Speculation is rampant about what shape immigration reform legislation that deals with the so-called “dreamer” illegal aliens might take. The furor was touched off by President Trump’s indication to Democrat leaders that he wants to provide protection against deportation for those who are losing the temporary amnesty granted by the Obama administration.

Defenders of illegal aliens and other open borders advocates were delighted and immigration reform advocates were aghast that Trump would give away any negotiating leverage that could yield major advances in true reform. Then, with the release by the White House last weekend of a statement of objectives for immigration reform that extensively detailed the need for greater border security, greater job protection, and a return to a moderate level of immigration and temporary worker visas, tables were reversed. True reformers, such as FAIR, were delighted that the administration clearly understood the agenda of needed reforms, while Democrat leaders and open borders advocates were disheartened and characterized the White House position as a reversal and a rupture of the climate for negotiated immigration reform legislation.

To assess where negotiations stand and where they may be going requires some background. The need for immigration reform dates back to the early evidence that the intended reforms against illegal immigration included with the 1986 IRCA amnesty were toothless and illegal immigration began to soar. Even before then organizations such as FAIR were working for reform of legal immigration when it became evident that the new system created in 1965[1] opened the door to rapidly expanding immigrant flows. The current reform agenda received a major impetus from the recommendations of the U.S. Commission on Immigration Reform (the “Jordan” Commission). It recommended, inter alia, a reduced ceiling on legal immigration by ending visa entitlement for extended family members and cutting unneeded categories. It also proposed adopting a system to deny jobs to illegal aliens by making employers accountable if they hired illegal aliens.

These reform recommendations were endorsed by President Clinton and introduced in Congress where they ran into opposition from business interests and their Republican defenders as well as from open border advocates. The result was legislation half-heartedly dealing with illegal immigration[2] and a promise to return in the future to the proposed reforms to legal immigration. The proposed employment verification system has remained voluntary and provisional. Congress has never returned to dealing with the proposed legal immigration reform measures.

Meanwhile, because of the lack of effective deterrence against illegal immigration, the illegal resident population has soared to the current estimated 11-12 million persons. That population has given impetus to a vast array of advocacy organizations providing services and protection against deportation. That grassroots movement has developed close ties to Democrat officeholders.

Against this background, the current situation is now characterized by reform efforts along the lines of the Jordan Commission recommendations sponsored by some Republicans and proposals endorsed by nearly all Democrats (and some Republicans) for the adoption of a new amnesty like the one enacted in 1986.

A few years ago, these political lines produced so-called “comprehensive’ reform legislation that included a new amnesty plus some of the Jordan Commissions (which following enactment may or may not have ever been implemented). But the 2013 Gang of Eight bill deviated from the Jordan Commission recommendations by promoting an overall an increase – not decrease – in immigrant and temporary worker visas. The bill had strong Democrat backing in both chambers plus some Republican backing in the Senate from those tied to business interests. It passed the Senate, but faced major Republican opposition in the Republican-majority House, and died without a vote.

So, there is basically nothing new in the White House reform objectives. They track closely with the Jordan Commission recommendations. And the insistence of Democrats on the adoption of an amnesty for illegal aliens is similarly nothing new. What is new is that with the current Republican president, unlike his predecessors, there appears to be a real commitment to both legal and illegal reform measures. At least on this issue, the business lobby does not appear to hold sway with the White House the way it does with many Republicans in Congress.

The defeat of the Gang of Eight comprehensive amnesty has also resulted in a shift in strategy by the Democrats. Instead of shooting for “whole enchilada,” their current amnesty effort is focused on  those who received temporary protection under Obama’s Deferred Action for Childhood Arrival (DACA) program. This strategy shift may be due to the outcome of the election and might have been less narrowly tailored had there been a Hillary Clinton presidency. Nevertheless, the current legislative scenario is now more narrowly focused on protecting the DACA beneficiaries than the entire illegal alien population.

So, what does this all mean for the current scenario?

First, it means that the Democrat leadership still believes that it has majority support for some form of amnesty in the Senate. And, it believes that even if Trump can arm twist the Republican majority in the House into adopting reform legislation that does not provide amnesty for at least this subset of illegal aliens, they have the votes to block it in the Senate. That presumably is why Democrats (at least for now) are resistant to anything less than a clear DREAM Act bill. They may also believe that public opinion is on their side. However, public opinion polls offer support on both sides of the issue depending on how the question is asked and the context in which it is posed.

But Trump also has negotiating leverage because of the timeframe of expiring protection for the DACA beneficiaries. If there is no agreement on some form of legislative protection against their deportation, the administration can start upping the ante through selective deportations and portraying the Democrats as irrelevant promise breakers. That also implies a movement of impassioned public protests to which Trump has in the past showed little accommodation.

Further, if Trump demonstrates the resolve to begin enforcing the law at the end of the six-month grace period, Democrat leaders could begin feeling pressure from the illegal alien defenders (also generally Democrats) to find a compromise that protects the DACA recipients. This most likely would take place behind closed doors.

In short, the centrality of the DACA issue to the current scenario suggests that Trump probably has enough leverage to get a negotiated compromise that includes major reform provisions acquiesced to by the Democrats in exchange for some limited permanent protection for the DACA beneficiaries. Democrats are adamant that he will not get his promised border wall, but additional fencing might be less of an obstacle.

It thus appears that the immigration reform battle is shaping up to be a fight between an irresistible force (Trump) and an immovable obstacle (the Democrat leadership). But both sides are unlikely to accept the alternative, which is a continuation of the logjam that has prevented immigration reform and would generate still greater public polarization over the reform issues. In this scenario, a compromise is likely to emerge that will be unacceptable to many on both sides of the issue but will at least contain much of the agenda laid out by the Jordan Commission nearly two decades ago.

 

[1] Immigration and Naturalization Act of 1965

[2] Immigration Reform and Immigrant Responsibility Act of 1986.