Hohmann reports:

THE BIG IDEA: Democrats are so eager to shield young foreign-born “dreamers” from deportation that they’re now offering to make compromises that would have been hard to imagine a year ago. Republicans, who feel like they have them over the barrel, are demanding more.

Showing his pragmatic side, for instance, Bernie Sanders says he’s willing to pony up big for border security if that’s what it takes. “I would go much further than I think is right,” the Vermont senator said in an interview Tuesday afternoon. “Unwillingly. Unhappily. I think it’s a stupid thing to do. But we have to protect the dreamers. … I’m willing to make some painful concessions.”

Sanders said a wall is still a “totally absurd idea” and that there are better ways to secure the border with Mexico, but he also emphasized that there will be “a horrible moral stain” on the country if President Trump goes through with his order to end the Deferred Action for Childhood Arrivals (DACA) program next month.

— Anti-immigration hardliners are staking out a firm position because most of them are not actually concerned about the plight of the dreamers. They have never thought these young people, whose undocumented parents brought them to the United States as children, should be here anyway. They agitated for Trump to end the program.

This means they’ll be fine if no bill passes, and they know that gives them way more leverage to demand wholesale changes to the entire legal immigration system. “The president’s framework bill is not an opening bid for negotiations. It’s a best and final offer,” said Sen. Tom Cotton (R-Ark.), who has emerged as the leader of this group in the Senate. He made this comment yesterday on “Fox and Friends,” knowing the president watches. Sure enough, Trump echoed the same talking point on Twitter, calling this the “last chance” for action.

— Mitch McConnell wants to use this week’s immigration debate to force show votes that can be used to embarrass vulnerable Democratic senators from red states. For example, the majority leader introduced a measure yesterday that would penalize so-called sanctuary cities for not cooperating with federal immigration laws. This issue tests well in polls and focus groups in most of the 10 states Trump carried in 2016 where a Democrat is now up for reelection. GOP insiders on the Hill say that McConnell is mainly focused on doing whatever it takes to protect his majority now that 2018 has arrived, and he has a narrower majority after the loss in Alabama.

— Democrats stuck together to block the Senate from taking up the poison pill on sanctuary cities, but the fact that the debate has so quickly devolved into a fight over process offered another data point – if for some reason you needed one – of how dysfunctional the Senate has become.

Trump urges senators to back his immigration proposal

— “Most Republicans on Tuesday appeared to be rallying behind a proposal by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and six other GOP senators that fulfills Trump’s calls to legalize 1.8 million dreamers, immediately authorizes spending at least $25 billion to bolster defenses along the U.S.-Mexico border, makes changes to family-based legal immigration programs and ends a diversity lottery system used by immigrants from smaller countries,” Ed O’Keefe reports. Senate Minority Leader Chuck “Schumer said the Grassley plan unfairly targets family-based immigration and that making such broad changes as part of a plan to legalize just a few million people ‘makes no sense.’

“In a bid to soften Trump’s proposals and win over Democrats, Sen. Jeff Flake (R-Ariz.) unveiled a watered-down version of the GOP proposal — but had not won support from members of either party by late Tuesday. Sen. Lindsey O. Graham (R-S.C.), a longtime proponent of comprehensive immigration changes, said the Grassley proposal should be the focus of the Senate’s debate. … Schumer and other Democrats, meanwhile, voiced support for a plan by Sens. Christopher A. Coons (D-Del.) and John McCain (R-Ariz.) that would grant legal status to dreamers in the country since 2013 but would not immediately authorize money to build out southern border walls and fencing.”

— Democrats would like to pass a narrow bill that only protects DACA recipients, but they know that’s not possible with Republicans in control of Congress and the presidency. To get the 60 votes needed to break a filibuster, they’re conceding on at least some of Trump’s demands related to security. Sanders said there are between 55 to 57 votes for a compromise that would save the dreamers and fund border protections. “We are scrambling now for three to five more votes,” he said.

— The Senate will convene at 10 a.m. to continue debate, as negotiations behind the scenes continue. Somewhat counterintuitively, conservative hardliners believe that Latinos will be less likely to turn out this November if nothing passes in Congress because activists will blame Democrats for not delivering.

Bernie Sanders heads to a Democratic caucus meeting in the Capitol. (Oliver Contreras for The Washington Post)

— Despite concerted efforts by Trump and McConnell to drive a wedge through the Democratic caucus, there remains a remarkable degree of unity. This highlights how much the terms of the immigration debate have shifted over the past decade. Every Democrat in Congress now wants to protect DACA recipients. It wasn’t always this way. The House passed a Dream Act in 2010 that would have allowed undocumented immigrants to apply for citizenship if they entered the United States as children, graduated from high school or got an equivalent degree, and had been in the United States for at least five years. Five moderate Democrats in the Senate voted no. If each of them had supported it, the bill would have become law, and DACA would have been unnecessary. Sen. Jon Tester (D-Mont.) is the only one of those five Democrats still left. (The others retired or lost.) Now Tester speaks out against the president’s decision to end DACA. (I explored this dynamic in-depth last September.)

