The Way We Were

In his column at the Washington Post Michael Gerson proposes what he characterizes as a “compromise” on a legislative approach to the Deferred Action for Childhood Arrival ukase:

There is little question that the president can prioritize immigration enforcement in a variety of ways — say, to focus on deporting convicted felons rather than dreamers. This is the manner in which the law was generally enforced before DACA, and in which it could still be enforced without DACA.

At some point, however, the systematic organization of this discretion into a new legal status, bringing a series of public benefits, becomes the equivalent of legislating. And the courts might focus particular scrutiny on forms of executive action that Congress could have legislated but didn’t. Given the more conservative composition of the Supreme Court, it is likely that DACA would have been struck down.

Whatever the merits of the constitutional case on DACA, the dreamers should now be protected by law. For the past few decades, Congress has pliantly surrendered a number of roles — particularly on social policy and national security — to the courts and the president. A shortage of institutional ambition is a problem that America’s founders did not even contemplate. This is an opportunity for Congress to reclaim its proper constitutional role.

This is also a debate — given that few Republicans actually want to deport the dreamers, and most Democrats seem to prioritize their welfare — on which compromise is particularly ripe. The obvious deal: stronger border enforcement (though not the surpassingly silly wall) for a new version of DACA.

A key problem is that significant numbers of members on both sides of the aisle will see that as capitulation rather than compromise. For any compromise to be possible there needs to be a majority in the House and a supermajority in the Senate who believe that it is conscientiously possible to forge a compromise.

I don’t see it.

You would also need a majority in the House and a supermajority in the Senate who are willing to forego what they see as the additional leverage conjoined with protective coverage that coupling a legislative resolution to the status of young illegal immigrants to much broader piece of legislation whether “comprehensive immigration reform” or some other omnibus legislation would provide. That seems similarly unlikely.

We have abandoned the lubricants that used to make our form of government possible including consensus, moderation, compromise, logrolling, and earmarked spending. The foreseeable consequence is that it has become difficult or impossible to do anything. I am not optimistic.