In an interview with CNBC’s John Harwood, Senator Charles Schumer said that his Schumer-McCain immigration reform bill passed the Senate by a vote of 68-32. According to Schumer, in the next congress, the mainstream conservatives in the Senate and House, who are a majority, will say to the 50 congressmen on the hard right who seem to tie things in a knot, to go take a hike. Schumer, Clinton, and Ryan have all said that they will support immigration reform and some kind of international tax reform if it is tied to a large infrastructure program.

The Senate has passed two major immigration reform bills, but both were opposed by a majority of the Senate Republicans. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611, with a vote of 62 yeas and 36 nays. Only 23 Republican senators voted for it; the other 32 Republicans and four Democrats voted against it. On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. This time, only 14 of the Republicans voted for it; the other 32 voted against it. As could have been expected, both bills were dead on arrival when they reached the Republican-controlled House of Representatives.

I am only aware of one successful immigration reform bill that had such one-sided political support, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was an extremely harsh Republican bill. Ironically, IIRIRA was signed into law as part of a larger bill by Hillary’s husband, Bill. Bill’s formalstatement at the signing ceremony explicitly acknowledged that he was in favor of strengthening the rule of law by cracking down on illegal immigration. The pertinent part of his statement reads as follows:

This bill, ... includes landmark immigration reform legislation that builds on our progress of the last three years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.

The obstacle to comprehensive immigration reform today is that the Democrats and the Republicans have very different attitudes towards legalization. The Democrats believe that the 11 or so million undocumented aliens in the United States should have lawful status because they deserve it and it is the right thing to do. The Republicans, however, believe that the undocumented aliens are in the United States in violation of our laws and should be deported.

But there is a way around that deadlock, the wipe-the-slate-clean deal that was the basis for the passage of the last comprehensive immigration reform bill thirty years ago, the Immigration Reform and Control Act of 1986 (IRCA). Faced with the realization that the 2.7 million undocumented aliens in the United States at that time were never going to be deported, which is just as true about the 11 million undocumented aliens we have now, the Republicans agreed to legalize the undocumented aliens who were already in the United States in return for an enforcement program and a secure border that would prevent a new group of undocumented aliens from taking their place. The Democrats got their legalization program but the promised enforcement program was never implemented and the border was never secured. By the beginning of 1997, the 2.7 million legalized aliens had been replaced entirely by a new group of undocumented aliens.

I believe that the Republicans would agree to the same deal now if they were assured that this time, they would get border security and interior enforcement before a legalization program is implemented. The problem is that the Republicans would never trust Hillary Clinton to implement interior enforcement and without interior enforcement, border security is impossible. Knowledge that an undocumented alien will not be deported once he has reached the interior of the country is a powerful magnet that will draw undocumented aliens here from all over the world. This would be particularly true of aliens who can come here under the Visa Waiver Program.

At a Democratic Presidential Debate on March 9, 2016, Hillary Clinton said that if she is elected, she would not deport any undocumented alien children and she would only deport undocumented adult aliens who have criminal records. As president, she would enforce the immigration laws humanely by focusing resources on detaining and deporting immigrants who pose a violent threat to public safety. And she is still making these promises.

Ironically, immigration reform would be possible if Donald Trump is elected. If he tries to carry out his promise to deport the 11 million undocumented aliens, which already has been whittled down to deporting the criminals “and then we’ll see,” he will come to the same realization that previous Republican leaders have faced. It can’t be done. The Donald, however, is a proud man and he sees himself as a great deal maker. I would expect him to view bringing the two parties together on a comprehensive immigration reform bill as a great challenge. Being an experienced businessman, as opposed to being a politician, I would expect him to look for a compromise that would meet the essential needs of both parties instead of trying to achieve an outcome that would advance the agenda of his party. And he could be counted on to implement enforcement provisions and secure the border. My prediction is that the outcome would be a second Immigration Reform and Control Act, IRCA of 2017.

Published originally in Huffington Post

About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.