Originally published by Politico
It’s a problem that has eluded top statesmen for nearly two decades: what to do with the undocumented immigrants brought to the United States as minors—children who grew up in the U.S. going to American schools, living in American cities and towns and otherwise living more or less ordinary American lives. You might think, since these young people called Dreamers are a group most politicians want to protect from deportation, that a legislative solution to do just that wouldn’t be hard to find. You’d be wrong. Since the bill known as the Dream Act was first proposed in 2001, Congress has failed to come up with a long-term solution. In September, President Donald Trump gave Congress six months to fix the problem, or else the Dreamers will become vulnerable to deportation. Yet the stalemate continues.
Staring into this dismal legislative abyss, Politico Magazine and I decided to try to take matters into our own hands. If Congress couldn’t manage to forge a deal in their wood-paneled offices and marble halls over the past 17 years, maybe we could do it in POLITICO’s carpeted conference room in two hours. What did we have to lose? We couldn’t possibly do worse than Congress.
So, on Monday, we invited four people from across the political spectrum, people who have fought with and against each other in the trenches of the D.C. immigration debate for years, to sit at a table and talk. We asked them if they could come up with a compromise, any compromise, that might give the young immigrants a way to avoid deportation, a goal Trump too has endorsed. We gave our model Congress water, cookies, paper, pens and two hours to see what they could do. They never left the room. (But we probably would have allowed them to if they had asked.)
Over 120 minutes, we learned a lot about the contours of the current immigration debate—what both sides really care about (and if it’s actually Trump’s wall) and whether, somewhere out there, there is a deal that just might be palatable to advocates who like immigration and to those who want less of it. The answer is, actually yes. No question, the results were surprising. Congress, are you listening?
The state of play: In 2012, President Barack Obama created a temporary executive program to protect the Dreamers known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, about 700,000 immigrants are currently protected from deportation and have work permits. In September, Trump cancelled DACA and gave Congress until March 5 to come up with a permanent fix to protect the Dreamers. (Under a recent federal court ruling, the DACA program has resumed only for renewals by immigrants already protected; it is not accepting new applicants.)
On January 25, the White House presented a framework for an immigration bill that would include Dreamer protection, saying it was Trump’s “take-it-or-leave-it” proposal. It is based on four “pillars”:
- Open a pathway to citizenship over 10 to 12 years for 1.8 million Dreamers—including the 700,000 current DACA holders and other eligible immigrants.
- Strengthen border security, including a $25 billion trust fund for “the border wall system” and other measures.
- Eliminate the diversity visa, a program that distributes 50,000 visas each year by lottery to people from countries that have sent few immigrants to the United States.
- Limit what Trump calls “chain migration” by allowing green card holders and citizens to bring only their spouses and minor children to the U.S, but not adult children, parents or siblings. Visas that would have gone to those other family members would be used for a time to reduce backlogs of more than 3.7 million immigrants already waiting in line for green card visas, then eventually, the visas would be eliminated.
The president’s plan, which was only an outline, was greeted with blasts of criticism from Democrats and Republicans, with many lawmakers pronouncing the words no one likes to hear on Capitol Hill: dead-on-arrival. Democrats, and some Republicans, objected to the broad shift from family-based immigration and the steep reduction over time in legal immigration in general. Some Democrats also objected to the huge spending on Trump’s border wall. Some Republicans most loyal to the president were shocked by his offer of a form of amnesty and even citizenship to nearly 2 million immigrants they regard as illegal aliens.
Now a variety of lawmakers are working on alternative bills, some bipartisan, some not, some that include all four pillars, some that don’t, but none so far with a clear route to passage.
Members of the Model Congress: To simulate a real immigration negotiation, we tried to select participants from across the policy spectrum—advocates and operatives, defenders of more immigration and proponents of less. In the end, we ended up with a well-rounded expert group of four:
Theresa Cardinal Brown is director of immigration and cross-border policy at the Bipartisan Policy Center, a research group in Washington. She was an immigration policy adviser at the Department of Homeland Security under President George W. Bush from 2005 to 2008 and the agency’s attaché in Canada under Obama from 2008 to 2011. Before that, she served as director of immigration and border policy at the U.S. Chamber of Commerce.
Steven Camarota is director of research for the Center for Immigration Studies, a Washington think tank that seeks less immigration overall and has opposed past measures to legalize undocumented immigrants.
Leon Fresco, an immigration lawyer at Holland and Knight, was previously a staff member for Democratic Senator Chuck Schumer on the Senate Judiciary Committee, where he was one of the main drafters of the comprehensive immigration bill that passed the Senate in 2013.
