That choice reflects another big change from the past: While Bush and Obama both engaged in extended bipartisan negotiations that ultimately failed to produce a law, congressional Democrats and immigration advocates appear unlikely to enlist in such an elongated effort again.
Congressional Democrats and immigrant advocacy groups seem content deferring initially as Biden seeks Republican support for change. But it’s clear that both groups have only limited patience for that approach if Republicans don’t quickly show signs of interest.
“My goal is to see if there are some legitimate players on the Republican side who want to invest a little capital and are serious,” Sen. Bob Menendez, a New Jersey Democrat who’s the legislation’s chief Senate sponsor, told me. “If the answer to that is yes, I would take weeks with them. I am not going to take months with them.”
“In the past, George W. Bush and Barack Obama sought bipartisan support for comprehensive immigration reform: The problem is it allowed Republicans to demand way too much in the sausage-making and, in the end, still kill off immigration reform,” says longtime immigration lobbyist Frank Sharry, founder and executive director of the advocacy group America’s Voice. “Biden is presenting a bill that unifies and inspires the entire Democratic coalition. In effect, he’s saying, ‘Work with me in good faith, Republicans, to get to 60 votes, and if you don’t’ — and most of us assume they will not — ‘we’ll find a way to get something done with our 51 votes.’ ”
Or, as Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute, puts it: On immigration reform, “there’s a big difference between hope and experience.”
How Biden’s strategy differs
While Bush and Obama largely employed similar strategies, Biden has quickly indicated he intends to pursue a very different approach.
Bush and Obama, for different reasons, did not seriously pursue immigration reform until their second terms; Biden revealed the outline of his immigration bill on his first day in office. That signals a very different level of commitment.
“I am hopeful that we can do more than less, because I never had a president who put his back into it,” says Menendez, who arrived in the Senate just as the 2006 effort unfolded.
Also different: While Bush and Obama pursued the “three-legged stool” of legalization for the undocumented (a Democratic priority), guaranteeing future flows of temporary workers (key for business) and tougher enforcement (a Republican emphasis), the plan Biden released offers relatively little on the latter two.
As Sharry notes, that partly reflects a big shift in strategy: Democrats in effect are telling Republicans and their allies in the business community that any bill will reflect their concerns only if they produce GOP votes for the overall package, including a pathway to citizenship for the undocumented. But it also reflects a conviction among immigration experts in both parties that Trump already implemented almost every element of the right’s hardline enforcement wish list without stabilizing the system.
Even some Republican immigration experts second that conclusion.
And yet, even after Obama’s enforcement offensive, legalization still failed because not enough Republicans — especially in the House — supported it, while immigrant advocates bitterly labeled him the “deporter in chief.”
Conflicting view from Republicans
After the bruising President Donald Trump years, Democrats and immigrant advocates are even more dubious that more than a handful of congressional Republicans will support legislation that includes a pathway to citizenship for the undocumented, no matter the concessions offered to them on temporary workers and/or border security.
All of this reflects the party’s retreat under Trump to the parts of the country least touched by demographic change: After November’s Democratic gains in Arizona, Colorado and Georgia, Republicans, rather remarkably, hold just four of the 40 Senate seats in the 20 states with the highest share of foreign-born residents.
Against that daunting backdrop, immigration advocates are already gaming out how they will proceed if, as they expect, the attempts by Biden and Democratic senators such as Menendez fail to win the 10 Republican votes they would need to break a filibuster against legislation to legalize all or some of the undocumented.
Democrats wouldn’t need 10 Republican votes for immigration legislation (or any of their other priorities) if the Senate majority voted to end the filibuster — but it does not appear they have the votes (or the inclination) to do that yet.
That’s why immigration advocates are scouring the legislative rules to determine whether they can include a pathway to citizenship within the special “reconciliation” process. Established by the 1974 Budget Act, reconciliation allows legislation with an impact on the federal budget to clear both chambers with just a majority vote, thus bypassing the filibuster.
Menendez, at least, appears open to that possibility. “I am certainly spending a lot of my staff’s time thinking about what is eligible for reconciliation,” he told me.
But such an ambitious plan might struggle to win even majority support in Congress because too many centrist Democrats, especially in the Senate, could balk at legalizing such a huge swath of people through that expedited process. If Democrats do use reconciliation as their vehicle, Chishti predicts, they are likely to define the population of “essential” workers eligible for legalization much more narrowly than advocates prefer — probably about 1 million people truly at the “front lines” of the pandemic, such as nurses and those in meatpacking plants.
“If Covid is the dominant backdrop for the next year, then you have to get reconciliation for things that are reasonably close to Covid — so essential workers has a certain resonance in [that] context,” he says. “There is a reasonable argument that you can’t be essential and not protected from deportation.”
Using the reconciliation tool likely would not only prevent Democrats from legalizing most of the undocumented, but both the rules and politics of the process would also almost certainly exclude major changes in the legal immigration system. And that could also represent another major opportunity cost.
US needs more young people
“The projections show we are going to be dealing with lower population growth and an aging population, and the only way we are going to be able to keep our labor force growing and vital is through immigration,” Frey told me. “Immigrants and their kids are younger than the general population and we’re going to have to have a steady stream of that to counter the aging of the rest of the population.”
The unlikelihood of progress on legal immigration is another reason why reconciliation represents an imperfect option for immigrant advocates and their Democratic allies. But after the disappointments of the Bush and Obama breakdowns, and the searing immigration wars of the Trump years, they appear more than ready to take what they can get in the legislative process. And they look less likely than in the past to slog through lengthy negotiations if the GOP balks — and the business groups that support reform can’t move enough of those congressional Republicans to “yes.”
“My focus is to get a deal of some sort: I am not looking to bypass [bipartisan negotiations] and go to reconciliation,” Menendez says. “But I don’t intend to go home with nothing in my hand.”
This story has been updated to reflect that a federal judge in Texas temporarily blocked the Biden administration’s pause on deportations.