Biden’s Immigration Dilemma

House Democrats are churning out sweeping legislation on LGBT rights, labor organizing, voting rights and police reform. But when it comes to immigration reform, Democrats are stuck.

Joe Biden followed through on his campaign promise to introduce, on his first day as President, an immigration bill providing a pathway to citizenship for the undocumented. But Democrats don’t have the votes in the House, let alone the Senate, to push through the now decade old idea of a pathway so Biden’s bill won’t get a vote on the Senate floor.

Instead, on Thursday the House approved two bills providing pathways to citizenship for certain groups of undocumented people: The American Dream and Promise Act for “Dreamers,” those brought to American illegally as children, and the Farm Modernization Workforce Act for migrant farmworkers. Yet this incremental strategy isn’t expected to go anywhere in the Senate, according to Biden allies. Senate Majority Whip Dick Durbin of Illinois told the New York Times, “I wish we could move just one piece at a time, but I don’t think that’s in the cards.”

When an idea stumbles right out of the gate, it will have a very hard time crossing the finish line. And if immigration reform is in trouble, Democrats are in trouble.

Sure, not every item on the progressive wish list is going to become law. But immigration reform is not just any wish list item; it’s an unfulfilled wish from the last Democratic presidency, leaving behind a frustrated and impatient constituency which includes not only Americans of Hispanic descent, but also business, unions, and progressives.

Through executive action, Obama was able to deliver the consolation prize of the “DACA” program, giving Dreamers temporary legal status. Nevertheless, the lack of comprehensive reform after two terms, combined with stepped up effort on deportations on Obama’s watch, left many immigration advocates deeply disappointed and wanting the kind of change that can only come from legislation. In fact, during the 2020 presidential primaries, immigration was one of the few areas of Obama’s record that candidates were eager to bash—even Biden saw the need to distance himself. For Democrats to disappoint immigrant advocates, after yet another Democratic trifecta, would alienate Latino voters, some of whom are already drifting towards Republicans.

The rising number of Hispanics, already a larger segment of the population than African Americans, has become essential to Democratic power—and not just in Western states where their numbers top 20 percent such as Arizona and Nevada, but also in Southern states such as Georgia and Virginia. Granted, the GOP’s improvement with Latinos in the 2020 election is evidence that a progressive position on immigration is not a sure winner with all Latino voters. But presumably immigration reform still matters to any voter connected to the undocumented or hoping to fully unite their family.

Without the votes in hand, congressional Democrats may want to quietly shelve immigration reform. But the issue will find them.

Evasion isn’t an option when we are experiencing a  periodic border “crisis” of unaccompanied minor refugees seeking asylum.  The Biden administration has struggled to find temporary shelter for them. With memories of the Trump administration’s cruel treatment of kids fresh in their minds, Biden and his Homeland Security Secretary Alejandro Mayorkas have to figure out how to humanely care for and place these young migrants, without encouraging refugees from south of the border to come in greater numbers and further overwhelm the existing system.

Already the media is zeroing in on the border influx, triggering a natural impulse among reporters to uncover potential mismanagement. Republicans are exploiting the situation, with advertisements in Democratic-held House districts lambasting the “Biden Border Crisis.”Biden is also taking some heat from his left; Congressman Ro Khanna has called the conditions for the unaccompanied minors detained at the border “morally unacceptable.” More broadly, Congresswoman Ilhan Omar and 23 other Congress people are pressing the White House to dissolve contracts between federal immigration authorities and state/local prisons and jails for detention services.

Border crossing spikes outside of proper channels will keep happening so long as our immigration system is rickety. And Democrats will be hammered by elements in both parties if they can’t manage it. In other words, forget about punting on immigration.

The temptation to punt is understandable because immigration is an issue fraught with political trip wires. Any influx of new residents who hail from a different cultural background triggers bigoted impulses. Fears of crime, job loss, depressed wages, strained government resources and cultural change are eagerly capitalized on by craven politicians.

