Is a Deal on Immigration Possible Before 2012?

A funny thing happened on the way to the Republican party’s expected post-midterm election bashing of illegal immigrants.  The whole thing got called off.  Well, sort of.  Incoming House Judiciary Committee chairman Lamar Smith (R-KY), a long-time GOP hard-liner on immigration, was expected to name Rep. Steve King (R-IA) ? a Tea Party supporter who once said he’d like to deport one liberal for every illegal immigrant ? as the head of Judiciary’s powerful subcommittee on immigration.

But that was before House Majority leader Mitch McConnell received a letter from the Hispanic Chamber of Commerce saying, in effect, that King was too much of flaming nativist for the post.   In fact, the Chamber even recommended that Smith, who favors a complete  moratorium on legal as well as illegal immigration ? not be given the Judiciary post, either.

McConnell also heard from top GOP leaders, among them former Bush political advisor Karl Rove, and two rumored GOP presidential candidates, former House Speaker Newt Gingrich, and former Florida Governor Jeb Bush  They quietly advised McConnell that the party needed to moderate its immigration policies if it expected to win back the presidency in 2012.

And so, apparently, they struck a deal:  King is out, but Smith can stay.

The immediate effect is that King’s proposed legislation to repeal “birthright” citizenship for the children of illegal immigrants born on US soil ? about 350,000 annually – is dead. That issue has long been on the fringes of the immigration policy debate, and its removal will allow the national GOP to start tacking back to the center ? or at least away from the extreme right.

But no one actually knows how far.  At the state level, conservatives are almost certain to ramp up efforts to pass Arizona-style crackdown laws – or worse – in a dozen or more jurisdictions, from conservative Utah to relatively moderate Virginia.  In fact, Arizona already has its own state version of the federal birthright citizenship ban, and with or without the support of the national GOP, other states could well decide to move forward with similar measures.

Officially, Smith says that he now wants to focus the country’s attention on the need to “protect American jobs” through tighter workplace enforcement.

Arguably, despite its nativist tinge, that’s a refreshing change from the GOP’s near-obsession with the strategy of “sealing” the US-Mexico border, even though data show that about half of the illegal alien population is comprised of visa-“over-stayers” ? not fence-jumpers.  Numerous bipartisan commissions have found that the failure of employer sanctions ? and the existence of a job “magnet,” rather than the availability of social services or the opportunity to give birth to a citizen baby – is the key driver behind illegal immigration.

So Smith, if he’s serious, is at least moving the immigration policy debate into the realm of accepted reality.

But focusing on workplace enforcement could also open up a brand new can of worms for both parties.  Smith says he would like to see the “E-Verify” workplace enforcement program, now currently in use on a largely voluntary basis, made mandatory nationwide. But according to studies by the GAO and others, the database that supports E-Verify is still deeply flawed.  Some studies show that 50% or more of illegal aliens might still slip through undetected.  And some 5% of US citizens might actually be screened out – which could lead to expensive lawsuits.

That means supporting E-Verify, while preferable, in theory, to the toothless employer sanctions regime now currently in place, is no near-term solution, however palatable, politically.  And there’s further irony.  Democrats are on record supporting a different workplace enforcement scheme – use of a tamper-proof Social Security card that all US residents would be required to purchase and show to prospective employers to verify their eligibility for employment.

Its supporters, led by senior Democrat Chuck Schumer (D-NY), say the system is more accurate and effective than E-Verify, which, technically, puts the Democrats to the right of the Republicans on workplace enforcement.  But the plan also alarms privacy groups, who fear it will move the country closer to a national ID card.  Democrats deny that, but under their plan all 250 million US residents would be drawn into the orbit of immigration control.  And financial estimates suggest that the plan will be enormously expensive, far more so than E-Verify.   So Democrats risk being pegged by the right as supporters of Big Goverment and Big Brother to boot.  That may not be a happy place to find themselves politically.

But the bigger problem is that a GOP push on immigration enforcement alone – even dropping the citizenship ban – may not survive both houses of Congress. The Senate, still dominated by the Democrats, remains wedded to the “comprehensive immigration reform” (CIR) model, which requires expanded enforcement to be coupled with a sweeping legalization program, plus reforms to the US visa system to ensure expanded flows of legal workers, on a contract basis. Smith and the GOP might be persuaded to embrace temporary visas, as long as they don’t imply an automatic transition to permanent legal residency.  But a legalization program?  That’s still an unconscionable “amnesty.”

How far are the business moderates inside the GOP are willing to go to stand up to party nativists?  That’s always been the conundrum for the so-called Bush wing of the party led by Karl Rove, who saw his president get hoisted on immigration by the far right in 2007.  But the other key wild card is whether President Obama decides to abandon his customary diffidence on immigration and finally embraces the issue as his own.  Should he hold the line with liberal Democrats, as he has so far, and refuse to support any GOP movement on workplace enforcement outside the CIR framework, vetoing any stand-alone bill that might squeak through both chambers, including the Democrat-dominated Senate?

That’s clearly one option, but it carries great risks, namely that the Democrats this time will be cast as the “party of no” at a time when the country says it favors “enforcement first,” and is likely to embrace Smith’s plan on E-Verify. Another option would be to bust a Bill Clinton move and try to embrace the right, while co-opting the left.   That’s the dreaded “triangulation” strategy, which in the context of Latino affairs, is sometimes known as “pulling a NAFTA.” It worked for Bill Clinton, though, and could well work for Obama.

One option already being floated in Democratic circles is for Obama to embrace the GOP’s E-Verify scheme, while insisting on a scaled-down version of the DREAM Act, the partial legalization program which the Democrats twice failed to pass last year when they still had control of the House.  The advantage here is that Obama would get out in front of the immigration issue, and couple some progress on enforcement, with some progress on legalization – in other words, “comprehensive” reform, but in miniature, with only the first baby steps taken.

It’s unlikely that conservatives would ever agree to embrace the expansive version of DREAM the Democrats tried to pass previously last September, and again, during the recent lame-duck session of Congress. But despite their protestations on “amnesty,” the GOP might be persuaded ? through a combination of public shaming and private diplomacy ? to acquiesce in a stripped down version of DREAM — one that didn’t allow for in-state tuition benefits, limited the total number of beneficiaries, and restricted family sponsorship privileges — in order to secure Democratic support for E-Verify.

A second option is to punt on legalization and expanded enforcement altogether and to focus for now on visa reform – an issue on which there is already much greater bipartisan agreement. The two sides could agree to work on a bill that made it easier for foreign scientists and engineers to get work visas and to transition to legal residency.  That would mean raising or even eliminating the current visa “cap” for high-skill workers (from its current, widely acknowledged to be inadequate level of 65,000) and changing the rules so that foreign-born students in US schools could become legal residents more quickly.

The virtue of this approach is that it can be sold as a contribution to US global “competitiveness” – and a blow to China – and a step toward in reviving the depressed economy.  While it means importing workers at a time of high joblessness, the workers are widely viewed as ones the country should have.  That probably wouldn’t be the case if the visa reform debate were extended to unskilled workers, reviving the age-old polemics over the pros and cons of an economy-wide “guest worker program” which have torpedoed bipartisan initiatives on immigration reform in the past.

The GOP far-right has long attacked a guest worker program as a spur to illegal immigration, while the left has viewed it as a system for indentured labor and super-exploitation, much like the infamous Bracero program of the 1950s and 1960s.

The Washington Post recently editorialized in favor of focusing on a high-skill visa program, but significantly, said nothing about a guest worker program.  The Post was merely reflecting the views of the US business community, especially the high-tech sector, as well as Senate moderates in both parties, including Sen. Lindsey Graham (R-SC) whose support would be critical to initiating such an effort.

In short, the vaunted “deadlock” on immigration that many predicted would last through 2012 may not, in fact, last that long.  Neither party can afford to be viewed as “obstructionist” on an issue that has proven to be the nation’s thorniest and most volatile -but on which the public is demanding real action.  In some ways, the tables have now turned:  with the GOP running the House, it’s finally in a position to set the agenda and to compel the Democrats to respond. And having made clear last week that the agenda is no longer one immediately guaranteed to inflame Latinos, and much of the nation – birthright citizenship – the Democrats must now prepare to parry with the GOP on workplace enforcement – and beyond.

Of course, there’s always the chance that the two parties may get distracted by other issues, and simply try to punt for two more years. But as the mid-term elections revealed, the do-nothing strategy carries real risks for both parties — the Democrats especially. Republicans successfully exploited immigration as a “wedge” issue with white voters in key congressional districts, which helped them win the House.  But they alienated some Latinos in California and the Southwest, and that clearly helped cost them the Senate.  With 23 Senate Democrats up for re-election in 2012, compared to just 10 Republicans, senior Republican strategists have no intention of making that mistake again.

Therefore, the best option for Democrats is for the President to get out in front on immigration as quickly as possible and to forge a modest deal that can steal the GOP’s thunder.  It won’t be the whole “enchildada” – not even close.  But by demonstrating that he’s prepared to embrace the concerns of both parties, and indeed, stand up to his own base, in the short term, Obama may finally “win” with immigration – ensuring his own re-election, averting a further rightward slide, while setting the stage for an expanded legalization program after 2012.   Given the current electoral math, that’s probably the best the Democrats can hope for.

STEWART J. LAWRENCE is a Washington, DC-based an immigration policy specialist.  He can be reached at


Stewart Lawrence is a long-time Washington, DC-based policy consultant.  He can be reached at