http://www.mondaq.com/article.asp?articleid=7479820 February 2009
Article by Declan P. Mumford and Peter A. Yost
Barack Obama became the 44th president of the United States amid mile-high expectations for positive change with respect to the economy, war in Iraq, health care, energy policy, the environment—and yes, immigration.
With a new, pragmatic president, centrist administration and a greater Democratic majority in Congress comes a sense of optimism that real immigration reform is possible. But before comprehensive reform can be accomplished, agreements must be reached on controversial issues such as the path to citizenship for illegal immigrants. Proponents of immigration reform must also reassure constituents that such initiatives won't increase competition for increasingly scarce jobs.
Although immigration reform faces challenges, passage of a comprehensive bill is within reach—perhaps even by mid-term elections.
Recent Efforts Toward Comprehensive Reform Have Been Unsuccessful
For the past several years, popular and political opinion have been nearly unanimous that our country's immigration system is broken and an overhaul is overdue. There is also a consensus that the system cannot be reformed piecemeal. Fundamental changes to the system are required—an approach that is now commonly referred to as comprehensive immigration reform (CIR).
Experts agree that CIR will have to encompass certain core elements, including:
- Increased border security and reduced flow of illegal immigrants into the country
- Better workplace enforcement and a crackdown on companies who hire illegal immigrants
- Permanent resolution for the millions of undocumented workers currently in the U.S..
An increase in the number of H-1B visas allotted and reduction/elimination of backlogs for permanent visas are also considered integral to the creation of a better functioning immigration system.
Sens. John McCain (R-Ariz.) and Ted Kennedy (D-Mass.) co-sponsored in 2007 a sweeping immigration reform bill that addressed each of the CIR issues described above. Specifically, it provided for enhanced border security and workplace enforcement, created a temporary worker visa category, and offered an eventual path to citizenship for millions of undocumented workers.
Former President George W. Bush backed this legislative initiative and, for a time, it appeared the landmark bill had enough support on both sides of the political aisle to be successful. As the debate came closer to a vote, however, grass roots opposition—in large part from those who argued the McCain-Kennedy bill granted blanket amnesty to illegal aliens—proved too big an obstacle to overcome.
In what Bush later described as one of the biggest disappointments of his presidency, the bill died before coming to a vote, and immigration reform disappeared for the duration of his administration.
Obama's Voting Record, Cabinet Picks Suggest Positive Momentum on Immigration
Obama has a strong record as a proponent of immigration reform. While in the U.S. Senate, he voted in favor of the failed McCain-Kennedy bill, introduced legislation to lower immigration fees (Citizenship Promotion Act) and supported a variety of immigration legislation. As a presidential candidate, he campaigned in favor of CIR and a reduction in visa backlogs. He also denounced workplace immigration raids as an "...ineffective tool in a broken and overwhelmed immigration bureaucracy."
Obama has said his immigration reform priorities include securing our borders, improving the immigration system and bringing undocumented workers out of the shadows. Unfortunately, his administration has not yet articulated a substantive plan for achieving these goals. Obama has, however, designated an immigration policy working group with a mandate to develop a plan to "fix the immigration system through legislative and executive actions that promote prosperity, enhance our security, strengthen families, and advance the rule of law."
Working group co-chairs T. Alexander Aleinikoff, dean of the Georgetown University Law Center, and Professor Mariano-Florentino (Tino) Cuéllar of Stanford University, both held positions in the Clinton administration. Aleinikoff worked for the now-defunct Immigration and Naturalization Service and Cuéllar served in the Treasury Department as senior advisor to the under secretary for enforcement.
Obama's choices for key cabinet posts suggest a strong pro-immigrant, pro-reform agenda—an indicator of how his administration may plan to move forward on a variety of immigration issue.
Department of Homeland Security Secretary—Janet Napolitano
The Department of Homeland Security (DHS), which maintains responsibility for agencies such as Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection, will be at the center of the immigration debate.
