Senate Dems target DACA reform in lame duck after appeals court setback for program

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Federal judge orders Biden admin to end DACA applications

Former Kansas Secretary of State Kris Kobach explains how the Obama-era DACA immigration policy violates federal law

Senate Majority Whip Dick Durbin said Tuesday that Democrats will try to pass legislation protecting "dreamers" during the Senate's lame duck session, after a court dealt a setback to an Obama-era federal immigration program.

Durbin, D-Ill., said that voters should take seriously the threat that the courts could strike down the Deferred Action on Childhood Arrivals (DACA) program, which allows people who came to the U.S. illegally as children to stay. 

The Fifth Circuit Court of Appeals ruled last week that the Obama administration did not have the authority to institute the program – which protects illegal immigrants who came to the U.S. as minors from deportation.

Durbin lamented that the appeals court sent the case back an "unfriendly judge in Texas" for further proceedings and said Congress must act. 

FEDERAL APPEALS COURT RULES OBAMA-ERA DACA PROGRAM ILLEGAL, BUT SAYS 600,000 ALREADY IN US CAN STAY

Sen. Dick Durbin, D-Ill., said Tuesday that Democrats will try to pass immigration reform, specifically protecting participants in the DACA program, before the end of the year. (Fox News)

"It is our responsibility to do everything we can in the closing days of this Congress, and the hope that we have a majority in the Senate and the House in the next Congress that can continue the battle if necessary," Durbin said. 

The three judge panel did not dismantle the policy, meaning that while it cannot process new applicants, those already enrolled are still protected from removal. Approximately 700,000 are estimated to have been granted protection under the program, and hundreds of thousands more are deemed eligible.

Sen. Bob Menendez, D-N.J., joined Durbin Tuesday on a press call, which also included immigration activists. He said President Biden needs to step up pressure on Congress to pass DACA legislation. 

"We need the White House and President Biden to make clear that passing immigration legislation is a priority before the end of the year," Menendez said. 

The senator also called on the president to use other forms of executive action to protect DACA recipients in the meantime. 

Sen. Bob Menendez, D-N.J., Tuesday said President Biden needs to pressure Congress to pass immigration legislation by the end of the year. (Drew Angerer/Getty Images)

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The biggest hurdle facing Democrats in their effort to pass any immigration legislation, including a bill codifying DACA, is the Senate's filibuster. If Democrats remain united on a bill, they still need 10 Republicans to vote for it to pass through the 50-50 Senate. 

November's elections also look unlikely to change that reality by much. Democrats may pick up one or two seats in the highly-competitive map. They are also at risk of losing seats, which would bring in a GOP majority for which DACA would not be a priority. 

"The question is whether in a lame duck session, 10 Republicans will step up," Durbin said. "I can count four or five going into this, but no more. The rest of those are still in doubt."

Former President Trump advocated for strict immigration policy while he was running for president in 2016, and Democrats blame him for moving the GOP farther to the right on the issue.  (AP Photo/J. Scott Applewhite)

Both Menendez and Durbin blamed former President Trump for turning the GOP against any form of immigration reform.

DACA COURT RULING THE LATEST TWIST FOR CONTROVERSIAL OBAMA-ERA IMMIGRATION POLICY

"He made immigration a political tool for his party and he put into fear… our colleagues that if they did not toe the line in that regard, they could very well face his wrath in a primary that could change the course of events for them," Menendez said. 

"The Trump presidency, along with the advisers like Stephen Miller, created a poisonous atmosphere when we discuss immigration," Durbin said. 

Democrats have manged to get some GOP support for various legislative priorities this Congress. They secured the votes necessary in the Senate to pass a bill to help the U.S. compete economically with China, and another on improving infrastructure. 

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However, Congress already has a busy lame duck schedule, with bills on gay marriage and Electoral Count Act reform, as well as an omnibus spending bill and defense authorization legislation.

Fox News' David Spunt and Adam Sabes contributed to this report.