The announced departure of House Speaker Paul Ryan and several other mostly Republican members of Congress probably won’t shift the power balance enough to loosen the immigration logjam that’s persisted for years.
Whether the Wisconsin Republican--who announced April 11 that he wouldn’t seek another term--will act differently as a lame duck remains iffy at best. And the pressure of midterm elections this November is keeping lawmakers from voting on hot-button issues that could come back to bite them.
“There’s a question of whether Paul Ryan will be freed up to take action on immigration legislation now that he’s in ‘lame-duck’ status,” C. Stewart Verdery Jr., chief executive officer of lobbying firm Monument Policy Group, told Bloomberg Law April 11. “I don’t think we know yet what he’s going to do,” said Verdery, a Department of Homeland Security assistant secretary in the George W. Bush administration.
“I could see him being convinced that regular order—bringing bills to the floor—makes more sense than trying to reach backroom deals when crafting the next government funding measure in September,” he said.
The one outlier appears to be legislation addressing the Deferred Action for Childhood Arrivals program.
“I don’t foresee a scenario where the DACA program ends and they have to go home,” Verdery said. “Something’s going to happen—the question is just how broad of a package it will be,” he said.
“I do not think this is going to end the immigration stalemate,” Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, told Bloomberg Law April 11.
When Ryan first became House speaker, “there was hope” that “he might be more willing to do something” on immigration legislation, said Yale-Loehr, who also practices with Miller Mayer in Ithaca, N.Y. “And then nothing happened,” the professor said.
Ryan’s ability as speaker to “wrangle his conference together” is “going to be much more limited” now that he’s stepping down, said Theresa Cardinal Brown, director of immigration and cross-border policy for the Bipartisan Policy Center. Whether he’ll be more inclined to work with the Democrats is unclear, she told Bloomberg Law April 12. “He’s still a party loyalist,” she said.
Even if Ryan personally wants to move immigration legislation, it’s likely to be blocked down the line, Yale-Loehr said. A more conservative immigration bill could pass the House but won’t make it through the Senate, he said.
President Donald Trump likely will continue a push for legislation, but his proposals are likely to be “far to the right” of what Democrats would accept, Yale-Loehr said.
Election Year Avoidance
The midterm elections in November are one of the biggest stumbling blocks to immigration legislation.
“Immigration is one of those issues” that’s politically polarizing, and “election season ratchets up the rhetoric,” Brown said.
“A lot will depend on how the midterms turn out,” Yale-Loehr said. “We may see a new opportunity for immigration legislation,” but there’s also the possibility that whichever party controls the House next year will move away from the center, he said.
For immigration legislation to pass, “you need to have reasonable people coming together and making compromises,” Yale-Loehr said. “That gets harder to do as the two parties get farther apart from each other,” he said.
“If Democrats take over the House in 2019, they certainly would move a DACA bill and probably a broader legalization bill, but it’s hard to say what enforcement measures they might be packaged with,” Verdery said. “There are likely the necessary 60 votes in the Senate to pass that kind of a bill, but there’s still the question of what the President would sign,” he said.
“At the very least, a Democrat-controlled House would provide them with more leverage than they have now,” Verdery said. “The only caveat is that a Democrat-controlled House Judiciary Committee, where immigration bills originate, is likely to be focused on impeachment,” he said.
Sign of Employment Visa Legislation?
Don’t take the H-2B language in the omnibus as a breakthrough in employment-based immigration, Yale-Loehr said. The provision “wasn’t anything new,” he said.
As it did last year, Congress authorized the DHS to boost the number of H-2B seasonal guestworker visas available in the second half of fiscal year 2018. The visas ran out the first week that employers could apply, prompting U.S. Citizenship and Immigration Services to hold the first-ever H-2B lottery.
But delegating the H-2B issue to the administration “is something that a lot of people are hearing about on the Hill,” Brown said.
The American Immigration Lawyers Association is asking Congress to ensure swift administrative action on the visas, Greg Chen, AILA’s director of government relations, told Bloomberg Law April 11. In fact, the organization is seeking greater oversight of the administration’s immigration actions in general, he said.
“There’s a lot of angst in the employer community about actions the Trump administration is taking with respect to employment visa programs,” Verdery said. “But it’s hard to imagine that they’ll apply enough pressure to reach the ‘critical mass’ necessary in Congress to push through a bill in that area,” he said.
“There hasn’t been a lot of success” in advancing individual immigration bills, Brown said. Congress is at a point where “all of these issues” get “wrapped up in each other,” and “we’re just going to have to deal with the whole,” she said.
Immigration’s controversial nature has made it one of the chief victims of Congress’ inability to get things done through regular order, Brown said. Many of the issues have become so politicized that lawmakers are afraid that they’ll face electoral consequences even for votes in committee, she said.
DACA Deal Still Possible
DACA, however, remains the one area where there’s likely to be some kind of action.
Lawmakers have struggled to reach a deal to replace the program, which provides temporary deportation protection and work permits to young undocumented immigrants who came to the U.S. as children, or “Dreamers.” The Trump administration ended DACA in September, although it’s been temporarily revived via court order.
“Protection for dreamers is the one exception where I think there is continuing bipartisan support” despite the midterms, Chen said.
“There’s still a lot of disappointment” on both sides of the aisle over the failure to reach a DACA deal in February, Brown said.
One deciding factor could be how the U.S. Supreme Court rules on the lawsuits challenging DACA’s termination. The justices rejected the Trump administration’s request to appeal straight from a federal district court order but signaled that they could take the case up after a federal appeals court gets the first crack at it.
The U.S. Court of Appeals for the Ninth Circuit will be hearing arguments in May, and could potentially reach a decision prior to the end of the Supreme Court’s current term at the end of June, Brown said. If the justices take the case, there could be a decision in the fall, she said.
The nature of that decision could create “a strong push to do something in the lame duck” between the midterms in November and the convening of the new Congress in January, Brown said.