As governor of Arizona, a key border state, DHS Secretary Janet Napolitano had extensive experience with immigration issues, particularly those related to border security and enforcement. Although she helped enact legislation in Arizona imposing steep fines on companies hiring illegal workers, she also advocated for increasing the number of available H-1B work visas.
Napolitano was one of 12 governors who signed a 2007 letter urging congressional leaders to increase the H-1B cap. The letter said in part that "until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country; and therefore need to ensure the increased availability of temporary H-1B visas, and permanent resident visas (green cards)."
Department of Labor Secretary Designate—Hilda Solis
The daughter of immigrant parents who held union jobs, Hilda Solis would lead a department that plays an integral role in shaping employment-based immigration policy— particularly with respect to the labor certification process for permanent residence cases. Solis is a five-term Democratic member of Congress from Southern California who has strongly and consistently supported workers' rights and traditional workforce issues, including minimum wage and the right to form unions. A strong supporter of CIR and immigrants rights, Solis co-sponsored immigration legislation in the House and lobbied for the elimination of visa backlogs.
Department of State Secretary—Hillary Rodham Clinton
As a U.S. senator from New York, Hillary Rodham Clinton supported numerous immigration reform initiatives, including the McCain-Kennedy bill. In her role as secretary of state, Clinton will now lead the agency that controls the issuance of temporary and permanent visas—guaranteeing her a seat at the table in the immigration reform discussion. While seeking the Democratic Party nomination for president, Clinton pledged her continuing support for immigration reform, which she said must include toughening security at our borders, placing stronger restrictions or sanctions on employers and providing a path to earned citizenship for people who have been living and working in the United States lawfully.
Future of Immigration Reform Uncertain in 111th Congress
House and the Senate membership on both sides of the aisle was affected by the 2008 election. Several prominent Democratic senators, including Vice President Joseph Biden, Clinton and Sen. Ken Salazar of Colorado, have joined the Obama administration.
In addition, several members of Congress who played prominent roles in past immigration debates will no longer have the same impact on the outcome. Rep. Tom Tancredo (R-Colo.), a proponent of tougher immigration enforcement and vociferous opponent of granting citizenship to illegal immigrants, has retired from office. Kennedy, who co-sponsored the McCain-Kennedy CIR bill in 2007, has changed committee memberships and no longer serves as the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security. Sen. Dianne Feinstein (D-Calif.) is next in line to lead the committee but does not appear to have the same passion on the issue as Kennedy.
CIR Could Gain Traction in Senate
On the Democratic side, Senate Majority leader Harry Reid of Nevada, an ardent supporter of CIR, says he believes there is sufficient consensus within the Senate to move forward on immigration reform. Noting the almost complete agreement between Obama and McCain on the issue, Reid says he does not anticipate a significant challenge.
Given his experience and expertise on the issue, McCain will almost certainly be an important player on immigration. During the 2008 presidential campaign, McCain said the demise of immigration reform in 2007 was both a failure of the federal government as well as a personal failure for him—and that it must be a top agenda item in 2009.
Senate Minority Leader Mitch McConnell (R-Ky.) in 2007 opposed and voted against the McCain-Kennedy bill, effectively killing it. Facing a more significant Democratic edge in the Senate this time, McConnell may have difficulty holding on to the filibuster-proof numbers Senate Republicans currently enjoy.
House Is More Polarized on Immigration Issues
Speaker of the House Nancy Pelosi (D-Calif.) has failed to exude Reid's level of confidence, saying Democrats may need to sacrifice certain immigration priorities to garner bipartisan support. Pelosi has backtracked somewhat on her previous support for one such priority, namely providing a path to citizenship for those living here illegally.
Rep. Zoe Lofgren (D-Calif.) will also figure prominently in the debate. Lofgren is the chairperson of the House Subcommittee on Citizenship, Refugees, Immigration and Border Security. A former immigration attorney who represents San Jose and Silicon Valley, Lofgren has long supported CIR as well as an increase in the H-1B cap and elimination of permanent visa backlogs.
