Getting to Enactment: The Political Obstacles to Immigration Reform

By Theresa Cardinal Brown

Friday, October 21, 2016

This post is part of The Next Agenda, a series that explores the main policy challenges facing the next Congress and presidential administration on issues from immigration and infrastructure to economics and energy. Check back regularly for future installments.

Both Donald Trump and Hillary Clinton have made immigration a central issue in their campaigns, and in the third and final debate the candidates were given an opportunity to argue their policies to the voters. Unfortunately, the candidates failed to go beyond their stump talking points and describe how they would get their policies enacted. While voters can likely expect the new president to take up the issue early in his or her term, this doesn’t necessarily mean real progress on immigration since, despite numerous past campaign promises, there hasn’t been significant immigration legislation enacted since the mid-1990s. Getting immigration legislation to the president’s desk will require overcoming several political obstacles that have doomed reform attempts in the past. The discussion below provides generalized positions held by many in each party, particularly among members of Congress. However, there are a variety of views on these issues and the generalization is not meant to represent every member of the party.

Getting immigration legislation to the president’s desk will require overcoming several political obstacles. 

What are the priorities of the parties in Congress?

Democrats in Congress have generally made a priority of seeking legal status and a so-called “path to citizenship” for the undocumented. In addition, many Democrats support reforms to the legal immigration system, to prioritize the reunification of families by reducing backlogs, but may also support expanded high-skilled visas and lesser-skilled and agricultural visas. Within the legal immigration area, the priority has been on ensuring protections for foreign workers as well as ensuring that importation of foreign workers does not harm American workers, a position strongly supported by labor unions. On the issues of enforcement, some Democrats have demanded additional due process protections for immigrants and an end to deportations for “non-criminals.”

Among Republicans, support for enforcement has generally been a priority, including increased border enforcement and a commitment to the removal of unauthorized immigrants. Many Republicans also support changes to legal immigration that would prioritize employment-based immigrant visas and increases in temporary worker programs. However, some Republicans have also expressed concern that current levels of immigration are too high and should be reduced. While many Republicans could support some form of legalization for the unauthorized in the country, often the support is conditioned on efforts to secure the border and strengthen interior enforcement first. Support for potential citizenship for the unauthorized also has mixed support among Republican members.

This divergence in priorities, both within and between the parties, has stymied efforts at comprehensive immigration reform. While the elements of such reform may reflect some consensus positions on the provisions for enforcement or legalization, the divergent views on prioritization (“legalization first” or “border first”) has resulted in many legislative efforts failing to move forward.

All politics is local

Congressional redistricting after the 2010 Census decreased the number of swing districts and increased the number of “safe” Republican and Democratic House districts, which tend to have more homogenous populations in terms of race, ethnicity, and party affiliation  Today, incumbents are often more vulnerable to challenges from within their party than from the other party. This means that for many, making the kinds of compromises necessary to pass complex legislation like immigration reform can be politically dangerous.

In the Senate, whose members are elected on a statewide basis, the distinction is less stark. In states with growing diversity of population and a mix of large urban centers and rural areas, senators from both parties have been elected, and consequently views on immigration have been more diverse. While this has generally created more potential for bipartisan reform, Senate rules can allow vocal minorities to scuttle legislation. Further, Senate control has hung in the electoral balance every two years since 2008, making compromise less appealing for some facing tough re-election fights

Demographics is destiny, or is it?

The overall ethnic makeup of the United States is changing rapidly, with minorities, especially Latinos and Hispanics, representing a growing slice of the population. While currently the majority of new immigrants to the United States is actually Asian, rather than from Latin America, Hispanics are most identified with “immigration” as a political issue. And for those of Hispanic or Latino background, many of whom have unauthorized immigrants in their immediate family, the immigration issue is motivation to become politically active. However, other immigrant communities have also taken interest in the issue politically, including the extensive Asian-American and Pacific Islander population.

The majority of new immigrants to the United States is actually Asian, rather than from Latin America, Hispanics are most identified with “immigration” as a political issue.

For both parties, determining whether and how to court this growing electorate has been a strategic priority. For Democrats, there has been a more unified and comprehensive outreach effort, and it is reflected in voter registrations: According to the Pew Hispanic Center, just about two-thirds of Hispanics identify as Democrats or favor the Democratic Party. For Republicans, there is less consensus about whether or how to reach out to this growing constituency. As noted above, many House members do not have significant immigrant populations in their districts, and for them, continuing to turn out their base of white voters is key to victory. At the national level, the Republican Party is more divided, with some in leadership dramatically arguing that the party will never elect another president without courting this vote, and others taking a position that a harder line on immigration will drive more of their base of voters to the polls and win back the White House. Given the clear stance of the current Republican nominee on the issue, this election could be the final test of those hypotheses.

Overcoming the politics

If a new president and new Congress want to successfully tackle immigration reform, how can they overcome these political headwinds? While efforts at immigration reform over the last decade have focused on “comprehensive” legislation that combines many aspects of immigration reform in one bill in hopes of attracting votes from many places with multiple interests at play, this strategy has not been successful. Such legislation has been meticulously negotiated before introduction, and the delicate compromises have not survived floor debates and “poison pill” amendments.

While it is true that many parts of the immigration system are interlinked, it may be possible for smaller bills to garner sufficient votes to pass. However, even these smaller bills will require members of Congress to work on areas of general agreement and compromise on other parts of their agenda. For all sides, the question will likely boil down not to whether the resulting bill is everything they want, but whether it would be better than the status quo. Continuing to defeat legislation that has some parts agreeable and other parts not has meant that our current system has continued without change for over 25 years.

The outcome of the current election will set the political stage for the next attempts at immigration reform. 

The outcome of the current election will set the political stage for the next attempts at immigration reform. Clearly, achieving enactment of legislation in what is likely to be a divided government or with small majorities will require bipartisan compromise. How the president-elect and the new Congress views the “mandate” from the election will influence their acceptance of such compromise, and advocates will need to work hard to ensure that we don’t face another four years of continued inaction on the issue of immigration.

KEYWORDS: 114TH CONGRESS, 115TH CONGRESS, 2016, DONALD TRUMP, HILLARY CLINTON, THE NEXT AGENDA SERIES