The big headline about immigration reform over the past several days has been Prwsident Obama's "leaked" immigration plan (which is not much different from his previously announced one), followed by Florida Republican Senator Marco Rubio's hostile announcement that the president's plan (which is also not too different from the one that Rubio supports as a member of the bipartisan Senate Group of Eight), would be "dead on arrival" in Congress.
What is going on here? Why is there such a bitter reaction on the Republican side to a plan put forward by the president, which differs from one that influential Republican Congressional leaders say they are willing to consider more in detail than in concept?
For example, the president's plan would grand permanent resident status to up to 11 million unauthorized immigrants in 8 years. The Republican proposals might put this off for 18 years - or 28 years. Yes, that is a difference, but one that could easily be resolved by tossing a coin or just splitting the difference. But "dead on arrival"? This does not sound like the support for bipartisan immigration reform that was being so widely applauded in the media only a few weeks ago.
Why is Senator Rubio so anxious to throw cold water on the president's latest immigration plan? (No pun intended.) One theory, put forward by Eugene Robinson in Tuesday's (February 19) Washington Post and by Al Sharpton on his "Politics Nation" MSNBC TV show, is that the Republicans hate President Obama so much personally that they will kill their own plan about almost anything if he comes out in favor of it.
This theory may have some validity, but perhaps also only so far. It might be more likely that the Republicans could be signaling a retreat on immigration reform, in order to appease their white anti-immigrant base.
However, instead of sabotaging immigration reform directly under the xenophobic slogan "No Amnesty For Illegals" as was the case in 2007, the Republicans might be preparing a retreat under the cover of a poison pill, such as putting off full green card status for 11 million unauthorized immigrants and leaving them in legal limbo as a permanent underclass. Then they could blame the Democrats for failure of a legalization plan which the Republican basically detest and fear as a threat to their future existence as a party.
There may be an analogy with the negotiations over health care reform in President Obama's first term. Initially, the Republicans seemed to be eager, or at least willing, to participate in discussions over a health care reform bill. They put forth many proposals of their own (of which President Obama later claimed to have adopted no less than 200 in the final version of the law), including, of course, the famous individual mandate which almost undid the entire law except for one surprise vote in the Supreme Court.
However, in the end, as we all remember, not one single Congressional Republican actually voted for the health care reform law. In the current debate over immigration reform, could the Republican insistence on putting off full legal status for unauthorized immigrants for as much as a generation, if not indefinitely, be the poison pill that kills reform?
Or, if the Democrats accept this poison pill in order to get a bill through Congress, as they did with the individual health care mandate when they threw single payer under the bus, will the Republicans find some other excuse to turn against immigration reform?
There is already one available, namely the red herring that the border is not yet "secure" enough and that employer sanctions for hiring unauthorized workers are not yet "effective". These things will never happen from the standpoint of people who do not really want immigration reform.
To take the analogy with health care reform one step further, suppose that President Obama and the Democrats agree to Republican proposals to bar unauthorized immigrants from ever becoming permanent residents or US citizens as the price of granting them relief from deportation and work permission. Would this be consistent with the basic rights guaranteed by the US Constitution?
Or might we see another Constitutional challenge to a major reform law passed during Barack Obama's presidency, this time dealing with immigration rather than health care? And could the survival of immigration reform itself depend on a single vote in the Supreme Court? These questions might be worth thinking about before rushing to compromise over basic principles of immigration reform, including resonable provisions for permanent resident status and eventual US citizenship.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.