Political Paralysis: The Failure of U.S. Immigration Reform

With a new Democrat-controlled Congress in place—and the presidential elections in 2008 on the horizon—many expected 2007 to be the year for bipartisan comprehensive immigration reform legislation.

The mood at the beginning of the year was cautious but hopeful. In his State of the Union address in January, President Bush renewed his call for immigration reform. In March, Senate Majority Leader Harry Reid (D-NV) vowed to "take up a bill before the August recess."

Also in March, House Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) introduced the Strive Act, which would have strengthened border security, eliminated the backlog of family immigration applications, created a guest worker program, and—sensitive to charges of "amnesty" from the media and many members of Congress—provided legalization only for unauthorized immigrants who first left the country and paid fines, fees, and back taxes as a condition for returning legally.

The White House informally circulated a similarly themed proposal around the same time. Its notable differences from the Strive Act: 1) eliminating preferences for family immigration and 2) instituting a points system that would have given priority to education, skills, U.S. work experience, and English proficiency for employment-based immigration.

In April as a bipartisan group led by Senators Ted Kennedy (D-MA) and Jon Kyl (R-AZ), working with Department of Homeland Security (DHS) Secretary Michael Chertoff and Commerce Secretary Carlos Gutierrez, negotiated a new immigration bill that was introduced in late May.

That bill would have significantly boosted enforcement of immigration laws (both at the borders and through mandatory verification by employers of the legal status of their employees), created a new temporary worker program, eliminated family immigration backlogs, instituted a points system, and allowed most of the country's 12 million unauthorized immigrants to earn legal status.

The Senate bill represented a "grand compromise" among widely differing points of view and political interests. President Bush even made a rare visit to Capitol Hill to speak with Republican leaders.

However, although it was the strongest enforcement bill yet to be considered by the Senate, the public perceived it primarily as an amnesty measure. Opposition to the amnesty provision brought the bill to a halt in June when a vote to cut off debate and vote on the bill failed.

The House subsequently abandoned acting on the Strive Act. Attempts over the summer and fall to pass specific pieces of immigration reform, such as the Dream Act and AgJobs, also have failed.

In the aftermath, the message to federal government has been to enforce existing laws. Immigration and Customs Enforcement (ICE), the agency charged with enforcing immigration laws in the interior of the country, made 863 criminal arrests and 4,077 administrative arrests in fiscal year (FY) 2007 compared with 716 criminal and 3,667 administrative arrests in FY 2006. In FY 2005, those numbers were far lower: 176 criminal and 1,116 administrative arrests.

Once immigration reform failed to pass, DHS revived an earlier proposal to target unauthorized workers another way: by sending guidance letters along with Social Security Administration (SSA) "no-match" letters to companies whose workers' names and Social Security numbers do not correspond. A federal judge's ruling in October barred DHS from sending out the guidance letters because the policy would cause thousands of employers to bear significant administrative expenses and it could cause many legal employees to lose their jobs due to errors in the SSA database.

Although the need for immigration reform will be a key issue in the 2008 presidential election (see Ones to Watch), Congress is not expected to take up the subject until 2009, leaving state and local governments (see Issue #7: U.S. Cities Face Legal Challenges, and All 50 States Try Their Hand at Making Immigration-related Laws) to respond out of frustration and public pressure.