The Senate Failed To Save DACA. What Happens Now?

When the final gavel came down Thursday afternoon, marking the Senate’s failure to pass any one of four immigration bills up for debate, Sen. Tom Cotton (R-AR) left the chamber with a spring in his step.

Asked by reporters what Congress will do now for nearly 700,000 young immigrants at risk of losing their work permits and legal protections after March 5, the anti-immigration hardliner grinned and replied: “We move on to confirming judges and banking reform.”

But many other senators on both sides of the aisle say Congress should and must keep trying to find a solution for the DACA program President Trump terminated last year, and pointed to a few possible avenues to create a new bill from the ashes of the four voted down on Thursday.

Meanwhile, GOP leaders in the House of Representatives are whipping a bill even further to the right than President Trump’s which may not even pass the House and would be dead on arrival in the Senate, while ignoring calls from Democrats to follow the Senate in holding a series of votes on competing bipartisan plans. Looming over the legislative scramble are federal courts, which could decide at any moment the fate of President Trump’s attempt to end the DACA program, and President Trump himself, who may for a second time torpedo Congress’ hopes of passing a bill by threatening a veto.

Trump signaled his disinterest in working toward a solution Friday morning, releasing a statement slamming “the Schumer Democrats” for the failed votes and characterizing the minority party whose votes he needs to pass any bill as “the open border fringe.” 

Senate vows to try, try again

Aside from a few immigration hardliners like Cotton, lawmakers emerged from Thursday’s failed votes despondent, but committed to trying again.

“Back to square two,” Sen. Johnny Isakson (R-GA) quipped, leaning heavily on his cane. “Immigration is a very tough problem.”

Senate Majority Leader Mitch McConnell (R-KY) only blocked out a couple days for the immigration debate, and the Senate is out on recess all this week. Senate Majority Whip John Cornyn (R-TX) told CNN he doesn’t think leadership will devote any more “dedicated floor time” to the issue. Still, senators said they will keep trying to pass an immigration bill in the coming weeks, before more DACA recipients see their protections expire and are subject to deportation.

“Hopefully we can analyze the results from today’s vote and find the parts and pieces people support,” Sen. Cory Gardner (R-CO) said, insisting he was optimistic even after watching the White House torpedo the bipartisan bill he cosponsored.

Sen. Mike Rounds (R-SD), another cosponsor of the bipartisan compromise bill Trump worked to undermine, said he is open to rewriting the bill based on feedback from his colleagues.

“We’ll cool off and have a chance to take a look at what we can do with a bipartisan approach, modify some of those things where there were questions and see if we can get a second shot,” he said. “A couple of folks came up to me and said, ‘I think I could vote for this if you modified this.’ So we’re going to try to bring some folks together and find common ground. You can’t give up on these things because the issues are not going to go away.”

One possibility several lawmakers mentioned is attaching a provision protecting the DACA population to the upcoming budget omnibus bill, which has to pass by mid-March.

“I’m hearing that would be the next attempt,” Sen. Bob Corker (R-TN) said. “Maybe that would involve a three-year DACA extension, maybe longer, with renewals and everything. Enough to make it so it’s not an issue now.”

But whether they attempt to pass another standalone DACA bill or try to tuck it into the must-pass omnibus, senators are cognizant that Trump may well issue another veto threat, setting up yet another government shutdown showdown.

“We always said that we only thought this would pass if the White House would come on board,” Rounds acknowledged.

A House divided

The House of Representatives had been waiting for the Senate to make the first move on DACA, but as hopes for passage tanked in the upper chamber, GOP House leaders began whipping votes for an immigration bill even further to the right than President Trump’s plan—which got the fewest votes of all the bills in the Senate.

Democrats are pointing to the failure of the Senate’s most conservative package, which like the House bill makes deep cuts to legal immigration and ends the diversity visa lottery program, and arguing that their more narrow bill should be called up for a vote in the House instead.

“One important thing that’s clear after today’s vote is that the White House’s four pillar framework is a loser,” Rep. Michelle Lujan Grisham (D-NM) wrote in a statement Friday. “We call on House Republicans to learn from this and work with us to find a narrow, tailored solution that protects Dreamers.”

But the author of the sweeping far-right proposal, Rep. Bob Goodlatte (R-VA), said on C-SPAN on Friday that his bill is moving full steam ahead. He boasted in the interview that he is in “almost daily contact with the President” and that the Speaker, Republican Majority Leader and the GOP Whip are all “dedicated to getting this done.”

The bill would not offer DACA recipients a path to citizenship, granting them temporary legal status instead. It would also force employers to use the controversial E-Verify database to check the immigration status of their workers, and would cut federal funding to sanctuary cities. Republican leaders have privately admitted that they are far short of the 218 votes needed for passage, but have not yet agreed to take up any other immigration bill.

Holding court

Hanging over Capitol Hill’s battles is uncertainty about the status of the DACA program and its expiration date. Two federal courts, so far, have blocked the Trump administration’s order terminating the DACA program, and have forced the administration to keep accepting and processing DACA renewal applications.

The Trump administration’s Justice Department is work aggressively to overturn these rulings and terminate DACA—both appealing the case to the Ninth Circuit and petitioning the Supreme Court to hear the case.

The justices met on Friday to conference on whether or not to take the case, and did not announce their decision Tuesday morning, punting a possible ruling to later this month.