No Veto for Funding Bill with DACA Fix, with a Big 'If'

Counting the conditions precedent

By Andrew R. Arthur on November 10, 2017

The world of media has definitely gotten more complicated: "Tweets" are now a form of reporting, and often news events themselves. For example, on Tuesday afternoon Chad Pergram, who covers Congress for Fox News, tweeted the following:

There are some major "conditions precedent" that would need to be met in order for the president's (in)action, as described, to occur. defines a condition precedent as follows:

n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the ship makes it to port, the buyer agrees to pay for the freight on the ship and unload it; when daughter Gracella marries she shall then have full title to the property.

In the context of the Pergram tweet, the condition precedent is that the president receives a "government funding bill with the DACA fix", not that such a bill would have "bipartisan support". If he receives such a bill, it would likely have a number of Democratic votes, and fewer Republican ones.

The current government spending bill expires on December 8, 2017. According to The Hill, at least four senators (Bernie Sanders (I-Vt.), Corey Booker (D-N.J.), Kamala Harris (D-Calif.), and Elizabeth Warren (D-Mass.)) have threatened to oppose any spending bill that does not include a DACA "fix". The "fix" in this context means that some sort of permanent status be granted to the approximately 690,000 aliens who are currently enrolled in "Deferred Action for Childhood Arrivals", otherwise known as "DACA recipients".

In September I identified what I believed was the most likely path that Congress would follow in addressing the status of those DACA aliens, who will gradually lose that status over the next two-plus years. As I stated then:

[B]oth parties want something from any DACA legislation. Democrats want to legalize hundreds of thousands of DACA recipients, knowing that the vast majority will become Democratic voters when they get the chance. And Republicans have waited years to put needed immigration-enforcement laws into place, and to provide additional tools that Immigration and Customs Enforcement and Border Patrol agents need.

I still believe this to be true.

In order for the Speaker of the House, Paul Ryan (R-Wisc.), to pass a funding bill that offered permanent status to DACA recipients without the aforementioned "needed immigration-enforcement laws" and "tools" included, there would have to be two more "conditions precedent" that would have to be met. First, the speaker himself would have to decide that he wanted a funding bill more than he wanted those enforcement provisions and fixes, and that he was willing to get it passed with a majority of Democratic votes if his own conference did not go along. Second, he would have to decide that he would be willing to ignore the majority of his own conference who want those provisions.

There is nothing to suggest that the first condition precedent exists, and the second condition precedent (which has depended on the first) is exceedingly unlikely.

According to press reports from the time that he was named to replace outgoing Speaker John Boehner (R-Ohio), Ryan promised the Freedom Caucus that he would abide by the so-called "Hastert Rule" to gain their support. Political Dictionary defines that rule, named after former Speaker of the House Dennis Hastert (R-Ill.) as: "A philosophy that requires the 'majority of the majority' to bring up a bill for a vote in the House of Representatives."

Only in Washington would such a common-sense principle need its own name. The reason that I call this a "common-sense principle" is the fact that if the speaker intends to regularly move legislation that is opposed by the majority of the members of his own party (and in particular, legislation that has the implications of a DACA "fix" without any offsetting enforcement provisions), he likely won't be speaker for long. A maxim on Capitol Hill states that "if you don't represent your constituents, soon you won't represent your constituents," and that is as true of Speaker Ryan and his constituents in the Republican Conference as it is of Representative Ryan and the voters of the First District of Wisconsin.

Notably, there is precedent in recent history for members to file a "Motion to Vacate the Chair". This parliamentary procedure is found in section 351 of Jefferson's Manual (the provisions of which govern the House absent contrary rules and orders), which states: "A Speaker may be removed at the will of the House, and a Speaker pro tempore appointed." While such a motion is rarely used and has never been successful, a DACA fix without more would be viewed as a significant loss for the Republican Party, and might trigger such a motion.

The current calendar for the House of Representatives lists December 14, 2017, as the target "recess date" for the first session of the 115th Congress. The 2018 calendar identifies January 3, 2018, as the date that the House will convene in the second session. This will leave members with almost three weeks of "district time", during which they return home to hear from their constituents. It is doubtful that Republican members would want to spend the vast majority of that time explaining such a momentous loss to those constituents, particularly given the significant role that Donald Trump's promises to enforce the immigration laws played in the 2016 election.

On the other hand, if the Democrats force a shutdown of the government over their demand that permanent status be granted to DACA recipients as part of any funding bill, without any enforcement or other provisions (a "clean DACA fix" in the current jargon), they will likely pay a political price. Eight Democratic votes in the Senate will be needed to pass a year-end funding bill, but there will be no change in the status of any DACA recipient until at least March 2018. In essence, therefore, Democrats would force the furloughing of approximately 40 percent of the government workforce (much of which votes Democratic) just before the holiday season to extort a remedy that would not be necessary for another three months, at least. And the president would have significantly leeway in determining which government services are affected, meaning that he could inflict the most pain on constituents of recalcitrant members by shutting down programs and activities that mean more to them.

In the past, government shutdowns have generally been blamed on the Republicans, but in those instances it was because the GOP was demanding some concession (such as defunding Planned Parenthood or Obamacare) to keep the government open. Here, the positions of the parties would be reversed.

Although the media has reported that the majority of voters who have been polled support status for DACA recipients, it is not clear how truly reflective those polls are of public sentiment or how deep any such support runs. If a family were planning a holiday trip to a National Park or the Smithsonian only to have those plans derailed by a Democratic demand for DACA status, would they really blame the Republicans, even if those disappointed travelers sympathized with DACA recipients?

Also, it is notable that Republicans have indicated a willingness to work on the issue, provided significant conditions are included in any legislation providing status for those aliens. This is a factor that would seemingly put the party in a stronger position in opposing a DACA fix without conditions on a must-pass funding bill. Although media bias would likely militate in favor of foisting the blame for a December 2017 government shutdown over DACA on the Republicans, I am not sure that this tactic would gain much traction, particularly in light of the fact that, as stated above, no DACA recipient would be adversely affected for another three months if there were no change in the law in December.

Well before Donald Trump was the Republican nominee, I heard a particularly politically savvy member of Congress state: "The important thing to remember, whenever you hear him talk, is that Trump is always negotiating." The truth of this statement has been supported by his subsequent statements, and recent events. It would not be surprising if what Sen. Schumer said was something that he had heard from the president or one of his representatives. Given the conditions precedent to such a bill reaching the president's desk, however, I doubt that the original statement was an endorsement of such legislation, or even a likely outcome of the ongoing debate over status for DACA recipients.