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Immigration Reform Likely to Remain Elusive in the 114th Congress

In the summer of 2013, Republicans saw the powerful influence of Latinos on the Presidential race and responded by saying that immigration reform had to be addressed, if for no other reason than ensuring the GOP’s future competitiveness in presidential and statewide elections.  That realization created bipartisan momentum in the Senate.  Passage of the Senate Border Security, Economic Opportunity and Immigration Modernization Bill (S. 744) was the high-water mark for bipartisanship on immigration policy.

The blowback from anti-immigration activist groups was so powerful that it halted any House consideration.  Some key Republican senators who originally supported S. 744 have effectively disowned the legislation and their votes.  Their reversals are coupled with the departures of at least eight Democratic incumbents who voted for the bill.  For the next two years, getting 60 votes in the Senate on an immigration measure will be a daunting challenge.

In the House, the fact that most districts are packed with voters of one party leaves many Republicans with only a handful of constituents who are passionate about immigration reform.  Republicans also fear primary opponents who will accuse them of “failing to secure America’s borders,” a common refrain in the recent campaign.

Even Senate Democrats face a difficult political situation.  They made compromises with pro-immigration reform advocates and made tough votes in order to pass S. 744.  They may fear further angering those constituencies by voting for legislation that is certainly going to be more conservative than the 2013 compromise bill.

The prospects are high for executive action.  Beyond Congress, President Obama’s anticipated executive action on immigration will further enrage conservatives.  Indeed, incoming Senate Majority Leader Mitch McConnell (R-KY) already publicly indicated that such action would “poison the well” for future legislative action.

Regardless, the large margin of victory for Republicans in the Senate may accelerate the timeline for Presidential action.  The White House moved slowly in 2014 to prevent any negative impact on Senate candidates.  But the President may feel pressure to act in late December while most Americans are focused on the holiday season and Congress has adjourned.

The substance of executive action being considered is a type of “parole” or “probationary” status for undocumented immigrants residing within the United States.  The administration needs a response to claims that its policy amounts to blanket amnesty.  The concept under discussion mirrors the parole process in our justice system.  It requires an acknowledgement of past transgressions, maintains accountability of those in our country, and gradually integrates many immigrants into American society.  The administration believes that many Americans oppose mass deportations and understand the inequities facing millions of people living and working in an ambiguous status.

There is an expectation of expanded visa availability.  The high-tech and agriculture industries are seeking enhanced temporary visa programs to accommodate their growing demand for future workers.  White House interest in those proposals is not clear and legislation is almost certainly required to modify or replace the current visa programs (primarily H-1B and H-2A) that serve these industries.

© 2019 McDermott Will & Emery


About this Author

W. Kam Quarles, McDermott Will Emery Law firm, Legislative Affairs
Director of Legislative Affairs

W. Kam Quarles* is the director of legislative affairs in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  Kam focuses primarily on agriculture, including food safety, sustainability, international trade/supply chain and phytosanitary issues.

Arthur J. DeCelle, alcohol beverage regulation attorney, McDermott Will law firm

Arthur J. DeCelle is counsel in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He focuses his practice on alcohol beverage regulation at all levels of government and on legal and public policy challenges facing heavily regulated industries.

Prior to joining McDermott, Art was the general counsel of the Beer Institute for 16 years.  From 1981 to 1984, Art held senior staff positions in the U.S. House of Representatives and worked on several federal political campaigns.