Friday, June 21, 2013

Three Ways that Immigration Reform Could Fail to Pass

On Tuesday, June 11th, the U.S. Senate voted overwhelmingly to begin debate on the comprehensive immigration reform bill.  The vote was 82-15.   The lopsided procedural victory for the bill's proponents is leading many to mistakenly believe that the enactment of comprehensive immigration reform will be swift and assured. It will be neither.   In order for comprehensive immigration reform to be enacted, both the Senate and the House of Representatives would have to vote to approve it and the President sign it.  However, it is not as easy as it appears.  While it migrates through the legislative process a bill as large as this one is often bombarded by proposed amendments from all sides.  Many amendments are rejected.  Others are incorporated into the bill.  The ones added to the bill can either increase the bill's chances of passage by recruiting new supporters or doom it by antagonizing old ones.  Therefore, whether comprehensive immigration is approved will depend on how the legislative proposal changes.

There are several ways that comprehensive immigration reform could fail to pass.  This blog will illustrate three scenarios, ranging from the least probable to the most possible.   The first way that the effort to reform the immigration law could be derailed is if the extreme left demands that the legislation include immigration benefits for same-sex couples. While twelve states, along with the District of Columbia, have enacted same-sex marriage laws, the federal government does not recognize such unions.  The Defense of Marriage Act, notwithstanding the present legal challenge at the U.S. Supreme Court, defines marriage as solely between one man and one woman for all federal purposes.  Including such a provision in the immigration reform bill would be contrary to current federal law.  Furthermore, while recent polls show that just over half of all Americans now support same-sex marriage, it is unclear whether the same amount of support would also extend to immigrants. Senator Patrick Leahy of Vermont previously offered an amendment to provide immigration benefits to gay and lesbian couples when the bill was first being discussed in the Senate Judiciary Committee, but withdrew it when it became clear that the amendment would hurt the bill's chances of being brought to the Senate floor.  Now, Senator Leahy has reintroduced his amendment.  Such a controversial change to the bill could shave off enough support from the bill to prevent it from receiving the necessary sixty votes to end debate and bring the bill up for a decisive vote. 

Another way that the comprehensive immigration reform bill could be defeated is if the extreme right includes an amendment that requires that unrealistic enforcement measures be met before most of the bill takes effect.   This could be in the form of a requirement that the U.S. spend an unconscionable amount of money to build and complete a border fence on the U.S./Mexico border.   While border security is an essential part of any viable immigration reform proposal, it should not be used as a noose to choke off other parts of the bills that are equally essential to the continual economic well-being of this country.   Another form of an unrealistic imposition is the requirement that an alien prove that he has satisfied any tax liability he may have incurred while being in the United States, before being eligible for registered provisional immigrant status.  While such a demand would make sense in theory, in practice it would be disastrous.   The individual who has been in the country in an undocumented status for over fifteen years would have a nearly impossible time gathering the necessary documents to satisfy this requirement.  Furthermore, the IRS would be inundated with new filings, which would increase the stress of its current overburden and inefficient structure, and it would create the breeding ground for widespread fraud and error.  Therefore, in light of this, including such a provision to the immigration proposal would probably be enough to tip it to the side of complete rejection.

Finally, the most probable way that the comprehensive immigration reform bill could fail to pass would be if the Senate approves its bill and the House of Representatives passes a different version and the two houses of Congress fail to reach a compromise, and therefore a bill would never reach the president’s desk for signature.   However, if they did reach a compromise, the resulting bill might not include the infamously misnamed “pathway to citizenship”.   Arguably the most controversial part of the comprehensive immigration bill currently debated in the Senate is the plan to put millions of undocumented immigrants on a long path to permanent residency, which would then give them the option of later pursuing U.S. citizenship.   A successful conclusion to a difficult negotiation between members of the House of Representatives and the Senate could end up hinging on the inclusion or exclusion of what would be properly termed as a “pathway to permanent residency”.    The negotiators could ultimately decide that the other parts of the bill are too important to risk losing in the face of opposition to the pathway to permanent residency.  They might agree, instead, to allow the millions of eligible undocumented immigrants to remain in the United States in a temporary status which would be renewable and would allow them to work legally in the country and to travel abroad.  However, such a status would not, per se, lead to permanent residency.   The negotiators might consent to revisit the possibility of those individuals being able to apply for permanent residency in the future. 
In the January 28, 2013 post entitled, Immigration Reform and its Two Main Adversaries, this blog stated:

Most individuals who wish to enter the United States do not want to do so to live here permanently, at least not initially. He wants to visit as a tourist, worker or student, and then return to his respective home country. There is no sense of permanence in his mind. It is only after the visitor is in the country and has accomplished his task, does the person consider stability in his life in the United States in the form of U.S. permanent residence. Finally, after acquiring residence will many of these immigrants wish a true sense of "belonging" in this country in the form of U.S. citizenship. Most individuals who would benefit from comprehensive immigration reform are in the first level--they wish to work or study in the United States without hindrance. Therefore, the vast majority would welcome a guest worker program that would help make their dreams to come true.

If the inclusion of a guest worker program is the best that can be done under the current political climate, would immigrant groups support the bill, and allow millions of undocumented immigrants to finally emerge from the shadows of anonymity and be able to obtain some sort of legal status?  Would they support the process of finally providing real reform for our nation’s immigration laws in the form of more work visas and faster immigration process?  Or will these so-called advocates take a myopic “all-or-nothing” approach and demand the bill’s defeat and the continuation of the utter failure that is the status quo?

While the comprehensive immigration reform bill enjoys a significant amount of support, its enactment into law is far from a certainty.  The three points mentioned above are probably the greatest threats faced by real immigration reform.   The coming months will be pivotal in determining if there will be real immigration reform.

The above information is provided for information purposes. It should not be construed as legal 
advice or the formation of an attorney/client relationship.