrats what they most want — protections for DACA recipients and immigrants with TPS — in exchange for what Trump most wants: the wall.

In practice, the bill gives both groups of immigrants more of what they already have — turning their existing protections (which will likely persist for months or longer thanks to federal court cases) into three-year congressionally granted protections — but only after putting them through an application process many may not pass. And it places more restrictions, going forward, on both future TPS grants and future asylum seekers.

For both DACA and TPS, continued protection is the status quo. It’s only a temporary status quo — in both cases, immigrants are protected because federal judges told the Trump administration to stop stripping their protections, and that order will be in effect only as long as the lawsuits over both policies continue. But it’s likely to last through the fall at least for both groups, and possibly — for DACA, at least, where the timeline is clearer — through June 2020.

The White House is offering a three-year extension of existing protections for qualified DACA recipients (on top of what’s left on their existing two-year grants), and a three-year extension for qualified TPS holders. That’s certainly longer than the court cases are likely to stretch out. But it’s not clear how much longer.

It’s also not clear that a brief extension is worth it given what the White House is asking for in return.

For one thing, it’s unclear how many currently protected immigrants would actually qualify for the extensions in the White House bill. What administration officials describe as requirements to preserve the “integrity” of immigration programs could make it much easier to deny applications for protection.

DACA recipients and TPS holders would both have to prove by “clear and convincing evidence” that they’ve never been in a gang, for example (a negative that’s particularly hard to prove when immigration agents sometimes falsely suspect teens of gang membership). They’d also have to pay back the value of any tax credits they’ve ever received from the government.

The Trump administration doesn’t anticipate that these requirements would winnow out too many applicants (and it doesn’t believe those applicants would be deserving, anyway), but immigration lawyers and advocates are gravely concerned, and are more likely to have Democrats’ ears.

The bill the White House proposed also makes permanent changes going forward to asylum and TPS eligibility. TPS would now be available only to people in the US legally when a natural disaster or other unrest struck in their home countries. It would get much, much easier for an asylum claim to get marked “frivolous,” making the asylum seeker permanently ineligible for any form of legal status. (For example, if the asylum seeker was applying “in whole or in part” to get a work permit, it would make the whole application “frivolous.”)

And the “credible fear” screening interview that asylum officers do for asylum seekers who enter without papers would now have to judge whether the migrant was for any reason disqualified for asylum. That’s something usually determined once she’s actually had a chance to file an application.

In other words, it’s not clear whether Democrats would be enthusiastic about this proposal even if it didn’t come with a $5.7 billion price tag for “the wall.” And as it is, they’re not. Even some Republican pundits who were initially enthusiastic about the offer balked when they read the fine print.

4) The White House hasn’t given Democrats enough reason to believe that this time is different

On a press call Tuesday, senior administration officials stressed that if Democrats had problems with the McConnell bill, they were welcome to come to the table and discuss them. “We have no illusions that we have drafted the world’s first perfect piece of legislation, and we would be happy to have conversations with Democrats and anybody who would like to come to the table and talk about ways to improve this legislation and find a consensus to pass it,” a DHS official said.

That makes it sound like the Trump administration would be comfortable moving the bill to the left — perhaps substantially — if that’s what it took to get Democrats on board.

But they’ve already missed at least one opportunity to do just that.

Even before Trump officially made the offer to Democrats in a Saturday speech, Democratic leadership had issued statements rejecting it based on initial reporting. (The initial reporting was actually more generous to Democrats than the offer the president made — thanks, according to some reports, to last-minute efforts by White House immigration hawk Stephen Miller to halve the population of DREAMers who’d be offered an extension of protections.)

Democrats’ response could have been taken by the White House as a sign that they needed to sweeten the deal more before introducing the bill. Instead, according to the New York Times, they did the opposite. Once it became clear that Democrats weren’t interested in the deal, they added the asylum changes to make it even less appealing.

That’s not inconsistent with wanting to negotiate; they could be padding the bill with things they could strip out later. But Democrats simply do not trust the Trump administration to stick to any offer that sounds appealing. Any story about how Stephen Miller intervened to make a bill more restrictive confirms all their prior assumptions about who’s really running the show.

