Senate Majority Leader Chuck Schumer (D-N.Y.) is reportedly considering an end run around the regular legislative process. He wants to pass an immigration reform bill that would legalize millions of undocumented immigrants, but he hasn’t been able to get the 10 Republican votes he needs to overcome a Republican filibuster.

The filibuster could be eliminated with a simple majority vote, but that would require all 50 Democratic Senators to vote for eliminating it, and two of them — Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) — are opposed.

Sen. Manchin has said that if the filibuster is eliminated, “a new and dangerous precedent will be set to pass sweeping, partisan legislation that changes the direction of our nation every time there is a change in political control.”

Obstacle to Republican support

Republicans are refusing to consider a legalization program until the Biden administration strengthens security at the Southern border. Sen. Lindsey Graham (R-S.C.), a leading GOP voice on immigration, has said, “We cannot possibly pass any legalization legislation until we regain control of the border.”

And Sen. John Cornyn (R-Texas) has said, “Before we can do anything meaningful on immigration, we’re going to have to deal with the current crisis at the border.”

This makes sense when you consider what happened when the Immigration Reform and Control Act of 1986 (IRCA) established the last major legalization program. The expectation when IRCA was passed was that its enforcement and border security measures would prevent the aliens it would legalize from being replaced by a new group of undocumented aliens.

That might have worked, but the immigration enforcement measures were not implemented, and the border was not secured. The 2.7 million undocumented aliens whom the IRCA legalized were replaced by a new group of more than 5 million undocumented aliens within ten years.

A Yale study indicates that there may be more than 22.1 million undocumented aliens in the United States now.

Crisis at the border

Biden’s Homeland Security Secretary has acknowledged that the United States is facing the biggest surge in illegal border crossings in 20 years.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an 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 20 years. Follow him at