Analysis: This Provision from the Doomed 'Gang of Eight' Bill Might Hold the Key to Trump's DACA Deal

Posted: Sep 18, 2017 10:35 AM
Analysis: This Provision from the Doomed 'Gang of Eight' Bill Might Hold the Key to Trump's DACA Deal

Last week, we told you about how a major White House concession likely paved the way for a bipartisan DREAM Act deal that would formalize protections for DACA recipients while simultaneously enhancing border security.  Despite some ambiguous and contradictory messaging from President Trump and Congressional Democratic leaders over the last few days, it seems relatively clear that the current "understanding" (to use Dick Durbin's term) reached during a private dinner between the president, Chuck Schumer and Nancy Pelosi rests on a tentative agreement that the compromise would entail immigration enforcement...not including "the wall."  Trump has since reiterated that he views the construction of a border wall as non-negotiable and essential to his agenda, but he again signaled that funding the project is not necessarily a 'red line' demand in this particular negotiation.  On Fox News Sunday, our panel discussed the issue, and I revisited a mothballed immigration bill -- which passed a Democratic Senate handily, but died in the GOP-held House in 2013 -- as a possible guide for assessing how a policy accord might take shape.  Skip ahead to the 3:24 mark for the relevant portion:  

The failed 'Gang of Eight' package was much more far-reaching in its 'amnesty' implications than anything that's being discussed related to the DREAM Act today; nevertheless, that stymied bill remains potentially useful because it provides a roadmap to enforcement-focused mechanisms to which Democrats have already agreed in principle, in the not-so-distant past.  When conservatives balked at insufficient border security measures within the 2013 framework, two Republican Senators introduced an amendment dubbed the "border surge," which was adopted and included in the final legislation that was approved by the upper chamber.  Here's how the New York Times described those policy changes at the time:

The bipartisan push to overhaul the nation’s immigration laws took a major step forward Monday evening when the Senate endorsed a proposal to substantially bolster security along the nation’s southern borders as part of a measure that would provide a path to citizenship for 11 million undocumented immigrants already in the country. The 67-to-27 vote prevented any filibuster of the plan to devote roughly $40 billion over the next decade to border enforcement measures, including nearly doubling the number of border agents to 40,000 and completing 700 miles of fencing. Opponents of the measure questioned whether the security steps would ever be taken and said that the legislation should require that the border be secure before undocumented immigrants could seek legal status. “The bill has been improved dramatically tonight by this vote, there’s no question,” Mr. Corker said. “Hopefully there will be other improvements made with other amendments, and my sense is we’re going to pass an immigration bill out of the United States Senate, which will be no doubt historic.”

More specifics, as reported by the Washington Examiner's Byron York:

The Hoeven-Corker amendment is far more detailed than the original bill. The idea was to take away the discretion of the Secretary — many Republicans have expressed skepticism that current Secretary Janet Napolitano and President Obama will actually do the work — and dictate new security measures within the bill itself. The new amendment does that. So, for example, it includes these requirements for the Yuma and Tucson sectors of the Arizona border: (i) 50 integrated fixed towers. (ii) 73 fixed camera systems (with relocation capability, which include Remove Video Surveillance Systems. (iii) 28 mobile surveillance systems, which include mobile video surveillance systems, agent-portable surveillance systems, and mobile surveillance capability systems. (iv) 685 unattended ground sensors, including seismic, imaging, and infrared. (v) 22 handheld equipment devices, including handheld thermal imaging systems and night vision goggles. The amendment includes similarly specific requirements for each of the nine sectors of the U.S.-Mexico border. It also includes changes in provisions involving the E-Verify employment system and the exit-entry system to check for people who overstay visas that allow them to come into the U.S.

Many conservatives ultimately concluded that the 'Gang of Eight's' legalization-now, enforcement-eventually sequencing was a fatal flaw -- but again, Democratic leadership (and every single Senate Democrat) agreed to every last one of the items mentioned above. They may not be willing to attach all of them to a new DREAM Act (they'd want to maintain some enforcement leverage for larger, hypothetical immigration negotiation in the future), but surely some combination thereof would be a reasonable request from Trump and the GOP.  Note well that the Hoeven/Corker "border surge" included 700 miles of fencing. That may not quite be synonymous with Trump's "wall," but it's still a tangible, physical barrier that each side could frame as a win. Trump could argue that getting the Democrats to go along with hundreds of miles of new fencing (progress on which his administration would scrupulously monitor and faithfully execute) constitutes a major victory for physical border security. He might even call it "the wall" as shorthand. Democrats would insist to their own supporters that simply green-lighting fencing that had previously been agreed upon as part of a bipartisan, pre-Trump consensus was not a cave to pro-"wall" demands.  

Later in the discussion, Chris Wallace asked me how Trump's base would react if he signed a DACA bill that either (a) included a path to citizenship, or (b) excluded the wall.  As I mentioned above, the president might be able to semantically side-step the wall charge by taking credit for new fencing, but overall, I think most of his supporters would stand by him.  Why?  First, six in ten Trump supporters have told pollsters they'll keeping support him no matter what he does.  Second, based on the phone calls I heard late last week on conservative talk radio shows, many Trump backers are convinced that he's several steps ahead of Congress, and is looking out for their interests.  They trust him as a dealmaker, and as someone with their interests at heart.  And finally, by a heavy margin, Trump voters support allowing law-abiding 'DREAMers' to stay in the country.  This data does not have the makings of an anti-DACA backlash among his loyalists -- noisy immigration hardliners notwithstanding: