When the 116th session of Congress opens on January 3, 2019, the Democrats will control the House of Representatives. Republicans still hold the Senate and, in case you didn't notice, the Presidency. However, this is an important change from the last two years, when Republicans controlled both chambers of Congress. What will a Democratic House mean for asylum law and policy?

First, let's talk about changes to the law. Since the time of the Refugee Act of 1980, which established our current asylum framework, there have been relatively few changes to our humanitarian immigration laws. In 1996, Congress amended the definition of "refugee" to include victims of forced abortion and forced sterilization, and in 2005, the REAL ID Act attempted to tighten up the legal requirements for a grant of asylum.

During the first two years of the Trump Administration, when Republicans controlled Congress and the Presidency, there have been no amendments to the nation's immigration laws. Instead, the Administration focused on changing immigration policy based on executive orders--the travel ban, for example. It is curious that the same Republicans who criticized President Obama for his reliance on executive orders (such as DACA), failed to pass any legislation to further their own immigration agenda. Congress and the President could have acted to restrict the law vis-a-vis asylum seekers. For whatever reason, they did not, and now their window is closing. Given the hostility of the President and many Republicans towards asylum seekers, this is probably a good thing.

Now, with the Democrats in charge of the House, any change in the law would need to be approved by them. This means that a purely punitive immigration reform is very unlikely to pass into law. So while the President can--and probably will--continue to impose hostile policy changes in terms of how the law is implemented, he will be constrained by the existing law. This means that, for the most part, non-citizens who fear persecution will remain eligible to seek and obtain asylum in the United States.

Another way that the Democratic House majority may help asylum seekers is in the area of oversight. With control of the majority comes the ability to issue subpoenas and more carefully oversee government agencies. This is important in the area of immigration, where many agencies--DHS, ICE, CBP, DOJ, EOIR--have engaged in questionable (or worse) practices with impunity.

The most high-profile example of agency malfeasance was the separation of children from their parents at the border. The policy was seemingly enacted as a way to deter asylum seekers, and the best thing you can say about family separation is that it was managed incompetently. Congress has thus far failed to investigate this fiasco, but that could change with Democrats in charge of the House.

Another area where Congressional oversight would benefit asylum seekers is at EOIR, which has been improperly hiring Immigration Judges based on their political leanings. Some of this is publicly known, but much of it has remained below the radar (though those of us in the business hear about it through the grapevine). My guess is that EOIR will be more careful going forward, given that House Democrats could subpoena employment documents to determine whether hiring officials acted improperly. Other agencies within the federal government will likely be similarly constrained.

House Democrats can also exercise oversight to protect the Immigration Judge's union, which has been working hard to preserve judicial independence and resist the Administration's efforts to turn their gavels into rubber stamps. I've heard rumors about a plan by the Administration to break the union. Whether this is true or not, I do not know, but House Democrats can potentially kibosh any such effort.

A third area where Democratic control of the House could affect asylum seekers is funding. Blocking and detaining immigrants is not cheap. The President's most high-profile project is the border wall, but immigration enforcement in general is expensive. The Trump Administration has expanded the use of detention, and apparently plans are afoot to continue this trend. House Democrats can exercise some control by denying funding for the President's more far-fetched projects. They could potentially limit funding for detention, investigate the private prisons where many non-citizens are held, and encourage the use of alternatives to detention. I suppose they could also grind deportations to a halt by reducing funding for Immigration Judges, though I doubt many Democrats are inclined in that direction.

In short, control of the House gives Democrats significant leverage over immigration matters. But it also comes with significant political risks. President Trump has effectively used the immigration issue to motivate his supporters, and if Democrats are seen as checking the President's agenda, they can expect to be blamed for any real or imagined failures in the immigration realm. How this will translate in terms of votes, I do not know. President Trump and his surrogates raged about the caravan, but if that motivated their base, it was clearly not enough to archive success in the most recent election cycle.

Aside from simply blocking the President's agenda, Democrats would do well to propose some positive legislation of their own. Of course, any reform would require bi-partisan support, since Republicans control the Senate and the Presidency. Whether such compromise is possible in the current climate, I do not know, especially since the President seems to view immigration in political, rather than policy terms. I expect he will be more-than-happy to let Democrats block his harsher proposals so he can use that to rally his base in 2020. But just maybe, after having lost in 2018, Republicans will conclude that their resistance to immigration reform is doing them more political harm than good. If so, perhaps there might still be a path towards constructive immigration reform.

Originally posted on the Asylumist: www.Asylumist.com.