What is the Future of Workplace Legislation in the New 113th Congress? Part One: Immigration Reform

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

With the national elections resulting in a continuation of divided government in Washington, will the new Congress remain mired in the gridlock that has been the hallmark of recent years? What are the chances for labor and employment legislation running the gauntlet between the Republican House, the Democratic Senate, and on to the White House for President Obama’s signature? What are the chances for workplace legislation in the new Congress beginning on January 3, 2013?

If the Lame Duck Session of the expiring 112th Congress is any indication, it appears as if we are headed for continuing gridlock. While some members of Congress are openly talking about bipartisanship and legislative compromise to avoid the “Fiscal Cliff,” it would appear that deep philosophical differences and public policy divisions still remain and are likely to continue into the new Congress. That also means that gridlock will stop bills such as the Employee Free Choice Act and other major labor and employment law legislation amending the Fair Labor Standards Act, Title VII, the Occupational Safety and Health Act, and others.

Two Possible Exceptions

There are, however, two potential exceptions to the gridlock: (1) immigration reform and (2) multi-employer pension legislation. Both issues enjoy support from labor as well as management and both are national issues in crisis, badly in need of congressional attention. In this two-part blog series, I will first address the issue of immigration reform, with a subsequent post featuring multi-employer pension legislation.

Immigration Reform

Congressional Republicans may be chastened by the results of the recent elections in which 71% of Latinos and 73% of Asians voted for President Obama and, most likely, for congressional Democrats as well. Apparently, one of the major reasons behind this trend was the perception that Republicans blocked immigration reform—and that the Republican platform policy was “anti-immigrant.”

On the other side, President Obama also was criticized as having abandoned his pledge to push for immigration reform during his first term.

Add to the mix the U.S. Supreme Court’s split decision in Arizona v. United States, which upheld Arizona’s so-called “papers, please” regulation but struck down all other provisions of the Arizona state immigration law as preempted by federal law. The failure of a patchwork pattern of state laws regulating illegal immigration provides additional incentive for the enactment of a new, comprehensive federal law.

Thus, both sides of the aisle are now talking again about immigration reform.

There are still fierce opponents of comprehensive immigration reform, and “amnesty” for illegal immigrants still raises political hackles. Whether the debate turns away from “amnesty” and toward “earned legalization” (a more favorable term for immigration reform) remains to be seen. Immigration reform is a huge and complicated issue with many public policy components.

The STEM Act, which was recently passed in the House, increases visas for foreign nationals who earn advanced degrees in the United States for science, technology, engineering, and math. That is one component of immigration reform. Bills mandating E-Verify are another. Yet, the big question is how “comprehensive” will the immigration reform bill be, or will there be a series of “bite-sized” immigration bills?

In Washington, the biggest question is who gets political “credit” (or “blame”)? In recent years, congressional polarization has meant that if proposed legislation is a Republican idea it must be bad in the eyes of Democrats, and if it’s a Democratic idea it must be bad in the eyes of Republicans. There is no bipartisanship, no “legislative compromise,” and so nothing gets done. Will continued gridlock and partisan bickering doom immigration reform again, or will the two sides work together, perhaps privately and off the Floor, to achieve a legislative solution?

Stay tuned next week for my continued discussion of the future of workplace legislation as it relates to multi-employer pension plans.

Harold P. (Hal) Coxson is a shareholder in the Washington, D.C. office of Ogletree Deakins, and he chairs the firm’s Governmental Affairs Practice Group.


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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