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Congress Probably Has The Votes To Make DACA Law. But That Doesn’t Mean It Will.

The Trump administration ordered an end to an Obama-era program protecting young undocumented immigrants from deportation on Tuesday, while leaving Congress some opportunity to revive it.

Attorney General Jeff Sessions announced that the administration has now stopped accepting any new applications for enrollment to the Deferred Action for Childhood Arrivals program (known as DACA), although it will allow, until Oct. 5, previous DACA recipients to renew their status in the program. The administration will also not mount a defense of DACA, which was enacted by President Barack Obama in 2012. Several state attorneys general had threatened that they would file a lawsuit on Tuesday if the Trump administration didn’t end the program, on the grounds that the policy is an unconstitutional use of executive authority. Sessions said that he himself holds that view.

But Trump tweeted on Tuesday morning, “Congress, get ready to do your job-DACA,” suggesting that the president may be open to signing a bill that in effect codifies DACA, which essentially shields young people brought to the United States as children from being deported and allows them to apply and receive work permits for up to two years.

But can a DACA-style bill pass in the Republican-controlled House and Senate? Maybe.

It’s likely a majority of members of Congress in both chambers support enshrining DACA into law. How do we know that? Well, in July, U.S. Sen. Lindsey Graham of South Carolina, a Republican, introduced the “Dream Act of 2017,” which basically codifies DACA. That provision’s co-sponsors include Arizona’s Jeff Flake and Alaska’s Lisa Murkowski, two other Republicans. North Carolina’s Thom Tillis is behind a similar provision called the RAC Act (Recognizing America’s Children) that in effect ensures those currently eligible for DACA could not be deported.

So assuming all 48 Democrats in the Senate1 backed some kind of Dream Act, about 52 senators — a majority — are already behind such a policy.

And there may be a lot more potential “yes” votes. Remember, in 2013 the Senate (controlled by Democrats) passed a bill written by the so-called Gang of Eight that would create a pathway to citizenship for much of America’s undocumented population. That’s estimated to be about 11 million individuals, far larger than the 1.3 million who are estimated as potential beneficiaries of DACA. Among the Republicans who backed that bill were Flake, Graham, Murkowski, Tennessee’s Lamar Alexander, Maine’s Susan Collins, Tennessee’s Bob Corker, Utah’s Orrin Hatch, Nevada’s Dean Heller, North Dakota’s John Hoeven, Arizona’s John McCain and Florida’s Marco Rubio. (No Democrats voted against that bill, while 32 of the 46 Republicans did.)

You could say the politics of immigration in the era of Trump have moved way to the right, and that’s true. The president won the GOP nomination, in part, by capturing the support of Republicans most worried about illegal immigration, and he won the general election in a campaign that prominently featured his promise to build a wall between the U.S. and Mexico.

But the legislative aims of Congress are different now too: A DACA provision would be much, much narrower than the more wholesale immigration reform these senators backed in 2013.

If you were counting along, 48 Democrats, plus four Republicans who have supported “Dreamer” legislation this year, plus eight other Republicans who backed citizenship for much of the undocumented in 2013 equals, yes, exactly 60 votes. So there may be a filibuster-proof majority in the Senate that would back a DACA bill.

The math is harder in the House, where the immigration legislation died without a formal vote in 2013. There are 13 House Republicans who are co-sponsors of a bill called the Bridge Act (Bar Removal of Individuals who Dream and Grow our Economy.) Six other Republicans have joined the House version of the RAC Act that Tillis is backing in the Senate. And in January 2015, when the House had a symbolic vote to bar the Obama administration from accepting new DACA applicants, 26 Republicans voted against this legislation, including nine members who remain in the House but are not sponsors of any the Bridge or RAC provisions.

If you assume all 194 House Democrats would vote for a DACA replacement and add 13, six and nine, you have 222 likely votes for some kind of Dream Act — four more than the 218 needed to pass a bill.

That’s why I would conclude that there is a possibility that majorities in both chambers would pass this legislation … if it gets to a formal vote. Of course, that’s a big if that basically comes down to Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan’s willingness to bring legislation to the floor that would pass with a majority of Democrats but a minority of Republicans voting yes. That’s something Congressional leaders have been loathe to do.

Republicans have an escape route here: Blame the whole DACA problem on Obama and his love — in the GOP view — of executive overreach, and then pass some bill to make sure DACA recipients can’t be deported. But the last seven months have illustrated that Trump and the Republicans in Washington struggle to agree and pass much of anything.


  1. That includes independents who caucus with the Democrats.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.