The ILRC Forecast on Immigration Reform
Judith Golub, Executive Director
With the November mid-term elections behind
us and the 110th Congress convened, what is the
prognosis for immigration reform? While it would
be an uphill fight, reform could be enacted this
year, given both the public’s demand that
Congress fix our nation’s problems (and our
broken immigration system being one of the
primary problems needing attention) and some
momentum remaining from last year’s
Congressional debate. Both Democratic and
Republican Senate leaders have prioritized
immigration reform. Senate Majority Leader Harry
Reid (D-NV) introduced the Comprehensive
Immigration Reform Act of 2007 (S. 9) on the
very first day of the 110th Congress and has
reserved floor time to consider the issue. This
“placeholder” bill will be replaced most likely
with a reform package, perhaps one negotiated by
Senators Edward Kennedy (D-MA) and John McCain
(R-AZ). Republican Senate Minority Leader Mitch
McConnell has acknowledged that immigration is a
pressing concern needing to be addressed. On the
House side, Representative Zoe Lofgren (D-CA),
the Chair of the House Immigration Subcommittee,
wants to produce “a practical and bipartisan
bill that gets broad support” and believes that
“if everybody can lower their voice, just stop
yelling and go through the issues one by one,
that we can come to consensus.” However, a
determined opposition led by Senate and House
Republicans are expected to put roadblocks in
the way of reform. In contrast, President Bush
in his State of the Union address underscored
the fact that “convictions run deep in this
Capitol when it comes to immigration. Let us
have a serious, civil, and conclusive debate –
so that you can pass, and I can sign,
comprehensive immigration reform into law.”
But what kind of reform remains the question,
as does whether there will be reform at all –
given the “convictions that run deep.” While
the following does not exhaust the
possibilities, below are four scenarios:
• The “good enough” scenario
in which a measure passes that includes both
hard pills to swallow and significant positives
and can be implemented. This will be a very
uphill fight;
• The “get done what we can”
scenario in which, due to time constraints and
other roadblocks, a smaller scale package passes
(that includes AgJobs and DREAM Act and other
measures along with some enforcement provisions)
that has sufficient Congressional support and
will provide the foundation for future reform;
• The “not good enough”
scenario in which a measure passes that does not
depart significantly from last year’s
Senate-passed bill, S. 2611, should be opposed
on its merits and cannot be implemented; and
• The “crash” scenario in
which too many constraints, conflicts, and
roadblocks stand in the way so that Congress
fails to address reform this year.
Several factors will help determine which
scenario might become reality and include:
The Composition of
Congress: While Democrats narrowly control
both Houses of Congress, some newly elected
Democrats ran on enforcement-only platforms and
opposed positive reform of our immigration
system. They cannot be counted on to support a
pro-immigration package. Also, some
pro-immigration Republicans (such as former
Senators Lincoln Chafee (R-RI) and Mike DeWine
(R-OH) and Representative Jim Leach (R-IA)) lost
their seats in the last election. Their defeats
will make it harder for reform proponents to
find bipartisan allies and the numbers they need
to pass a bill. And the more proponents want
reform in this challenging environment, the more
leverage they give to those who want to restrict
reform. Hill observers also note that 60 votes
are needed for cloture in the Senate, and that
most likely 15 Senate Republicans and 50 to 60
House moderate Republicans and conservative
Democrats are needed to support the passage of
major reform.
The 2008 election:
Members of Congress already have focused on the
November 2008 election and will want to resolve
controversial issues (like immigration reform)
by this October, well before that election.
Because Democrats want to stay in the majority
and Republicans want to recapture it, both will
seek to protect their Members from difficult
votes – a concern that probably will be
reflected in the content of reform legislation
and votes taken on amendments. Leadership also
has indicated that they will delay considering
reform until 2009 if the do not pass a bill by
the October deadline. Presidential electoral
politics also will play a role, with many who
intend to run looking at the issue in terms of
how it will impact their candidacies and play to
their base. And the fact that both parties want
to capture the Latino vote will impact on how
they deal with the issue.
The Role of the
President: President Bush has made
immigration one of his four domestic policy
priorities and during his State of the Union
address acknowledged both that our current
immigration system is not “worthy of America”
and that our laws and our borders are routinely
violated. His solutions to fully securing our
border are a temporary worker program, worksite
enforcement of our immigration laws, an employer
verification system, and a resolution of the
status of those already in our country –“without
animosity and without amnesty.” He also
emphasized that “all elements of this problem
must be addressed together,” and urged Congress
to pass a measure so that he could sign a bill
into law. A document issued just before he
delivered his address would allow undocumented
workers to be considered for legalized status if
they pay a “meaningful penalty,” “learn English,
pay their taxes, pass a background check, and
hold a job for a number of years.” However, the
President’s proposal is very ambiguous, focuses
on a temporary worker program and a mandate that
immigrants return home, and is unclear what the
legalized status for the undocumented really is.
Questions also remain about the amount of
political capital (and if he has any left is a
question) he is willing to expend on this issue
and if his dismal standing in the polls will
lead him to sign into law any measure sent to
him.
Lack of Consensus on
Core Issues: Last year’s reform debate
exposed major challenges and disagreements on
several issues and what would be acceptable
bottom lines and trade-offs.
1. Legalization: The three-tiered
legalization program in S. 2611 would have made
ineligible millions of people and is unworkable.
Congressional leaders have yet to agree on the
kind of legalization to be included in
legislation or the number of people covered. If
too many are left uncovered, they fear the
program will not work. If too many are covered,
they fear attacks that the program is an
“amnesty.” The field also differs on what
constitutes “good enough” legalization. In
addition, even in the best case, many likely
would not be covered because of documentation,
eligibility, and other problems, and there is no
consensus on how to deal with this population
including whether to bring them to the head of
the line of the worker program.
2. A future flow program: One of the
main flaws in our current system is the absence
of legal pathways for many to enter the U.S.
The major flaw of the 1986 reform was that it
addressed only the symptom of our broken system
by legalizing a significant number of
undocumented people, but not the cause: the lack
of a program that creates future legal flows.
We cannot afford to make that same mistake twice
because without a program that legalizes a
future flow, any reform measure would be
obsolete the day after it becomes law because
there would be no means for significant numbers
to come legally in the future. Many Members of
Congress support fixing the system by creating a
new kind of temporary worker program and
understand the details of such a program matter.
The field is badly divided on the issue, with
those who oppose a worker program (given
experiences with the bracero program) as part of
reform failing to provide alternatives to
address future flows. Advocates who accept that
a worker program is an inevitable part of reform
believe that it is better for workers to be
temporary than undocumented and that such a
program must include portability (the right of
an immigrant to change jobs), worker
protections, and the rights to bring one’s
family and at the end of the program adjust to
permanent residency if U.S. workers would not be
displaced.
3. How to meet US labor needs: The
debate about how best to meet future U.S. labor
needs is central to the immigration reform
debate generally and worker programs
specifically. While there is disagreement about
these programs, the field agrees on the need to
increase permanent immigration and the number of
green cards. However, Congress does not have
the political will or sufficient support to make
available a sufficient number of green cards to
meet the need and there is little discussion
about how best to use both approaches. Finally,
this debate usually ignores the contribution of
family-based immigration and the fact that many
needed workers enter our country through that
flow.
4. Mandated Return: Several bills
introduced in past Congresses, including S.
2611, included a mandate that some (if not all)
undocumented had to return to their counties of
origin. This return is controversial and a key
demand of conservatives, While some believe it
may be the necessary price for legalization,
others believe it is unacceptable because it
will cause hardship, dramatically reduce program
participation because people will fear they will
be unable to return, disrupt the labor force and
separate families. Some also note that “touch
base,” the phrase that has been used in the
debate for this mandated return, belittles the
disruption such a return would cause.
5. Enforcement: Especially after the
9/11 terrorist attacks, enforcement and security
measures have been embedded in the immigration
reform debate, notwithstanding the fact that
these measures have little to do with either
enforcement or security. This debate has
manifested itself in several ways:
Enforcement-Only: Republican
leaders last year advanced an
“enforcement-only” agenda and others
insisted on “enforcement first,” that border
security must precede reform. However, both
approaches will neither resolve the problems
in our immigration system nor advance
enforcement or security. And notwithstanding
the fact that Republican leadership last
year derailed immigration reform and failed
to move their enforcement agenda, we can
expect that they again will use this tactic
to defeat a positive agenda or, failing
that, extract a very high price. In
contrast, others may work across the aisle
to pass reform.
The Field and Enforcement: The
issue of enforcement has split the
pro-immigration advocacy field, with some
opposing all enforcement measures, while
others focus on the measures they would
support in the context of immigration
reform.
What Constitutes Enforcement:
There appears to be consensus in Congress
that any reform package that Congress
addresses will include enforcement
measures. The issue is what these measures
should be. Many proposed thus far have
nothing to do with enforcement, such as
provisions in S. 2611 and the House-passed
H.R. 4437 that would have made many
ineligible for legalization. These measures,
under the guise of enforcement, also would
have eviscerated the due process and civil
liberty protections of the legal permanent
residents, the “other twelve million,” a
fact that was obscured in last year’s
debate. The field disagrees on border
enforcement measures (security experts call
for a “virtual” border, not the “hardened”
border that Congress is moving toward) and
how to create an effective and fair employer
verification system with due process and
privacy protections – with some opposing any
and all enforcement and worker verification
systems. The field and many state and local
police oppose empowering law enforcement to
enforce civil violations of immigration law
(a favorite of reform opponents) because it
would destroy community policing.
Enforcing the Status Quo: While
there is consensus that our immigration
system is broken, the Administration and
many Members of Congress support measures
that would enforce this dysfunctional
system. In contrast, the field condemns
raids and other egregious enforcement
measures and urges Congress to focus instead
on fixing a broken system. Employers are now
faced with stepped-up enforcement and want a
system that establishes guidelines to verify
work authorization to protect them from
immigration raids.
