Congress does not act spontaneously. It needs a deadline. Major pieces of legislation, even ones that have been debated for months or years, only pass on the eve of a hard deadline.
Deadlines create urgency because missing them is a political liability. Without a deadline, the bodies will continue to debate and deliberate until the cows come home.
The predominant example of this famed 11th-hour productivity has been spending bills. Only the threat of an eminent government shutdown seems to spur the House and Senate into action. Spending bills are often passed with only hours to spare or, as was most recently the case, a few hours after the deadline.
The phenomenon is so strongly correlated with congressional action that leaders have begun to manufacture synthetic deadlines to try to complete a certain debate in a reasonable timeframe. This practice worked extremely well in the case of the Tax Cuts and Jobs Act, which was enacted right in line with the Christmas 2017 synthetic deadline that leaders established. Congress worked like a well-oiled machine to move that legislation without stalling, and sure enough, the tax cut came through.
Until recently, the DACA program and the policy debate to address the issue also enjoyed a hard deadline, thanks to President Trump’s announcement that the program would end on March 5.
DACA, which stands for Deferred Action for Childhood Arrivals, offered amnesty and work status to a subset of illegal aliens: those who came here as children. It was enacted by President Obama in a wholly unconstitutional way: without going through Congress. In fact, DACA is not a law at all, DACA is a DHS memo purporting to have the force of law.
As such, President Trump announced in September that he would end the program on March 5. March 5 became one of the most important deadlines Congress was facing, and it looked like Republicans would be forced to make a deal with Democrats to somehow offer status to current DACA beneficiaries in exchange for secure border-security-related policy improvements.
As time marched on, the debate inside the halls of Congress raged. The Democrats even shut down the government in a desperate attempt to force action before the deadline.
In the end, Majority Leader Mitch McConnell (R-Ky.) opened the Senate floor to debate on the immigration issue, allowing both sides to offer proposals to deal with the March 5th deadline. The deadline had done its job in forcing action, but the Senate still rejected each proposal both sides hoping for more of the policies they were pursuing. More amnesty for the left. More border security for the right.
One could speculate that senators thought they had more time to adjudicate the issue. But then the Supreme Court took away the March 5th deadline. A federal court has placed a dubious injunction of President Trump’s intent to end the program, and the Supreme Court signaled it would not hear the case, opting instead to wait for the 9th Circuit ruling.
Now, the urgency to solve the so-called DACA problem has completely evaporated, and it’s much less likely that Congress will pass anything related. Even when the hard deadline was in place, Congress couldn’t act with a few weeks before the deadline, proving once and for all that only urgency measured in hours would spur action.
DACA is an unconstitutional program, and the amnesty it represents is misguided. Amnesty always leads to more law-breaking. At one point in this debate, some conservatives were willing to accept a limited amnesty to secure serious improvements in border security, but that moment seems to have passed.
If and when a deadline to deal with this issue is re-imposed, we could see the same dynamic play out, but there’s certainly no longer any good reason for Congress to pursue a bad deal on immigration.
This piece originally appeared in The Hill on 03/07/18