What Will You Do If the Republicans Offer Only Bits and Pieces of Immigration Legislation?

by Alan Lee, Esq.

(Preface: The following was a talk given by Alan Lee, Esq. on November 20, 2013, as part of the Baruch College in New York City panel/discussion event "Documenting the Undocumented: Immigration Reform" sponsored by the Baruch College undergraduate student government, Amnesty International, Latin American Student Organization, International Student Organization, IMpacT public affairs club, and the Dream Team at Baruch College.)

It is clear to me as well as others that the Republicans are not going to roll over on the issue of immigration. To those in the House, the results of polls (the most recent one by a Republican pollster showing that 77% of the people favor a path to citizenship for the undocumented) do not seem to mean a thing. They rest secure in the knowledge that most members are assured of reelection in their districts if they stay the course of opposing large changes in immigration. Speaker John Boehner has already reassured his hard-line conservatives that there will be no immigration bill this year, that House Republicans will not enter into talks with the Senate on a broad bill to include the path to citizenship, and that any bill passed in the House will not be conferenced with the Senate's bill.

This attitude among House Republicans prevails despite large efforts currently being made by advocacy groups, big business, unions, and religious leaders to force them to come to terms with a broad immigration bill, and despite Republican representatives in some of the 20 swing districts which favor immigration reform being pressed to support reform. The Republicans have not yet expressed any fear of losing the House over the immigration issue.

President Obama bowed to the seeming reality yesterday in an interview before business executives at the Wall Street Journal CEO Council saying that he was amenable to House Republicans taking up elements of the Senate bill, as long as the end result was the same. He said that "If they want to chop that thing up into 5 pieces, as long as all 5 pieces get done, I don't care what it looks like." That is an endorsement of the piecemeal approach, and not the broad bill approach. The difficulty with the piecemeal approach is that all of the pieces will not be put back together again in my opinion. Senate Bill 744, The Border Security, Economic Opportunity, and Immigration Modernization Act, which was passed in June of this year and would give relief to most of the 11 million undocumented immigrants in the country, was a series of delicate compromises cobbling together a piece of legislation finally acceptable to many groups. Delivered as separate pieces for consideration, expansions of visa quotas for family and employment-based immigrants, agricultural and high-tech workers, and passage of legalization would likely be changed or opposed by various groups which held their noses at parts that they did not like in order to get what they wanted in the Senate legislation. The Republicans will now likely dictate the agenda on immigration, picking what is on their agenda for passage, which are presumably expansions of agricultural and high-tech workers, increased border security, and perhaps a truncated Dream Act.

The president also said that he was optimistic the Congress would meet the goal he set of passing an immigration bill by the end of the year, which was immediately rejected by Republican Rep. Paul Ryan, Chairman of the House Budget Committee, saying that there was not enough time left to tackle immigration this year. So where does that leave us if nothing happens by the end of the year?

The best time for action then would be in early 2014 before everyone in Washington becomes consumed by other legislation and concerns over the midterm elections. If nothing acceptable happens in early 2014, what can we see going forward on the calendar? The midterm elections of 2014 will heat up and the rest of the year will be lost. There will again be hope in 2015 as that is not an election year, and hopefully the Republicans will have lost enough seats in the House so that they will be more amenable to a broader immigration bill. But if not in 2015, we would probably have to wait for the next administration unless the Republicans wish to pander to Hispanics and other minority groups prior to the national elections. Given the record of 2012 when the Republicans could have done this prior to the last presidential elections, there is more probability than not that this will not happen. The worst result of course would be for the Republicans to stand fast or cherry pick favorite parts in early 2014 and have midterm election gains. Then they would lose most incentives to compromise and bring forth meaningful legislation.

What can you do at this point? The best step in my opinion would be to mobilize and treat the 2014 midterm elections as you would the presidential elections. This should be your Super Bowl. It is a known fact that voting slumps downwards in midterm elections and that these elections bring out the most committed, who are many times likely to vote Republican.

Assuming that the Democrats still have control over the Senate but not the House after the midterm elections and there is no progress on putting together a comprehensive package of bills, what options do they have? The most certain option in my opinion to bring rationality to the Republicans over the immigration issue is what is called the nuclear option in Congress - which the Democrats are not willing to exercise at this time. That would be to change the filibuster rules to cut off debate by a majority vote of 51 in the Senate. Use of this device would have great effect upon appointments of agency heads, federal judges, and members of the Supreme Court. Currently presidential appointments can be stopped by filibustering and it requires a filibuster proof 60 votes to cut off debate. House Republicans appear willing to only control 1 of the 3 parts of the legislative process as long as they can filibuster in the Senate. But if the filibustering will no longer work and the Democrats appoint their selectees more easily, the Republicans would be forced to give greater ear to the wishes of the American people as they would need to win the Senate or the White House. The Republican nightmare is having Democrats appoint future members of the Supreme Court who can change the conservative bent of the present court. Four of the nine members of the court on which there are many 5-4 decisions will likely retire within the next 4 years. Justice Ginsburg is now 80, Scalia and Kennedy 77, and Breyer 75.

In the changed landscape for immigration reform since yesterday, the only other piece of advice that I can give is that we should all try and decide as far ahead of time as we can on what strategy to employ - whether to accept piecemeal; what part of piecemeal is too small; whether to go for more; and how much more. In the end, we must face the possible reality that the promise of Senate Bill 744 will not be thoroughly recognized and that we may have the choice of accepting less or not accepting what is offered. It would be better to recognize the possibilities early on, try to decide what would be acceptable, and be prepared for the best and the worst of consequences.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. 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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