On January 19, 2019, President Trump offered the House and Senate Democratic Leadership temporary deportation protection for select immigrants in exchange for their agreeing to provide him with $5.7 billion in financing for his proposed border wall. The offer was presented as a compromise. It was anything but a compromise initiative.
The Washington Post reported:
Aiming to end the 29-day partial government shutdown, Trump outlined his plan in a White House address in which he sought to revive negotiations with Democrats, who responded that they would not engage in immigration talks until he reopened the government.
Trump proposed offering a reprieve on his attempts to end the Deferred Action for Childhood Arrivals (DACA) program and temporary protected status (TPS) for immigrants from some Latin American and African nations, in exchange for building hundreds of miles of barriers on the southern U.S. border and hiring thousands of new law enforcement agents to be deployed there.
The offer was fundamentally unbalanced. The President presented the Democrats with a temporary concession in exchange for their granting him a permanent one. There was no “claw-back” provision concerning the $5.7 billion funding the President was seeking. Thus, under the terms of the proposal, the Democrats would have gained nothing once the temporary provisions expired in exchange for the $5.7 billion they had given the President. No serious negotiator would accept such terms. The Democratic leadership did not.
However, the offer was even worse than what had been described. The genuine nature of the offer didn’t become clear until the United States Senate Committee on Appropriations released the legislative text associated with the President’s offer. In substance, the President tried to sell the Democrats on a compromise that would, in practice, amount to their authorizing the termination of the Deferred Action for Childhood Arrivals (DACA) program.
The legislation contained language that would phase-out DACA. By doing so, they would bring about a policy outcome that is far from certain from the ongoing litigation. In addition, the bill contained language that would expand the Administration’s authority over immigration policy as it related to the DACA population.
Page 1240 of the legislation declared:
A grant of provisional protected presence and the employment authorization under this section—
(A) shall be effective until the date that is 3 years after the date on which the application for such benefit is approved under this section; and
(B) may not be renewed or extended.
Page 1250 stated:
There shall be no judicial review of any claim, including claims alleging violations of the subchapter II of chapter 5 of title 5, United States Code (commonly known as the ‘Administrative Procedure Act’) or the Constitution of the United States challenging an action by the Secretary—
(A) to deny an application from an alien for provisional protected presence under this section; or
(B) to rescind an alien’s provision protected presence or employment authorization granted under this section.
Put simply, the DACA-eligible population would be stripped of its due process protections. Absence of due process protection would free the Trump Administration to pursue its maximum goals, even if it rendered the 3-year extension completely theoretical.
In the end, the Trump Administration tried to seduce the Democratic Congressional leadership with what it presented as an extension of immigration protections in a short address to the nation. In reality, it had attempted to secure Democratic buy-in for phasing out DACA and expanding the President’s immigration authority that he could use to deny even a 3-year extension of the program’s benefits. The “compromise” was yet another patently dishonest tactic from a historically dishonest Administration.
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