On immigration, Biden seeks a new approach to an old deadlock

"My goal is to see if there are some legitimate players on the Republican side who want to invest a little capital and are serious," Sen. Bob Menendez, a New Jersey Democrat who's the legislation's chief Senate sponsor, told me. "If the answer to that is yes, I would take weeks with them. I am not going to take months with them."

The Democratic skepticism about pursuing lengthy negotiations with Republicans underscores the challenge Biden will face squaring his immigration goals with his promise to promote "unity" and find more common ground across party lines. On immigration, as on most of his other priorities, his promise to work with Republicans collides with the liberal tilt of his own proposals, a Republican Party that has moved to the right even since his tenure as Obama's vice president, and a Democratic base highly dubious that meaningful cooperation is possible with that modern GOP -- and thus eager to use special legislative tools to move forward without it whenever possible.

"In the past, George W. Bush and Barack Obama sought bipartisan support for comprehensive immigration reform: The problem is it allowed Republicans to demand way too much in the sausage-making and, in the end, still kill off immigration reform," says longtime immigration lobbyist Frank Sharry, founder and executive director of the advocacy group America's Voice. "Biden is presenting a bill that unifies and inspires the entire Democratic coalition. In effect, he's saying, 'Work with me in good faith, Republicans, to get to 60 votes, and if you don't' -- and most of us assume they will not -- 'we'll find a way to get something done with our 51 votes.' "

But Biden and the immigration advocates face a challenge that will shadow almost all aspects of his legislative agenda: The threat to freeze out Republicans and pass immigration legislation solely with Democratic votes works only if every Senate Democrat is willing to vote to end the filibuster -- or to legalize millions of the undocumented through the special budget "reconciliation" process that allows bills to clear the upper chamber with 51 votes (including a tie-breaking vote from Vice President Kamala Harris).

And it won't be easy to convince every Democrat that allowing millions of undocumented immigrants to legally enter the workforce is a defensible idea while millions of other Americans are out of work amid the disruption created by the coronavirus pandemic. Assuming that all Democrats will unite around a reconciliation strategy, says one top business lobbyist who asked to remain anonymous while discussing the group's internal calculations, is a combination of "wishful thinking and bluster."

Or, as Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute, puts it: On immigration reform, "there's a big difference between hope and experience."

Biden's early moves on immigration mark a clear reversal of the policies under Trump, who moved in almost every way possible to restrict both undocumented and legal immigration. But Biden's posture also constitutes a departure from the tactics employed by Bush and Obama, who engaged in exhaustive bipartisan negotiations seeking a comprehensive overhaul.

That process was led by the late Sens. Edward M. Kennedy, a Massachusetts Democrat, and John McCain, an Arizona Republican, under Bush in 2006 and the bipartisan Senate "Gang of Eight" under Obama in 2013. Each time the negotiations produced a broad immigration bill that cleared the Senate with bipartisan support (though with notably fewer Republican senators supporting the package the second time). But while advocates believed they also had majority support in the House, the GOP leadership that controlled the chamber in both 2006 and 2013 refused to bring the bill to a vote, killing it.

While Bush and Obama largely employed similar strategies, Biden has quickly indicated he intends to pursue a very different approach.

Bush and Obama, for different reasons, did not seriously pursue immigration reform until their second terms; Biden revealed the outline of his immigration bill on his first day in office. That signals a very different level of commitment.

"I am hopeful that we can do more than less, because I never had a president who put his back into it," says Menendez, who arrived in the Senate just as the 2006 effort unfolded.

Also different: While Bush and Obama pursued the "three-legged stool" of legalization for the undocumented (a Democratic priority), guaranteeing future flows of temporary workers (key for business) and tougher enforcement (a Republican emphasis), the plan Biden released offers relatively little on the latter two.

As Sharry notes, that partly reflects a big shift in strategy: Democrats in effect are telling Republicans and their allies in the business community that any bill will reflect their concerns only if they produce GOP votes for the overall package, including a pathway to citizenship for the undocumented. But it also reflects a conviction among immigration experts in both parties that Trump already implemented almost every element of the right's hardline enforcement wish list without stabilizing the system.

"Over the last four years the world has skewed dramatically to the right on the question of enforcement -- the wall, we have enough Border Patrol [agents] to put hands across the border almost, and [more] ICE agents, and the 'stay in Mexico' policy, the list is endless," says Menendez. "On the enforcement side, that's all we've had for the last four years. It's a recognition that there has been a lot of enforcement out there; and second, a recognition there are better ways to do enforcement."

Even some Republican immigration experts second that conclusion.

Biden underscored the message from his legislative proposal by releasing on his first day new enforcement guidance for the federal immigration agencies to pause most deportations (except for people considered the greatest threats) for his first 100 days, while repealing Trump's travel ban on several Muslim-majority nations and freezing construction of his predecessor's border wall.

That marks another sharp departure from Obama's approach. During his first two years, Obama ratcheted up immigration enforcement and deportations. His goal was to make congressional Republicans more comfortable voting to legalize the undocumented by proving he would ensure border security -- or at least to deny them the excuse that they could not vote for legalization until the border was secured. After two years of tough enforcement, Obama went to El Paso, Texas, in 2011 and declared, "We have gone above and beyond what was requested by the very Republicans who said they supported broader reform as long as we got serious about enforcement. All the stuff they asked for, we've done."

And yet, even after Obama's enforcement offensive, legalization still failed because not enough Republicans -- especially in the House -- supported it, while immigrant advocates bitterly labeled him the "deporter in chief."

After the bruising President Donald Trump years, Democrats and immigrant advocates are even more dubious that more than a handful of congressional Republicans will support legislation that includes a pathway to citizenship for the undocumented, no matter the concessions offered to them on temporary workers and/or border security.

As Trump has increased the GOP's reliance on the non-college-educated, non-urban and evangelical Christian White voters most uneasy about the way the nation is changing demographically and culturally, hostility to immigration in all forms has become one of the strongest threads binding the party.

At the grassroots, polling by the nonpartisan Public Religion Research Institute has found overwhelming support among Republicans for Trump's travel ban on majority-Muslim countries, his border wall and reducing legal immigration; nearly half of Republican voters even supported his policy of separating parents and children on the border (which did prove a bridge too far for some GOP elected officials). Almost three-fifths of Republicans in a recent Public Religion Research Institute poll endorsed the harshly worded sentiment that "immigrants are invading our country and replacing our cultural and ethnic background"; agreement was even greater among Republicans who rely primarily on Fox News for information.

In Congress, most Republicans endorsed Trump's aggressive measures to restrict immigration -- such as declaring a national emergency to redirect money toward his border wall after Congress refused to appropriate it or slashing refugee admission levels -- and almost three-fourths of Senate Republicans supported legislation to cut legal immigration in half, though that Trump-backed bill ultimately failed.

All of this reflects the party's retreat under Trump to the parts of the country least touched by demographic change: After November's Democratic gains in Arizona, Colorado and Georgia, Republicans, rather remarkably, hold just four of the 40 Senate seats in the 20 states with the highest share of foreign-born residents.

Already in Biden's first week, prominent Republicans -- including House GOP leader Kevin McCarthy of California and Florida's Sen. Marco Rubio, who has shifted sharply to the right after helping to negotiate the 2013 Senate deal -- have denounced the new President's plan as a "blanket amnesty" and a threat to American workers forced from their jobs during the pandemic.

Fox and other conservative media outlets are already touting the alleged threat of new "caravans" of migrants making their way toward the Southern border. Ken Paxton, the Republican Texas attorney general, a frequent antagonist on immigration issues during Obama's presidency, is suing to block Biden's deportation freeze and won an early round Tuesday when a federal judge in Texas temporarily blocked the pause. And, of course, the risk of denunciation from Trump looms over any congressional Republican considering cooperation with Democrats on legislation that legalizes any population of undocumented immigrants.

Against that daunting backdrop, immigration advocates are already gaming out how they will proceed if, as they expect, the attempts by Biden and Democratic senators such as Menendez fail to win the 10 Republican votes they would need to break a filibuster against legislation to legalize all or some of the undocumented.

One option is to seek legislation addressing only a portion of that population, starting with the roughly 2.1 million "Dreamers," young people brought to the US as children by their parents. The House passed legislation in 2019 (with every Democrat voting yes) legalizing those undocumented young people, along with another roughly 300,000 immigrants here on so-called Temporary Protected Status, which covers migrants whose homelands are considered unsafe because of armed conflict or natural disasters.

Even with a much narrower Democratic majority, advocates consider it highly likely the House would pass such legislation again. But while the Dreamers enjoy generally broad public support, finding 10 Republican votes for such standalone legislation in the Senate still would be difficult, since less than half of GOP voters back legalization for them. The same would be true for another undocumented population advocates might hope to legalize through standalone legislation: long-term farmworkers, who were also granted a pathway to citizenship in a separate bill the House approved in 2019.

Democrats wouldn't need 10 Republican votes for immigration legislation (or any of their other priorities) if the Senate majority voted to end the filibuster -- but it does not appear they have the votes (or the inclination) to do that yet.

That's why immigration advocates are scouring the legislative rules to determine whether they can include a pathway to citizenship within the special "reconciliation" process. Established by the 1974 Budget Act, reconciliation allows legislation with an impact on the federal budget to clear both chambers with just a majority vote, thus bypassing the filibuster.

The assumption among immigrant advocates is that Biden, despite his outreach, won't win support from enough Senate Republicans to break a filibuster on his $1.9 trillion coronavirus "rescue" blueprint -- much less the larger economic "recovery" package he says is coming in February -- and will be forced to utilize reconciliation to pass those plans. They hope to convince congressional Democrats to include legalization for at least some of the undocumented in any reconciliation bill.

Menendez, at least, appears open to that possibility. "I am certainly spending a lot of my staff's time thinking about what is eligible for reconciliation," he told me.

Ideally, immigrant advocates would hope to legalize as many as about 7 million of the estimated 11 million undocumented through a reconciliation bill: the Dreamers and Temporary Protected Status populations, as well as farmworkers and perhaps 5 million undocumented immigrants working in occupations deemed "essential" during the pandemic. (Those categories overlap somewhat.)

But such an ambitious plan might struggle to win even majority support in Congress because too many centrist Democrats, especially in the Senate, could balk at legalizing such a huge swath of people through that expedited process. If Democrats do use reconciliation as their vehicle, Chishti predicts, they are likely to define the population of "essential" workers eligible for legalization much more narrowly than advocates prefer -- probably about 1 million people truly at the "front lines" of the pandemic, such as nurses and those in meatpacking plants.

"If Covid is the dominant backdrop for the next year, then you have to get reconciliation for things that are reasonably close to Covid -- so essential workers has a certain resonance in [that] context," he says. "There is a reasonable argument that you can't be essential and not protected from deportation."

Using the reconciliation tool likely would not only prevent Democrats from legalizing most of the undocumented, but both the rules and politics of the process would also almost certainly exclude major changes in the legal immigration system. And that could also represent another major opportunity cost.

The efforts by Trump and congressional Republicans over the past four years to slash legal immigration collided with a clear economic imperative facing the US: the need for more working-age people to grow the nation's labor market and consumer base. As William Frey, a demographer at the Brookings Institution's Metropolitan Policy Program, recently calculated, the US from 2010 to 2020 appeared on track to record the slowest population growth in percentage terms for any decade in American history. That's occurring even as the number of seniors -- who will require federal spending on Social Security and Medicare -- is still rapidly increasing with the retirement of the baby boom.

While unemployment is very high now, once the economy recovers from the pandemic, Frey notes, America will need more working-age adults to help pay the taxes that fund Social Security and Medicare for the growing number of seniors. And with fertility rates low, more immigration is the only realistic path to rejuvenating America's working-age population. The irony is that means an increasingly non-White and foreign-born workforce will pay the taxes to support the retirement of the preponderantly White older population that has responded most ardently to Trump's xenophobic messaging.

"The projections show we are going to be dealing with lower population growth and an aging population, and the only way we are going to be able to keep our labor force growing and vital is through immigration," Frey told me. "Immigrants and their kids are younger than the general population and we're going to have to have a steady stream of that to counter the aging of the rest of the population."

The unlikelihood of progress on legal immigration is another reason why reconciliation represents an imperfect option for immigrant advocates and their Democratic allies. But after the disappointments of the Bush and Obama breakdowns, and the searing immigration wars of the Trump years, they appear more than ready to take what they can get in the legislative process. And they look less likely than in the past to slog through lengthy negotiations if the GOP balks -- and the business groups that support reform can't move enough of those congressional Republicans to "yes."

"My focus is to get a deal of some sort: I am not looking to bypass [bipartisan negotiations] and go to reconciliation," Menendez says. "But I don't intend to go home with nothing in my hand."