Immigration reform has been an uphill political fight for a century. When Congress passed a severely restrictive and racist immigration bill in 1924, one lonely voice of opposition came from Rep. Emanuel Celler, a Democrat from Brooklyn, NY. It took Cellar 41 years to pass the Hart–Celler Act, undoing the law’s use of national origin to determine who can or can’t come to America. Cellar was not only helped by President Lyndon Johnson and one of the most liberal Congresses in history, but also by the miscalculation of racists.

As National Public Radio’s Tom Gjelten once explained, a key conservative Democrat, Rep. Michael Feighan of Ohio, only agreed to accept ending the use of national origin if the bill gave preferential treatment to family members of U.S. citizens. Feighan and his allies assumed that would keep the European character of the immigration stream—one called it a “naturally operating national-origin system.” But they failed to anticipate a decline in European interest. Instead, their family unification scheme ended up supporting a huge increase in immigration from non-European countries.

The 1965 reform bill is a rare, and somewhat inadvertent, example of success. More often immigration reform attempts end in heartbreak. President George W. Bush tried mightily to enact an immigration reform bill, partly driven by political advisor Karl Rove’s desire to win the Hispanic vote. Bush’s 40 percent with Hispanics in the 2004 election remains a high water mark for the GOP for at least the last 50 years, and it seemingly validated his immigration agenda. But when he proposed a bill in 2006 that would allow the existing undocumented workers receive green cards (after returning to their home countries) and establishing a guest worker program, Bush didn’t get a legislative win. Instead, he exposed a massive rift in his party, between a country club wing comfortable with a steady flow of low-cost labor and a nativist wing comfortable with a wall spanning the Mexico border. (We know who’s in charge now.)

Bush needed the help of Democrats, and he got some. Sen. Ted Kennedy toiled with Sen. John McCain on a compromise. But several Democrats and their labor union allies, including then-Sen. Barack Obama, felt the guest worker program would drive down wages. Obama was the deciding vote in favor of a Senate floor amendment that would have made the guest worker program expire in five years. The McCain-Kennedy forces viewed that amendment as a poison pill, and while the amendment backers chafed at that characterization, the subsequent cloture vote was won by a bipartisan—but mostly Republican—coalition of filibusterers.

Obama would try next, and fail next. As with Bush, Obama’s re-election appeared to boost the chances of immigration reform. Mitt Romney, who spoke of “self-deportation” of the undocumented on the campaign trail, won only 27% of the Hispanic vote—the worst performance among Hispanics by a Republican in a two-person presidential race in the last 50 years, and that includes both of Trump’s campaigns.

Republicans were so stunned, they immediately spoke of getting behind immigration reform to defuse the issue. Two days after the election, conservative talk show host Sean Hannity told his audience he had “evolved” on immigration, and now believed, “if people are here, law-abiding, participating for years, their kids are born here, you know, first secure the border, pathway to citizenship, done.” On the same day, House Speaker John Boehner said to ABC News, “This issue has been around far too long. And while I believe it’s important for us to secure our borders and to enforce our laws, I think a comprehensive approach is long overdue. And I’m confident that the president, myself, others, can find the common ground to take care of this issue once and for all.”

The political stars looked aligned. And then one month later, Sandy Hook happened.

Six days before that traumatic school massacre, the Los Angeles Times reported that after the year-end negotiations over expiring tax provisions wrapped up, “the Obama administration will begin an all-out drive for comprehensive immigration reform, including seeking a path to citizenship for 11 million illegal immigrants.” The report indicated Obama’s team knew they had to play their hot hand quickly: “Democratic strategists believe there is only a narrow window at the beginning of the year to get an initiative launched in Congress, before lawmakers begin to turn their attention to the next election cycle and are less likely to take a risky vote on a controversial bill.”

Sandy Hook prompted a shaken Obama to respond to a shaken nation, and begin his second term with a push for gun control, not immigration reform.

