Democrats and pro-immigrant activists are digging in on their negotiating positions ahead of the upcoming Supreme Court decision on 's order to revoke the "Dreamers" program.
The Supreme Court is due to hold a hearing Nov. 12 to decide on the legality of Trump's order on the program formally known as the Deferred Action for Childhood Arrivals (DACA), after lower courts have forced the Trump administration to continue issuing renewals of it.
Democrats and pro-immigrant advocates feel confident the court will rule against the White House.
But even if it doesn't, Democrats believe the sympathy generated by Dreamers, or undocumented immigrants who arrived in the country as minors, will eventually force GOP moderates in the Senate to support emergency House legislation to protect a program that has proven popular with voters.
"I think there is a growing bipartisan sentiment that these DACA recipients need protection and I think we'd pass [emergency protections], I really do, on a bipartisan basis," Sen. (D-Ill.) told reporters and DACA recipients at a press conference Thursday.
Trump rescinded DACA in 2017, giving Congress six months to replace the Obama-era program with legislation pairing border security and immigration protections for Dreamers.
Lawmakers then dug in to negotiate a comprehensive bipartisan bill, but the White House eventually withdrew its support for a deal that would have tied protection for Dreamers with funding for a border wall along the southern border between the U.S. and Mexico. Instead, it pushed for large reductions in legal immigration.
Previous immigration negotiations had tied a road to legalization for undocumented immigrants with tougher immigration enforcement, a paradigm that's guided immigration negotiations since the Reagan administration.
“Since Reagan in '86, the dynamic for immigration negotiations has been to concurrently deal with the issue of securing the border in order to stop illegal immigration while also dealing with the current undocumented population in the United States.” said Mario Díaz-Balart (R-Fla.), a lead proponent of comprehensive immigration reform.
"The way [to achieve immigration reform] is tie it with border security or something like that to get bipartisan support to get it done," Díaz-Balart told The Hill.
The Trump administration is betting the Supreme Court will uphold the rescission of DACA, allowing GOP conservatives in Congress to demand substantial increases in immigration enforcement and reductions to legal immigration in exchange for protections for DACA recipients.
But with few bipartisan immigration success stories since Reagan, Democrats have grown weary of the paradigm that's yielded harsher enforcement but fewer legal immigration options.
"Democrats are realizing that they need to give less in order to get more legalizations and additional legal immigration," said Alex Nowrasteh, the director of immigration studies at the Cato Institute.
Their hope for a tougher stance is based on the popularity of DACA and voter sympathy for Dreamers, which Democrats believe gives them a stronger bargaining position against Republicans with more moderate constituencies, even if the Supreme Court ends up upholding Trump's rescission of the program.
Pro-immigration Democrats like Durbin have also hardened their positions because the most significant changes to immigration law since Reagan have been the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and the 2006 Secure Fence Act.
Both laws, one passed under Democratic President and the other under pro-immigration Republican President George W. Bush, were restrictive measures, billed at least in part as first steps toward a comprehensive immigration reform package that never came.
The final straw for the pro-immigration camp came in 2017, as Trump scuttled the negotiations prompted by his order to rescind DACA.
"As for the administration trying to bargain with [DACA], they tried that before and it didn't work very well. When they came back with the most punitive approach to border security many of the Dreamers and their families stepped away and said, 'we're not going to be a bargaining chip,'" said Durbin.
Durbin's tougher stance came into view Wednesday, as he and Sen. (D-Vt.) introduced the Relief Act, meant as a counterpoint to the House-passed Fairness for High-Skilled Immigrants Act of 2019, which enjoys bipartisan support.
Both bills would remove the country quotas to assign permanent residency permits or green cards, a longstanding demand of the Indian-American community, but the Durbin-Leahy version would also increase the number of green cards granted per year.
Critics of the Fairness for High-Skilled Immigrants Act say that removing the country quotas without increasing the number of green cards would essentially guarantee that all new permanent residency permits over the next decade would go to cover the backlog of Indian nationals awaiting a green card.
In part, Democrats say, their tougher negotiating position is also due to distrust generated in 2017 by Trump and his immigration team.
Asked if he still could negotiate another immigration deal with Trump, Durbin replied, "it's a long shot."
"We thought that we were in a bargaining position with this administration and came forward with the bipartisan bill, a strong bipartisan bill, that the President invited us to offer to renew DACA. And he rejected it and came back with a horrible alternative that had more than 60 senators voting against it, including the Republicans," added Durbin.