Judiciary Chairman Patrick Leahy poses the last major hurdle to the immigration bill clearing his own committee.
The author of two amendments that could derail the reform package, Leahy will still not say whether he plans to put forward an amendment tonight that would extend the bill’s immigration provisions to gay couples.
Democrats in the Gang of Eight want to see the principle included, but their Republican counterparts have warned it would be a poison pill, killing the entire bill.
And only one man seems to know Leahy’s intentions, and that’s Leahy himself. Aides and members alike are in the dark.
“I’m going to leave this to Sen. Leahy and in a few hours you’re going to know what he’s going to do,” said Durbin, who also said Leahy had not discussed his intentions.
The Vermont Democrat has two options: he could offer the bill in committee, where it might garner full Democratic support, dividing the Gang of Eight and posing a major obstacle to the bill on the floor. But it could end up with a tie vote and fail, if, as gay rights advocates fear, Sen. Chuck Schumer, D-N.Y., votes against the amendment to preserve the agreement.
Alternately, Leahy could wait to offer his amendments until the bill reaches the floor, where there’s little chance it would get the 60 votes that will likely be needed to make such controversial decisions. But that would allow Democrats to vote for the amendments without seeing the bill fail.
Even though the decision to offer the amendment is Leahy’s alone, gay-rights advocates have zeroed in on Schumer.
“All of our political pressure right now is being applied to Sen. Schumer,” said Steve Ralls, the spokesman for Immigration Equality. “He is the senator that we are most concerned about, and to be clear, if gay families don’t get an up or down vote in the Judiciary Committee, no one can blame Sen. Leahy for not fighting the good fight.”
Ralls said his group believes if the amendment passes in committee, it will have enough support to remain in the final bill. He pointed to similar provisions included in the Violence Against Women Act earlier this year as evidence.
The issue also could be complicated if the Supreme Court overturns the Defense of Marriage Act, the 1996 law that limits federal marriage benefits and recognition to opposite-sex couples. Even if the law is overturned, it could still require additional Congressional authorization to extend immigration law to same-sex couples.
“A Supreme Court decision overturning that legislation won’t automatically translate into mandatory benefits for same sex couples. It would require an act of Congress to extend federal marriage benefits to gay couples. That is the reason same-sex advocates are fighting so hard for inclusion in the immigration bill,” said Darrell West, immigration policy expert at the Brookings Institution.
“If DOMA was overturned by the Supreme Court, it would encourage members of gay couples to apply for spousal green cards. But without explicit legislative authorization, it is not likely the federal immigration agency would grant those benefits. It would take either Congressional legislation or a successful court challenge to an immigration agency denial to get the benefits,” West added.