New Pessimism About Immigration Reform in 2014

Well, that was fast. Last week Speaker John Boehner released a draft set of “standards” (essentially, principles) on immigration reform, which I analyzed in detail. The standards are supposed to set out what the priorities are on immigration for Republicans in the House, presumably so that new House immigration legislation can be based upon them, and to signal to Democrats in the Senate the parameters for future negotiations between the two chambers to reform the immigration system. But this week, the speaker’s office has released a new one-page document, which compares the draft House standards side-by-side with the corresponding sections of the Senate’s bipartisan comprehensive immigration bill that passed in the summer (also known by its bill number, S.744), as well as a “Q&A.” Unfortunately, the side-by-side comparison document makes a number of misleading claims about the provisions in S. 744. In fact, it’s so bad that it’s difficult to take it seriously—and although I’m not in the business of making political predictions or of trying to guess how political parties will behave—as a result it’s hard to believe that the Republican Party and Speaker Boehner are serious about negotiating on immigration.

I won’t address all of the characterizations of the Senate bill in the speaker’s side-by-side document, but I’ll analyze a few notable ones:

The comparison document says the House Standards “mandate a secure border” while the Senate bill “does not guarantee the border will be secure before giving all illegal immigrants citizenship.” Perhaps S. 744 doesn’t exactly use language that “mandates” the border be secure first, but it authorizes the spending of a whopping $46 billion on militarizing the border and ports of entry, and doubling the number of border patrol agents, in order to prevent future flows of unauthorized migrants. As far as the granting of citizenship is concerned, most unauthorized immigrants who pay all the penalties and fees and are able meet the strict income and employment requirements for citizenship still would not be eligible for 13 years. That should be more than enough time to implement $46 billion in new security measures that Republican senators insisted be included in S. 744.

The standards are also described as having a “zero tolerance policy for future illegal crossers,” while the Senate bill “keeps the border and enforcement policies open for future illegal immigrants.” I’m not exactly sure what “zero tolerance” means here but I know that $46 billion for border troops, drones, boats, helicopters, video cameras, new radar and thermal imaging systems, night vision goggles, and radiation detection devices to protect the border, plus the interior enforcement measures that will be implemented with the nationwide electronic employment verification system mandated in S. 744, does not equate to a welcome mat for a new wave of unauthorized immigrants.

On the topic of reforming the country’s temporary foreign worker programs, the standards are characterized as requiring a “realistic, usable temporary worker plan that helps secure our borders and grow our economy” and the Senate bill as having a “low-skilled, temporary worker program that was written by labor unions and special interests” with “bureaucratic guidelines and arbitrary limitations [that] would only increase the problem of illegal immigration.” Despite the chuckle-inducing part where Speaker Boehner’s document refers to major Republican campaign contributors like the U.S. Chamber of Commerce, agricultural employers, and the tech industry as “special interests,” this explanation of what’s in the Standards couldn’t be any more vague and meaningless. If the agricultural guestworker bill that passed the House Judiciary Committee last year tells us anything, it’s that Republicans are planning a massive indentured worker program where foreign workers are underpaid and have few rights, and in which American workers don’t have a fair shot at getting hired for open positions.

The Senate bill’s new temporary foreign worker program on the other hand (the W-1 visa) is far from perfect but is a much better model than the guestworker programs we have today for a number of reasons, including because workers would have some degree of freedom to switch jobs, and the numerical limit on the program will be set annually by a range of factors including unemployment and job openings data, employer demand, and the opinion of labor market experts. Employers would also have to post all job openings in a publicly viewable centralized database and recruit U.S. workers before hiring temporary foreign workers—a massive improvement on the status quo. And the ag reforms in S. 744 would help stabilize the workforce and the country’s food supply by putting unauthorized farmworkers on a path to citizenship.

One of the oddest and most inaccurate sections in the document is where Boehner says the standards “forbid […] gang members from participating in any legalization program” while claiming the Senate bill “only excludes a very small portion of the gang member population and allows for a broad waiver to apply to those with past convictions for gang-related crimes.” The reality is that S. 744 explicitly prohibits any unauthorized immigrant who was convicted of a gang-related crime from being legalized, and grants the Department of Homeland Security (DHS) broad authority and discretion to exclude anyone who may have participated in a gang but was not convicted, while also creating new, additional grounds to deport and exclude gang members from the United States. In terms of admissibility and legalization (but not deportation), it’s true that DHS would have discretion to allow a waiver, but only if there was no conviction, and only if the alien “renounced all association with the criminal street gang, is otherwise admissible, and is not a threat to the security of the United States.”

In sum, the standards released last week call the Senate bill a “single, massive piece of legislation that few have read and even fewer understand.” I have no idea whether Speaker Boehner and his new deputy on immigration, Rebecca Tallent, or their staffers have in fact read the Senate bill, but if their side-by-side document genuinely reflects their interpretation of it, then it’s obvious they have yet to understand its substance.

The political backdrop to this is even less encouraging. Before the standards were published, McClatchy reported there would be strong pushback from some GOP members who don’t believe it’s a smart political strategy to deal with immigration this year. At the same time, prominent conservative voices were also warning Republicans not to engage in a major internecine battle in an election year just when things are going so well thanks to being “dealt a winning hand on Obamacare,” and also recommended “a clarion call for inaction.” Former presidential hopeful Michelle Bachman went so far as to warn that a “critical mass of members will declare an all out war on this subject” and “won’t let it go.” The hope for those who would like to see sensible immigration reforms pass, was that the release of the standards would galvanize and unite Republicans around a version of reform that would be acceptable to them and palatable to the Democrats. But since then, a report in The Hill quotes a GOP member as saying there’s still “no agreement on anything,” and ultimately suggests that the differences within the Republican caucus on immigration “might be unbridgeable.” The Washington Post, Wall Street Journal, and Associated Press echoed this conclusion, and today Roll Call reported that Speaker Boehner “suggested … it’s unlikely the House will move forward with an immigration overhaul this year.”

Taken together, the current state of the Republican draft proposals—which have now been revealed to be radically different from the Senate’s—plus a substantial amount of opposition within the Republican Party because of a mix of ideological and electoral concerns, means passage of major immigration reforms in 2014 is now looking less likely than it did last week.