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02/10/2014 08:21 pm ET Updated Apr 12, 2014

The Future of Immigration Reform

Last week, John Boehner made a rather stunning turnaround on whether the House will be passing some sort of immigration reform this year. To be snide: First he was for it, before he was against it. What happened in between (one assumes) is that he tried to sell the idea to his own caucus. Who (from all appearances) wasn't buying it. While this might not be the end for immigration reform this year, the idea certainly can now be said to be on life support, at best. What this means for the future of immigration reform is anybody's guess at this point, so I thought I'd map out a few scenarios which assume immigration reform is not going to pass before this year's elections.

Republicans -- especially those in the House fighting to keep their jobs this year -- are leery of taking on immigration reform right now. The reason they've got a big advantage in the midterm elections, they think, is because their signature issue of hating Obamacare is going to be good enough to propel them to victory in the Senate. So why delve into a subject that is contentious and divisive within the Republican Party in the meantime? If you buy into the assumptions made, this reasoning makes perfect sense for House Republicans. The only problem with it is that there's always a reason not to do something this big, and this might be the only chance Republicans get before the 2016 presidential election to pass immigration reform.

Some Republican strategists are hinting that maybe -- just maybe, mind you -- Republicans will take up the issue right after the November vote. In the "lame duck" period of Congress (between the election and January, when the new Congress is sworn in), House Republicans will magically get their act together, produce legislation, and then forge some sort of compromise with the Senate so a bill can reach President Obama's desk. That's a lot to ask for in a very short period of time, of course. But what Republicans don't admit (or possibly haven't thought out yet) is that this scenario only really works if Republicans lose big in the upcoming election. If Republicans win big, why would the outgoing Congress pass something when the incoming Congress will be more heavily Republican? If the status quo holds (if neither Republicans nor Democrats win big), then Republicans will be disappointed at not winning big (which they are all currently telling themselves is inevitable) and won't have much stomach for taking on such a contentious issue. They'll be demoralized, especially if Democrats hold the Senate, and they won't be enthusiastically launching any big reform efforts. But if Republicans lose big, then they will reason that any reform efforts passed before the next Congress is sworn in will be "more Republican" -- most especially if they have lost control of the House. So they'll have a big motivator to passing something quickly, before the next Congress has a chance to act.

Looking a bit further into the future than the fantasy of the lame duck Congress quickly passing sweeping reform measures, there are essentially three or four scenarios worth considering. Sadly, for those who support immigration reform, the opportunities will shrink to pass real reform in 2015 or 2016 in all but one of these. As mentioned, it's always easy for Congress to find reasons not to act. Let's take a look at them one by one, from the most optimistic (for Democrats) to the most pessimistic (for the chances of real reform passing).

 

Democrats win big, take House

This rosy-tinted scenario begins with an upset at the polls. Democrats not only hold onto the Senate, but also take control of the House. Next January, the first order of business will be taking up immigration reform. Because it will be a brand-new Congress, the Senate bill which previously passed will expire. So the Senate could either pass the same bill or tweak it slightly. The House would pass their own version, and a compromise would quickly be reached. To get through the Senate again, Democrats will need a filibuster-proof 60 votes, which likely will mean some Republicans will have some influence in the final bill. So it won't be solely Democratic ideas which make it into the final legislation. But it will guarantee that whatever passes is real reform -- defined as "reform which doesn't create an impossible path for undocumented immigrants to follow." Obama, of course, will happily sign the bill into law.

 

Status quo wins, Congress remains split

In this scenario, the Republicans hold onto the House and the Democrats hold onto the Senate. Depending on who increases their margin in both houses, perhaps some sort of lame-duck compromise is reached, but this would be a long shot. What will likely happen is that the issue will be waiting for the new Congress in January. I should note that this scenario also works (in reverse) in the unlikely event that the Democrats take the House while the Republicans take the Senate (the longest of longshot outcomes this November).

But if both houses stay essentially unchanged, the big question is whether House Republicans would tackle the issue early in 2015 or not. This is what Republicans are saying now (as an excuse for inaction in 2014) -- that they'll come back in 2015 eager to work on solving the problem. Well, maybe not "eager," but at least "willing." The problem with this plan, as pretty much everyone is currently pointing out, is that even if the House does make a good faith effort to pass immigration reform in early 2015, it will put the issue front and center in the Republican primary campaign (which will ramp up almost immediately after the votes are counted this November).

By doing so, the presidential candidates are going to become the de facto party leaders on the issue. And, as we've seen before (see: Mitt Romney, "self-deportation") this means the candidates can be expected to veer hard right, in order to woo Republican primary voters. This will lock in the anti-immigration reform stance for the 2016 campaign, which may well lose the White House for Republicans.

All of which is true, but I'm not so sure this isn't a convenient excuse for Republicans to never take up immigration reform. After all, "election season" never really ends in Washington. If Republicans can't tackle immigration reform in the year after a presidential election (which they proved incapable of doing in 2013), the year before a midterm election (this year), or either of the two years before a presidential election (2015 and 2016), then by definition they can never politically manage to get it done. Which is pretty much where we've been for the past few decades, in fact.