Sanders marveled during our interview at how much the polling has shifted in recent years toward protecting dreamers, with some public surveys showing that as many 90 percent of Americans don’t think they should be deported. The share who think they should also have a pathway to become U.S. citizens has also risen. “If we talked a year or two ago, I’m not sure I would have thought that would be possible,” he said.

Hillary Clinton relentlessly attacked Bernie during the debates in 2016 for voting to kill comprehensive immigration reform in 2007. Sanders – working closely with some of the leading unions – expressed concern back then that the bill would drive down wages for native-born workers by flooding the labor market with cheap foreign workers. This position caused him problems with Hispanics during his presidential bid.

Sanders rejects the idea that his views have changed since 2007, and he still defends his 11-year-old vote. He noted that the League of United Latin American Citizens (LULAC) opposed that bill, as did the Southern Poverty Law Center, because it included a guest worker program that was “akin to slavery.” He said he remains just as concerned about guest worker programs as he was back then, but that he’s always favored a comprehensive solution that includes legal protections for the more than 11 million undocumented immigrants who live here. “You can say you support immigration reform, but obviously the devil is in the details on what that means,” the senator explained. “I stood with progressive organizations who said you don’t want to bring indentured servitude.”

Sanders criticized a guest worker program in his home state that allows resorts to hire ski instructors from Europe instead of native Vermonters. “Now do you not think we can find young people in Vermont who know how to ski and snowboard? But if you go to some of the resorts, that’s what you would find,” he said. “When I was a kid, we worked at summer jobs to help pay for college. … So I think we want to take a hard look at guest worker programs. Some of them remain very unfair.”

— After coming surprisingly close to toppling Clinton and winning the Democratic nomination two years ago, Sanders is at or near the top of the pack in every poll of potential 2020 primary match-ups. He’s going to Des Moines next Friday for a rally with congressional candidate Pete D’Alessandro, his first visit to Iowa this year. Sanders will also go to Wisconsin for Randy Bryce, who is running against Speaker Paul Ryan, and Illinois, where he’ll boost Chuy Garcia’s bid for retiring Rep. Luis Gutierrez’s open seat. A few weeks after that, he plans a tour of the Southwest. “I’m going to do everything I can to help people in 2018,” Sanders said.

Lobbying for their lives

— Republicans have gone the other direction. Before Trump came on the scene, the party was divided but GOP elites agreed that, for the long-term survival of the party, they needed to embrace more inclusive policies. Losses in 2012 prompted many Senate Republicans to endorse a comprehensive bill the next year (Sanders voted for it too), but the legislation was doomed in the House after Majority Leader Eric Cantor went down in a Virginia primary partly because of his perceived softness on the issue.

Elected Republicans used to insist adamantly that they were not anti-immigration but anti-illegal immigration. That’s changed. At the behest of Trump and Attorney General Jeff Sessions, Republicans are rallying around the idea of dramatic reductions in legal immigration. Two years ago, this was an extreme idea that most GOP senators would have quickly distanced themselves from. Now it’s considered mainstream and the centerpiece of the bill that McConnell has rallied his members behind.

To put it in perspective: By cutting the rate of legal immigration, Trump’s proposal – codified in Grassley’s bill — would delay the date that white Americans become a minority of the population by as many as five additional years, according to expert analysis.

“What’s very sad, but not unusual given the moment we’re living in, is that Republicans are more concerned about their right-wing, extremist, xenophobic base,” said Sanders. “You would think that, with 85 to 90 percent of people supporting protections for the dreamers, that it would not take a profile in courage to pass legislation to protect them.”

Kelly: ‘Dreamers’ who didn’t sign up for DACA were ‘too afraid’ or ‘too lazy’

— A dual-track fight over DACA is playing out in the courts. A federal judge in New York issued a preliminary injunction last night that keeps the program alive beyond Trump’s March 5 deadline so that legal challenges can play out. “A federal judge in California has issued a similar injunction, and the Supreme Court is expected this week to consider whether it will take up the fight over DACA,” Matt Zapotosky reports.

U.S. District Judge Nicholas Garaufis recognized that Trump “indisputably” has the authority to end the program put in place by Barack Obama, but he also called the administration’s arguments that DACA was unconstitutional and illegal under federal law flimsy. “Because that conclusion was erroneous, the decision to end the DACA program cannot stand,” he wrote.

— Happy Valentine’s Day. Don’t forget to get a gift.

— What I’m especially excited about this morning is baseball. Pitchers and catchers are reporting for spring tr

Listen to James’s quick summary of today’s Big Idea and the headlines you need to know to start your day:

********************************************

Contrary to most of the “chatter,” I think that the Dreamers and the Democrats have the upper hand in this one. I’ll tell you why below!

