What Does the New Democratic Majority in the House Mean for Immigration Reform

With Democrats winning a large number of seats to wrestle control of the House of Representatives away from Republicans, what will that mean for immigration reform?

Immigration reform was considered a “second term” issue for the Obama Administration, meaning that while President Obama saw the need for reform, he focused on issues that he saw as a greater priority in his first term, such as health care reform. When serious legislation addressing such topics as the millions of undocumented aliens already present in the United States, it fell victim to the Tea Party, a coalition of radical right-wing Republicans who gained power through gerrymandering, or the creation of congressional districts with strong conservative populations. The Tea Party flexed its muscle by forcing a government shut down over the funding of the Affordable Care Act, and thus discovered that it had the power to influence Republican House leaders to turn against immigration reform, branding any proposal other than enforcing the laws already on the books as amnesty. Hope for a legislative fix for the nation’s immigration problems died in President Obama’s second term. 

But President Obama did not allow legislative gridlock to hamper his desire to pursue immigration reform. Using solely executive action, President Obama reformed the nation’s deportation policy by ordering Immigration and Customs Enforcement (ICE) to prioritize deportation cases involving dangerous criminals. In a policy called “prosecutorial discretion,” the President had ICE agree to the administrative closure of those cases that were not in line with the new priorities. 

Similarly, by executive order, the President created a new program known as Deferred Action for Childhood Arrivals, or DACA.  Deferred action is merely a promise by the Executive Branch not to seek the deportation of an alien present in the country without legal authority. Through DACA, President Obama gave relief to undocumented aliens who were brought to the United States as children, who had a US high school diploma, were working on education or who joined the military, and who did not a significant criminal record. Using his legal authority pursuant to the Immigration and Nationality Act, he then granted those people who qualified for DACA the authority to work legally in the United States. 

The problem with pursuing immigration reform purely by executive action and without congressional action was that President Obama could not grant undocumented aliens a secure legal immigration status. Those who benefitted from prosecutorial discretion and DACA, therefore, were left vulnerable to a change in the presidential administration. 

That change came in 2016, when Republican Donald Trump won the presidency through an Electoral College victory over Democrat Hillary Clinton. Trump had run on a hard-line immigration approach of strict enforcement to be highlighted by building a wall along the southern border to be paid for by Mexico. 

Once in office, the stark contrast between President Obama’s view of immigration reform, and that of President Trump became evident. Emphasizing that even crossing the border without a visa was a criminal act, President Trump changed ICE’s enforcement priorities to include all aliens present in the country without legal authority. ICE began enforcement actions that heretofore had been unthinkable, such as immigration arrests being made in school parking lots, outside hypothermia shelters and in the halls of state courthouses where domestic abuse victims sought protection. 

Other executive action taken by the Trump Administration included the exclusion of aliens from certain countries deemed to be dangerous by the Administration from entering the United States, most of which were Muslim countries, instructing Immigration Judges not to resolve deportation cases through administrative closure, instructing Immigration Judges that in the Attorney General’s view victims of domestic abuse and gang violence did not qualify for the legal protection of asylum, and the rescission of DACA.  

Indeed, legislation proposals demonstrated that the Trump Administration’s definition of immigration reform was far more harsh than that of the Obama Administration. Gone was the idea that reform should provide benefit to those were in the country without authorization.  It was replaced with a drive to contract family based immigration, and to discourage immigration from places the President considered “shit-hole countries.”

The difference between Democratic and Republican priorities in reforming the nation’s immigration laws could not greater. 

President Trump created a crisis for foreign-born young people with his decision to rescind DACA. Although the courts have intervened, preventing the program from ending, DACA recipients find their legal status fragile and their future uncertain. He has insisted that a legislative fix was necessary. Meanwhile, he has bemoaned the efficacy of current immigration law, demonizing groups of Central Americans making the dangerous trek northward in the hopes of applying for asylum as potential gang members and terrorists. He has insisted that any legislative efforts to address the DACA crisis also include greater border security measures (such as the funding of the border wall), the curtailment of family based immigration, and the elimination of a program meant to create greater diversity in those who immigrate to the United States (that is, the annual diversity visa lottery).

Surely, with court action currently protecting DACA recipients, and the vast difference between the parties on immigration issues, it seems highly unlikely that the newly elected Democratic House majority will agree to the Trump Administration’s demands for harsher and more restrictive immigration reforms. Barring intervention on DACA by the Supreme Court, any hope for legislative action to be taken in the next two years on immigration reform would appear to be folly. That is, only if the Supreme Court were to accept a case involving DACA, and side with the President, would there be any pressure on the Democrats to find some common ground on immigration in order to protect a sympathetic group of law abiding young people. Even then, the price may be so high that the Democrats would prefer to have the issue front and center for the 2020 presidential election. 

This continued inaction on addressing the nation’s immigration problems may set-up the issue of immigration reform as an powerful issue going into the next round of federal elections.

By: William J. Kovatch, Jr. 

Imigration Reform Is Dead? How Did That Happen?

In less than a week, Republican House leadership went from revealing their principles for immigration reform to acknowledging that there was very little chance of passing reform this year.  Indeed, a few days after the proposal was revealed at a GOP legislative retreat, reform proponent Paul Ryan stated that the passage of reform was "clearly in doubt."  This was followed by House Speaker John Boehner declaring that passage of reform legislation would be "difficult" days later.

So what happened?  How did the fortunes of immigration reform legislation change so rapidly in sch a short period of time?