Obama had just won re-election with a campaign that did not stress gun control. Nor had he in his initial election. Democrats had largely concluded the issue hurt them in key swing states in the 2000 and 2004 elections, and Obama’s two victories backed up that theory. In turn, Obama had no electoral mandate for gun control, in stark contrast to immigration reform—an issue for which Republicans had already conceded Obama did have a mandate.

Driven by an understandable sense of moral urgency, and standing with family members of the Sandy Hook victims, Obama proposed in January 2013 a wide range of gun control measures and pledged to “put everything I’ve got into this.”But lacking a mandate, as well as intra-party unity, Obama was unable to get a vote on such a controversial package. He had to settle for a narrow bill from Democratic Sen. Joe Manchin and Republican Sen. Pat Toomey that would expand background checks. And that bill got filibustered.

On the day of that mid-April filibuster vote, sapping Obama of his post-election political momentum, a bipartisan Senate group finally introduced an immigration reform bill. They got it past the Senate in June in a 68-32 vote with the help of 14 Republicans. But by then, conservatives had regained their ideological footing.

Hannity flipped back, trashing the Senate bill as bad for Republicans electorally. With more distance from the election, House Republicans shook off the interpretation of the November results that Hispanics felled Romney, and increasingly embraced the view that too few whites were motivated to vote. The party’s nativist voices were heeded, and the Chamber of Commerce’s support for the Senate bill was disregarded. Speaker Boehner suppressed his own support for reform, and bowed to the notion that he should not put any bill on the House floor that lacked majority support within the Republican caucus. (This principle was known as the “Hastert Rule,” named after Boehner’s predecessor as Speaker Dennis Hastert, who later admitted to child sex abuse while working as a high school wrestling coach.)

The only time the political stars aligned for immigration reform since the days of LBJ was 35 years ago, when Republican President Ronald Reagan signed legislation granting legal status to an estimated 3-5 million undocumented people. And that was the culmination of an 11-year legislative process.

Reagan’s predecessor Jimmy Carter first proposed a bill that paired amnesty for the undocumented with financial penalties on employers who hired the undocumented. Reagan pushed for the plan as well. But throughout his first term the proposal attracted opposition from both immigrant advocates and business leaders. The legislative breakthrough occurred in 1986 when a not-quite 36-year-old House member in his third term, as reported by the New York Times, “negotiated a compromise to assure farmers a steady supply of foreign workers while protecting the workers’ rights.”

The value of that history lesson is to remind us that progressive immigration reform has never been easy, and never will be easy. The politics of immigration have always scrambled party lines, and painstaking negotiations have always been required to build the necessary coalitions.

With that in mind, we should not be surprised that immigration reform in 2021 looks doomed. But Democrats should not allow the bleak political landscape to bump immigration off the priority list.

The early trouble in the House indicates that passing reform on a party-line vote, even if the filibuster is reformed or killed, is highly unlikely. Further, while some activists hope that Democrats could pass immigration measures through the budget reconciliation process, the parliamentarian’s strict ruling keeping minimum wage out of the recent relief bill suggests that no one should expect an expansive interpretation of rules treating immigration reform measures as budgetary items. So Democrats should get to work on actual negotiating, with Republicans and among themselves

Some immigration advocates have expressed opposition to another “comprehensive” bill because that has meant making concessions to Republicans on border security measures, preferring an incrementalist strategy in which the incremental steps involve no compromises. But Sen. Durbin’s comments suggest that even Senate Democrats won’t have the votes to move immigration reform in piecemeal fashion. Whenever we have an excess of asylum seekers at the border, moderate Democrats will likely become worried about Republican attacks and more insistent that reform bills include a border security component.

One compromise proposal that has promise, from the Washington Monthly’s Daniel Block, is to empower localities to have more say in how many refugees resettle in their communities, since research shows anti-immigrant sentiment decreases when locals feel they have control over the process.

If the prospect of striking bipartisan compromise on a highly charged subject like immigration during a time of deep polarization in Washington seems daunting, consider this:

That young hot shot who struck the bargain to clinch the last major immigration reform bill in 1986? He’s now Senate Majority Leader Chuck Schumer.

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