Fiasco. Disaster. Meltdown. Take your pick.
Any one of those descriptions accurately sum up the Republican Party’s handling of immigration policy in 2018—especially the warring caucuses in the House of the Representatives.
But the failure of two major pieces of legislation in Congress at the start of the summer should not obscure real and significant changes to federal immigration policy, changes driven entirely by executive action in the Trump administration.
Having weaponized identity politics in general and immigration in particular, Democrats were mocked relentlessly for their failure to consider, let alone pass, comprehensive immigration legislation during the first two years of Barack Obama’s presidency in 2009 and 2010 when they had majority control of both chambers of Congress.
With Donald Trump’s election two years ago, the roles were suddenly reversed. The pressure was on House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and President Trump to deliver. If anything, the stakes are higher this time around because fixing illegal immigration was the central motivation of the Trump candidacy.
Whereas the Obama administration engaged with Congress in fits and starts for six years before shifting dramatically into executive action mode just two weeks after the 2014 election, the Trump administration engaged in a two-track approach from the very beginning, pushing Congressional leaders to deliver legislation while simultaneously taking administrative action.
Within days of being sworn in, Trump signed Executive Order 13769, which included a travel ban on immigrants and visitors from seven countries, notably Iran, Libya, and Syria. Challenged and revised twice, the travel ban was upheld in a 5–4 Supreme Court ruling on June 26, 2018, a day before Republicans in the House voted on a comprehensive immigration reform bill.
Comprehensive Legislation Fails, 2018 Edition
Crafting comprehensive legislation to reform the complex US immigration system would be a challenge in the best of times—meaning: times when the two political parties work together in good faith, when compromise is a goal to be achieved rather than avoided, and when the White House offers a calming influence. Suffice to say, Speaker Ryan had an impossible task in landing this whale as he opened the new Congress in early 2017, made far worse by Democrats locked into #Resistance, leavened by disruptive tweets from @realDonaldTrump.
The bottom line: on June 27, the House voted on a bill negotiated exclusively among Republican members for over a year to meet the shifting demands of the Trump administration. The bill was defeated, 121–301, garnering barely half of the available GOP votes.
For reasons that defy easy explanation, Speaker Ryan allowed two competing bills to be voted on by the full House in late June; this latter bill was considered the more centrist one.
Fundamentally, it resolved the status of illegal immigrants brought to the US as children (the DACA kids) with a six-year legal status and pathway to citizenship, provided $23 billion for a wall along the Mexican border, ended the diversity lottery, and modified the composition of legal immigration toward a merit-based structure. In other words, the “Goodlatte II” bill included all the big things President Trump asked for in his first speech before the Congress.
Because the president began his term by rescinding many of Obama immigration actions, notably the DACA memorandum that granted temporary legal status to illegal immigrant children, Ryan and McConnell set about assembling a legislative fix.
Why did the big push for legislation fail? One plausible reason, despite the president’s willingness to make a deal, is that many of his staffers are not.
By now it is clear that the Trump administration is rife with infighting on economic issues. That infighting is often evident in diametrically opposed signals from one cabinet official who publicly disagrees with another cabinet official. These disagreements have been publicly aired on trade, immigration, and tax policies. Trump himself tweeted that a pathway to citizenship was a deal breaker, but later said it was fine. That kind of instability stymied legislative negotiations among GOP members. The departure of Gary Cohn as the head of National Economic Council seems to have unleashed Trump confidant Stephen Miller, an ideological nativist who is filling the ranks of various agencies with like-minded allies.
When Congress began working in earnest on an immigration bill last October, Miller led the drafting of White House principles that were essential elements of any law that included a DACA fix. One might think this was a handful of horses to trade with Democrats on the DACA kids, maybe a half-dozen items. However, the seven page White House memo included no fewer than seventy demands. Let’s not kid ourselves: this isn’t a good faith effort to shape legislation. It’s cynical and designed to fail.
As the House Judiciary Committee marked up a bill for consideration in early 2018, weeks became months. Ryan had to fend off frustrated Republican centrists who worried the issue would be punted once again. They threatened to file what is known as a “discharge petition” that would bring alternative bills directly to the full chamber—a legislative vehicle that allows a bipartisan majority to overrule the Speaker and Party leadership.
Discharge petitions need support from 218 members. Rumor had it that this petition had 216 votes. It would have succeeded until Ryan promised centrists they would get consideration of a center-right bill by the end of June, no matter what. Meantime, members of the hard-right Freedom Caucus threatened to tank that effort unless they got a vote on their own bill. Hence the two-pronged approach. Republican staff worked feverishly behind closed doors to thread the needle on both approaches.