The state of the field: The 109th
Congress left scars that must be healed among
advocates both within the beltway and between
both the beltway and the field because of
reactions to the differing positions groups took
on S. 2611. Many immigrant-based groups have
been established since the 1986 law and have
grown in sophistication and capacity.
Established groups need to partner more with
these groups and work together to establish and
advance shared goals.
How we best talk about our issues and know the
opposition: Advocates must talk about issues
in ways that connect with the public and elected
officials. Polling data and other research have
found that the public understands that the U.S.
will not deport millions of people, and values
fairness, commonsense, family reunification, and
the “American” way of doing things. The
opposition comes from inside and outside of
Congress. Senators Saxby Chambliss (R-GA) and
Jeff Sessions (R-AL) already have started
attacking reform by taking pot shots during
Senate debates in January on AgJobs and
increasing the minimum wage. Along with Senator
Jon Kyl (R-AZ) and the current Republican Senate
leadership, they voted against last year’s
Senate-passed bill, S. 2611, and are expected
this year to use delay and conflict to oppose
reform. Representative Lamar Smith (R-TX) is
expected to play that role in the House. He is
a determined and master strategist with
experienced staff who will work to counter a
less experienced Democratic staff.
Representative Tom Tancredo (R-CO) also will
take a leading role opposing reform and has
indicated that he might run for President in
2008 to highlight his views on immigration.
Extremist groups like the Federation for
Immigration Reform (the so-called FAIR) and its
allies will use fear and distortion to try to
defeat reform in the public realm.
Congressional Attention to Other Issues:
The Congressional October 2007 deadline to
address reform, along with the complexity of the
issue, the passions it generates, and an already
crowded legislative agenda that includes
must-pass appropriations bills create a very
complex environment. Add to that Congressional
focus on other pressing issues – especially any
emergencies that could arise from the war in
Iraq – and reform could be stopped in its
tracks.
Three other issues merit attention as the
debate progresses:
Implementation – The Criteria of
Workability: Immigration is a complicated
issue and whatever measure is passed must
meet the test that it can be implemented.
How these provisions work on the ground
makes all of the difference because even the
most well-intentioned and crafted provisions
could be harmful if they cannot be
implemented or are difficult to implement.
For instance, the three-tier legalization
program in S. 2611 is too complicated and
would have had perverse impacts including
people not registering because they fear
returning to their country of origin and
others going further underground because
they are ineligible for any benefits.
Fraud: The complexity of
immigration law, its inflexibility, and the
insufficient number of service providers for
large numbers of immigrants are factors that
encourage fraud. Many thousands of
immigrants each year fall victim to people
who take money without providing services
and/or tell them they are eligible for
programs for which they are not, and then,
to make matters worse, submit to the
government applications or petitions which
leave them exposed to charges of fraud. Such
fraud is a national problem and becomes even
more so when Congress even debates
immigration, much less passes a new law.
Lessons learned from the past: We
all have much to learn from laws Congress
debated and passed in the past. For
instance, the 1986 IRCA debate reminds us of
the difficulties associated with passing
workable reform when the House, in a much
less politically charged environment with
Democrats strongly in control, fell just
twelve votes short of eliminating the
legalization program. And the 1996 IIRAIRA/AEDPA
debate reminds us that it is very difficult
to repeal bad laws.
The ILRC will continue to focus in this
challenging environment to advance reform that
works for this country and for immigrants. We
will take every opportunity to create and
support an environment that supports needed
change. Such reform must bring out of the
shadows the people who are here and allow them a
path to eventual citizenship, ensure labor
protections, reunite families, create a legal
flow for future new workers to enter our
country, secure our borders, and help immigrants
join our society.
Please contact Judy Golub at
JGolub@ilrc.org
with any questions or comments.
The Immigrant Legal Resource Center (ILRC)
is a national resource center that provides
trainings, materials and advocacy to advance
immigrant rights. The ILRC is dedicated to the
principle that the sustained civic participation
of newcomers, who are such a large part of our
society, is key to not only their well-being,
but also ensuring a health democracy, society,
and economy and to the creation of a country
that embraces diversity, respects the dignity
and rights of all people, and values new
American’s contributions. The programs of the
ILRC are designed to help immigrants effectively
engage in the democratic process and are
organized in the following three interconnected
areas: civic participation – engaging
immigrants in the democratic process; policy and
advocacy – engaging in advocacy and educational
initiatives with elected officials, federal,
state and local agencies, the media and our
allies on policies that impact immigrants--
including immigration, health care access and
safety concerns; and technical assistance –
providing expertise on immigration law and
policy to community and immigrant-based groups,
advocates, attorneys, paraprofessionals and
others working on the complicated and
specialized legal issues that affect immigrants.
Immigrant Legal Resource Center
1663 Mission Street, Suite 602
San Francisco, California 94103
415-255-9499
www.ilrc.org
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