Immigration Pushed Until the Fall in the House

by King & Spalding

Despite Senate passage and urging by President Obama, the House did not take up immigration reform prior to the August recess. While the timing in the House is uncertain, the House is determined to initially approach immigration reform in a piecemeal fashion. Interestingly, Speaker Boehner has kept the door open for a comprehensive approach at some point later in the process.

House Democrats are partial to a comprehensive approach but are deferring to the Speaker on his decision to initially consider separate pieces of legislation. Several House Committees, including Judiciary and Homeland Security, continue to hold hearings on various components of the bill such as a pathway to legalization and border security. The question remains where the votes will come from in the House for any piece of legislation that contains a pathway to legalization. In a recent Judiciary Committee hearing, Republicans drew a distinction between children who were brought here or born to illegals and their parents. As could be expected, that approach drew howls of protests from pro-immigration groups and House Democrats. Moving separate pieces of immigration reform may initially be the path of least resistance through the House, but it will not suffice for the end game.

The likelihood of piecemeal legislation making it to the President's desk is small. Immigration traditionally is an issue that involves cobbling together large coalitions and each member of the coalition is loathe to see small parts break off for fear of being left behind. Popular provisions, such as a reform of the legal immigration system (e.g. bringing in foreign high skilled workers) are seen as engines that drive the larger process and won't be moved by themselves for fear of lessening the motivation to deal with less popular items. The Senate has expressed no interest in moving provisions apart from a comprehensive approach nor has the President indicated that he would sign such legislation that resulted from that approach.

What this points to is the likelihood that at the end of the day, Speaker Boehner will be faced with moving a comprehensive bill through the House. That will require a substantial number of House Democrats to pass the bill. Whether the Speaker can gather a majority of his conference for such a bill, and thereby adhere to the "Hastert Rule," remains to be seen. What is clear is that support for a comprehensive immigration bill within the Republican conference is tepid at best. In part this reflects the reality of the composition of House Republican districts. As noted in a June 2013 analysis of the Cook Report, "just 24 House Republicans represent a district where the Latino population is 25 percent or higher. Even more important is the fact that of those 24 districts, half (12) were carried by Mitt Romney by 20 points or more. Only four of these districts were carried by President Obama." The political reality for House Republicans is not fear of fallout from opposing immigration reform, but a fear of vote backlash that would result from supporting it.

By George C. Crawford

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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