Donald Trump’s presidency began with rants against Mexicans and a barrage of executive orders curtailing immigration to the United States. It ended on Wednesday with his successor immediately launching a new and comprehensive effort to overhaul the United States’ antiquated, dysfunctional, and often cruel immigration system. That President Joe Biden would put such controversial legislation at the top of a large pile of urgent proposals on the day of his inauguration is the strongest possible signal of how much a successful immigration overhaul means to his presidency—and to the country. While Biden should work hard with Republicans to find a workable compromise, he must be ready to use every tool he has—including ending the Senate filibuster—to succeed this time around.
Biden’s new proposals, unveiled Wednesday, are mostly familiar from the last two times Congress unsuccessfully tried to reform immigration laws. They include a path to citizenship for most of the roughly 11 million immigrants who have lived in the United States without authorization for many years, more green cards awarding permanent residency to skilled workers and their families, an expansion of refugee and asylum admissions, and greater foreign aid to Central American countries to reduce the number of people leaving them. All this would mark a sharp turnaround from the Trump administration, which shut the southern border to asylum-seekers and migrants from Central America and sharply reduced legal immigration to the United States.
Biden’s urgency is appropriate. Previous failures on immigration reform fueled Trump’s rise, and success would go a long way to squelching the nativist movement Trump came to lead. Trump’s progenitor Pat Buchanan, ran strong campaigns in the Republican presidential primaries in 1992 and 1996 on an anti-immigrant, “America first” platform; he subsequently published screeds arguing that an “immigrant invasion” and declining birth rates among white Americans were imperiling Western civilization. The controversies surrounding the first big effort at comprehensive immigration reform, launched in 2005 by then-President George W. Bush, raised the fortunes of Lou Dobbs, a CNN star who fed his viewers a steady diet of anti-immigrant vitriol and was among the first to embrace Trump’s discredited “birther” conspiracy theory that former President Barack Obama wasn’t born in the United States.
Under Obama in 2014, the second effort at reform collapsed in the House of Representatives after a little-known college professor, Dave Brat, took down the Republican majority leader in the House, Rep. Eric Cantor, after running a primary campaign in Virginia that accused Cantor of being soft on illegal immigration. (He wasn’t.) Brat’s miracle victory after having trailed Cantor by 30 percentage points in the polls was engineered by Breitbart chairman Steve Bannon, who later became a Trump confidant, and championed by conservative talk radio hosts Laura Ingraham and Mark Levin. It became the model for Trump’s successful 2016 presidential primary campaign.
It is no coincidence that Trump began his presidential run accusing Mexican immigrants of being drug dealers, criminals, and rapists, and that he paraded before a section of his border wall in Alamo, Texas, only last week. More than any other issue in his arsenal, opposing immigration resonated with his voters’ two core fears: economic anxiety over competition for jobs and cultural and racial fears over the country’s changing complexion.
That 74 million Americans still voted for Trump despite his crude nativism shows what a challenge Democrats face as they wade into the immigration battle again. Republicans and their media allies are sure to accuse the Democrats of opening the borders wide; Sen. Josh Hawley fired the first salvo on Tuesday by delaying a floor vote over Biden’s nominee for homeland security secretary, Alejandro Mayorkas, saying that Mayorkas had “not adequately explained how he will enforce federal law and secure the southern border given President-elect Biden’s promise to roll back major enforcement and security measures.”
In such a hostile environment, how can Biden possibly succeed where Bush and Obama failed? There are two big lessons from the previous failures: Don’t expect Republicans to negotiate in good faith, and don’t let the perfect be the enemy of the good.
In 2013, even after Obama’s disastrous experience with Republican legislators and their media allies lining up against his Affordable Care Act, he trusted that he could do a deal with the Republican Party on immigration. He stepped up deportations of unauthorized migrants to record levels as a signal to Republicans that he would stringently enforce any new laws. His Democratic allies in the Senate accepted Republican demands for billions of dollars in new spending on border security and domestic law enforcement as the price for putting unauthorized immigrants on the path to citizenship. That brought a comfortable 68 votes in the Senate—but nothing in the House. Republican House Speaker John Boehner blocked any vote on the legislation, saying that no bill could pass unless it commanded the majority of the House Republican caucus, which was increasingly controlled by Tea Party radicals. Brat’s defeat of Cantor ended Boehner’s tepid effort to win support for the reforms among his party.
Biden should expect the same treatment from the Republicans, though he should also give them the chance to do the right thing. This time, the decision will be made in the Senate, divided 50-50 between the two parties but with a fractured Republican caucus. If establishment Republicans such as Sens. Mitch McConnell, John Cornyn, and Rob Portman decide to make a clean break with the Trump wing of the party, there is no better place to do it than over an immigration bill. Sen. Lindsey Graham, despite his fawning relationship with Trump, was a key architect of the 2013 Senate bill. Cooperating with Biden would invite the fury of Trump’s anti-immigrant base but would be strongly supported by the party’s traditional corporate donors—and by many religious leaders as well. Given his long record of obstructionism, a more likely scenario is that McConnell will dangle the offer of cooperation only to pull it back, delaying and possibly killing the effort. Biden should set a clear deadline, letting Republicans know that he welcomes compromise but will still push forward with the bill.
If cooperation fails, Biden will face a tougher choice. The Senate filibuster rule that effectively requires a supermajority of 60 votes to pass legislation would seem an insurmountable hurdle. But there is much that Biden could likely do under what’s known as reconciliation, a voting rule that requires only a simple majority. Reconciliation votes are used primarily for tax and revenue bills, but many elements of immigration reform, including legalization and new openings for skilled migrants, have significant revenue implications that could be squeezed into the rules. It may also be possible to attach pieces of the bill to other must-pass legislation. That would mean splitting the bill into pieces rather than passing a single comprehensive package. While the detours wouldn’t be perfect, the all-or-nothing approach has now failed two times. Biden cannot afford that sort of failure.
And if all other options fail, Biden should be prepared to take the next step. If the Democrats are looking for an opportunity to weaken the filibuster rule, there are few issues on which such a move would win broader support within the party. The Republicans know this, and the mere threat of abolishing the filibuster to push through immigration reform could encourage them to cooperate and compromise.
Such aggressive tactics might further alienate Republican voters and possibly even independents. But it would likely be a short-term cost for long-term gain. First, a bill that opens new doors to migrants and sets millions on a path to citizenship would limit the damage that could be done to these groups by a future Republican president. One reason Trump was able to rip children from their parents at the border and turn back legitimate asylum-seekers is that current immigration laws give far too much discretion to presidents. Any changes Biden makes using executive orders could be reversed by a future president, but new laws passed by Congress would be far harder to overturn. Second, public support for immigration reform has been growing. While differences remain between Republicans and Democrats, recent polling shows that a solid majority of Americans believe the country is strengthened by immigration. If Biden succeeds, millions of undocumented migrants would come out of the shadows over the next four years and finally be accepted as full members of their communities. The benefits would be felt across the country. While border challenges would remain, the festering problem of illegal immigration would be taken off the table, allowing a heated debate to finally cool.
There is a larger reason for Biden not to accept defeat. The immigration fight has become a proxy for what sort of country the United States will be—a diverse, welcoming nation that still sees itself as a beacon for the world, or a narrow, insular one fearful of change. There is no easy middle ground here, no compromise that will satisfy Americans with sharply different values. But sometimes leaders need to set the direction of the country rather than holding their fingers to the wind. Biden has been clear throughout his political career—and was so again in his inaugural speech—that the United States’ strength, future prosperity, and global influence lie in its diversity and openness. After far too many years of failure, it is time to seize that future.
