Originally Published in The Hill
Jordain Carney - January 30, 2021
President Biden's plan to pass a sweeping immigration overhaul is facing fierce headwinds in Congress, which has emerged as a legislative black hole for reform efforts in recent years.
Biden, as one of his first legislative proposals, outlined a wide-ranging bill that would provide pathways to citizenship to 11 million undocumented immigrants, bolster refugee protections and include new technology along the border.
Democrats acknowledge that a thin majority in the House and the need for GOP support in the Senate is likely to determine what immigration proposals, if any, can pass Congress and make it to Biden’s desk.
“There are some things I think are likely to be included and some things which will be too much of a reach,” said Senate Majority Whip. Dick Durbin (D-Ill.), the incoming Judiciary Committee chairman, about Biden’s plan.
Instead, Durbin is planning to start with a smaller issue that already has bipartisan support — the so-called dreamers — when he and Sen. Lindsey Graham (R-S.C.) re-introduce their DREAM Act legislation during the first week of February.
The bill is expected to mirror legislation they’ve offered previously, which extended permanent residency, and eventual citizenship, to immigrants brought into the country illegally as children who meet certain work and education requirements.
Durbin said he views the bipartisan measure as the starting point for larger negotiations about a bill that could get 60 votes in the Senate, the amount needed to overcome a filibuster. If every Democrat voted for an immigration bill, it would still need the support of 10 GOP senators to advance.
“That'll be our starting point to build support, as well as consider any additions to it. It is tricky territory,” Durbin said.
Meanwhile, Sen. Robert Menendez (D-N.J.) is taking the lead on legislation that will reflect the Biden-Harris proposal, though he acknowledged that he’s “under no illusions” about the legislative road ahead.
“I know from time in the Gang of Eight that passing immigration reform through the Senate particularly is a Herculean task,” Menendez, who was part of the 2013 effort to pass a comprehensive overhaul, said during an event with immigration reform advocates.
Agreements on immigration have eluded Congress for years. Even though members on both sides of the aisle say they want a deal, they don’t agree on exactly what it should look like.
In 2013, the Senate passed an immigration reform bill, with 68 votes, that included a 13-year path to citizenship. The measure ultimately stalled in the GOP-controlled House.
Of the GOP senators who supported that bill, only Sens. Susan Collins (Maine), Graham, John Hoeven (N.D.), Lisa Murowksi (Alaska) and Marco Rubio (Fla.) remain in office.
Getting a deal on immigration has only become more politically charged since then, in large part because of former President Trump’s rise to power and his continued grip on the GOP base. Trump took a hardline on immigration and poured billions of dollars into the controversial U.S.-Mexico border wall.
In 2018, Trump briefly opened the door to a pathway to citizenship for dreamers in exchange for $25 billion for his border wall. But that quickly unraveled when his administration revised the offer by adding in cuts to legal immigration. The Senate ultimately rejected four immigration plans in mid-February that year.
After Democrats took back control of the House in 2019, they passed immigration legislation that dealt with the Deferred Action for Childhood Arrivals (DACA) program and Temporary Protected Status (TPS) recipients but it hit a dead end in the GOP-controlled Senate.
Republicans have panned Biden’s immigration proposal, underscoring that without nixing the 60-vote legislative filibuster, something Democrats don’t currently have the votes to do, it is likely going nowhere fast in a 50-50 Senate.
"The new administration has also sketched out a proposal for blanket amnesty that would gut enforcement for American laws while creating huge new incentives for people to rush here illegally at the same time. This kind of failed approach will invite another humanitarian crisis on our border," said Senate GOP Leader Mitch McConnell (R-Ky).
Asked about Biden’s proposal, Graham, in a phone interview with The Hill, said it would require broad, comprehensive immigration reform, and “I just don’t see the space to do that.”
The Biden administration and immigration advocates have endorsed breaking up the package if that makes it easier to get it through a Congress with tight margins.
Marielena Hincapie, executive director of the National Immigration Law Center and former co-chair of Biden-Sanders unity task force, said she supports passing Biden's legislation in parts and suggested that a bill providing protections for essential workers could advance through the reconciliation process, which only requires a simple majority for passage.
“We’re in favor of getting as much relief to immigrant families as possible in this moment. If that means the best and fastest way to do that is through different legislative vehicles, then yes, absolutely supportive of that," she said.
But going smaller is still filled with potential tripwires for Republicans.
Graham said he viewed his DREAM Act bill with Durbin as a starting point for negotiations that ultimately would have to include border security elements and address underlying causes of immigration. If they couldn't get a larger deal, Graham said, he would not support passing a stand-alone DREAM Act and didn’t think 10 Republicans would back it either.
“I’m sympathetic to the dreamer population,” Graham said, while adding that legislation had to be done in a way that also didn’t “increase incentives for more illegal immigration.”
He added that his bill with Durbin “is a good place to start the discussion and build out a compromise that will beneficial to the dreamer population and not incentivize a third wave of illegal immigration.”
Other Republicans are warning Durbin against trying to go too broad, predicting it would just lead to a stalemate for legislation that already faces steep odds of passage. Durbin has pointed to DACA and TPS as his top priorities.
“He better start with something smaller like DACA,” said Sen. Chuck Grassley (R-Iowa), a member of the Judiciary Committee, when asked about Durbin wanting to tackle immigration legislation.
Asked about combining DACA with TPS, Grassley said he would prefer to just focus on the first issue, but even combining the two would have a “much better chance of getting that done than if they did comprehensive.”
Sen. John Cornyn (R-Texas), another member of the Judiciary Committee, said he had “sort of given up” on comprehensive reform but wanted to “find a solution” for DACA recipients through legislation.
Cornyn, however, also appeared skeptical about combining it with temporary protections.
“Well now there you go, starting to add other things,” he said. “I think that’s the problem; you’ve got to take it one bit at a time.”
Morgan Chalfant contributed.