Immigration-Reform Advocates Sell Legislation in Judiciary Committee

Fawn Johnson
May 9, 2013

Sen. Chuck Grassley, R-Iowa, hit on the biggest tension in the immigration debate Thursday as the Senate Judiciary Committee began debating a sweeping bill that could dramatically change the way immigrants to the United States are treated. "The bill is legalization first, enforcement later," he said.

He is right. The measure would offer probationary legal status to some 11 million undocumented immigrants in the United States almost immediately. The Homeland Security Department would be required to put together a plan for maintaining control of the U.S.-Mexico border within six months after the bill passes, but in the interim, deportations of noncriminal immigrants without papers would stop.

That’s also the point. Sen. Marco Rubio, R-Fla., the sole conservative voice who has allowed the immigration legislation to go forward, argues that effective border enforcement cannot be achieved without taking the pressure off the authorities to deport all the unauthorized immigrants already here. He also says it makes no sense to continue deportations while waiting for DHS benchmarks to be achieved, when those same people might be given a break later.

The catch is that border enforcement won’t happen without legalizing the undocumented population. Democrats and President Obama won't stand for an enforcement-only bill. That dynamic was on display with one of the first votes taken in the committee. With the help of two Republicans from the "Gang of Eight" senators who drafted the bill, Sens. Lindsey Graham, R-S.C., and Jeff Flake, R-Ariz., the panel rejected an amendment from Grassley that would have prohibited any legalization of people without papers until the border had been certified as secure for six months.

If the public and congressional conservatives can accept that some legalization will happen soon after passage, the Senate bill actually offers some of the toughest immigration-enforcement provisions ever seriously considered in Congress. It would require all employers to electronically verify the legal status of their new hires, which would make it extremely hard for unauthorized immigrants to find work. That provision is so harsh that lobbyists for immigrant-heavy industries like agriculture and food services are parsing every word of it to ensure that they can actually stay in business if it becomes law.

The bill also calls for the border patrol to stop 90 percent of the people who try to cross into the country illegally in the six heaviest trafficked sectors of the Southern border. That’s a high bar, and one that almost every border hawk would welcome. Some conservatives are dubious that it will actually happen. “If we pass the bill as is, there will be no pressure on this administration or a future administration or those in Congress to secure the border. There will be no push by the legalization advocates to get that job done,” Grassley said.

Rubio, who is not on the committee, has deftly noted that Grassley’s concern is the biggest challenge in winning over rule-of-law conservatives. “We cannot have a second wave of illegal immigration,” he told reporters Tuesday. “The American people have no confidence in the federal government” to do that.

Exhibit A of Rubio’s point: three other Judiciary Committee conservatives who are not likely to be convinced.

– Sen. Ted Cruz, R-Texas, called the border-security benchmarks in the bill “toothless.”

– Sen. Mike Lee, R-Utah said, “We won’t understand how best to address the problem of our shifting illegal population until our border is secure.”

– Sen. Jeff Sessions, R-Ala., protested that border-security metrics in the bill allow the three least trafficked sectors of the U.S.-Mexico border to be under mere “effective” control rather than “operational” control.

Sessions' use of DHS’s technical terms about the border, for which there are competing definitions, illustrates the doubt in the minds of skeptical legislators who aren’t happy with the manner in which the administration has conducted itself thus far—not only on immigration but on other law-and-order issues such as tracking illegal firearms. What is "operational"? What is "effective"? It can be whatever the Homeland Security secretary says it is.

For what it's worth, the nonpartisan Government Accountability Office had this to say in December 2012 about DHS's measurement of its progress. "The extent of operational control—also referred to as effective control—was defined as the number of border miles where Border Patrol had the capability to detect, respond to, and interdict cross-border illegal activity." DHS has since reworked its border-measurement guidelines and now defines its effectiveness rate in terms of the number of people the border patrol catches crossing illegally plus those who "turn back" divided by the total estimated crossers in any given sector.

Just how much conservatives’ distrust of the administration impacts the immigration legislation will be on display over the next several weeks as the committee debates the bill. Passage of the legislation in committee is hardly in doubt, as Cruz noted that its supporters have the votes to keep it intact before it hits the Senate floor. A more important question is whether the supporters can convince enough enforcement enthusiasts that they mean business. 

Sen. Chuck Schumer, D-N.Y., is doing his best to show good faith. He applauded an amendment from Sen. John Cornyn, R-Texas, to bolster the border title by adding more customs and border agents. "It must mean we're going in the right direction," he said.

Schumer also thanked Grassley for another amendment, which the committee passed unanimously, to apply the 90 percent apprehension benchmark to all nine sectors of the U.S.-Mexico border. The baseline bill applied that criteria only to the six most active sectors, on the theory that those required the most attention.