How Democrats Can Negotiate Effectively On Immigration

This coming week, it’s possible we’ll see some kind of showdown on DACA. Immigration advocates have been pushing for the Democrats to refuse to authorize Congress’s end-of-year spending bill and shut down the federal government unless the Republicans agree to a “clean” Dreamer bill, with a path to citizenship for undocumented people brought into the country as children. Unfortunately, it’s unlikely that a government shutdown—assuming the Democrats can even muster the votes to force one—will actually give Democrats much bargaining power. In the first place, the immediate consequence of a government shutdown is the furloughing of federal employees and reductions in federal government services. Given that the Trump administration is already actively disrupting operations and slashing staff at many federal agencies, and given that Republicans do not particularly care whether Americans have access to government services, a government shutdown will probably perturb them less than the Democrats are hoping. Additionally, since the Democrats, as the party voting “no” on the spending bill, will be perceived as the immediate “cause” of the shutdown, there’s a serious risk that Democrats will be the ones most badly damaged by any political fallout from their obstructive tactics—all the more so, possibly, because the Democrats have inveighed so frequently against government shutdowns as an undemocratic form of “hostage taking” whenever the Republicans attempted them in the past.

So what would stand a chance of giving Democrats the leverage they need to get protections for DACA recipients? The answer, I think, is that Democrats should collectively agree to Build The Wall.

To illustrate why this concession is necessary, here’s a quick overview of how negotiations have progressed so far. In September, Trump announced that the DACA program would be terminated in March 2018. About a week after this announcement, Trump, Pelosi, and Schumer sat down for dinner together, and purportedly came to an agreement to pass legislation protecting Dreamers in exchange for some kind of unspecified border security. Trump publicly repudiated this would-be deal almost immediately, and the White House then speedily released a long list of hard-line demands that Trump wanted in exchange for Dreamer protections. This killed public negotiations for a couple months. In the interval, Trump announced that he would be ending Temporary Protected Status (TPS) for hundreds of thousands of Haitians, Nicaraguans, and Salvadorans who had entered the U.S. during natural disasters and were given permission to remain and work legally in the country.

Then, last week, Trump called an impromptu televised meeting of Democratic and Republican lawmakers, where—in one of his peculiar maudlin turns—he signaled that he would be open to signing a bipartisan “bill of love” to protect Dreamers, without quibbling too much on details. He even briefly indicated that he would be willing to sign a “clean” Dreamer bill, though he soon clarified that, in his mind, a “clean” bill would still include some border security. Following this meeting, a bipartisan group of senators who had previously worked on the failed immigration reform bill of 2013 prepared a deal for Trump, which involved $1.6 billion in funding for a border wall, terminating the diversity visa lottery, and putting an end to certain forms of chain migration; in exchange, Dreamers would get a path to citizenship that would specifically disallow them from sponsoring their parents for green cards, who would instead be eligible for renewable work permits and a shield from deportation, along the lines of the current DACA program. The deal also gave priority for new immigration visas to individuals who had been living in the U.S. on TPS before it was cancelled. When lawmakers met with Trump to present this deal, immigration hardliners like Stephen Miller and Senator Tom Cotton were also present, and the ensuing negotiation—which we’ve all heard about in the news, solely because Trump used a BAD SWEAR WORD during the meeting—went poorly.

In the meantime, hardliners in the House of Representatives prepared a bill called the Securing America’s Future Act, which would offer Dreamers three-year renewable work permits, with no path to citizenship. This bill is directly modeled on the list of demands the White House issued in September: in addition to massive border security package, the bill ends the diversity visa lottery program and chain migration (not only for siblings and cousins, but even for parents of U.S. citizens), increases criminal penalties for individuals who re-enter the U.S. after a previous deportation, cuts off federal funding to sanctuary cities, broadens the categories of immigrants ineligible for relief because of their criminal records (which includes people who committed non-violent crimes like shoplifting, and expands the blacklist to encompass people who weren’t actually convicted of the crimes of which they were accused). It also establishes an “E-Verify” program to freeze undocumented workers out of the labor market. Of course, Republicans aren’t actually stupid enough to believe that there’ll be enough U.S. workers to make up the labor shortfall in industries like farming and fishery, so the bill would also create a new agricultural guest worker program. This program would tie imported foreign laborers to a single sponsoring employer and then force them to submit to binding arbitration in any labor disputes, effectively making them a captive workforce with no ability to take their employers to court for labor violations.

This bill also, by the way, allows the government to incarcerate asylum-seeking toddlers for a virtually unlimited period of time. Currently, under something called the Flores Settlement, the government is required to let child asylum-seekers out of immigration detention as soon as possible, and if their mothers crossed the border along with them, their mothers will be released too, usually with an ankle monitor so that the government can ensure that the family attends their asylum hearings. This new bill states that “notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement,” any child who crossed the border with a parent will be imprisoned alongside that parent, and “under no circumstances” may they be released to any relative who is not their formal legal guardian. This means, in practice, that entire families of traumatized refugees would be kept in prison for months at a time while their claims are being processed, unable to reunite with relatives, recruit an immigration lawyer, or have access to substantive medical or psychological treatment. The bill would also make it easier for the government to ship asylum-seekers to other countries without their consent, and raises the level of proof that asylum-seekers need to provide immediately on their arrival in order to avoid immediate summary deportation.

So where does this all leave us? The House bill is mind-bogglingly awful: given the choice between agreeing to this bill as it currently stands and letting Dreamer protections lapse without a replacement, Democrats would, in good conscience, have to choose the latter. As always, however, my fear is that Democrats will negotiate down to something that’s still pretty damn terrible, but perhaps doesn’t sound that bad to anybody who isn’t an immigration policy wonk. This would be the worst possible outcome.

At the same time, though bargaining conditions may be unfavorable, the need for a solution remains urgent. A recent federal injunction out of the Ninth Circuit in California may have temporarily held up the revocation of DACA protection for individuals who had already applied before the cancellation of the program was announced, but Democrats can’t bank on that injunction holding forever: if no legislative fix is accomplished, the case will eventually go the Supreme Court, and there’s no telling how they’ll rule.

Here’s the truth: although prominent Democrats like Pelosi, Schumer, and Kamala Harris continue to describe the Wall as a “non-starter,” the Wall is, in fact, the only one of Trump’s immigration policy proposals that would be worth compromising on. The Wall will take a very long time to build, and will have many fewer immediate-term impacts on vulnerable immigrants than any of the other items on the Republicans’ wishlist. In the longer term, walls are not very hard to demolish. Under the circumstances, the fact that the Wall may well prove an ineffectual waste of funds is a boon, not a disadvantage: Democrats complaining that the Wall is poor value for money ought to be grateful for the opportunity to divert a chunk of Trump’s budget towards something that will fail to accomplish his diabolical goals.

Offering to fund the Wall could conceivably give the Democrats the negotiating leverage they currently lack. Trump wants a physical Wall very badly. It was his signature campaign promise. Once built, it would be a monument to his ego, a visible symbol that Trump Always Closes The Deal. I am certain that Trump cares about the Wall much more than he cares about, say, ending chain migration, which Trump likely didn’t even know existed until Stephen Miller served it up to him as a talking point a couple months ago. Trump also, to a much lesser extent, actually seems to want Dreamer protections to become law: they’re the one category of undocumented immigrant that he’s shown some level of fitful sympathy for, and he seems to take pleasure at the thought of dealing magnanimously with them.

