Supporters of the DACA program rally outside the U.S. Supreme Court in 2019. (Robin Bravender/States Newsroom)
WASHINGTON — Democratic U.S. senators have set a December deadline for passing bipartisan legislation that would create a pathway to citizenship for more than 600,000 undocumented people who were brought into the country as children — but they don’t yet have enough Senate Republican votes to make it a reality.
During a Wednesday press conference outside the U.S. Capitol, Democratic Sen. Dick Durbin, who chairs the Senate Committee on the Judiciary, said after the Thanksgiving break Democrats will have a limited window for passing protections for those enrolled in the Obama-era Deferred Action for Childhood Arrivals program or DACA, also referred to as Dreamers.
Durbin did not specify if senators would attempt to pass stand-alone legislation or try to attach DACA language to a must-pass government spending bill.
The new push comes now for several reasons.
Democratic Sen. Bob Menendez of New Jersey and Democratic Senate Majority Leader Chuck Schumer of New York, who were also at the press briefing, acknowledged that the House is expected to switch to Republican control next year.
There would not be enough support among GOP House members to pass legislation to create a pathway for Dreamers, so the next two months will be advocates’ only window.
“That’s the grim reality. The political reality is that we need 10 Republicans who will step up and join us in this effort,” Durbin said, adding that he knows at least five Republicans who are interested in the issue, though he did not name names.
Senate Democrats would need to garner 10 Republican votes to advance legislation that would protect Dreamer past a filibuster.
Control of the House next year is still unknown, but Republicans currently have 217 seats, and are one seat away from a slim majority control. A handful of races remain up in the air.
“Come January, it’s going to be extremely difficult to get through common sense, humane immigration reform, including protections for DACA participants,” U.S. Democratic Sen. Alex Padilla of California said.
The second urgent issue is that the program can be deemed illegal at any time, as Dreamers, advocates and Democrats await a decision from a district court judge that could end the program.
Nine Republican-led states filed a suit against DACA, arguing that the White House overreached in creating a program that should have been left to Congress. Those states are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.
The states argued that they were harmed financially due to incurring costs for DACA recipients’ health care and education.
“We may wake up one morning and find out that things have changed dramatically,” Durbin said about the DACA litigation. “Shame on us if we don’t seize this opportunity now right now.”
Immigration advocates and DACA recipients have lobbied congressional Democrats to create a legal pathway to citizenship for Dreamers, because the program is at risk of being deemed illegal.
In early October, a three-judge panel from the 5th Circuit Court of Appeals, headquartered in New Orleans, ruled that the Obama administration did not have the authority to create the program in 2012. However, the Biden administration issued its own version of the rule.
The panel then sent the case back to U.S. District Judge Andrew Hanen of the Southern District of Texas, and asked him to look at the new version of the rule on the program issued by the Biden administration in August.
Hanen, who is an appointee of former President George H.W. Bush, said the program could continue while it’s still being litigated in the court, but barred the administration from accepting new applications.
U.S. Democratic Sen. Catherine Cortez Masto of Nevada said at the press briefing that there are nearly 11,000 Dreamers in her state, and that the program is “hanging by a thread” due to litigation.
“They cannot continue to wait for action from American leaders — we need to keep the promises we made to American Dreamers 10 years ago,” she said.
DACA was created 10 years ago, with the aim of providing temporary relief for children who were brought into the country unlawfully, allowing them to obtain drivers licenses and work permits and protecting them from deportation.
Many of the children in the program are now adults, and their futures remain in limbo.
Durbin, Menendez and Schumer, holding out some hope, said they believe they can work with Republicans to pass DACA legislation because the midterm elections are over for those senators who were campaigning.
“The election is now over, so all the BS goes out the door,” Schumer said.
Schumer did not say if he would bring up any legislation to the floor for a vote.
In early 2021, Sens. Durbin and Lindsey Graham, Republican of South Carolina, introduced S. 264, the DREAM Act, which would create a pathway to citizenship for Dreamers.
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