Immigration politics may be the most important to winning and losing elections in America. Add the substance around immigration reform and border security and it is one of the most complicated policy issues facing America as well.
Put the two together and it is no surprise that politicians find passing immigration legislation a nearly impossible slog.
But with the bipartisan 2024 Senate proposal having died a quick and painful death on the Senate floor, it is worth a trip down memory lane to understand the enormous opportunity conservative advocates for tighter border security are missing in their opposition.
As part of a broader spending bill to provide assistance to Ukraine and Israel, the Biden administration proposed significant new funding for immigration enforcement along the southern border. When congressional Republicans proposed adding major changes to asylum standards and other provisions to crack down on the flow of undocumented migrants, for the first time in 20 years, congressional Democrats and a Democratic president agreed to support enforcement legislation without adding legalization provisions.
While the bill is complex, the most important enforcement policies would be a massive change to the very lenient initial asylum standard and investments in asylum case adjudication. The current system using a “credible fear” standard allows the overwhelming majority of cases to proceed even though the vast majority of cases eventually will be denied. Worse, a shortage of immigration judges and related court infrastructure means those eventual denials are coming a half-decade after arrival.
If the goal was to entice undeserving applicants, you couldn’t design a worse combination of policy and resources. In comparison, the bipartisan proposal is designed to deny more cases at the initial stage and get final decisions on all cases in a matter of months.
For immigration hardliners, the moment of leverage had finally arrived: More enforcement without amnesty. However, instead of seizing this likely once-in-a-lifetime opportunity, House Republicans and former President Trump argued that the bill was not the hardliner wish list they preferred and successfully convinced most Senate Republicans to block the bill.
This one-sided deal that favors Republican enforcement policy is unlikely to ever reappear. There has never been another moment this century when Democrats agreed to enforcement legislation without meaningful legalization provisions. Nor have they ever agreed to fund Immigration and Customs Enforcement (ICE) to anywhere near the level needed to locate and deport millions of individuals already in the country illegally.
With the brief exception of 2009-2010 when Democrats had the policymaking trifecta controlling the White House, House of Representatives and 60 votes in the Senate, neither party has held sufficient control to dictate the terms of immigration reform. Thus, we have seen unsuccessful effort after effort to find some combination of policies that would satisfy enough members of each party to reach enactment.
In reviewing the failed history of immigration efforts, remember that neither party was ever going to get their preferred solutions without some compromise:
The politics that have killed this deal in 2024 are clear. If Republicans pass legislation that improves the border chaos that’s plagued President Biden’s presidency, they ease a political albatross around his neck in the middle of a presidential campaign. But just as most Republicans look back at 2006, 2007, 2013 and 2018 as missed chances to improve our border policies, we surely will look back at this 2024 bill as the biggest whiff.
Conservatives holding out for a better outcome are ignoring recent history that Democratic presidents have won the popular vote in every election this century except for one while congressional control has been narrow and divided. Our future politics are much more likely to produce an outcome that passes a legalization and enforcement compromise, not a hardline Republican wish list.
This 2024 window for an enforcement-only bill is briefly open and will likely never reappear. Border hawks may be cheering the demise of the Senate bill, but they will regret it.
C. Stewart Verdery Jr. served as assistant secretary for Homeland Security in the George W. Bush administration and as general counsel to the Senate Republican Whip. He is the CEO of Monument Advocacy and a member of the Council on National Security and Immigration.
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