Senate Republicans and Democrats on Tuesday announced the first hint of progress in negotiations over the government shutdown. The chamber has scheduled procedural votes on two separate bills for Thursday: one that would fund the government through February 8, and one that represents President Donald Trump’s opening bid for ending the standoff. Some experienced Capitol Hill observers are underwhelmed by the news:
A breakthrough, then, this is not. That would require a good-faith proposal from the president. Instead, he has put forth a lopsided deal that was reportedly crafted in negotiations between Vice President Mike Pence, son-in-law Jared Kushner, and Senate Majority Leader Mitch McConnell—hardly a stirring example of bipartisanship. Democrats rightly will reject it on Thursday, just as Republicans likely will reject the proposal to reopen the government while negotiations over the wall continue.
As expected, the proposal includes $5.7 billion in funding for Trump’s proposed wall along the southern border. In return, it would grant a three-year extension to the Deferred Action for Childhood Arrivals program, which shields roughly 700,000 immigrants who were brought to the U.S. as children from deportation. It also offers to extend the Temporary Protected Status program, which protects thousands of immigrants who have fled natural disasters or civil wars in their home countries.
It was Trump himself who, over the last two years, ordered an end to DACA and placed TPS recipients at risk for deportation, so his shutdown offer amounts to a hostage-taking. Since the extensions would be temporary, he wouldn’t even be releasing the hostages. But Trump still pitched his proposal as a moderate, sensible solution to the deadlock. “Border security, DACA, TPS, and many other things—straightforward, fair, reasonable, and common sense, with lots of compromise,” he told the country in an address from the White House on Saturday.
When Senate Republicans published the full legislative text of the proposal on Monday night, it soon became clear that their bargain had no hope of becoming law. Immigration lawyers and experts quickly discovered that the proposal would rewrite the DACA and the TPS programs to water down both their scope and their protections. The bill would also impose onerous new restrictions on some asylum applications that, if enacted, may violate U.S. humanitarian treaty commitments. The bill doesn’t show a way out of the shutdown standoff through compromise and conciliation. If anything, it makes compromise even less likely than before.
Trump’s proposal would create a new form of legal status called “provisional protected status” for DACA and TPS recipients. The bill would only apply to TPS recipients from four countries: El Salvador, Haiti, Honduras, and Nicaragua. Pending expirations for recipients from Nepal and Sudan are still set to lapse without congressional action, while protections for recipients from Guinea, Liberia, and Sierra Leone that expired in 2017 won’t be renewed. (Sudan’s status was scheduled to expire last November, but a federal judge ordered that it be kept in effect last October.)
Rather than simply extend the current legal status for DACA and TPS recipients, Trump’s proposal would essentially require them to reapply for it—this time, under legal thresholds normally used for immigrants suspected of marriage fraud. Other parts of the bill appeared to be aimed at dissuading asylum applications in the first place. One unusual provision, for example, would also require TPS recipients to reimburse the federal government for any tax credits they benefited from while living in the United States. Since some TPS recipients have lived in the country for more than a decade, those costs could be a crushing financial burden. David J. Bier, an immigration policy analyst for the Cato Institute, wrote on Twitter that the provision was “totally unprecedented in the history of immigration law.”
Most of the changes to asylum law focus on Central American minors, a group of applicants whose requests for asylum have drawn the most coverage in recent years. Under current law, anyone seeking asylum can apply regardless of whether or not they entered the country with legal authorization. Trump, hoping to keep asylum-seekers from first entering the U.S., issued an executive order barring applications from those who didn’t present themselves at a port of entry. But a federal judge in California blocked the order from going into effect in November, and the Supreme Court rejected Trump’s request to overturn that injunction in December.
Trump’s proposal essentially asks Congress to let it do what the courts won’t allow. A key provision would require Central American minors to submit applications for asylum at U.S. processing centers in their home countries or neighboring ones, thereby undermining the entire premise of the legal right. “Asylum is a form of relief for people who are being persecuted in their home countries and the authorities there are unable or unwilling to protect them (or are the source of the persecution),” Gabriel Malor, a contributor to The Federalist, wrote on Twitter. “You can’t condition asylum on people remaining in the place where they are persecuted.”
Under the bill, only 50,000 Central American minors would be allowed to apply for asylum each year, and only 15,000 of those applications would be accepted. Determining which applicants would be granted asylum wouldn’t be left to immigration courts, but Department of Homeland Security officials. Aaron Reichlin-Melnick, an immigration lawyer and analyst for the American Immigration Council, noted on Twitter that the bill explicitly shields those officials’ conclusions from judicial review by the federal courts.
The draconian terms make the proposal a non-starter for Democrats. So why make it at all? Trump, a reality-TV maven at heart, has never shied away from placing theatricality ahead of reality. By proposing an end to the shutdown, no matter how far-fetched it may be, he is hoping to shift public pressure onto the Democrats by casting them as the obstructive ones. (Polls show that Americans largely blame Trump and his party for the shutdown and its worsening effects.)
It’s not unusual for dealmakers to make an aggressive opening offer that can be pared back during negotiations. What’s striking about Trump’s proposal isn’t its boldness, but its underlying malice. The North Star of the president’s immigration policy has always been cruelty toward those who pass through the system. By pitching such an extreme proposal, Trump is essentially asking Democrats and the American public to participate in that cruelty to a degree of their own choosing. The only moral choice is to not participate at all.