Immigration

Will Biden’s Immigration Reform Be Adopted?


The last time undocumented immigrants living in America were offered a pathway to citizenship was under a Republican president, Ronald Reagan. Now, not only do the Republicans support Donald J. Trump, who publicly hates immigrants, but the Republicans are now poised to derail Biden’s ambitious immigration reform package.

Since Reagan’s 1986 legalization legislation, there have been four other attempts at immigration reform.

All of them failed.

In 2005, John McCain (R-AZ) and Ted Kennedy (D-MA) proposed the Secure America and Orderly Immigration Act. The proposed legislation offered legalization for undocumented immigrants living in America and guest worker programs. It also included border enforcement.

One of the interesting parts of the 2005 bill was that it added a guest worker program to be known as the H-5A visa. Under the H-5A visa, foreign workers could come work in low-skilled jobs that were not in agriculture for a period of up to three years. The visa could be renewed for an additional three years.

After four years of living and working in America, H-5A visa holders could apply for permanent immigrant status (green card) opening a pathway towards citizenship.

Ron Paul (R-TX) opposed the legislation because it provided a pathway towards citizenship. Paul was also calling for an end to the constitutionally guaranteed birthright citizenship. Mike Huckabee (R) supported the bill provided that undocumented immigrants registered with the government within 120 days, left the country and applied to return under the new legislation.

The 2005 legislation was never voted on by the Senate, although it had bipartisan support.

Also, the Democrats were not fully behind the legislation at the time. Fifteen Democrats voted against the 2007 proposal.

Several more attempts were made in 2006 and in 2007 to bring piecemeal legislation to Congress, but Congress was unable to pass the legislation.

Gang of Eight

In 2013, four Democrat and four Republican senators proposed another substantial immigration reform package. The Gang of Eight was comprised of Michael Bennet (D-CO), Dick Durbin (D-IL), Jeff Flake (R-AZ), Lindsey Graham (R-SC), John McCain (R-AZ), Bob Menendez (D-NJ), Marco Rubio (R-FL) and Chuck Schumer (D-NY).

Except for Flake and McCain, the rest of the Gang of Eight remain at the Senate today.

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 passed the Senate on a 68 to 32 vote. The proposed bill shifted immigration policy away from a family-based one towards one focused on filling jobs in America. [1]

Mitch McConnell (R-KY) voted against the 2013 proposal.

Joe Biden, then the vice-president under Barack Obama, presided over the vote at the Senate.

Lindsey Graham (R-SC), one of the authors of the 2013 immigration proposal, told Politico that he considered the passage of the bill at the Senate “an outstanding success.” [1]

The Republican-controlled House never took up the 2013 Senate bill because House Speaker John Boehner (R-OH) refused to bring it up to a vote, effectively killing the bill.

Dreamers 2021

On Thursday, February 4th, Graham along with Dick Durbin (D-IL) introduce an updated version of the Dream Act. If adopted, the legislation will allow undocumented immigrants brought to America by their parents a pathway towards citizenship. [2] Biden has signed an executive order reinstating Barack Obama’s Deferred Action on Childhood Arrivals (DACA) order that Donald Trump attempted to cancel.

The executive order only prevents the deportation of the DACA recipients but does not provide a pathway to fully legalize in the country.

The Dream Act of 2021 is the same legislation proposed by Durbin and Graham previously.

Biden’s Proposal

The Joe Biden immigration reform proposal is ambitious. It includes many features of the Gang of Eight proposal. But even with an evenly split Senate, the proposal faces a difficult time becoming law. The House will likely pass the reform package, but the Democrats at the Senate cannot lose a single member to pass it.

Even if all the Democrats approve the reform package, the Senate, under its current rules, must have ten Republicans willing to vote for it. This is because of the filibuster rule.

Biden’s immigration proposal package cannot be passed under the budget reconciliation procedure being used for Biden’s stimulus package. As such, Biden’s immigration package faces a difficult legislative process.

However, the Biden administration can piecemeal the immigration proposal into bite-sized legislation addressing certain features of the proposal in individual legislation. Some may be palatable enough for some Republicans to vote on, while others may be adopted in future budget reconciliation packages.

Executive orders can be used on other parts of the proposed package, much like the Dreamers protection by the Obama administration.

Footnotes:

  1. Seung Min Kim, “Senate passes immigration bill,” Politico, June 27, 2013.
  2. Hannah Miao, “Bipartisan pair of senators reintroduce immigration reform bill protecting ‘Dreamers’,” CNBC, February 4, 2021.

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