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President Obama’s team of domestic advisors debated how much to emphasize immigration as a second term policy priority in his 6th State of the Union address. Some – anxious over his plummeting favorability ratings among Latinos — wanted him to reaffirm his original campaign promise to support comprehensive immigration reform and to raise the specter of executive action should Republicans fail to embrace the sweeping legalization program that most of the country clearly supports.
Other advisors thought the president should play down White House preferences and publicly applaud the renewed efforts of both parties in Congress to finally address immigration in a bipartisan fashion, even if those discussions are unlikely to deal with legalization in the short term. It’s clear from the speech that the President chose the latter course. He highlighted immigration’s importance to the economy but deliberately sidestepped legislative specifics. He urged Congress to send him a bill, saying “let’s get this done this year.”
The good news — for Latinos especially, but also for voters who have watched this issue divide the electorate for years – is that there is now genuine legislative movement on immigration reform. The bad news is, Congress is still far from a consensus on how exactly to get there. And because of the politics in play, an immigration bill acceptable to both sides is likely to fall short of what long-standing immigration advocates have pushed for, leaving millions of undocumented immigrants still in the lurch – or worse, subject to deportation.
That there’s any legislative movement at all is largely due to the sea change in thinking among Republicans following President Obama’s decisive reelection, which was due, in part, to his massive 70% support among Latinos. Since then, Republicans who long for the days when the GOP was more competitive with Latinos seem to have isolated the party’s most rabid “nativist” elements. After years of insisting that America’s borders first needed to be “sealed” before Congress could address legalization, Republicans — in a manner that is still evolving — have finally decided to deal.
But the matter is still extremely delicate, of course, because GOP base voters on the eve of the 2014 mid-terms must be won over to compromise. House speaker John Boehner (R-OH) has reassured the White House that his party is seriously committed to a broader package of reforms but Boehner wants the initiative to be a GOP-led one that he and his aides can package, spin, and pace as they see fit, in part to accommodate but also to divide and neutralize the party’s far-right. Boehner doesn’t want to give the impression that his party is taking action on immigration with a Democratic gun to his head, which will only inflame the base.
Apparently, Obama is sympathetic to Boehner’s dilemma. That’s why he decided not to hector the GOP in the State of the Union speech for its history of opposition to comprehensive immigration reform — as he has so often in the past.
But Obama’s support among Latinos is also at stake, with polls showing his favorability ratings again slipping rapidly. Deportations are continuing at a high rate and the 2 million expelled under Obama since he took office will soon surpass the total number expelled under George W. Bush. Patience is wearing thin among Democratic-leaning Latinos and their closest liberal allies. To underscore that point, Rep. Luis Gutierrez (D-IL), a former Obama ally-turned critic, attended the president’s speech accompanied by a half dozen undocumented immigrants from his district. If Obama even noticed, he was in no mood to have to explain his deportation policy, which remains a bargaining chip in the negotiations with Republicans, who want border and workplace enforcement to be tightened – and thus, the current deportations to continue.
Largely out of sight of the new media, however, Republicans and Democrats in the House – the so-called “Gang of Eight” – have quietly made progress on key aspects of immigration reform. For example, like their Senate counterparts, House Democrats and Republicans now already largely agree on visa reform, especially as it applies to foreign-born scientists and engineers and agricultural workers that US businesses say they need. In addition, Boehner is pushing for some version of the so-called DREAM Act, which allows the children of undocumented immigrants that arrived in the US while still minors to gain a path to US citizenship. In the GOP version, the eligibility requirements are likely to be tougher and the path to citizenship more onerous. But in accepting the principle that some undocumented immigrants are not simply “law-breakers” – and can’t simply be forced out of the country, as Tea Partiers insist – a House GOP endorsement of DREAM-style legislation could an enormous precedent, making consideration of additional legalizations that much easier to consider and to negotiate.
House Republicans, however, want to postpone consideration of additional legalizations until there is bipartisan agreement on the other provisions of reform. In other words, they still reject the “comprehensive” immigration reform approach that to date has guided Democratic-inspired legislation, including the reform bill that passed the Senate last year with Republican support. Instead, they want to tackle reform piecemeal, beginning with border and workplace security, then proceeding to visa reform. In the past, Obama’s allies, including the US business community, have rejected the piecemeal approach, arguing that considering all items together is the only way to create the leverage needed to get them all passed. Democrats, especially, fear that GOP support for legalization will fade over time, especially in the face of a conservative backlash.