A “border security package,” could involve the Wall, technology and much needed management improvements at DHS (but certainly no additional detention money — stop the “New American Gulag” — or personnel for the Border Patrol until they full current vacancies and account for how they are currently are deploying agents).

Beyond that, the Dems probably could agree to a reallocation of diversity and some preference visas while maintaining current legal immigration levels. Cutting legal immigration levels, eliminating family immigration, or authorizing further denials of due process (the totally bogus and essentially evil claim that the current already inadequate protections for children and other vulnerable migrant’s are “loopholes”) should be “non-starters.”

If they can’t get the deal they want, the Dems can walk away and still win for the Dreamers in the long run. Here is why:

• I doubt that Trump would actually veto a compromise bill passed by both Houses that protected Dreamers without his full “Four Pillars of White Nationalism” program.
  • If he does, any Democrat who can’t make Trump and the GOP pay for such a dumb move in the next election cycle doesn’t deserve to be a Democrat.
  • The “full Dreamer protection” trade for border security with no other changes should be a “no brainer.” If Trump or the GOP “tank” it over the restrictionist agenda, the Democrats should be able to make them pay at the polls.
• Right now, the Administration is under two injunctions halting the repeal of the “core DACA” program.
  • If the Supremes don’t intervene, that issue could be tied up in the lower Federal Courts for years.
    • It’s very clear that the Administration’s current position is ultimately a loser before the lower Federal Courts.
    • If the Administration tries to “short-circuit” the process by going through APA to promulgate a regulation to terminate DACA, that process also is likely to be successfully challenged in the Federal Courts.
      • The so-called “legal rationale” that Sessions has invoked for ending DACA has literally been “laughed out of court.”
      • Trump himself has said that there is really no reason to remove Dreamers from the U.S.
      • So, on  the merits, an attempt to terminate DACA by regulation probably would be held “without any legal or rational basis” by the lower Federal Courts.
• Even if the Supremes give the “green light” to terminate DACA, most “Dreamers” by now have plausible cases for other forms of relief.
  • Many DACA recipients have never been in removal proceedings. If they have been here for at least 10 years, have clean criminal backgrounds, and have spouses or children who are U.S. citizens they can apply for “cancellation of removal.”
  • “Former DACA” recipients appear to be a “particular social group” for asylum and withholding of removal purposes. They are “particularized,  the characteristic of having DACA revoked is “immutable,” and they are highly “socially distinct.”  Many of them come from countries with abysmal human rights records and ongoing, directed violence. They therefore would have plausible asylum or withholding claims, or claims under the Convention Against Torture (“CAT”).
  • If ICE tries to use information voluntarily given by the Dreamers during the application process to establish removability or for any other adverse reason, that is likely to provoke a challenge that will be successful in at least some lower Federal Courts.
• Safety in numbers.
  • There is nothing that Trump, Sessions, and the DHS can actually do to remove 700,000+ Dreamers.
  • The U.S. Immigration Courts are backed up for years, with nearly 700,000 already pending cases! Sessions is doing everything he can to make the backlog even worse. Dreamers will go to the “end of the line.”
  • Sure Sessions would like to speed up the deportation “assembly line” (a/k/a “The Deportation Railway”).
    • But, his boneheaded and transparently unfair attempts to do that are highly likely to cause “big time” pushback from the Federal Courts and actually “tie up” the entire system — not just “Dreamers.”
    • The last time the DOJ tied to mindlessly accelerate the process, under AG John Ashcroft, the Courts of Appeals remanded defective deportation orders by the basket-load for various due process and legal violations — many with stinging published opinions.
      • Finally, even former Attorney General Alberto Gonzalez (“Gonzo I”), hardly a “Due Process Junkie” had enough and slowed down the train. It took years for the “haste makes waste” Circuit Court remands to work their way back through the system. Some might still be hanging around.
    • Because the GOP White Nationalists and Trump read off of “restrictionist cue cards” that don’t take account of the law, facts, or history, the Dems should have a huge advantage here if and when individual “Dreamer” removal cases get to the Federal Courts.
  • Each “Dreamer removal case” should present the Democrats with excellent example of the cruelty, stupidity, and total wastefulness of the Trump/Sessions/DHS enforcement policies. Wasting money to “Make America Worse.” Come on, man!
  • Bottom Line: Trump and Sessions have created a “false Dreamer emergency” that they can’t escape without some help from the Democrats. If the Democrats see an opportunity to make a “good deal” for the Dreamers, they should take it. But, they shouldn’t trade the Dreamers for the harmful White Nationalist restrictionist agenda! Eventually, the problem will be solved in a way that is favorable for most Dreamers, regardless of what the White Nationalists threaten right now. The Dreamers might just have to hang on longer until we get at least some degree of “regime change.”

PWS

02-13-18