Holding The Senate Is The Goal, But Could President Obama Be Wrong About The Means To Do It?


This writer has continually stated that keeping the Senate is the goal.1 Republican dominated agenda for 2015 and 2016. This nation cannot afford 2 years of agenda items led by rolling back or repealing the Affordable Care Act (ACA), attempts to impeach the President for future executive actions, or congressional discussions on blameworthiness in Benghazi. Any immigration reform written by a Republican controlled Senate and House would be lopsided towards enforcement with minimal benefits to the undocumented. The bright hope of many, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, passed by the Senate last year, will expire as active legislation at the end of this Congress in December. Legislators will have to start all over again from scratch in 2015.

Holding the Senate means being able to keep trying to promote the Administration’s agenda and perhaps expanding the nuclear option to include Supreme Court appointments (currently the nuclear option includes cutting off debate in the Senate by simple majority instead of super majority for executive appointments and other federal court appointments).2

The question here is whether the President made the right choice in his decision on September 6, 2014, to hold off any proposed executive action granting relief to many undocumented immigrants until after the midterm elections in November. He admitted that the politics of the situation had changed, and it was clear that he made the decision taking into account calls from Democrats running for the Senate in red (Republican) states urging him to withhold action.

We hope that his call is correct, but fear that it is not. The history of midterm elections has proven that the winners –Republicans in recent past – have been able to turn out their base. The elderly have proven to be a boon to the GOP as they are conservative and consistent voters in the midterms. They will likely turn out in numbers anyway. Others who dislike Mr. Obama (his popularity is in the 30 percentiles in some key southern states) will turn out as the Republicans stoke their fury by reminding them (like Sen. Jeff Sessions (R-Alabama) in Congress yesterday) that Mr. Obama has said that he will only delay executive action on immigration until after the midterm elections. It is entirely possible that the Democratic Party has overreacted to angry voices and that the addition of executive action on immigration would not measurably add to the Republican turnout. On the other hand, the President’s failure to deliver on his promise of executive action by the end of the summer deflates a large number of supporters including not only Hispanics, but other immigrant communities, and young voters who largely support immigration reform. His taking of positive action could have energized this base, but the Democrats will now find a reluctance by these groups to go to the polls. There is little else to incentivize them as the Administration struggles on foreign-policy, has no legislative triumph of note, and presides over a lackluster economy. So where can the Democrats turn to for votes? Some reports say that they are depending on turning out more Blacks and single women in light of the events in Ferguson, Missouri, and the conservative Supreme Court’s recent decision that family-owned corporations do not have to provide birth control in their insurance coverage and Democrats can better represent women’s rights, but would these groups take those running for the Senate in contested states over the top? Both groups have generally not considered immigration as a negative issue in the past. One commentator even believed that vitriolic attacks on Mr. Obama over the immigration issue could further promote Black turnout.

Although too late at this stage to reverse course (as the President would then appear more indecisive), the question this writer and many others ask is whether the energization of all these groups in a coalition could preserve the Democratic majority in the Senate more ably than the delay of executive action.

1 http://discuss.ilw.com/content.php?2...n-legislation?

2 http://discuss.ilw.com/content.php?2...ly-by-Alan-Lee

‡ This article © 2014 Alan Lee, Esq.

About The Author

Alan Lee, Esq. Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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