Very little, if anything, has happened in the past five days that would cause Democrats to wonder if they’re underestimating the White House’s inability to deal.

5) The White House is terrified that losing conservative influencers will mean losing Trump’s base

One obvious solution is to offer something Democrats do actually want — for example, full legalization of DACA recipients, including access to green cards and eventually to citizenship.

That appears to be the option that some Republican senators and Jared Kushner (Trump’s son-in-law and adviser) are currently floating at the White House. According to Axios:

Kushner, who has been leading the White House’s congressional negotiations with Vice President Pence, has been trying to “find where the market is for the president so he can get his priority while paying something that he can afford to pay for it,” the source said.

Most of the sources who spoke to Axios about this, though, were spitting on the idea, calling it “insanity” and warning that Trump would lose conservatives — both in Congress and in the broader Republican Party — for anything that smelled like “amnesty.”

The problem appears to be that there isn’t a consensus within the White House for what exactly Trump can “afford” to give up to get his wall, politically speaking — whether Trump’s base wants a wall more than they fear legalization of unauthorized immigrants.

Trump would hardly be the first Republican president to lose base support by underestimating the influence figures like Ann Coulter have with those voters. But his base hasn’t abandoned him when he’s departed from conservative orthodoxy so far. It’s possible that in a fight between Trump and Coulter, Trump would win.

The Trump administration has never actually tested this, partly because Trump himself appears afraid to (when Trump started referring to border barriers as something other than a “wall” and posted an image of a bollard fence in December, he was hammered by Coulter and others and appeared to snap back into place). But without having any idea where the breaking point is, there’s really not much they can do to move to the left. They’re not going to come up with an idea that wins over Pelosi — or even the “pragmatic” first-term Democrats in the House — without losing Coulter.

6) The anti-“amnesty” professionals are, in their way, every bit as wary of Trump as Democrats are

People like Coulter (or professional immigration hawks and interest groups) have been, in their telling, getting sold out for “amnesty” by Republican presidents since before Donald Trump was a Republican. And they still don’t trust Trump, even after two years in which his administration has followed their preferred agenda more closely than any in memory.

So even as McConnell’s staff and company were writing an immigration bill that sounded even less appealing to Democrats than Trump’s Saturday speech, immigration restrictionists were freaking out about a Trump tweet in which he said he wasn’t offering amnesty now but might do so later:

There’s been a fantasy among some centrist and center-right pundits that the “dealmaker-in-chief” could use his immigration base cred to pass a broad legalization program. But that cachet — at least with the influencers — is only as strong as the last comment Trump has made, and again, Trump isn’t willing to test whether the influencers reflect the base. Richard Nixon couldn’t have gone to China if the Cold War hawks thought he was a peacenik in disguise.

7) It’s not clear that Democrats will ever be able to make any deal with Trump on immigration

The subtext of the administration’s message over the past few days has been that if Democrats don’t support — or at least negotiate over — this offer, it will prove that they are truly the intransigent ones who refuse to make any deals with the other side for the public good.

Maybe that’s true. But it’s going to take a lot more than this deal to prove it.

It is possible that the antipathy for Trump and Trumpism among the Democratic base has made it impossible for leadership to support any bill that Trump also supports. That goes double for immigration, the legislative issue on which Democrats have most consistently hammered Trump for being an aberrational horror.

It really is possible that even if the Trump administration offered a path to citizenship for 11 million unauthorized immigrants in exchange for $5.7 billion of “border barrier,” Democrats would be pressured to reject it because it “gave Trump his wall.” It’s probable that there would be heated intra-Democratic debate over the issue.

Right now, though, the fight over whether Democrats can ever deal with Trump is buried under a strong consensus that the government has to reopen first, and an only slightly less strong consensus that $5.7 billion for a wall is not a reasonable request.

In theory, it might be more honest for the Democrats within the party who believe that Democrats can never agree to build any more barriers along the US-Mexico border to say so. And for those who believe that no bill Trump calls a win could ever be a win for Democrats to say so too. But right now, the rest of the Democratic Party is standing with them against negotiation anyway. The administration hasn’t yet found a way to split the other party without splitting its own.

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