Will "Nuclear Option" Lite Be Enough to Advance Immigration Reform Significantly?

by Alan Lee, Esq.

The "nuclear option" exercised on November 21, 2013, by the Democrats to curtail debate on presidential appointments at 51 votes instead of the previous 60, was a step in the right direction of unblocking the partisan charged lawmaking atmosphere in Washington by firing a warning shot across the bow of the Republicans that Democrats are serious about not having their agenda foiled by filibustering. The question is whether the Republicans will understand that things can get worse for their party since this was the nuclear option lite. The rule change was more atomic than nuclear. The Democrat rule change did not extend the simple majority rule to legislation or Supreme Court nominations.

This writer has been advocating use of the nuclear option including stretching it to Supreme Court nominees as he believes that the prospect of 4 Supreme Court justice vacancies within the next 4 years (Justice Ruth Ginsburg is 80, Antonin Scalia and Anthony Kennedy 77, and Stephen Breyer 75) would greatly encourage the Republican Party to pass a broad immigration package to recapture the votes of Hispanics and other minorities who have made immigration their wedge issue. The worst nightmare of Republicans is that a Democratic administration will pack the court with liberals who will turn the court from its present conservative attitude in making significant changes to the law of the land. To avoid the nightmare scenario, conservative Republicans would have to wake up from their present idea that they can control events in Washington by holding the majority in one chamber of Congress and filibustering in the other. They would be more heavily induced to hear the American people, most of whom they presently ignore on a great number of issues including immigration, to attempt regaining either the Senate or White House or both. In the recent poll by a Republican pollster, 77% of those polled supported a path to citizenship for the undocumented. A New York Times article of November 25, 2013, further reported that the results of 4 national surveys, one in Ohio and focus groups in Arizona, Florida and Ohio showed that 63% of Americans- crossing party and religious lines-favored a pathway to citizenship and 14% supported legal residency with no option for citizenship.

The question is why did the Democrats back away from including Supreme Court nominees in the rule change? The reticence did not stem from any legal boundaries. The Constitution does not require a supermajority except under circumstances of treaties, member expulsion from Congress, or proposed constitutional amendments. In fact, Sen. Charles Grassley (R - Iowa), infuriated by the Democrat action, said on November 21 that the GOP would likely nominate Supreme Court nominees with 51 votes when it regains power, regardless of whether the Democrats bought into the notion that they could demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees. Perhaps it was questionable whether Harry Reid, the Senate majority leader, could have mustered 51 votes to make the rule change if he had added either legislation or Supreme Court nominations to the rule change. But in looking at the Republican provocation that spurred the rule change, filibustering of the president's nominations for the District of Columbia Circuit Court of Appeals, extension of the rule to cover the Supreme Court would have been logical as related to judicial appointments whereas legislation would not have been as it was not part of the provocation. Perhaps the Democrats believed that by showing some form of self-imposed restraint, the GOP would do likewise if it regained control of the White House in the future. Perhaps also the Democrats never seriously thought about Supreme Court inclusion as Mr. Reid's initial threat covered nominees to cabinet departments and other agencies, but not the courts.

Nevertheless the die has been cast as far as the Republicans are concerned. Nuclear option lite looms like a sword of Damocles over the GOP with a further threat that heavier sanctions may be imposed through another rule change. In looking over the Republicans' options, they appear faced with two choices - they can drop their opposition to a broad immigration bill and attempt to appeal to Americans who favor immigration reform and in doing so strike immigration from the list of favorable Democratic election issues, or continue their opposition and face the immigration issue in the 2014 elections. If they stand fast or cherry pick their favorite immigration issues henceforth, the midterm elections will wind up being the Super Bowl for pro-immigration advocates. Republican gains would engender the idea that victory is possible despite the immigration issue. And an unthinkable loss of the Senate to the GOP would mean disaster to broad-based immigration reform. The stakes in 2014 have escalated tenfold with the Democratic use of nuclear option lite as the Republicans will be desperate to take back the Senate. It should be noted that the Republican Party usually gains seats in the midterm elections as those are traditionally of less interest than the presidential elections to many voters except the most committed, the majority of whom vote Republican.

Events that stem from the Senate action will bear close watching in the next months. Immigration advocates should mobilize and prepare to work as hard or harder than their conservative counterparts for the midterm elections. Rarely have we seen a midterm election of such significance and readers can rest assured that the Republican Party will roll out extended blitz campaigns covering the 6 states (Alaska, Arkansas, Georgia, Kentucky, Louisiana, and North Carolina) in which it requires victories to regain control of the Senate.

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 Director , registered in the Bar Register of Preeminent Lawyers , on the New York Super Lawyers list (2011-12, 2013-14), 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, Muhasba 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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