The slow-motion surrender of some Democrats to President-elect Donald Trump on the Laken Riley Act was already looking pretty grim last week, when 48 House Democrats joined Republicans in supporting it. Now, as the Senate considers the bill—which would mandate the federal detention of undocumented immigrants accused of minor crimes, raising flagrant due-process issues—this capitulation may be about to get even worse.
To be clear, there’s still a way for Democrats to salvage something from this mess. But there is little reason for confidence that they will.
Senator Dick Durbin, Democrat of Illinois, is set to file an amendment to the bill that would exempt many Dreamers brought here illegally as children from the detention mandate, according to sources familiar with the situation. Another Democrat (it’s not yet clear who) will also file an amendment that exempts all undocumented immigrants who are currently under 18 years old from detention, those sources say.
The question, however, is this: If Republicans do not allow votes on these amendments—or if the amendments are defeated—will the Democratic caucus band together to filibuster the bill in the end? Or will enough Democrats vote to move it forward, ensuring its final passage even with some of its very worst features in it?
The answer should be a no-brainer for Democrats. The government already has the authority to detain undocumented immigrants. The problem is that the Laken Riley Act requires the Department of Homeland Security to detain such people when they are merely accused of nonviolent crimes like burglary, theft, and shoplifting—before they are found guilty or innocent—and even if the agency believes enforcement resources would be better targeted at serious criminals. Detention would put these immigrants on the path to deportation.
On top of this, those provisions also apply to some categories of immigrants who have lawful permission to stay despite having entered illegally. As law professor Ilya Somin puts it: “These policies are unjust, and likely to impede genuine crime-fighting efforts more than they help them.”
The bill has another awful provision that would authorize Republican state attorneys general to bring bad-faith lawsuits in front of handpicked judges who would empower them to try to impose far-right restrictions on a range of federal immigration policies. That raises serious constitutional issues.
Democrats are set to introduce amendments designed to strip out that provision as well, the sources tell me. A number of other amendments are also expected, but as of now, it’s unclear whether Republicans will allow any of them to get votes.
The rub is in what happens next. If Republicans don’t allow votes on these amendments—or if they do and they fail, as appears likely in a chamber with 53 Republicans and 47 Democrats—what will Democrats do then?
One likely outcome is that enough of them support the bill later to enable it to get 60 votes to end debate, paving the way for it to pass. Most Democratic senators voted to start debate on the bill last week. As Semafor reports, some of those Senate Democrats probably will not support the final bill without changes to its worst features. But John Fetterman, Ruben Gallego, Mark Kelly, and a few others have given their blessing to the bill in its current form, and most indications are that at least seven Democrats—and probably many more—will back it unamended, allowing it to become law.
That would squander an opportunity to demonstrate that as a caucus, Democrats will use their limited power to stop Trump’s very worst immigration designs from becoming reality. Democrats can theoretically tell Republicans that they will not allow the final bill to pass unless its worst features are removed.
“That’s the strength of the Senate—leveraging the power we have even in the minority to improve legislation before us,” Senator Alex Padilla of California told me in a statement. “If we can’t secure the necessary changes, we must stand united and be prepared to reject the bill.”
Yes, and if they don’t band together, even that limited power dissipates. As one Democratic aide told me, this only works if 41 of them are willing to oppose final passage. “It’s a real test for the Democratic caucus,” this aide said, adding that “if this doesn’t go well,” Trump and Republicans will take note: “They’ll just run the table on immigration if the signal is that we’re not willing to fight.”
In this environment, this is a challenging test for Democrats. What happened to Laken Riley, a Georgia nursing student who was murdered by Jose Ibarra, an undocumented immigrant who’d committed minor crimes, is horrific, and no lawmaker wants to face the ads that will be unleashed by a “no” vote. But as The Washington Post’s Catherine Rampell details, it’s not clear that these provisions would have made any difference in Ibarra’s case, which is already extraordinarily unusual to begin with. This story, as awful as it is, should not be the basis for major, consequential policy changes.
Beyond this, even Democrats inclined to support the mandatory detention piece—the provision supposedly designed to prevent more horrors like that one—can still draw a hard line against applying it to Dreamers and immigrant minors. They can back the bill’s underlying goal while insisting that, on principle, they cannot support applying it to people who were brought here through no fault of their own as children—or are kids right now—and have been only accused of very minor transgressions, not convicted for them. Democrats could also seek amendments requiring conviction for minor crimes as well.
If Democrats band together behind these positions, then it will force Republicans to defend those absurdities, rather than letting them off the hook for them. Why would the party throw away that opportunity?
One doubts that Democrats will hold the line here, unfortunately. And so, I’d like to renew my challenge to those who argue that in response to Trump’s win, Democrats must move to the right on enforcement. While versions of this analysis have some truth to them, its proponents should come clean on what they’re really demanding: Is this the outcome they want? Do they really believe that winning arguments on this issue is so hopeless that the party doesn’t dare unite behind the principle that Dreamers and immigrant kids do not deserve mandatory federal detention and potential deportation for minor crimes that they haven’t even been convicted of committing?