Tom Jawetz is vice president for immigration at the Center for American Progress, a progressive policy group. As chief counsel to the immigration subcommittee of the House Judiciary Committee and adviser to Democrats, he helped negotiate an immigration reform bill in the House in 2014. It never went to a vote.
I acted as the moderator.
The ground rules: First, we told our congress members to express their own views. They were not representing any organization or party. We asked them not to attempt to divine what any lawmaker or president might think of any given proposal. Of course, they discussed the political realities on the ground. But the goal was to reach a deal that would work for our participants, not necessarily the real U.S. Congress and Donald Trump. (We’re not mind readers.)
Second, they all had to agree on the outcome. There would be no vote.
Third, we started off by asking our negotiators to accept Trump’s four pillars as a way to kick off the debate.
And we began …
The negotiation: The third ground rule almost killed the whole negotiation in the first five minutes.
Jawetz opened by rejecting the Trump framework as a starting point, calling it “an artificial construct.” He pointed out the difficulty of divorcing the discussion from political reality. “I don’t think this is a major policy disagreement or a terribly difficult policy to enact. It’s a political disagreement at its heart,” he said. Furthermore, he said, “To the extent that there is an agreement that’s ultimately reached in Congress, I cannot imagine a scenario in which the Center for Immigration Studies [where Camarota works] and the Center for American Progress [where Jawetz works] are both supportive, even a little bit.” In other words, if Congress does make a deal, some side is going to get steamrolled.
Brown sought to rescue the discussion by moving it to a more narrow set of trade-offs. The president wants to trade Dreamer citizenship for three other pillars—border security, the end of diversity lottery and a reduction in family visas—but Brown didn’t see any clear policy link between the four items Trump was demanding. And, she pointed out, many people thought it wasn’t a fair trade. “What is the appropriate proportionality of doing something for the Dreamers?” she asked. “What’s the right configuration of a smaller package that is acceptable?”
That prompted Camarota to lay out his bottom line. “From our perspective, [the pillars] do go together,” he said. “The level of immigration is too high. So if we’re going to [give] amnesty and give permanent work authorization [to the Dreamers] too,” then other current immigration policies and levels can’t remain the same. “There are a lot of reasons you’re going to reform the system and enact additional enforcement, partly to discourage people from coming, partly to take some pressure off the U.S. labor market, partly so that the DACA recipients can’t sponsor family members,” he said.
But then Camarota added, “You know, I’m not unwilling to talk about any of these things, about both the scale of the amnesty as well as which things we can do [to counterbalance it].”
So the negotiators pushed ahead. They wrangled and bargained, came forward to propose ideas, pulled back, came forward again. Everyone seemed a little uncomfortable to be at that table. They were war-weary from years of fruitless fights and skeptical that even halfway good legislation could be achieved. Some of them, despite having been on different sides of the same issue for years, had never met each other.
But in the end, against the odds, they did reach the outlines of an unusual deal.
It was Camarota who first made the proposal. He suggested a pathway to citizenship for all immigrants who currently have DACA protection in exchange for eliminating the diversity lottery and removing its 50,000 annual visas from the system, to offset the green cards for Dreamers.
“So that would be something really small,” Camarota said. “It’s a simple trade. It’s administratively feasible.”
Interestingly, there was no dissent at all over a pathway to citizenship for Dreamers, as long as they contribute to society and don’t run afoul of the law.
Camarota left no doubt he was uneasy about the whole idea of legalization. “I just want you to understand that for people like myself, giving legal status to illegal immigrants is extraordinarily distasteful,” he said. But if he would agree to such a deal, Camarota said, “I’m not very comfortable with the idea of not having a path to citizenship. … The whole point, if we’re going to let them stay, is that they’re future Americans, right? Eventually, they’re going to become Americans, and you want them to fully participate in your society.”
Fresco—described by Jawetz as “the consummate deal maker”—was intrigued by the Dreamer-for-diversity-visa trade. Fresco said he preferred trimming visa numbers for immigrants who might come in the future to stepping up enforcement to deport immigrants already here. “I always say I have no principles,” he said, “but I actually do have one, which is sort of minimize net pain, maximize net happiness in the universe. … And so, I do think the act of removing someone from the United States is such a pain-inducing act, as opposed to denying someone entry into the United States, which is pain-inducing but not as much. I do place a higher value on maintaining a person here than I do on a person’s entry.”
But there was a limit to the pain Fresco would impose on future immigrants. Instead of eliminating all 50,000 visas from the diversity visa pool alone, he proposed spreading that 50,000 visa cut across the diversity visa and the existing family visa categories. He wanted to increase the number of Dreamers to benefit to at least 1.3 million.