House Minority Leader John Boehner (R-Ohio), an outspoken critic of the 2007 immigration reform bill, said it would "reward illegal immigrants who have consistently broken our laws." Boehner believes securing borders and stopping the flood of illegal immigration into the United States must be the first priority. He has voted against measures that would allow illegal immigrants to participate in Social Security, obtain driver's licenses and receive government benefits. Boehner has, however, endorsed measures aimed at increasing the H-1B cap.
Rep. James Sensenbrenner (R-Wis.), is another long-time critic of immigration reform that would grant a path to citizenship to illegal immigrants. He previously introduced legislation that would bar illegal aliens from obtaining driver's licenses and other government documents, instruct law enforcement to seek out illegal aliens, cut federal funding for cities with sanctuary laws, create a border fence and eliminate the diversity visa lottery.
Surge in Latino Vote May Push Immigration Reform
The 2008 election may have a profound impact on the prospects for immigration reform—not only because of who was elected, but because of who voted.
The number of Latinos who turned up at the polls in 2008 increased by 25 percent over 2004 and helped Democrats win in key battleground states, including Colorado, New Mexico and Nevada. Moreover, Hispanic votes cast nationwide for Democratic candidates increased by 14 percentage points, representing the biggest increase among any voting demographic. Notably, the number of naturalized immigrants who cast their ballots in 2008 rose substantially.
This seismic shift may represent something of a backlash against the anti-immigrant rhetoric and political strategies employed by some Republicans. Immigration largely failed as a wedge issue and in contests where immigration did become relevant, candidates on the anti-immigration side of the argument often found themselves on the losing end of the election. Bush himself warned that the GOP could lose further ground to Democrats if they continue to be seen as "anti-immigrant."
Given the support they received from Latino voters, Obama and the Democratic congress may now have a mandate to pass immigration reform or risk losing this important demographic in future elections.
Troubled Economy Could Help and Hurt Chances for CIR
As the U.S. economy slides deeper into recession and companies continue to lay off workers en masse, selling the public on immigration reform —particularly employment-based measures such as an increase in H-1B visas—may become an even more difficult proposition.
Americans will have to be convinced that immigration reform is part of the solution to our economic woes and not simply an effort to give increasingly scarce jobs to non-citizens. Obama appears ready to make such a case. As part of his plan for economic recovery, he has pledged his commitment to improving America's competitiveness in the technology sector and believes that immigration reform will be critical to this effort. He has said specifically that he believes improving the permanent and temporary visa programs (including H-1Bs) will help attract skilled workers and ultimately benefit American companies.
Ironically, a weakening economy could also prove to be a boon for CIR's prospects. Because illegal immigration is in many ways a product of supply and demand, the declining availability of jobs in the U.S. will likely lead to fewer people coming into the country illegally to find work.
A recent report by the Pew Hispanic Center shows that the flow of illegal immigrants into the country has slowed significantly over the past three years. If this trend continues and concerns over illegal immigration are tempered sufficiently, it may make immigration reform more palatable for the American public, despite the anemic economy.
Immigration Reform Achievable Under the Obama Administration
Immigration reform still faces significant hurdles. Since Obama has made it clear the economy, war in Iraq and health care will be his top priorities, immigration may take a back seat in the short term. In addition, finding support of any kind for foreign workers (legal or otherwise) in troubled economic times may be too politically risky an undertaking. Perhaps most importantly, a compromise on the divisive issue of illegal aliens will have to be reached in order for reform to be considered truly comprehensive.
There is, however, substantially increased momentum in this administration and Congress for reform of the country's immigration laws. Obama has publicly made immigration reform a priority and will likely expend some political capital to push for CIR. Meanwhile, in both the House and Senate, proponents of immigration reform are gaining ground on immigration restrictionists..
Given the political momentum in Congress that historically follows the inauguration of a new president, chances are good that a substantive immigration reform bill will be passed before mid-term elections. What provisions that bill will contain and what compromises proponents will make to win support is more difficult to predict.
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