Milestones Along the March: What Congress Can Do on the Way to Comprehensive Immigration Reform
If demography is destiny, as Auguste Compte famously observed, then it may not be that much of an exaggeration to say that comprehensive immigration reform as a winning political issue has finally come of age in the aftermath of President Obama's decisive re-election. Riding a tsunami of Hispanic support, the President won a second term with Democratic gains in the Senate and the House. House Speaker John Boehner has expressed a new willingness to entertain broad federal action and the resumption of bipartisan negotiations in the Senate between Lindsey Graham of South Carolina and Charles Schumer of New York all suggest a fundamental change in the political landscape. Elections, it seems, do have consequences. Unwilling to remain a permanent minority party, the Republicans have evidently decided that doing something about immigration may be good politics after all.
What does this mean for CIR? Before we get carried away in the enthusiasm of November 6th, let's remember that not all those in the House GOP caucus see the need to turn the page on nativism. Rep. Steve King of Iowa, a senior member of the House Judiciary Committee, tweeted his resistance to immigration reform in the wake of Speaker Boehner's embrace of rationality. The incoming Chair of the House Judiciary Committee Bob Goodlatte of Virginia has been a vocal critic of the Dream Act. Those who thought that a new day had dawned with Lamar Smith's relinquishment of the House Judiciary gavel due to term limits may have to calm down. Let's remember that, in 2010, when a Democratic- controlled House passed the Dream Act by a 216-198 vote, 160 Republicans voted "No" while only 8 voted affirmatively. Of these stalwart souls, only 2 still remain- Florida Republicans Mario Diaza-Ballart and Ileana Ros-Lehtinen. This does not mean that Speaker Boeher cannot now carry his caucus with him but there is no guarantee that he will be able to do so. Beyond that, it is far from a sure thing that he would even be willing to allow a floor vote on DREAM or CIR if only a minority of the GOP members supported immigration reform. Bipartisanship in the House may not extend that far.
However, the Speaker, always a realist, knows that GOP domination of the House may not be as solid as it first appears. While his party controls 55% of the seats, they actually received less than 50% of the total votes for House candidates http://www.huffingtonpost.com/geoffrey-r-stone/why-did-the-republicans-w_b_2110673.html Democratic Party House candidates actually garnered over 500,000 more votes than did their GOP counterparts; only skillful gerrymandering of House districts made possible by GOP 2010 gains in a majority of state legislatures allowed Representative Boehner to retain the Speaker' Gavel. In Pennsylvania, for example, the Democratic House vote outpaced GOP totals by over 100,000. Yet, the GOP won in 12 of 18 House races! When combined with continued Democratic supremacy in the Senate, something that seemed a mirage at best at the start of this election cycle given the need to defend 23 Senate seats, it is not surprising that Speaker Boehner may be more willing than before to crack the whip.
With the wind at our backs, what comes first? Clearly, the holy grail of comprehensive immigration reform is within reach, perhaps closer than ever before. Conventional wisdom tells us to focus on that and only on that. But, we have been down this road before only to wind up in the garden of defeat. For all the years of waiting, all the hard work and tears that went into Kennedy-McCain, what was gained when the forces of reform in the Senate failed to anticipate the unyielding recalcitrance of Sensenbrenner and his House GOP colleagues?
Now is the time to go big and bold. Clearly, what was impossible has now come within our grasp and we must reach for it- CIR, more H1B numbers, enlargement of the miserly immigrant visa quotas, early filing of adjustment of status, a curb against distorted interpretations of the CSPA, a rescue from the tyranny of priority dates- all of it, we who have waited so long want and deserve it all. Our clients have suffered enough. But, the reality is that CIR will not be ready until the next session of the new Congress in February or March of 2013. The Schumer negotiations with the GOP will certainly that take longer, and maybe longer. Do we really want to wait and risk everything by doing nothing until then? Are good intentions an acceptable substitute for incremental progress?
Is there another way for a different result this time? That is where a series of interim steps, confidence building measures that can sustain election-generated momentum may be worth considering. Rather than eroding the prospects for CIR, adoption of such piecemeal reform can reinforce bipartisanship and create a swelling impetus whose ultimate persuasive power cannot be resisted. Can we place all of our hopes on CIR with no back-up plan? Prudence suggests that this may not be the most prudent course of action. Maybe, on the road to CIR, we might stop to pick some low-hanging fruit in the lame duck session. What might some of them be?
A Military Dream Act comes first. In September 2010, Senate Republicans blocked a vote on a defense spending bill because Democrats attached a Dream Act amendment. Now, however, the response might be different since spending two years in the US military with an honorable discharge seems to the Pentagon like a great way to satisfy their manpower needs. In the Department of Defense's most recent 3 year strategic plan, we learn that 35% of US youth are medically disqualified from military service; drug and/or alcohol abuse disqualify another 18% with another 23% falling below DOD standards due to criminal convictions, low aptitude scores and related deficiencies. If you subtract the 10% of American youth who are eligible to serve but who attend college, this leaves only 15% of US youth for our military services to recruit. This is why enactment of DREAM has consistently received strong military backing as a strategic necessity in the national interest. http://prhome.defense.gov/rfm/MPP/ACCESSION%20POLICY/PopRep2010/ Any attempt to introduce a Military Dream Act would, given these real realities, be received with broadly-based bipartisan endorsement.
Dream Act for civilians comes next. What was surprising last June was the relative lack of a GOP response to the President's extension of DACA relief. Even those GOP critics who did speak out objected more to the way it was done than the substance of the remediation. Well, now is the chance for the Administration to pacify its critics and pay homage to the tradition of separation of powers. However, just in case all is not sweetness and light, the President should make it clear that he was willing to issue an executive order broadening the scope of DREAM Act benefits to an even wider population, perhaps by raising the upper age limit to 40, should Congress refuse to act.
Finally, take up the GOP offer to eliminate the DV lottery and transfer the newly-found 55,000 visas to STEM degree holders on the EB side of the green card ledger but only in exchange for eliminating all constraints on visa limits for the FB 2A categories. It is unconscionable to divide permanent residents from their spouses and dependent minor children, often for years on end. The immediate family members of LPR's are just as much immediate relatives as those linked to US citizens. Family unity is at the core of our immigration system and should be respected here. This swap is going to happen whether we advocate for it or not. It is baked in the cake.
All is changed. Possibility is reborn. Yet, even now, perhaps especially now, it is important to remember that the enthusiasm of the moment is fleeting. The GOP hard liners have not gone away. It is critical to take small steps now so that giant leaps can happen in a few months. There is no better way to improve the chances for CIR than to win over Republican moderates to modest advances that show the political mileage to be gained from more sustained progress. Make CIR the inevitable , indeed the only, result of what has already happened- that is the way to drain the drama from revolution.
On the eve of America's entry into World War II, First Lady Eleanor Roosevelt reminded the delegates to the 1940 Democratic national convention of the historic challenges awaiting them: " This is no ordinary time, " Mrs. Roosevelt told the hushed crowd, " no time for weighing anything except what we can do best for the country as a whole." May the wisdom of our Greatest First Lady guide us all in the days to come.
Gary Endelman @Copyright 2012 by Gary Endelman. All rights reserved.
Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at email@example.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan