The Democratic Party is consumed by border politics right now — just not the kind it wanted to tackle when it claimed Congress and the White House. And the prospects of comprehensive immigration reform this year?
“Zero,” said Sen. Bob Menendez (D-N.J.), a lead sponsor of President Joe Biden’s signature immigration bill.
The current intraparty schism over the Biden administration’s decision to end a pandemic-era deportation policy is dominating legislative debate on the Hill and reverberating in the nation’s toughest battleground races. It’s also a painful reminder that the Democratic dream of comprehensive immigration reform is all but dead for the foreseeable future, with ultra-slim majorities and a GOP that views broader reform as a nonstarter without addressing a rise in border crossings.
Less than a year ago, the Democratic Party was focused on using its narrow window of complete control in Washington to push through legislation on a pathway to legal status for certain undocumented immigrants, a goal some still hold out hope for. Biden even showcased his commitment to immigration reform by making it the first proposal his new White House sent to the Hill.
But the current deportation muddle has distracted the Capitol — and left some immigration advocates lamenting that the interruption to fixing a broken system will have repercussions for Democrats in the midterms.
“It’s a red herring. It’s not even an issue of immigration, but all the energy is being put there,” said Rep. Lou Correa (D-Calif.), who’s fervently pushed for reform and even threatened to tank Biden’s party-line domestic policy package if it didn’t address immigration.
If Democrats deliver nothing on the issue after two years of controlling both the White House and Congress, Correa said, he fears for their fate in November.
“Thirty-eight percent of Latinos voted for [Donald] Trump in this last election. You come home empty-handed, I don’t think it’s going to help the situation,” Correa said.
While Biden sought to avoid repeating some Obama-era mistakes on immigration, his White House has faced a slew of setbacks both in court and on the Hill. Most recently, progressives hailed his administration’s decision to end what’s now known as Title 42 — a Trump-era order that cited the pandemic to immediately expel nearly 1.8 million migrants at the southern border, including asylum seekers — only to see swift blowback in the party and a federal judge temporarily block the move.
Prior to the administration’s decision to nix Title 42, the D.C. Circuit Court of Appeals ruled that the government could continue expelling migrants who may pose a health risk during a pandemic but said it was illegal to expel any migrants to countries where they could face persecution or torture.
But the temporary restraining order issued last week blocks the Biden administration from lifting Title 42 until the middle of the month, at which point a longer-term injunction is likely. Immigrant advocates and legal experts expect it to reach the Supreme Court, as did another Biden attempt to undo the immigration policies of his predecessor.
The Supreme Court heard arguments last week on whether Biden’s administration acted legally when it moved to end Trump’s policy requiring asylum seekers to remain in Mexico as they await hearings on their claims.
Domingo Garcia, president of the League of United Latin American Citizens, ultimately wants the pandemic-era deportation policy gone but argues that the administration remains ill-prepared to deal with an expected migration surge. He warned that without a more concrete plan, “it’s going to backfire in November.”
Others, however, criticized the White House for waiting as long as it did to end Title 42.
“The fact that the Biden administration initially said they were going to terminate it but yet have kept it in place for over a year is deeply concerning,” said Marielena Hincapié, executive director of the National Immigration Law Center.
Meanwhile, the Senate’s nonpartisan rules referee has repeatedly blocked congressional Democrats’ efforts to move immigration reform without GOP votes. And after Biden’s own campaign promise to deliver reform, including a pathway to citizenship, many lawmakers and advocates are bracing for consequences at the ballot box.
The party’s brutal internal clash over Title 42 — on top of the lack of legislative progress — will likely worsen the blow, those Democrats say.
“Ending this Congress without immigration reform will be a big letdown for the immigrant community,” warned Rep. Chuy García (D-Ill.). “We said that if we could win both chambers and have the White House, that would be the alignment. There is great expectation that this is the moment, and if it doesn’t happen, it will be a long wait again.”
Since Biden’s election, Democrats have made the party’s strongest drive for immigration reform in at least a decade. Even so, that immigration bill Biden sent Congress his first day in office was quickly shelved in the House with no prospect in the Senate, given the position of many GOP hardliners and the need for at least 10 Republican Senate votes. The White House maintains that immigration reform is a priority.
“We have long said from Day One that if Congress wants to take good steps to improve our immigration system and border security, we would welcome that,” said a White House official. “It’s why on his first day in office the president sent legislation to Congress.”
Senior Democrats, however, acknowledged the more realistic — though still complicated path — was trying to jam some reforms into a party-line budget bill that could avoid the death knell of a Senate filibuster. Ultimately that effort sputtered, too, after the Senate’s rulekeeper asserted that immigration didn’t belong in a sweeping party-line bill that later collapsed on its own.
There’s been another marked shift in recent weeks. Staring down that defeat in the Senate, liberal House Democrats have pivoted to smaller-scale immigration reform that they argue Biden can do without Congress: executive action.
It’s the same way Biden achieved some earlier immigration wins. Advocates, for example, praised his immediate reversal of Trump’s Muslim ban and axing a Trump regulation that made it more difficult for immigrants who receive certain benefits like food stamps to get green cards. And they’re watching closely a DHS rule related to the Deferred Action for Childhood Arrivals program, which benefits the younger undocumented immigrants known as Dreamers.
The Congressional Progressive Caucus and the Congressional Hispanic Caucus have spent months leaning on Biden and his senior staff to unleash more executive orders, particularly focused on strengthening legal protections for immigrants, such as preserving and expanding Temporary Protected Status for certain groups.
Late last week, a handful of senators in both parties also met about a potential immigration package. Participants warned the talks are in the early stages and declined to get into specifics. Among the potential bipartisan bills that could move are measures to provide unused visas to health care workers as well as reforms for immigrant farmworkers.
But Republicans are almost guaranteed to insist that border policy changes get added to anything that moves, creating a potential logjam.
“It’s a difficult issue to start with,” Senate Majority Whip Dick Durbin (D-Ill.), a leader in the latest talks, acknowledged.
Many Democrats say that despite the shrinking odds of broader reform, Biden and the party at large still need clarity about how to address the broken system — and a clear rebuttal to fierce GOP campaign rhetoric about migration.
“The only folks talking about it now are the Republican political pundits that are pushing this out there,” Sen. Ben Ray Luján (D-N.M.) said. On the other hand, he observed, “that Oval Office is a very powerful place.”