Filibuster Ending a Shot Across the Bow for Republicans When Considering Comprehensive Immigration Reform

by Alan Lee, Esq.

Mulling over the events of the past week in Congress, the compromise - ending for now the Democratic challenge to the filibuster rule - was a good result for those interested in immigration reform. Senate Majority Leader Harry Reid (D - Utah) threatened to modify the rule for executive appointments so that the number of votes required to end a filibuster would be changed from 60 to 51. The Democrats now control the chamber 54 to 46. This was seen as the equivalent of the use of the nuclear option or trigger by Republican minority leader Mitch McConnell (R - Kentucky). The conclusion after a Monday night meeting in the old Senate Chamber attended by all but two senators saw the Republican leadership back down and be understood to allow 5 of the 7 contested appointments to come to a vote and the other 2 which were appointed during recess (a contested practice) and the subjects of court challenge to be replaced by another 2 candidates whose candidacies would not be filibustered.

Left in the air although unsaid by both sides was the possibility of future rule modification for legislation and judicial appointments. Those would be the real nuclear bombs to be dropped upon a minority party. The issue is thus: Should the question of rule modification be seen to end with the President finally being allowed to surround himself with his own team or should it be seen as a possible opening salvo in the other areas should Republicans fail to take their part in governing the nation and continue to frustrate and obstruct legislation and judicial appointments with endless use of the filibuster? Extensive filibustering leads to Congress doing very little as most legislation is sidetracked . From no filibusters in the congressional session of 1957 - 58, the use of the filibuster to gain concessions or to totally block bills has jumped in the last 3 two-year congresses to 112, 91, and 74. (Figures provided in Wall Street Journal article "Senate on Path to a Partisan Meltdown", 7/16/13).

Some may say that insofar as the comprehensive immigration bill is concerned, the Senate already did its part and passed an excellent piece of legislation, S. 744, which fixed a broken immigration system, emphasized border control, answered the needs of labor and business, and was compassionate to those who are undocumented. They might further say that the problem is in the House of Representatives, and so the solution should be focused there. However, everyone would be fooling himself or herself if he/she did not think that the power to filibuster to death any initiatives of the Democrats is of the highest concern to all Republican legislators. How many levers of power are there for a minority party? If simple majority rule was the order of the day, the Republicans would lose one of their favorite weapons. That would make their stay in the wilderness of being the minority party even more painful. And this all dovetails with the question of what happens with the immigration bill. Immigration is now seen as the gateway issue for most Hispanic and Asian Americans. In 2012, Hispanic and Asian voters driven in large part by the immigration issue cast 71% and 73% of their ballots respectively for Mr. Obama. Other parts of the American population are more concerned with other issues, do not and will not consider immigration as the driving force behind their votes. It has become clear that Hispanics and Asians have grown and will continue to increase in voting strength in the next decade versus the rest of the U.S. population. If the Republicans decide to offer only piecemeal solutions, fail to consider immigration reform at all, or otherwise block consideration of major parts of the Senate bill initiatives, they run the risk that the Democratic leadership may come to firmly believe that it will not lose the Senate in either 2014 or 2016 elections and that it has every reason to further extend simple majority rule and stop further Republican filibusters for at least the next 6+ years. With a 54 - 46 advantage at present, the main questions for 2014 now appear to be the results of Senate races in Alaska, Arkansas, Georgia, Kentucky, Louisiana, and North Carolina. (New York Times article, "GOP Sees Promise of Senate Control, but It Has Been There before", 7/16/13). As of the 2010 census, 12.6% of the Alaskan population was either Hispanic or Asian, 7.9% in Arkansas, 12.6% in Georgia, 4.5% in Kentucky, 6.1% in Louisiana, and 11% in North Carolina. While there is no direct correlation to the number that will be voting or even to the present population in 2013, the 2010 figures must still give thought to the election planners of either party. With a highly united front of Hispanics and Asians, it is highly doubtful that the Republican Party will gain 5 Senate seats at any time in the conceivable future. This is not to mention that the Democratic advantage will likely widen to 55 - 45 once the special election in New Jersey is conducted later this year. Also during the next 6 years, a major prize to the majority party will likely be the naming of 4 new justices to the Supreme Court. In the present constitution of the court, Justice Ginsburg is now 80, Justices Scalia and Kennedy 77, and Justice Breyer 75. Whichever party is able to force through nominations on the justices it prefers will be able to change the social, political, commercial, economic and criminal law landscape of this country for a long time to come.

As the issue of immigration is taken up by the House, the filibuster rule compromise vis-à-vis immigration reform legislation should open eyes to the possible future consequences of action or inaction on the latter.

This article © 2013 Alan Lee, Esq.

About The Author

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), 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, Muhasha 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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