Immigration Reform Looks To Be Dead Indefinitely

After the breakdown of a bipartisan Senate compromise in recent weeks, passing legislation to secure the porous southern border is a dead issue in Congress. And even if Donald Trump manages to defeat President Joe Biden in November, there’s little he could do to push another such piece of legislation through.

The legislative package, to address a migrant crisis plaguing the U.S.-Mexico border, was negotiated by Sen. James Lankford, an Oklahoma Republican; Sen. Chris Murphy, a Connecticut Democrat; and Sen. Kyrsten Sinema, an Arizona independent. Many Republicans who scuttled the deal—in both the House and Senate—have argued they will be able to negotiate a stronger deal under a second Trump administration, which public opinion polls show is a distinct possibility. 

But in a Senate requiring a supermajority of 60 votes to clear virtually all legislation, the only border security measures Republicans can hope for post-Biden are temporary policy gains: ephemeral White House executive orders sure to be undone by the next Democratic president. Indeed, that’s exactly what happened after Trump failed to secure lasting changes to immigration law during his presidency—despite Republicans controlling both chambers of Congress during the first half of his term. 

The 45th president ultimately resorted to hundreds of unilateral regulatory actions to plug holes in the border, only to see the 46th president gradually rip up many of those executive orders after taking office. The past few weeks may have represented the one chance the GOP had to make meaningful changes to border and immigration policy for a generation: Plenty of Republicans in Washington acknowledge there is no evidence to suggest immigration policy in a second Trump administration would unfold any differently. Executive action—as opposed to congressional action—would leave politically charged immigration problems to fester, even if papered over in the short run. 

“I don’t know what scenario it would take to fix the border or even more complicated immigration policy in general,” Sen. Kevin Cramer, a North Dakota Republican, told reporters this month, after GOP opposition doomed the Lankford-Murphy-Sinema agreement. “The political will isn’t there to get an outcome that’s acceptable.”

Sen. Lindsey Graham, a staunch Trump ally who helped sink the border compromise despite initially participating in the negotiations, also conceded pessimism about the future of immigration legislation, even if the GOP wins House and Senate majorities in this year’s elections and the former president is victorious in his rematch with Biden. “He had four years and we were unable to pass anything,” the South Carolina Republican lamented in brief remarks to The Dispatch.

Democrats are equally pessimistic about the future of immigration legislation, although for different reasons. 

When Biden requested $106 billion from Congress in supplemental military aid for Ukraine, Israel, and Taiwan, congressional Democrats supported the proposal essentially as-is. But in the Senate, Democrats agreed to negotiate a compromise border security package with their GOP counterparts largely because Republicans insisted they would oppose the president’s foreign assistance legislation unless the migrant crisis was addressed. To satisfy them, Democrats even agreed to border security legislation that abandoned a longstanding priority: legalization for at least some subset of the illegal immigrant population, such as those brought here unwittingly as children by their parents. 

But after Senate Republicans abandoned the Lankford-Murphy-Sinema agreement— primarily to satisfy Trump’s demands that they do so—and a fraction of them voted for Biden’s military supplemental in any event, Democrats say immigration reform is kaput for the foreseeable future. Senators have long memories, and Democrats have indicated they simply do not trust Republicans to negotiate in good faith on this issue. And, even if they did, the GOP is unlikely to get another deal from Democrats that does not include some form of amnesty, a component anathema to Republicans.

“I think bipartisan immigration reform is dead as a doornail,” Murphy said in response to a question from The Dispatch, echoing comments from several top Democrats and party insiders. “They have made perfectly clear that they only view this issue as a political wedge—that they are allergic to fixing the problem because they need the border to be chaotic for the next election.”

“The broken border is so existential to this party that they are not going to work with us,” Murphy added. “I probably should have picked up on that before I went into the [negotiating] room given that that’s how they’ve operated for the last 20 years. We’ve never gotten a big, bipartisan immigration reform bill because Republicans haven’t been willing to support it.”

Passing immigration legislation through Congress has bedeviled presidents of both parties for decades. 

In 2004, Republican George W. Bush pushed a plan that featured a guest worker program, part of a proposal to stem the flow of illegal immigrants from Mexico coming north in search of economic opportunities. The bill was met in Congress with bipartisan opposition, and was killed by a sharp backlash from grassroots conservatives. Eight years later, freshly reelected Democrat Barack Obama took his turn in the immigration till. 

After months of negotiations, the Senate in June 2013 approved legislation crafted by the “Gang of Eight”—four Democrats and four Republicans (including Graham and Sen. Marco Rubio of Florida, both of whom opposed the Lankford-Murphy-Sinema compromise.) That package, which featured a path to legalization for illegal immigrants under certain conditions in exchange for border security measures, died in the House after Speaker John Boehner, an Ohio Republican, bowed to GOP pressure and refused to call a floor vote.

Up next: Trump. Obama’s successor staked his 2016 campaign on border security, vowing to build a wall across the Southern border and force Mexico to finance it. Neither happened, nor did Trump’s two attempts to corral his party and reach grand bargain agreements with Democrats to overhaul U.S. immigration law. 

Now Biden makes four presidents who have tried and failed this century to prod Congress into reforming what Democrats and Republicans agree is a badly broken system.

Political operatives who have worked in Washington for years say there’s no reason to believe this pattern of failure won’t continue under Trump 2.0—or during a second Biden administration, for that matter. “It’s far easier to see an immediate future of executive orders and administrative actions than it is imagining the next president figuring out a legislative solution that has vexed presidents going back to Bush and Obama,” said Robert Simms, a veteran Republican strategist.

For a moment, the immigration reform curse seemed poised to be broken. 

To coax congressional Republicans into approving supplemental aid for Ukraine, Israel, and Taiwan—foreign assistance GOP lawmakers had historically supported without arm twisting—Biden offered to sign into law a border security package. Republicans had for months demanded changes to U.S. immigration and asylum law to secure an overwhelmed Mexican border and deter illegal crossings that have surged to record numbers since Biden relaxed his predecessor’s regime of executive orders. “I support funding for Ukraine, I support funding for Israel,” Sen. John Cornyn, a Texas Republican, told reporters in early December. “But this is an opportunity for us to force the Biden administration to do what they should have been doing all along.”

Republicans labeled the border situation a crisis, and for good reason, telling Biden they could not in good conscience help other countries defend their borders absent doing the same here at home. And Republicans had something Biden needed: their votes. So, Lankford, Murphy, and Sinema got to work crafting a package that would obviously fall short of the demands of GOP immigration hawks—and anger some Democratic progressives. But that’s the nature of legislating in divided government, or in a Senate where 60 votes rules.

This gang of three achieved their objective, and the $118 billion package was backed by Biden, most Senate Democrats and the labor union representing border patrol agents.

The bill included measures to speed up the processing of asylum claims to no more than six months from as long as 10 years; to end the practice of “catch and release,” by which migrants applying for asylum who are apprehended at the border are released into the U.S.; and increased funding for the hiring of more border patrol and asylum processing personnel, and to help inundated border communities shelter and care for migrants. 

Some Republicans, however, took issue with the legislation’s other proposals. 

Namely, that the bill gave presidents the discretion to close the border completely, “until DHS has processing capacity and operational control of the border,” if the daily average of migrant encounters averaged more than 4,000 in a single week, but would force the commander in chief to do so if migrant encounters averaged more than 5,000 daily per week, or exceeded 8,500 in a single day. 

The goal of the provision was to bring clarity to the law, and constrain future presidents who may resist these sorts of border security policies. Some Republicans, such as Sen. John Barrasso of Wyoming, the third-ranking GOP leader in the chamber in particular, said this measure would essentially legalize illegal crossings up to these numbers and fail as a deterrent (though others pushed back on that point). 

Republicans also opposed elements of the bill that proposed to increase the number of employment and family based visas by 50,000, annually, over five years.

Once Trump publicly opposed the bill, most Senate Republicans balked, arguing new legislation was unnecessary despite previously demanding it. Biden, they argued, has the power to significantly mitigate the migrant crisis without any mechanism from Congress. All the president has to do is reverse the executive orders he issued that reversed previous executive orders issued by his Oval Office predecessor. “The law already says that you shall detain anyone who’s in this country unlawfully,” Rubio said. “Biden, tomorrow, could do a lot to end this crisis.” Some Republicans disagree with this position, widely held on the right.

Republicans’ complaints about the Senate compromise are hardly illegitimate—they prefer H.R. 2, the border security legislation approved by the GOP majority in the House—but GOP lawmakers and strategists from both the traditional wing of the party and the Trump wing agree that the politics of signing onto achievable, bipartisan immigration legislation was too heavy of a lift for their side of the aisle. In an election year when the border crisis appears to benefit Trump in his race against Biden, it would have been nearly impossible to convince grassroots conservatives to embrace the Lankford-Murphy-Sinema agreement.

“Nothing is more visceral for Republicans than immigration,” said Brendan Buck, a Republican operative who advised Paul Ryan when he was speaker of the House. “We will never solve immigration, even in parts, until compromise is no longer toxic.”