I don’t think a straightforward “DACA for the Wall” should be the Democrats’ opening offer, however. Strategically, there would be a huge advantage to redirecting the conversation away from “what will Democrats have to concede in order to get relief for Dreamers?” and towards “what would Trump be willing to concede to get a fully-funded wall?” It’s possible that the Democrats have already lost their chance here: lowballing the Wall funding at $1.6 billion in the deal that was initially proposed seems to have pissed Trump off (he immediately tweeted a complaint that “Wall was not properly funded”). However, it might not be too late to salvage the negotiations. The estimated sticker price of the Wall is $18 billion, so Democrats are going to have to put a lot more money on the table than they have up until now. On the other hand, Democrats should also ask for more items in return. The White House has a list of demands. The Democrats should have a list, too. In return for a fully-funded Wall, Democrats could insist on something like this:

Relief from deportation, work permits, and a path to citizenship for DACA-eligible individuals

Relief from deportation, work permits, and a path to citizenship for Haitians and Salvadorans who have been living in the country on Temporary Protected Status

Relief from deportation and work permits for individuals who would have been covered under Obama’s DAPA (Deferred Action for Parents of Americans) program

UNHCR reception stations along the border to fully ensure that asylum-seekers’ ability to seek protection is not impeded by the construction of the wall

Statutory guarantee of limits on detention of minor asylum-seekers, as well as a guarantee that minor children will not be separated from any adult relative, male or female, with whom they crossed the border, unless there is a suspicion that the adult is trafficking the child for sex work or forced labor

An increase in annual refugee admissions back to pre-2017 levels

Would the Democrats be able to get everything on this list? Of course not. But an $18 billion allowance for the Wall, in exchange for a path to citizenship for Dreamers and former TPS-holders—without giving way on any other items on the Trump wishlist—is a deal worth making. If the Democrats can use Trump’s desire for a physical Wall—and his desire to publicly shame the Democrats into doing his bidding—to wring any additional policy concessions out of him, that would be something of a coup under present circumstances. I have seen a few pieces arguing that the Democrats should ask for full amnesty for all undocumented immigrants in exchange for funding the Wall: I think there’s a small chance that this approach would have been effective earlier in 2017, but I’d be surprised if it were remotely possible now. However, I think there is still a chance we could get protection for more than just the Dreamers if the Democrats offered full funding for the Wall.

In any case, Trump’s dealings on DACA—claiming that he’s ready to make a good-faith deal, implying that he’d be open to even larger-scale reforms, then swiftly reneging on all his earlier assurances—ought to be instructive. Democrats should fully accept that they are never going to get meaningful “comprehensive” immigration reform under a Trump presidency, and should make a point of resisting Trump’s occasional overtures in this direction. We have seen time and time again that these conciliatory moods are fickle, at best, or calculated pieces of misdirection, at worst. Even more importantly, this is the last Congress we want tinkering with the immigration laws on the books, which are already pretty bad, but could easily be made significantly worse. Coming to the negotiation table on more ambitious immigration reforms is likely to be not only ineffectual, but actually dangerous.

The Democrats’ goal over the next three years should simply be to do as much damage control as possible—obstructing Trump’s and Republican lawmakers’ attempts to make changes to existing immigration policies—and, in the meantime, work on actually formulating and promoting an immigration platform that deserves the country’s support. Democrats also need to stop thinking of Trump’s racist remarks merely as easy opportunities to make Trump look bad—his national approval rating is already fairly low, and those people who still support him are hardly likely to abandon him over his visceral dislike of Haiti—and instead treat them as opportunities to draw the public’s attention to some of the egregiously awful things that Trump’s executive agencies currently are up to. If a Democratic lawmaker calls a press conference over some juicy bit of Trump clickbait, like his use of the word “shithole” in the Oval Office, I want them to hold that conference while standing in front of a family detention center, where mothers and small children fleeing violence are being imprisoned. I want to see more Democratic senators visiting places like Pacific County in rural Washington, where residents who voted for Trump have been shocked and dismayed to see their neighbors being whisked away by ICE. I want the Democratic Party to commit to policies that provide robust guarantees of workers’ rights, regardless of immigration status, so that voters are less easily tricked into believing that restricting immigration is the surest way to safeguard their own livelihoods. This is the way to get better immigration policies in the long term. In the shorter term, Democratic leaders need to swallow their pride and make a deal on the Wall, in order to keep as many immigrants safe as possible.

If you appreciate our work, please consider making a donation or purchasing a subscription. Current Affairs is not for profit and carries no outside advertising. We are an independent media institution funded entirely by subscribers and small donors, and we depend on you in order to continue to produce high-quality work.