Lawmakers working on an immigration reform and border security deal failed to gain traction before the start of a new Congress, in which Republicans are set to take control of the House, making their path even more perilous.
Now, Democrats and Republicans are likely to continue their clash over immigration, setting stages for court battles and a fight at the ballot box in 2024.
“Unfortunately, immigration has been used as a punching bag by a lot of politicians. It’s been used as a talking point. When it comes down to the nuts and bolts, you have a lot of folks who are speaking just rhetoric,” said Lydia Guzman, the National Immigration Committee chairwoman for the League of United Latin American Citizens.
SUPREME COURT KEEPS TITLE 42 IMMIGRATION POLICY IN PLACE FOR NOW
Democrats viewed the lame-duck session as their last chance to reform a system that has not been updated in decades before losing their majority in the House. A handful of bipartisan senators were working to strike separate eleventh-hour immigration deals with the hope of attaching their reforms to the $1.7 trillion legislation to fund the government. According to congressional aides familiar with the matter, none could secure the necessary 60 votes in the evenly divided Senate.
The most high-profile proposal came from Sen. Krysten Sinema (I-AZ), a former Democrat who registered as an independent, and Sen. Thom Tillis (R-NC), whose legislation would have provided a path to citizenship for 2 million undocumented immigrants brought to the United States as children, known as “Dreamers,” in exchange for at least $25 billion in increased funding for border security. Their framework would have also extended Title 42, a pandemic-era emergency health order that allowed immigration authorities at the border to deny entry to immigrants. The Biden administration tried to rescind the policy in May but was blocked by separate litigation.
This week, the Supreme Court ruled the policy will remain in effect while legal challenges continue, ensuring federal officials will be able to continue to expel immigrants at the U.S. border swiftly without considering their claims for asylum. The duo ultimately ran out of time to draft the legislative text and whip up support for the deal.
Democratic senators who had supported efforts to enact an immigration overhaul ultimately found themselves playing defense when the Senate took up the omnibus bill. Sen. Mike Lee (R-UT) offered an amendment to the bipartisan deal that would have blocked the Biden administration from rescinding the Title 42 policy. Democratic leadership, worried about centrist senators who might support the amendment, which would have doomed the large government funding bill in the House, countered with another option. Sinema and Sen. Jon Tester (D-MT) floated an amendment that would have set aside funding for border security while also preserving Title 42 restrictions until a “proper plan to manage the crisis” at the border is in place. The additional amendment gave centrist Democrats political cover to support the Sinema-Tester amendment that kept Title 42 in place while rejecting Lee’s. Both amendments failed to pass.
Guzman said she’s disappointed in the lack of progress during the lame-duck session to enact protections for recipients of the Deferred Action for Childhood Arrivals program, or DACA.
“There were just so many other things lawmakers were doing that protections for DACA recipients fell on the back burner,” Guzman said. “So right now, a lot of the ‘Dreamers’ that are recipients of DACA, I mean … they’re kind of, like, in limbo waiting to see what happens.”
A federal court case challenging the legality of DACA is expected to reach the Supreme Court. Immigration advocates are bracing for the court’s firm conservative majority to declare the program illegal. DACA, former President Barack Obama’s signature immigration program, was initially enacted with the intention of it being a temporary measure while lawmakers negotiated a legislative solution for “Dreamers.” In the decade since the program was implemented, most legal efforts against the program have been unsuccessful. However, in October, a federal appeals court ruled that the program is unconstitutional and that new applications will not be accepted, but renewals are allowed. The case is expected to be appealed to the high court.
“There will be, regardless of what they are saying, there will be a real need and recognition that Congress will need to act,” said Laurence Benenson, vice president of policy and advocacy for the National Immigration Forum. “I don’t think it will become real for a lot of people until the Supreme Court deals with that issue once and for all.”
While congressional aides involved with the more high-profile immigration framework believe it could serve as the basis for a bill in the next Congress, many remain skeptical that a House Republican majority could actually strike a deal on immigration, pointing to the failure of the last compromise bill under the previous GOP House majority in 2018.
Some Republican lawmakers have criticized any legalization proposal for “Dreamers,” saying the U.S. should not be granting “amnesty” to those living in the country without legal permission. The likely incoming House speaker, Kevin McCarthy (R-CA), has said he’d refuse to consider any “amnesty proposals while Republicans control the House.”
“If he is speaker of the House, he has a lot of sway, of course, and what makes it to the House floor and what gets a vote. So that’s a real challenge,” Benenson said.
However, some outside groups with visibility into negotiations in Congress believe there could be solutions implemented incrementally instead of a wider-ranging piece of legislation. Lawmakers had considered bills that would have offered pathways to citizenship for farmworkers and Afghans evacuated to the U.S. since the end of the war, as well as a proposal that would have removed caps on the number of green cards given each year to people from specific countries. While none of these initiatives passed this session, some lawmakers would like to see them considered individually.
Several Hispanic House Republican members said they are looking to work across the aisle to find a compromise on immigration, according to the Washington Post.
“I’m looking for partners, and it’s been very difficult in this political environment to find partners that want to have a real conversation. But we’re still able to do it,” said Rep. Tony Gonzales (R-TX), referring to a proposal he and Rep. Henry Cuellar (D-TX) negotiated that would improve law enforcement’s capacity to manage migration influxes and make the asylum process more efficient.
Rep. Maria Elvira Salazar (R-FL) told the Washington Post she is beginning to huddle with Democrats and Republicans to talk about opportunities for immigration-related legislation next term.
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“McCarthy has a lot of new members from the Northeast, from New York, from California, who are more open to immigration reform. Given the small margins in the House, they will have a say,” Benenson said. “Whether that’s encouraging him to reach bipartisan solutions or whether it’s even something like a discharge petition, where you can have 218 members sign a petition and bring something to the floor regardless of what the speaker of the House wants to do. We don’t see that a lot, but that’s an important procedural tool.”
Congress has remained gridlocked on immigration issues for decades. Major bipartisan efforts to change U.S. immigration laws failed in 2007, 2013, and 2018. While hope for legislation this session has come and gone, advocates continue to argue an immigration overhaul is becoming even more urgent.
“This was a missed opportunity to act in this Congress,” Benenson said. “It’s going to be harder in the next Congress, particularly given the skepticism by McCarthy if he becomes speaker. But these problems don’t solve themselves. Ultimately, Congress is going to need to act.”