The Process Took Too Long

Strike while the iron is hot.  That's the conventional wisdom.  Use the momentum and advantage while you have it.

After the 2012 presidential election, the passage of immigration reform looked all but certain.  Even conservative talk show hosts, like Sean Hannity, stated that they had rethought immigration reform and supported a pathway to citizenship.

But, immigration reform was not the top priority either for the Administration or Congress.  Rather, the nation first had to face the crisis created by the so-called "fiscal cliff."

Once the crisis was settled, it became a race between a bipartisan committee from the House, which had been working on immigration reform behind the scenes since 2009, and the Senate "Gang of Eight."  According to The Hill, President Obama and Senator Chuck Schumer were not happy with concessions that House Democrats had made, and intervened with House Democrat Luis Gutierrez to slow the progress of the House bill in order to allow the Gang of Eight's bill to pass the Senate first, and thus shape the immigration debate.Once the Senate bill passed, momentum for the House bill died over the summer.

The Hill continues, reporting that two Texas Republicans, John Carter and Sam Johnson, were ready to introduce a bill in the House.  However, they received no commitment from Speaker Boehner.  Washington was then bogged down in the autumn, first by the situation in Syria, and then with the Government shut-down orchestrated by GOP tea party members.

By time Congress passed a new budget, opponents of immigration reform began to strengthen.  Tea party supporters were boosted within GOP ranks by their ability to shut down the Government.  By mid-November, Boehner was saying that there were not enough legislative days left in 2013 to address immigration reform.  Boehner ruled out going into a Conference Committee where the Senate bill would set the agenda.  Indeed, there was a fear among House Republicans that even if the House passed smaller bills on immigration reform that the Senate would use that as an opportunity to inject principles from the Senate bill into the resulting legislation.

When it appeared that the wheels were coming off of the Obamacare band wagon, House Republicans saw no reason to push for immigration reform in 2013.  Indeed, the momentum had shifted in Washington, placing Democrats on the defensive.

Republicans Don't Trust Obama

One theme that emerged from the demise of immigration reform last week was that House Republicans just don't trust President Obama.  The main issue is that of border security.  GOP leader had tried to sell reform to rank and file party members by promising that any pathway to legal status for undocumented aliens already present in the country would be tied to greater border security.  When conservative House Republicans voiced resistance to the leadership's principles, it prompted Boehner to say, "Listen, there’s widespread doubt about whether this administration can be trusted to enforce our laws."

If the President was trying to earn such trust, he had done himself no favors in the State of the Union Address.  There, he was seen as throwing the down the gauntlet, threatening unilateral executive action if Congress would not bend to his will in passing certain legislation in the remainder of the President's term.  Indeed, the President's reputation for acting unilaterally, and in the eyes of any conservatives unconstitutionally, on immigration issues is well-earned.  When Congress did not pass the DREAM Act, for example, the President responded by implementing his Deferred Action for Childhood Arrivals program unilaterally.  House Republicans fear that even if reform legislation included border security requirements, this President will simply refuse to enforce them.

Republicans Are Now Focused on the Mid-Term Elections

As I wrote last week, the Republicans are now very optimistic of winning control of both houses of Congress in the mid-term elections.  Democratic control of the Senate is in jeopardy, in part due to the continued unpopularity of Obamacare.  In the House, many GOP members are from "safe" districts, where the real electoral threat comes not from a Democratic challenger in the general election, but from a more conservative challenger in the primary election.

Many conservatives see supporting any immigration reform that includes any type of "amnesty" as political suicide.  Not only will it alienate more conservative voters, but it would only eventually add to the number of voters who support Democrats, as the undocumented aliens are overwhelmingly Latino.  Should the undocumented eventually become citizens, then the number of Latino voters will rise.  Given the huge majorities which Latinos gave the President in 2012, conservatives believe that adding so many Latino voters to the rolls will relegate the Republicans to a permanent minority party.

Democrats Couldn't Care Less if Immigration Reform Actually Passes

Meanwhile, Democrats are in no hurry to have immigration reform actually become law.  The reason is that it continues to give Democrats a political issue to bash Republicans over the head with in national elections.  Democrats can easily be seen as supporting immigration reform by pushing for legislation.  But, if the Republicans continue to oppose reform, Democrats can point the finger at the GOP and continue to use the issue to garner Latino and Asian support.

So Long as Republicans Have Legislative Power, Immigration Reform Remains in Doubt

The last time that immigration reform came close to passage, it was in 2006, when Republican George Bush was president, and the Republicans controlled both houses of Congress.  The Comprehensive Immigration Reform Act of 2006 included a guest worker program and a pathway to citizenship.  If Republicans really intended to pass reform, they had the political power to do so.  However, reform died in December of 2006, in the lame duck session, as many Republicans who has previously supported reform turned on the bill, in the wake of the Republicans 2006 electoral defeat.

Similar to the current political climate, conservatives who opposed reform gained momentum and worked to block passage.

Will Some Kind of Immigration Reform Pass this Year?

 There are certainly some optimists left in Washington on immigration reform.  Chuck Schumer has proposed, for example, enacting the legislation now, but delaying implementation until 2017.  The conventional wisdom, however, is that the prospects of passage is less than 50-50.  Considering that the 2016 presidential elections are on the horizon, if reform does not pass this year, it may be doubtful that it will pass until a new person is sworn in as Commander-in-Chief.  At this point, neither party appears eager to push for a quick resolution.

William J. Kovatch, Jr.
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wkovatch@kovatchlegalservices.com