OPINION: Trump, strike a deal: Trade border wall funding for DACA protections

Congress must extend government funding by September 30 and has until mid-October to raise the debt ceiling, and President Donald Trump is threatening to veto any funding bill that does not include money for the wall he has promised to build on the southwest border.  

“If we have to close down our government,” he said, at his rally in Phoenix last week, “we’re building that wall.”

A 16-day shutdown in 2013 resulted in an estimated loss of $24 billion in economic output and shaved 0.6 percent off the nation’s economic growth. But failure to raise the debt limit would be even more serious.

Unless a law is passed to raise the debt limit, the government will run out of money to pay its bills, which would trigger a default. This would jeopardize the world’s faith in America’s ability to pay its bills and that faith serves as the underpinning of the entire global financial system.

The risks are high on both ends of this equation — financial security and border security. Indeed, it has not been possible to erect even a virtual wall along the length of the southwest border.

In September 2006, CBP awarded Boeing a contract to build the Secure Border Initiative Network (SBInet), a virtual wall of technological devices that was supposed to provide border patrol officers with the information needed to maintain operational control of what was happening along the entire length of the southwest border.

It was a complete failure. When former DHS Secretary Janet Napolitano terminated the program in January 2011, it had cost taxpayers almost $1 billion to complete two regions covering a total of only 53 miles of the 2,000-mile border.

Despite the difficulty of the task, give Trump a chance to show what he can do. This can be done by properly funding the existing border security legislation.

Provide Trump with the funding needed to finish the southwest border fencing project mandated by the bipartisan Secure Fence Act of 2006.  

The Secure Fence Act was passed in the Senate 80 to 19. The yeas included current Senate party leaders Mitch McConnell (R-Ky.) and Charles Schumer (D-N.Y.) and former Senators Barack Obama (D-Ill.) and Hillary Clinton (D-N.Y.).

It mandated 850 miles of fencing along the southwest border, but as amended by section 564 of the Consolidated Appropriations Act, 2008, it just requires DHS to “construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective.”

DHS has constructed just 653 miles of fencing.

When Trump has completed the last 47 miles of this project, he will be able to show Congress the kind of wall he wants for the rest of the border and provide a reliable estimate of what it would cost.

To incentivize Trump to accept this alternative, Congress should assist him with his border security efforts by weakening the “job magnet,” the fact that undocumented aliens generally come here to find employment.

Congress tried to eliminate this magnet with an employer sanctions program in the Immigration Reform and Control Act of 1986 (IRCA), but it has been more than 30 years since the program was established and it still has not been fully implemented.

According to a report by Georgetown’s Institute for the Study of International Migration, unscrupulous employers “knowingly hire unauthorized workers to exploit their labor.” For instance, they “pay salaries in cash, failing to pay their share of social security taxes.”

The Department of Labor (DOL) enforces labor laws that curb such abuses without regard to employee immigration status, e.g., the Fair Labor Standards Act, which mandates minimum wages, overtime pay, youth employment, and other standards for all employees.

Congress can provide Trump with the funding DOL needs for a nationwide campaign to stop the exploitation of employees in industries known to hire undocumented aliens. This would weaken the job magnet and reduce the number of illegal border crossings.

But the president isn’t the only player congressional Republicans need to persuade to accept a compromise. To prevent a government shutdown (and fund Trump’s border wall), they will also need Democrats. What may be enough to persuade them is protecting an Obama-era immigration program.

On June 15, 2012, President Barack Obama established a program to offer temporary lawful status to undocumented aliens who were brought here as children, the Deferred Action for Childhood Arrivals (DACA) program. 

The application process required them to admit alienage and concede unlawful presence, and to provide their addresses, which makes it easy for them to be arrested and deported.

In a June 2017 letter, state attorney generals asked U.S. Attorney General Jeff Sessions to terminate DACA. If he does not do it, they will amend a pending lawsuit in a Federal District Court to include a challenge to DACA.

The administration apparently does not intend to defend DACA in court if it is included in the lawsuit. Moreover, recent media reports indicate that Trump is likely to rescind the program.

The Democrats might be more receptive to the measures I have proposed if they are offered a separate bill that would protect DACA participants from deportation if the program is terminated.   

Nothing good will come from a showdown between Trump and the Senate over funding his wall. They need to prevent that from happening.  

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

The views expressed by contributors are their own and not the views of The Hill.