One day after Republican candidates swept every close election (and then some), President Obama addressed the nation, pledging that he was “eager to work with the new Congress.”  When he was asked about the hot button issue of immigration, however, he also made clear that he was ready to act alone.  The President pledged to take unilateral executive actions on immigration “before the end of the year” if Congress does not pass legislation addressing immigration.  “You send me a bill that I can sign, and those executive actions go away,” the President said.

Republicans, of course, are incensed at the prospects of executive actions designed to skirt Congress’s failure to legislate.  Senator McCain, a leader in the Senate’s comprehensive reform effort of 2013, said “I literally am pleading with the President of the United States not to act.”  Senator McConnell, the incoming majority leader, said that executive actions on immigration would poison the well – frustrating efforts to find common ground, right at the start of the new Congress.  “It’s like waving a red flag in front of a bull,” McConnell said at a post-election press conference.

Senator McConnell’s bull metaphor may be more apt than he perhaps intended:  Not only does the red flag anger the bull, but it prompts the bull to move forward.  The same may be true for immigration legislation.  If the President follows through on unilateral executive actions on immigration, the new Republican Congress will likely feel that it needs to respond.

First, there will be reactive measures. Congress has significant power to steer the actions of the administration, including blocking executive action with appropriations riders or holding up nominations until the President changes course.  Indeed, Republican Senators Ted Cruz (R-TX) and Mike Lee (R-UT) said they will press Loretta Lynch, nominated over the weekend to replace Attorney General Eric Holder, on her views on immigration executive actions during her confirmation process.

Second, and perhaps more interesting, the Republican Congress will likely feel pressure to produce its own immigration legislation.  Because President Obama has premised executive actions on congressional inaction, continued congressional inaction permits the President to justify his position.  If Republicans want to charge the President with overreaching, they need to show that they can legislate.  Indeed, Senator McConnell, in his remarks criticizing executive action, unequivocally stated that Congress wants to legislate on immigration.

In the last Congress, the opposition to reform was centered in the more conservative segments of the House of Representatives.  Looking more closely, however, reveals that the opposition to reform was principally focused on the treatment of undocumented immigrants (a.k.a. “amnesty”), and the focus on the undocumented belied others areas of much broader bipartisan agreement.

There is a degree of cross-party agreement on several areas of immigration reform, including efforts to address “dreamers,” strengthen border measures, reform H-1B visas and expand access for highly skilled and STEM workers, renew the EB-5 program, and enact narrowly targeted visas linked to foreign investment in the United States and free trade agreements.

It’s highly likely that bills dealing with these issues could pass Congress – if put to a vote.  Democratic Members of Congress were unwilling to move any of these items individually for fear that Republicans would pass the easier issues, which their constituencies support, and then abandon efforts to deal with undocumented immigrants and other hard issues important to Democratic voters.

But now the Republicans have majorities in both houses, and they could pass many of these measures, packaged in a manner that is difficult for the President to veto.  Republicans would need to bring along the more conservative elements of the party, to be sure.  While that is no small challenge, it may be possible by focusing on border security and visas important to businesses, and avoiding issues addressing undocumented immigrants.

There is a deep lack of trust on both sides of the aisle regarding immigration reform.  Both sides feel burned by the political posturing and maneuverings of the other.  The President’s planned executive actions, if he chooses to take them, will deeply frustrate Republicans.  They may, however, set in motion a process that finally leads to action on immigration measures where there is considerable common ground.

 

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Photo of Brian D. Smith Brian D. Smith

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance. …

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance.  He has significant experience in crisis management, where he advises clients facing combined legal, political, and media relations risks.  His practice also includes the development and execution of government relations initiatives, including securing the U.S. government’s political support on behalf of U.S. companies facing international legal issues.