January 10, 2013

Comprehensive Immigration Reform: Is This the Year?

Mark Disler

Policy and political concerns converge to make immigration reform ripe for consideration in the First Session of the 113th Congress. On the policy front, millions of undocumented aliens reside in the United States; their status needs to be addressed. There is a continuing need to secure America’s borders and gain control over who enters, and stays, in this country, which will include consideration of a workable e-verify system. At the same time, the country’s employers need a reliable flow of temporary workers, as well as seasonal, agricultural and skilled workers, including those in technology fields and those who obtain advanced degrees in science, technology, engineering and math (STEM). The status of children of undocumented aliens brought to this country by their parents has also become part of the policy debate.

These are the potential components of a comprehensive immigration reform package, and long-time advocates for such a package, especially one providing a pathway to citizenship for undocumented aliens, are pressing for action. The last comprehensive immigration reforms date to the 1980s and 1990s. There is a broad consensus that the nation’s immigration system is broken and badly in need of repair, but less consensus on solutions, which have proven elusive.

Added to the mix of policy issues that need to be addressed on their merits are political considerations. President Obama’s 2008 campaign promise to address immigration reform in his first term went unfulfilled, as economic and budget issues, together with a major health care overhaul, dominated the domestic agenda during his first four years in office. With very strong support from Latino voters in 2012, the President has again made immigration reform a major priority. Republicans are aware that their last two Presidential candidates have done poorly among Latino voters. There is a greater understanding among Republicans now more than ever, that they must do better among Latino voters and that immigration, and the way it is discussed and substantively addressed, is, at a minimum, a gateway to reaching out to those voters.

The convergence of policy and political concerns that has pushed immigration reform to the top of the Congressional and Presidential agendas, however, is not matched by as broad a consensus in how to address the issue. There is greater support for comprehensive immigration reform among Congressional Democrats than among their Republican counterparts. In the House of Representatives, there has been strong Republican support for some parts of the immigration reform agenda, such as meeting the increased need for high-technology workers. A majority of House Republicans, however, have not favored a comprehensive approach. They are skeptical of granting a pathway to citizenship for undocumented aliens and are focused on border enforcement and finding a workable, mandatory e-verify system that can accommodate agricultural employers. At the outset of the 113th Congress, the House Republican Leadership, working with Judiciary Committee Chairman Bob Goodlatte (R-VA), is expected to hold briefings on the current immigration system and the ramifications of potential changes to it.

In the Senate, Republicans can generally be divided into three groups. There are some Senate Republicans who have in the past favored comprehensive immigration reform and would favor such an approach again; others are more aligned with the House Republican approach. A third approach has emerged among another group of Republicans who favor the introduction of a comprehensive package of individual bills which address, separately, the main elements of the full range of pending immigration issues. The thinking here is that by addressing individual components of the reform issue other than the vast number of undocumented aliens per se, the size of the latter group will be reduced and thus addressing their status will be more manageable in the legislative context, where the issue has been contentious.

Traditional advocates of comprehensive reform, however, view this as a piecemeal approach, inadequate as a procedure and likely insufficient on substance. One option might be that, if comprehensive legislation is on the Senate Floor, the Republican proposals could be offered as individual amendments.

Groups of Senators have been meeting on immigration well before the start of the 113th Congress. Senator Chuck Schumer (D-NY), Chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, has been speaking with a bipartisan group of colleagues that has included, among others, Senators Dick Durbin (D-IL), Michael Bennet (D-CO), John McCain (R-AZ) and Mike Lee (R-UT). Republican Senate Leader Mitch McConnell (R-KY) has also had conversations with fellow Republicans such as Senate Judiciary Committee Ranking Member Chuck Grassley (R-IA), and Senators John Cornyn (R-TX) (Senator Schumer’s counterpart on the Subcommittee), Lindsey Graham (R-SC), Mike Lee, Marco Rubio (R-FL), and John McCain. Senator Dianne Feinstein (D-CA) will also be a major player in the on-going effort to pass immigration legislation.

Senator Orrin Hatch (R-UT), the most senior Senate Republican and Judiciary Committee veteran, is also working with Senator Rubio on a potential comprehensive package approach, beginning with legislation addressing the needs of the high technology industry. In December, they met with representatives of technology companies to discuss H1-B visas and STEM. Bipartisan legislation addressing the need for adequate H-1B visas and green cards for technology workers could well emerge, from their efforts, for introduction this month.

While immigration reform is ripe for Congressional consideration, the path forward remains fraught with pitfalls. Achieving consensus will require a number of Republicans to persuade some voters in their political base of the need for broad reform. Democrats will need to disappoint unions who may wish to condition the use of a temporary worker program to the point of rendering it unhelpful to the employers who need such workers. Moreover, House Republicans, who overwhelmingly rejected the Senate-negotiated fiscal cliff deal, may not be in a mood to “go along” with a Senate-directed approach to immigration reform broader than they would otherwise favor. Republicans will also be looking to see whether the President is seeking what they consider to be a genuine bipartisan approach, or, in contrast in their view, just looking to “pick off” the necessary Republicans to overcome a potential filibuster and achieve a simple majority in the House. Whether Congress can achieve a bipartisan result remains to be seen.