October/November 2014: The Politics of Immigration Reform

Washington Watch | October/November 2014
By Bruce Moyer

The prospect of broad immigration reform held great
bipartisan promise at the start of the 113th Congress, some 20 months ago. Republicans and Democrats agreed, even if for different reasons, that the nation’s immigration system was broken and needed overhaul.

The political parties recognized that they both stood to gain from a legislative deal on immigration. Democrats could expand their deep ties with the Hispanic community, while Republicans could begin to shift their identity to that of a more inclusive party, especially in the southwest. In January 2013, Republicans were also coming off a fresh presidential election loss, aware that their small share of the Hispanic vote was a decisive factor in that defeat. Demographic trends loomed large in their implications for both parties at the start of the 113th Congress, inspiring the appetite for reform.

Hopeful Senate Action, Disappointment in the House
Those dynamics, in fact, worked their legislative will in the Senate, where Democrats, with Republican support, secured passage of a broad immigration measure in June 2013. The Senate-passed bill provided a path to citizenship to some of the estimated 11 million undocumented immigrants living in this country and diminished continued record-breaking deportations that have separated hundreds of thousands of families. But despite that promising start, immigration reform stalled in the House over the ensuing months, the victim of a highly partisan and polarized chamber—driven by internal division within the GOP ranks over solutions—with greater support for aggressive border security than for a relaxation of current laws.

A torrent of thousands of Central American children flooding the South Texas border earlier this summer generated more partisan and intra-party conflict. In late July, House Republicans became mired in infighting over how much to spend on the crisis but ultimately pushed through measures that provided emergency funding, sped the deportations of illegal entrants, and rescinded the President’s authority to decide whether to deport certain illegal immigrants. The House-passed measures are unlikely to become law in light of strong opposition from Senate Democrats.

The Lure of Executive Action
These developments have prompted President Obama to shift his attention to executive actions he could unilaterally undertake to quell border pressures. He took this tactic previously in 2012, when he gave work permits and temporary protection from deportation to so-called Dreamers—young unauthorized immigrants who came across the border as children and who have met other qualifications, such as earning a high school diploma or committing to military service. More than 550,000 youths received two-year deportation deferrals, now being renewed for two more years.

In June, the President announced he would consider broader executive actions to make potentially sweeping changes to the immigration system without Congressional approval, including extending the same protections and work permits to other categories of unauthorized immigrants. But as midterm elections draw closer, the President has shied away from taking controversial action for the time being, aware of the risk for Democratic Senate candidates facing strong re-election challenges. Control of the Senate hinges on the outcomes of the half-dozen close races in Republican-leaning states where the President is unpopular, especially Southern states where opposition to relaxation of immigration laws is strong. The GOP is expected to maintain its House majority and needs a net gain of six seats to take control of the Senate.

Meanwhile, immigration lawyers within the Homeland Security Department are developing legally defensible policy options that insulate millions of illegal immigrants from deportation and provide many with official work papers. Those short-term options include measures that make it easier for American citizens to obtain legal status for spouses or minor children who are unauthorized immigrants. Homeland Security also could refrain from deporting illegal immigrants who are the parents of children who are American citizens. After the November elections, more sweeping and controversial executive actions could be announced, including the issuance of work permits for millions who are in the country illegally.

Political and Legal Risks Abound
The timing of these actions are fraught with political and legal risk. Delay by the White House in pushing ahead with some of these actions could create a political backlash among Hispanics, a constituency that twice helped Obama into office. But robust use of executive action also could trigger an equally aggressive counter response from congressional Republicans to stop what they see as presidential overreach. “If the President insists on enacting amnesty by executive order,” said former House Judiciary chair Rep. Lamar Smith (R-Texas), “he will undoubtedly face a lawsuit and will find himself, once again, on the wrong side of the Constitution and the law.”

Regardless of their speed, broader Presidential actions on immigration could indeed test the powers of the office and fuel impeachment fires that consume the remainder of President Obama’s term.

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.

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