As the two bills were being finalized, the Trump administration announced a new “zero tolerance” enforcement policy of illegals claiming asylum at the southern border that would separate all children who accompanied adults, including parents. The policy created a firestorm, as the timing of the controversy engulfed cable TV and disrupted House negotiations.
On June 19 the president visited House Republicans at the Capitol, ostensibly to rally support for both bills. Some interpreted his remarks as supportive of either bill, but his support veered from vague, to strong, to negligent, and then back to strong over the next few days. One member confided to CNN that the president’s visit was nice but “didn’t move the ball.”
Two days later, the hardline bill failed as expected, but Ryan decided to delay voting on the second bill. Representatives were trying carefully to vote with the President, not to cross him, but were frustrated. Ryan committed to a vote on June 27, come Hell or high water.
“I don’t understand where the administration is right now on this issue,” said Congressman Mike Coffman (R-CO) as the second vote loomed. Small wonder. Consider these tweets from @realDonaldTrump during the critical days in late June, which are just a handful of the many tweets about immigration he made during this timeframe:
- June 19: “#CHANGETHELAWS Now is the best opportunity ever for Congress to change the ridiculous and obsolete laws on immigration. Get it done, always keeping in mind that we must have strong border security.”
- June 20: “The Fake News is not mentioning the safety and security of our Country when talking about illegal immigration. Our immigration laws are the weakest and worst anywhere in the world, and the Dems will do anything not to change them & to obstruct-want open borders which means crime!”
- June 20: “Had a great meeting with the House GOP last night at the Capitol. . . .!
- June 21: “What is the purpose of the House doing good immigration bills when you need 9 votes by Democrats in the Senate, and the Dems are only looking to Obstruct. . . .”
- June 21: “We have to maintain strong borders or we will no longer have a country that we can be proud of—and if we show any weakness, millions of people will journey into our country.”
- June 22: “Republicans should stop wasting their time on Immigration until after we elect more Senators and Congressmen/women in November.”
- June 27: “HOUSE REPUBLICANS SHOULD PASS THE STRONG BUT FAIR IMMIGRATION BILL, KNOWN AS GOODLATTE II, IN THEIR AFTERNOON VOTE TODAY. . . .”
- June 30: “I never pushed the Republicans in the House to vote for the Immigration Bill. . . .”
The fiasco of the double failure of immigration bills in the House was so fast that staffers who had worked on the issue for years were stunned. Republicans privately fumed that the White House bore the blame, and many fingered Stephen Miller, the senior White House aide, for sowing chaos on purpose. The end result is that Republicans fractured and failed, a failure that many believe will cost them dozens of seats in the November mid-terms.
Executive Action Succeeds
Only Congress can provide funding to extend and upgrade the wall along the southern border. Only Congress can revise the legal immigration system that is heavily tilted toward families. And only Congress can resolve the status of twelve million immigrants permanently residing inside the United States. But the executive branch is far from powerless.
The Wall Street Journal’s Gerald Seib reports that “[w]hile the loud public discussion focuses on Trump administration policies to stop illegal immigration, the administration also is taking myriad quieter steps to reduce legal immigration.” These include crackdowns on high-skilled temporary work visas, known as H-1Bs. Applications for H-1Bs made by US firms have faced skyrocketing rejection rates by the Trump administration.
The President also has complete authority over refugee policy: how, where, and when. Another section of Executive Order 13769 slashed the maximum annual refugee cap from over 100,000 to under 50,000.
This year, the Trump Administration is on pace to accept just 22,000 refugees according to reporting by Abigail Tracy of Vanity Fair. Analysts point to Stephen Miller’s successful broad-spectrum effort to hinder refugee applicants as the reason, thereby justifying lowering the cap further. He is reportedly pushing for the annual cap to be set at 15,000 refugees next year.
To be clear, the category for refugee admissions is for people around the world to apply at US embassies for protection. People in faraway place such as Cambodia, Venezuela, and Afghanistan. It does not include those who make their way to an American border or port of entry seeking asylum, categorized as asylees. Here, too, the administration has tightened regulations so that fewer applicants are granted asylum and also made efforts to disincentivize people making the effort. Hence the notorious “zero tolerance” policy that separated thousands of immigrant children from their parents.
