It didn’t take long for Democrats to end their January 2018 holdout over government spending. But they did so only after a promise by Senate Majority Leader Mitch McConnell (R-KY), who pledged to allow an immigration vote on “dreamers,” the young, undocumented immigrants brought to the United States illegally as children.
Using the government shutdown to force the issue
The January budget impasse lasted only three days, but the temporary spending measure Democrats subsequently supported – based on McConnell’s pledge – and was set to expire February 8. With the clock ticking, on February 7, McConnell and Senate minority leader Chuck Schumer (D-NY) announced a bipartisan budget agreement that would boost military and domestic spending by billions over the next two years, as well as lift the debt limit until March 2019. But one thing the Schumer-McConnell accord does not address is the DACA issue.
In response, and, perhaps, a clear indication the Senate compromise might not survive in the House, Representative Nancy Pelosi (D-CA), the House Democratic leader, staged an eight-hour protest speech. Taking advantage of a House rule that allows certain ranking officials unlimited time to speak, Pelosi’s speech including readings from heart-rending testimonies from dreamers, including Andrea Seabream of the Air Force, and former congressional aide Carlos Gonzales. They, along with hundreds of thousands of others, risk deportation unless Congress can unite on a DACA bill. Further complicating matters, House Speaker Paul Ryan (R-WI) has yet to promise the kind of DACA debate in the House that McConnell has promised in the Senate.
If no agreement or spending extension is reached by February 8, the government would enter its second shutdown in a month.
The value of promises
So, if the House Democrats rally behind Pelosi’s demand that the budget deal include a resolution of the DACA issue, the onus is again on Senator McConnell. Will he keep his promise and work across the aisle to extend the Deferred Action for Childhood Arrivals (DACA) policy, which has allowed dreamers to live, work, and attend school in the United States without fear of deportation? More importantly, is he obligated to do so? Do promises made on the Senate floor always equate to action, or are they promises made to be broken?
You don’t need to binge watch C-SPAN to know the Senate has rules, but they are procedural. There’s no mention of “promise,” and the only reference to a pledge is Rule IV, Commencement of Daily Sessions, which stipulates who leads the Senate in reciting the Pledge of Allegiance.
However, the Senate does have a long tradition of unwritten rules. Will McConnell feel bound by these traditional observances? Recent history indicates he might not.
Consider the “blue slip” policy, an unwritten rule that long applied to judicial nominees. By tradition, senators in the minority could signal their opposition to a nominee from their state by filing a “blue slip” on him or her. The majority party would get the hint that another candidate would be more suitable. This unwritten agreement provided a kind of detente between Democrats and Republicans on the Senate Judiciary Committee.
When Barack Obama was president, Republicans filed 12 blue slips against his judicial nominees. And it was McConnell himself who, at the start of Obama’s first term, sent a letter to the new president stating that “the Republican Conference expected the blue slip policy to be observed.” However, now with Donald Trump, a Republican in the White House, and the Republicans with a majority in the Senate, McConnell has eliminated the blue slip policy, saying the slips would be treated only as a notification of how a senator would vote.
Another longstanding unwritten rule concerned executive branch and federal court nominees and the use of the so-called “nuclear option.” Senate rules require the consent of 60 senators to end a filibuster on legislation and 67 to end a filibuster for amending rules. But the nuclear option allows any issue to be decided by a simple majority vote. And the procedure for overriding the filibuster requirement is a straightforward, three-step process: (1) the Senate majority leader simply raises a point of order that certain matters be decided by a simple majority, (2) the presiding officer denies the order based on senate rules, and (3) that ruling is appealed and overturned by a majority vote.
The unwritten rule against invoking the nuclear option for nominees was first upended in 2013, when senate Democrats, frustrated by Republican obstructionism since Obama’s election, eliminated the 60-vote rule on executive branch nominations and federal judicial appointments – except those to the Supreme Court.
Last year, when it was clear Republicans did not have the 60 votes to approve Supreme Court nominee Neil Gorsuch, McConnell invoked the nuclear option, breaking the tradition that it would never be used at that level. The Senate approved Gorsuch by a vote of 54 to 45.
Future of DACA
Yet, the future of DACA may not even be up to McConnell or Pelosi. Early Tuesday, Trump shot down a bipartisan DACA bill that would have provided dreamers a pathway to legal status and, possibly, citizenship. Sponsored by Senator John McCain (R-AZ) and Senator Chris Coons (D-DE), the bill also would have required strengthened border security without providing the $25 billion for Trump’s U.S.-Mexico border wall – an apparent show-stopper for the president, who later tweeted, “Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time.”
All we can really predict is another round of brinksmanship, with the threat of a government shutdown looming yet again. The stage seems set the stage for another congressional battle not only on immigration, but, perhaps also on the written and unwritten rules of the Senate.
