The Fast and the Furious

Immigration law is famously byzantine, but two things are already clear about the new Senate bill that was released on Sunday.

Many people have strong opinions about it. Practically none of them have read it.

None except the negotiators, that is. Sen. James Lankford, the lead Republican on the compromise, knows the ins and outs. In an interview on Monday, he struggled to understand why his right-wing critics have dubbed it, essentially sight unseen, a momentous “betrayal” whose defeat has suddenly become an important national priority.

Even by the standards of 2024, reaction to the bill in its first 24 hours has been fast and furious. But that was to be expected: Immigration is the issue about which thoughtful policy making is most urgently needed in America, yet also least possible.

That’s because the crisis of trust between the parties is nowhere more pronounced than it is with this subject. Democrats view Republicans, not wrongly, as slaves to Donald Trump’s political interests and bent on ensuring maximum chaos on Joe Biden’s watch, the better to justify a turn toward “law and order” authoritarianism in the next administration. A party that instantly opposes an “enforcement first” border bill after screaming for ages for better border enforcement isn’t dealing in good faith.

Republicans view Democrats, not wrongly, as at best indifferent to huge flows across the border and at worst slaves to a progressive faction that regards any form of enforcement as racial discrimination against impoverished nonwhites. A party that instantly praises the new bill as one that will secure the border after spending three years insisting that the border already is secure isn’t dealing in good faith.

Neither side trusts the other’s motives—and neither should.

But the right has problems that make compromise especially difficult. Because the GOP is less a political party with an agenda than a cultural movement, Republicans tend to default on policy to a unifying baseline principle of “if Democrats are for it, it must be bad.” A bill on an issue as fraught as immigration that’s capable of drawing many liberal votes is thus necessarily a “betrayal,” doubly so among populists prone to paranoia and practiced in the “Great Replacement Theory.”

Combine that with how much the grassroots right esteems public anger as a measure of political virtue and you can see why Sen. Mike Lee, once thought of as a sober and thoughtful legislator, was incentivized to produce the sort of theatrically outraged tweetstorm on Sunday night that might warrant an excited report in Breitbart. And also why Democrats might suspect they’re banging their heads against a wall trying to get Donald Trump’s party to agree to any sort of immigration deal in an election year. 

The crisis of trust makes Senate passage of the bill unlikely, but it also makes the politics—or meta-politics—of this moment interesting for centrists. Watching populists freak out about it ostentatiously today, I wonder how many “RINOs” in the Senate might find reasons other than the nuts and bolts of the bill itself to side with Lankford and vote yes.

Precisely what the new compromise will and won’t achieve is being parsed as I write this, but the basics seem promising—enough so that the union for U.S. Border Patrol agents endorsed it on Monday. The legal bar for asylum will be raised; asylum cases will be processed more rapidly; Immigration and Customs Enforcement detention capacity will increase by roughly 50 percent; and once admissions per day reach a certain level, detained migrants will be summarily removed and no asylum applications will be taken except at a port of entry until admissions ease. If it works as it should, the process of “catch and release” in which migrants are set free inside the U.S. pending their immigration hearing will end for single adults (but not unaccompanied minors or families).

Nothing in the bill would legalize or grant citizenship to illegal immigrants. For once, Democrats have thrown in the towel on a “comprehensive” deal.

GOP critics of the bill like Sen. Tom Cotton argue that there are too many loopholes in the text granting discretion to U.S. bureaucrats that would allow them to continue admitting migrants. That’s a legitimate concern; neither Joe Biden nor Homeland Security Secretary Alejandro Mayorkas have earned any benefit of the doubt about their good faith in stemming the flow. But ultimately Cotton is arguing for improving the bill, not defeating it. His complaints could be addressed via the amendment process in the Senate or by the Republican House after the legislation passes the upper chamber.

It’s also unlikely that either Biden or Mayorkas would exploit their discretion to keep the migrant influx going, at least in the near term. The point of this bill from the White House’s standpoint is to give the president an excuse to crack down on the border before Election Day so that he can impress voters with the progress that’s been made. He’s wary of doing that now via executive authority, knowing that progressives would blame him if he did, but if Congress forces him to do it then he gets to have his cake and eat it too. He can crack down, pleasing swing voters, and he can say that his hands were tied by the new law, mollifying leftists.

In fact, as my colleague Sarah Isgur pointed out on the latest Dispatch Podcast, the best reason for Republicans to oppose the bill—initially—is that they have all the leverage right now. Immigration has become such an immense political liability for Biden …

… that the Senate GOP might plausibly demand—and successfully extract—more concessions from Democrats in the name of reaching a compromise that can draw 60 votes. In a better world, the shrieks of horror over the bill from House Speaker Mike Johnson and Majority Leader Steve Scalise would be understood as simple plays for leverage in coming congressional negotiations.

I don’t think they’re playing for leverage, though. When they say the bill is dead in the House, they mean it. The word has come down from on high courtesy of a guy who couldn’t possibly explain the bill in detail even if you gave him a month to study it:

It’s not unusual in divided government for a chamber controlled by one party not to take up legislation produced by the chamber controlled by the other. In fact, it’s happened in this very context: The House GOP’s immigration wish list, H.R. 2, has been sitting in Chuck Schumer’s trash can for months.

What is unusual in the past 35 years is for the parties to compromise on an immigration package that might plausibly pass both houses of Congress, which is what Lankford and his Democratic partners have achieved. The stars have aligned politically in this moment to make liberals more agreeable about prioritizing border enforcement than they usually are. And congressional Republicans have every policy reason to take that opportunity seriously, at least by treating the bill as a useful starting point for amendments instead of declaring it dead on arrival.

The split we’re about to see among them over whether to proceed on this legislation is about a lot more than immigration, I think. It’s about “show horses” versus “work horses.”

On the one hand is Trump, who opposes the bill for his own selfish electoral ends and insists that no new laws are necessary despite thousands of daily entries by migrants during stretches of his own term as president. On the other is Nikki Haley, who dislikes parts of the new Senate bill but sees it correctly as a baseline for more fruitful compromise to address an urgent problem.

Haley’s position won’t earn her any new votes among a GOP electorate that views compromise as evidence of “uniparty” sympathies, but she’s already passed the point of trying to win. I think the contrast she’s trying to draw with Trump in the final stage of her campaign is essentially a branding exercise: Haley and her bloc of the party are the “normalcy” wing, and normal Republicans think Congress should at least try to address an urgent crisis rather than let it fester for months more because doing so might help Donald Trump become president again.

The “normal” wing of the Senate GOP conference might be thinking about that as they weigh whether to back this deal or not.

If the House were controlled by Democrats, Senate Republicans would be the last line of defense against a bad immigration bill. It would be their responsibility to ensure that the legislation is as strong as it can be before it’s sent to the other chamber and ultimately to the president.

But the House isn’t controlled by Democrats. The House isn’t even controlled by “normal” Republicans. It’s controlled, essentially, by a party to which figures like Mitt Romney, Susan Collins, Lisa Murkowski, and Thom Tillis don’t really belong and to which they might find themselves increasingly hostile.

The “work horses” in Congress (not all of whom are in the Senate) must be exasperated beyond words in 2024 with how successfully the “show horses” have managed to impede legislative business. Well, here’s their chance: Why not vote yes to help pass this bill and get the legislative ball rolling?

“Because they’ll be primaried,” you say. Is that right? I heard the same thing about Marco Rubio in 2013 when he joined the Gang of Eight immigration deal. He won reelection three years later, then won again in 2022 by nearly 17 points.

Voters tend to have short memories about “betrayals” that don’t actually end up becoming law. (Lankford may be an exception due to his prominent role in this case.) The new bill won’t become law without Republican votes in the House, and very likely won’t reach the floor without Mike Johnson being persuaded that he should take it up and improve it. The Senate “normalcy” caucus could make their support contingent upon that: “We’re supporting the bill in the hope and expectation that Speaker Johnson and his team will make it better.”

“But they’ll be jamming Johnson by passing the bill,” you might reply. Okay, and?

In a traditional party, it would be bad form for Senate Republicans to vote yes on legislation that the Republican House had already deemed a nonstarter. To pass it would be to cause a needless rift within the GOP, pitting members against each other while Democrats revel in the dissension.

But in a nontraditional party, senators who resent the fact that Trump’s political needs have taken precedence over meaningful lawmaking and who further resent Johnson for doing Trump’s bidding might conclude that putting a little pressure on the speaker by passing the bill in the Senate will be useful. Maybe it’ll get Johnson to reconsider and to try to improve the package. If he does, there’s a small but nonzero chance that the chambers will get together on text that majorities of both parties can live with it—and that chance might not come around again for years. If Republicans sabotage this deal in the expectation that Democrats will agree to a better one once Trump is president, they’re delusional: Liberals won’t forget that the GOP squandered this chance for electoral reasons.

Meanwhile, if the parties try but ultimately can’t get together to pass something, at least Republicans will have negotiated in good faith to solve the problem instead of cavalierly ignoring the bill in the House. That will be worth something to the right in the blame game afterward, particularly given the possibility that progressives, as much as MAGA populists, will end up spoiling the deal with their demands as it proceeds further in Congress.

But even if Johnson doesn’t reconsider and treats the Senate bill as DOA, that might be fine by the Senate GOP’s “normalcy” wing. How much do they care, really, whether their party retains the House majority next year? They did okay working with a Democratic House on matters like infrastructure during Biden’s first two years, and they must be chronically embarrassed to see the dysfunction into which the House GOP has fallen. They’d never admit it publicly, but I bet the likes of Susan Collins and Thom Tillis have complicated feelings nowadays about whether Congress is better off with a House run by Hakeem Jeffries or one run by a Trump puppet.

If nothing else, the Senate “normalcy” bloc might relish a chance to stick it to Trump and Johnson for the transparent bad faith in which they’ve operated.

That topic also came up in our latest Dispatch Podcast. It’s true that productive legislation sometimes fails because one party or the other benefits electorally from a crisis persisting, Jonah Goldberg noted, but it’s almost unheard of for members of the party to admit to that motive. Yet Republicans routinely do it now, from elder statesmen like Chuck Grassley to House newbies like Troy Nehls. It’s an open secret that Trump has been lobbying congressional Republicans privately to block the bill “in part because he wants to campaign on the issue this November and doesn’t want President Joe Biden to score a victory in an area where he is politically vulnerable.”

Lankford has been candid in calling this out, to his credit, marveling at how his Republican colleagues have changed their minds after initially demanding a package involving border security in return for Ukraine aid “because it’s a presidential election year”:

He’s said the same about Trump:

If you’re among the vanishing breed of Republican senators who take legislating seriously rather than as a pretext for grandstanding appearances on Fox News, the sheer cynicism of the party’s turnabout on immigration after months of bleating about a crisis must grate. I don’t know how many nascent Nikki Haleys there are on the Hill who might vote to advance Lankford’s bill simply to signal that Congress at least needs to try to do something productive for the country on the border, but there must be some.

It’s never been clearer that “normal” Republicans have no near-term future in this party. The dwindling remnant might as well do some good with what little time they have left.

And hey—if the bill, or some House-modified version of it, does end up passing and the crisis at the border doesn’t abate, that would also work out for Republicans. The White House is gambling that the opposite is true, that the GOP will be viewed by voters as “co-owning” the problem once they help pass an ineffective solution, but I think that’s all wrong. Because he’s the president, and because he has in fact presided over an unchecked disaster for three years, there’ll be no running away from this for Joe Biden.

It’s Republicans who’ll be able to run away from it. We behaved in good faith, they’ll say. We gritted our teeth and worked toward a deal we didn’t like in hopes that Joe Biden’s arm might finally be twisted into securing the border. It’s clear now that only a new president who’s always looked dimly on immigration can be trusted to ease the crisis. 

They don’t get to say that if they kill the bill summarily. Instead, Biden gets to say this fall that the crisis would have been solved if Republicans had acted, but it turns out they care more about Trump’s electoral needs than about the country.

So Senate Republicans should call Johnson’s bluff and send the bill over, hopefully after it’s been amended to close some of those loopholes Cotton is worried about. Let’s see what a chamber of “show horses” does once it’s on the hottest of hot seats to strike a compromise on an issue that desperately needs it.