The child separation crisis has its roots in 2014. When then-president Barack Obama announced DACA—legal status for illegal immigrant children—he created a perverse incentive for poor families throughout Central America to gather their children (sometimes abducting them), trek to the United States, and claim asylum. The incentive worked and a surge of asylum seekers overloaded the system. No matter how big and secure the border wall might be, this policy of “catch and release” creates an impossible dilemma. And the dangers to vulnerable children are no joke. An often cited statistic is that 14,500 to 17,500 foreign nationals are trafficked into the United States annually, that is, coercively brought here and forced to work as de facto slaves—mostly female, mostly young.
The Obama Administration tried to house parents and children together while awaiting an immigration court hearing. A judicial settlement known as the Flores Settlement Agreement bound the hands of Obama administration officials to either release illegal immigrants inside the United States pending a hearing (which can be years away) or detain the parents and children together. But children could be held for no longer than twenty days.
I can tell you: Border Patrol agents I’ve spoken with express frustration that border jumpers know our rules well. It’s rare to apprehend someone sneaking across the border, sans identification, who doesn’t claim to be 17 years-old even if he has gray hair in his beard. But after Flores, bringing along a child is literally a ticket out of jail. This is a case of American law creating real hazards for vulnerable children, a hazard the Obama administration tried and failed to resolve.
On May 7, Attorney General Jeff Sessions said enough was enough. He announced a zero tolerance policy aiming to end the practice of “catch and release,” declaring in a speech, “If you cross this border unlawfully, then we will prosecute you. It's that simple. If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law. If you don't like that, then don't smuggle children over our border.”
If anything, the policy was too effective. Thousands of children were separated, many kept in what looked like cages during the process. Infants were taken from mothers. Children bawled. Officials were overwhelmed. It was a public relations fiasco that hurt Republicans badly.
President Trump retreated abruptly on family separations on June 20. It was an inevitable outcome, in retrospect, despite the merits of preventing child trafficking. A White House official confided to reporters at the Wall Street Journal, “The president just wants it all: He wants to keep families together, he wants zero tolerance and everything else.”
At the same time, many on the left overreacted by calling for an end to immigration enforcement of any kind. Democratic Sens. Kirsten Gillibrand and Elizabeth Warren, both possible presidential candidates in 2020, have gone along with the progressive mob with a call to “abolish ICE,” the federal Immigration and Customs Enforcement agency. The extremes on both sides have taken over the conversation, more than ever.
Meanwhile, Stephen Miller is making progress on another front: tamping down legal immigration through the administrative state. Multiple outlets report that Miller is finalizing plans to curtail the number green card granted annually.
The issuance of green cards is already down by roughly 20 percent from fiscal year 2016, but NBC News reports that the administration is working on a new regulation that would deny green cards and citizenship to any legal immigrant who has used government programs (including food stamps or children’s health insurance), even those who are US taxpayers working two full-time jobs. This kind of action needs no approval from Congress and is sure to fire up base voters, but it seems just as sure to alienate independent voters.
If President Trump were willing to cut a genuine deal on immigration reform with centrists on both sides of the Congressional aisle next year, he could salvage his reputation among independent voters and sail to re-election. That’s unlikely with Miller, whom his own uncle describes as “hypocrite” and “nativist,” whispering in his ear. But I’ve heard from more than a half dozen conservatives that President Trump may pivot in 2019 on immigration, just like Bill Clinton pivoted on welfare reform after his first mid-term fiasco.
Many Republicans on Capitol Hill believe that either Stephen Miller leaves the White House in 2019, by the President’s decision, or President Trump will leave in 2020 by electoral fiat.
Only time will tell. But one thing seems certain: Immigration policy can’t get uglier than it has been in 2018.
An irksome immigration debate includes IRCA—the Immigration Reform and Control Act signed into law by Ronald Reagan thirty-two years ago this November. The law’s “three-legged stool”— tougher border enforcement, penalties for employers hiring undocumented immigrants, and legalization for illegal immigrants in the United States before 1982—was supposed to settle matters. Obviously, it didn’t. Some former aides suggest Reagan would be all-in on tougher immigration policies. Others point to this Reagan opinion offered during his re-election run: “I believe in the idea of amnesty for those who have put down roots and lived here, even though some time back they may have entered illegally.” One other way to parse Reagan: by what he said as he signed the measure during a brief White House ceremony[AAP1] . “Future generations of Americans will be thankful for our efforts to humanely regain control of our borders and thereby preserve the value of one of the most sacred possessions of our people, American citizenship.” Reagan proclaimed that 1986 law as “the most comprehensive” immigration reform in thirty-four years. Thirty-two years after that signing ceremony, the law’s anniversary occurs, ironically enough, on Election Day 2018.