Brown also was interested in the trade, but she wanted the 50,000 visa reduction to be eliminated after a few years. Her reasoning was about forcing Congress to pay attention and take action more regularly to adjust the visa system according to changing needs of the U.S. economy.
“I want to make sure that Congress comes back to the issue,” Brown said. “If the only way they can seriously address things is with a deadline, then give them a deadline. Here’s my problem. There should be no once-and-for-all solution for immigration. We can do what we can to try to deter, but we’re never going to get to zero illegal immigration. And so, I absolutely denounce anything that anybody thinks is once and for all.”
Jawetz was the most skeptical, but he eventually agreed. “Thinking about temporary offsets of visas for a short period of time, that’s the thing I think I’d be willing to talk about,” he said.
The makings of a deal: So that’s where our negotiators ended up after two hours: A pathway to citizenship for Dreamers and a 50,000 reduction in visas across several categories that would last for some period of time.
Significant thorny details remained to be worked out, such as just how many Dreamers would be included—those currently holding DACA or all those eligible, up to the 1.8 million the White House proposed—and how many years before the visa reductions would expire. But all agreed that progress had been made.
The negotiators were also clear that their deal was delicate, so that adding any other component—an increase in border spending, for example—would cause it to tip over and collapse.
That’s where the exercise yielded one of its most interesting insights.
Democrats have objected furiously to Trump’s wall along the Southern border, arguing it would waste funds on an ineffective structure that would send an ugly message to Mexico, whose cooperation the United States needs to secure the border. For his part, Trump has insisted on it.
But for those in the model congress, spending billions on border measures that Trump could claim as building his wall, in a bill that included legalization for Dreamers, was not a deal breaker.
Jawetz, the progressive, said: “Do I think it’s a necessary or a logical tradeoff that you couldn’t do the DREAM Act but for border security? Absolutely not. You absolutely could do the DREAM Act without doing that. But is that a level of trade that at the end of the day, depending on what the details are, you can accept? Probably.”
Brown, who worked at the Department of Homeland Security under Republican and Democratic administrations, had a slightly different analysis of the wall. “I agree that it’s a boondoggle, it’s a waste of money, but I also know, having worked with DHS, they’re not going to build the great wall of Mexico,” she said. “They can’t, they won’t. President Trump will be long out of office even if he serves two terms before there is an actual wall. … All of the farmers and ranchers in Texas and New Mexico will be an eminent-domain hell for decades. … The reality is, it’s not happening, which is why it’s easy for me to say, OK, I will trade. Mr. Trump, you can have your 25 billion to try to build your wall in exchange for these Dreamers.”
But while Brown and Jawetz were willing to accept a form of “the wall” in return for citizenship for Dreamers, to Camarota, the negotiator who was determined to see less immigration, that wasn’t a good trade.
“Border enforcement is not a priority … for me or most people on my side,” he said.
He said he was not certain that Trump’s great wall of Mexico would dramatically reduce illegal immigration, since many immigrants now in the United States illegally entered on visas and overstayed. For Camarota, strengthening enforcement inside the country with a mandatory nationwide employment verification system was more important than the wall. “I would be willing to give away a lot for E-Verify,” he said, referring to the existing voluntary federal program. (That proposal was an absolute non-starter for some of the others.)
But most important to Camarota was a measure that would inexorably restrict overall immigration by reducing the number of visas available. His main criticism of Trump’s plan was that it did not bring down immigration levels fast enough.
As it turned out, for our model congress, funding Trump’s wall was neither intolerable, nor was it central to anyone’s purposes. But for their deal to work, the wall would have to be left out. (And good luck getting any deal without a wall past Trump.)
What our exercise mainly showed is that there is considerably more willingness to negotiate a solution to protect Dreamers than the acrimonious standoff on Capitol Hill over the issue would suggest—even among those on very different sides of the immigration debate.
The disclaimer: At the end of the session, however, none of the negotiators thought the real Congress would be anywhere near as successful as they were. Camarota, Fresco and Jawetz all agreed that Congress would most likely do nothing by March 5. The best they expected was that lawmakers would approve a short-term DACA extension to punt the issue down the road for at least another year. Brown, the optimist in the group, gave even odds between Congress doing nothing and punting for a year or so.
“If I’m in Vegas,” Fresco said, “1-to-2 on nothing, 3-to-1 on a one-year punt, 75-to-1 on a deal, on an actual deal.”
If they’re right, the Dreamers’ future in this country will be in limbo once again.