The History and Prospects for Comprehensive Immigration Reform
by Foster, on Immigration Updates
Immigration and Control Act of 1986
The last major immigration reform legislation Congress passed was the Immigration and Control Act of 1986. It was passed by a Republican Senate led by U.S. Senator Al Simpson of Wyoming and a Democratic House led by Ron Mazzoli, a Democratic Congressman from Louisville, Kentucky. The legislation, signed by President Ronald Reagan, involved a major trade-off by which restrictionist members of Congress achieved a major goal by imposing a requirement on all U.S. employers to effectively enforce U.S. immigration laws by verifying that all new employees were “authorized” U.S. workers in exchange for which a large number of undocumented aliens who had been residing in the U.S. since prior to January 1, 1982, were eligible to acquire Lawful Permanent Residency or so-called “green card” status, initially on a conditional basis.
However, the 1986 Act failed to end undocumented immigration given the fact that employer sanctions depended upon the ability of the employer to determine whether or not the new employee was an authorized worker. In the end, Congress selected the Social Security Card as the primary document to establish work authorization status. Unfortunately, Congress failed to also require an upgrade of the Social Security Card. With reasonable Social Security Card facsimiles being readily purchasable in any flea market, large numbers of undocumented workers continued to enter the country to find employment.
Efforts of President George W. Bush and Congress – 2001-2007
Upon the election of President George W. Bush in 2000, there was a concerted effort to deal with this issue by enacting broad based comprehensive immigration reform. It appeared likely that major comprehensive immigration reform with all the basic components would pass. In early September, President Vicente Fox of Mexico making a State Visit joined President Bush on the White House lawn and both spoke optimistically about the need and prospects for passing comprehensive immigration reform. But all of that came to an end a few short days later on the terrible morning of September 11, 2001. It was not until President Bush’s reelection in 2004 that it became possible again to consider the passage of immigration reform legislation.
A major effort was made by Senators Edward Kennedy, John McCain and others to pass such legislation in 2006 and 2007, but it ultimately failed. All of the legislative efforts included significantly increased border enforcement, additional fencing and with milestones to be met before the balance of the legislation could be effective. Long term residents of the U.S. in undocumented status without any serious criminal would be eligible to apply for an interim legal status and after approximately 10 years, which would prevent anyone from “cutting in line,” qualified aliens could then apply for Lawful Permanent Residency in the United States. Like any other Lawful Permanent Resident or so-called “green card” holder, 5 years later they would be eligible to apply for U.S. citizenship. But for all practical purposes immigration reform was “DOA” in the immortal words of House Judiciary Chairman James Sensenbrenner after the Republicans gained control of the House in the 2006 mid-term elections.
President Barack Obama and Congressional Efforts – 2009-2014
While Congress ultimately failed to pass comprehensive immigration reform under President George W. Bush, the election of President Barack Obama in 2008 gave new hope for the passage of same, particularly given the fact that the Democrats controlled both the House and the Senate. But President Obama’s decision to lead with healthcare and financial reforms ultimately proved fatal to the prospects for immigration reform. The President lost the House of Representatives in the 2010 mid-election and a Republican controlled House was again adamantly opposed to broad-based immigration reform.
Following the defeat of the Republican presidential nominee, Governor Mitt Romney, in the 2012 election, there was a brief hope that Congress would take up and pass comprehensive immigration reform. To the surprise of many, Speaker John Boehner urged the House to pass immigration reform. In June of 2013 the Senate, led by the so-called “Gang of 8” which included Senators Chuck Schumer of New York, John McCain of Arizona, Marco Rubio of Florida, Lindsey Graham of South Carolina and others, passed Senate Bill 744, a major comprehensive immigration reform bill. But Speaker Boehner could never bring up a comprehensive immigration reform for a vote in the House since he did not have a majority of his own Republican caucus to support same.
Prospects for Immigration Reform – 2016-2017
Republican immigration reform has again become a hot topic in the 2016 elections, particularly in the Republican primary. Donald Trump started his campaign by claiming that undocumented immigrants from Latin American, particularly Mexico, were rapists and criminals and were flooding across a wide open U.S./Mexico border to go on welfare, promising to build a beautiful wall on every inch of the Mexican border and making the Mexican government pay for it. Trump moved the goal post by also advocating something that no politician, Democrat or Republican, liberal or conservative, had even suggested before by calling for the complete removal of an estimated 11-12 million undocumented workers, even including their U.S. citizen children, from the United States within 12-18 months. While Donald Trump’s comments have been widely criticized, his high polling numbers within the Republican base shows an extreme frustration on the part of the electorate about immigration. However, to a significant degree, their anger over this issue was predicated on a false premise created by ultra-conservative media and politicians. The picture painted by them was that the border was wide open (False – we have some of the lowest rates of undocumented entries since Richard Nixon was President), that the majority of individuals coming are criminal and rapists (False – Latinos in general and particularly Latino immigrants and even more particularly undocumented workers have the lowest criminal rates of any demographic in the U.S.) and that they are crossing over to go on welfare (False – given the fact that welfare reform legislation specifically precluded any undocumented worker from receiving any benefits).
Realistically, the prospect of any meaningful immigration legislation in the current year is very remote. The best possibility for immigration reform would be the election in November of the Democratic presidential candidate along with a filibuster-proof 60 seat Democrat majority in the Senate and a Democrat majority in the House of Representatives; all of which seems highly unlikely at this time. The other possibility, contrary to present prospects, would be if the Republican Party nominated a candidate like Governor Jeb Bush who continues to support the enactment of comprehensive immigration reform similar to his brother, President George W. Bush, and once elected, leading a bipartisan majority to pass comprehensive immigration reform as his first legislative priority.
The components of any effective comprehensive immigration reform legislation would again include not only enhanced border security, but also a viable temporary worker program with protections for U.S. workers with legal mechanisms by which people can enter the U.S. and legally work where there are proven shortages of U.S. workers. Such legislation also includes an expansion of E-Verify with an enhanced Social Security Card to give teeth to employer sanctions in order to make it more difficult for undocumented workers to secure employment once they enter the United States and a 10-year path to U.S. residency for long term residents of the U.S. who have no serious criminal convictions.
In conclusion, while the elements of comprehensive immigration reform have broad based public support, it is unlikely Congress will take up any immigration legislation until we have a new president and Congress in January 2017.
Charles C. Foster, Chairman, Foster LLP; immigration policy advisory to President George W Bush 2000/2004 campaigns and to President Barack Obama 2008 campaign; past National President, American Immigration Lawyers Association.