Republicans, meanwhile, fear that Obama is not really committed to tightening enforcement, and will find ways to water down whatever new provisions are passed. They may be willing to consider a DREAM-type bill early on but will insist that any additional legalizations are linked to a “trigger mechanism” on enforcement funding and implementation. In other words, it’s still basically a version of the “enforcement first” strategy they have pursued for years, and with a broader legalization plan considered separately but on a more compressed timetable.
Democratic willingness to proceed piecemeal will depend on what kind of legalizations Republicans are actually prepared to support, and what upfront commitment they might make to that effect. Under proposals currently being discussed, Republicans may be willing to grant formal legal status to about 60% of the current undocumented population. The rest would be subject to deportation. In addition, Republicans are still balking at the idea of granting these newly legalized immigrants an opportunity to earn full citizenship. Some want to offer them permanent legal residency – a “green card,” with which they could come and go as they please. However, as non-citizens, they would still not have the right to vote.
In theory, there’s nothing controversial about denying voting rights to green card holders who have not obtained US citizenship. After all, there are millions of green card holders currently in the US who are not eligible to vote – and apparently don’t want to be (or facing a high application fee, can’t easily afford to become citizens). However, it’s quite another matter to say, as a matter of principle that an entire class of green card holders cannot qualify for citizenship – even if they may want to. It may not be illegal, but Senate Democrats have already gone on the record opposing such a compromise, saying it would create the equivalent of “second-class” status for millions of legal immigrants. Some Republicans have countered that they don’t intend to restrict immigrant rights in this way – but they don’t want newly legalized immigrants to qualify “automatically” for citizenship – or to be fast-tracked in the same way that DREAM Act beneficiaries are likely to be. Boehner, who is currently drafting a set of broad principles to guide the House GOP’s approach to immigration reform, has yet to clarify this critical issue, which could easily become a deal breaker.
For the Democrats and Obama, time is of the essence. Should the GOP recapture the Senate — a prospect that leading political experts like Larry Sabato say is increasingly likely – control of the key immigration committees would shift from the Democrats to Republicans giving the GOP even greater control over legislative agenda, including the direction of immigration reform Obama needs to use immigration reform now, before the onset of the midterm campaigns, to try to rally Latinos, keep the contested Senate in Democratic hands, and limited his party’s losses in the House. The GOP leadership in the House has the opposite problem; it wants to demonstrate a measure of flexibility on reform now, but doesn’t want to inflame the base to make primary challenges from the right more likely. That means the GOP is unlikely to be ready to move on immigration, even in principle, until the spring, when the Republican primary season is over.
But the GOP can’t wait forever, either. Some in the party will want to drag the legislative process out, even jeopardizing the possibility of securing passage of a bill that includes legalization provisions until after the midterms. There’s a danger in this course. Obama didn’t mention it specifically in this week’s address, at least not in reference to immigration. However, if the GOP balks, he could easily issue another executive order, much like the one he issued in September 2012, that stayed the deportation of prospective DREAM Act beneficiaries. That maneuver electrified the Latino base, and was the main reason so many disaffected Latinos returned so faithfully to the fold. Obama’s Democratic Latino base including reform champions like Gutierrez, want Obama to issue a second order, temporarily legalizing the parents of the DREAMers.
Would Obama do it? Last week he seemed to suggest as much — however obliquely, and without specific reference to immigration. And the GOP is surely well aware of the threat, which makes prolonged stalling unlikely. So here’s the prognosis: expect a lull over the next two months, as both sides lay low, and keep their rhetoric in check. But once the primaries are over, expect the battle to heat up. In all likelihood, House Democrats and Obama will agree to the piecemeal approach, as long as the GOP agrees not to exclude any newly legalized immigrants from seeking to become US citizens. The two sides will argue over the precise modality, and expect Republicans to try to make the process of obtaining citizenship as difficult and “non-automatic” as possible.
A separate issue is the prospect of excluding some 5-6 million undocumented immigrants from the legalization process entirely. All legalization programs, including the one passed in 1986, excluded some who had arrived illegal, but never such a high proportion. Will those excluded become subject to deportation, as Republicans hope? Democrats, at a minimum, are likely to insist on some kind of temporary work status for these undocumented immigrants — a legal right to stay, for a designated period – followed by their voluntary departure, but possibly with an option to return again, and eventually to qualify for more permanent legal status, and yes, citizenship.
In the end, this is the issue – how far and wide to extend legalization — that could make or break a final deal. But the good news is, the two sides now want a deal. The bad news is, it won’t come easy, and will likely require some painful and unexpected compromise on the Democratic side. And in the interim, and for the foreseeable future, Obama’s record-setting deportations will continue.
Stewart J. Lawrence can be reached at firstname.lastname@example.org