The Republican Party is widely split on the advisability of passing any sort of immigration reform. Many -- including many of their base voters -- are not convinced that anything of the sort should be done at all. The business elites within the party want it to happen, as do the party leaders who are aware of their growing inability to win presidential elections with the way American demographics are changing. But I find it hard to believe that punting the issue to 2015 is going to change this calculus in any appreciable way. Which means not doing anything on immigration reform (with the possible exception of some sort of grandstanding bill from the House which will never pass the Senate) until at least 2017. When the entire cycle will begin anew.

 

Republicans win big, take Senate

If the Republicans are right and win big this fall, they would wind up controlling both chambers of Congress. This would significantly change the power dynamic, but how that relates to immigration reform is murky.

Because (as mentioned) the old Senate bill would be dead, the Senate will have another bite at this apple. It is almost impossible for the Republicans to win a filibuster-proof majority of 60 seats, but they could always change the rules and do away with the legislative filibuster to avoid this problem. This would leave all the congressional Democrats in both houses out in the cold. Democrats in Congress would have no leverage or real input on what could pass, at this point.

Which would clear the field for Republicans to write what they consider to be "immigration reform" bills. These would not resemble what already passed the Senate, to put it mildly. They would be heavy on enforcement, and provisions for undocumented immigrants would be either so cumbersome as to not be workable in the real world or they would be entirely non-existent.

Even if the Senate Democrats, by virtue of being able to filibuster, had some impact on the legislation, the real question becomes what will be seen as acceptable -- to both President Obama and to immigrants-rights groups. If the legislation which emerges is so odious that the immigrant-rights groups condemn it, then Obama could easily veto it and state that it wasn't "real reform."

The problem, though, is what happens if Republicans surprise everyone and come out with a bill that -- at least on its face -- seems reasonable enough to most people. What if they obfuscate the reality (that few immigrants will ever be able to walk any "path" to legalized status) well enough that even immigrants-rights groups begin to waver? "Well, it's better than nothing" from such groups would put Obama in a very tight place. Would he veto the bill knowing that it won't help many people at all (and knowing that this might be the last chance for real reform in a generation), or will he too buy into the "it's better than nothing" thinking, and go ahead and sign a bad bill?

 

Republicans win it all in 2016

This is a longer-term scenario, which I included just for the sake of argument. This ignores the outcome of the 2014 midterms and assumes that whatever the outcome that no immigration reform will happen until after the next presidential election. This is, of course, the most pessimistic scenario imaginable for Democrats.

If Republicans hold the House, the Senate, and win the White House in 2016, what happens to immigration reform's chances? Well, in this case, two things could conceivably happen. The first is that immigration reform simply won't happen at all, for the foreseeable future. If Republicans score such a commanding victory, then they'll all tell themselves that they were right all along and nothing really needs to happen on immigration.

It gets even scarier for Democrats, though, if they do decide to move on immigration. Because if they hold all the reins of government, then they may decide to pass all the enforcement ideas any Republican has ever come up with, and cement either "self-deportation" or (even worse) "round them up and send them home" deportation as the desired outcome of any "immigration reform" effort. Draconian bills will pass both the House and the Senate, and the new Republican president will happily sign them all into law.

 

When you look at all the options, what immediately becomes apparent is that elections matter. If immigration reform does not happen this year, then the chances are fairly high that it won't happen during the next Congress, either (at least, nothing that would qualify as real immigration reform).

Which brings us back to where this conversation really started. The window for immigration reform to happen seems to be closing. Unless Democrats pull off a stunning upset victory in November, the chances for immigration reform successfully happening are greater now than they will be until at least 2017, when the next president is sworn into office. Republicans who shy away from tackling the issue now will shy away from tackling it before then, and the reasons for such inaction will remain the same (or become stronger, even). The issue is always going to divide the Republican Party -- that fact is just not going to change in the next three years.

The only shred of optimism left to cling to for those who want to see immigration reform pass this year is that perhaps John Boehner is merely pandering to his own party's base voters in a temporary fashion. He may possibly be performing a classic "bait and switch" on his own party. We are, right now, in the heart of primary season for the midterms. Republican voters are about to get a chance all over the country to nominate candidates for House and Senate seats for the November general election. It was rumored last year that Boehner was going to wait until after the primary dust settled before making his push for immigration reform. This may still be true, no matter what Boehner is now saying.

Once the slates of candidates are set after the primary elections, Boehner will know that Tea Party primary challenges for congressional Republicans are at least two years away (the maximum possible time, in the House). If the Tea Party doesn't do well in the primaries, then Boehner would have a freer hand to introduce the issue in the House. Some Republican voters would stay home in disgust in November and not vote at all, but the feelings against Obamacare run so high in the base that this could overwhelm any "stay at home" movement.

John Boehner knows that his party's chances to win national elections on the presidential level would be much improved by passing immigration reform. He also knows that this is not true for his House Republicans. The only way for him to walk this tightrope is to now appear to be against immigration reform, and then later champion whatever version the House comes up with as "true Republican immigration reform." This could be what he's doing right now, in fact.

Unfortunately, this is pretty much the only chance immigration reform is now left with. Because if Boehner doesn't buck his own Tea Party this year (after the primaries are over), the chances of anything meaningful passing before 2017 become pretty dismal.

 

Chris Weigant blogs at:

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