Is a Border Surge the Only Way to Pass Immigration Reform and Ensure Legalization?

The policy/politics dichotomy is a constant in any piece of legislation. In fact, a successful bill is often one where good politics and good policy meet. In S. 744, as originally proposed, the political compromises that had to be made to get to “yes” in the Gang of 8 included more border enforcement, certain triggers that had to be met before the unauthorized could become lawful permanent residents (which meant a minimum ten-year wait), and elimination of certain family categories of legal immigration. Those sacrifices came with some important trade-offs: more participation by border communities in security decisions; virtually immediate registration of the unauthorized, allowing them to work and live in the U.S.

lawfully; generous family reunification measures in legalization; and elimination of tremendous backlogs in family and employment visa processing. The question many are pondering as we move into the weekend, however, is whether passage of the bill can be guaranteed without even more sacrifices. Although many advocates have long recognized that they might have to swallow some additional enforcement requirements, including some additional increases in border security, immigration advocates were thrown by the proposal to spend more than 30 billion dollars on additional border security, contained in an amendment by Senators John Hoeven (R-ND) and Robert Corker (R-TN).

The “border surge” component of this amendment requires a staggering increase of 20,000 Border Patrol officers and adds specific technology requirements at each border sector. Senator Cornyn, whose RESULTS amendment was killed by a motion to table earlier in the week, included various border-security requirements, including 5,000 new Border Patrol agents. Cornyn took to the floor of the Senate on Thursday afternoon to complain that Senator McCain had bashed his proposal, arguing that there was no money, and yet now Senator McCain was endorsing the Hoeven-Corker amendment. Senator McCain and virtually every other Senator who spoke about the “border surge” amendment said that the CBO score changed everything.

Like kids in a candy store, the CBO’s announcement that immigration reform would result in savings to the government of roughly one trillion dollars over two decades, seemed to give the Senators license to spend on the border with wild abandon. There remains little, if any, discussion, however, of the impact that further militarizing the border will have on those communities. If Senator Cornyn had merely required 5,000 more Border Patrol agents in his amendment, there probably wouldn’t have been a perceived need for the Corker-Hoeven amendment. But Cornyn’s proposal tied legalization to situational awareness and full operational control of the border. In other words, Senator Cornyn wanted proof that the border was impenetrable before legalization could be completed, which the Gang of 8 viewed as a deal breaker. Moreover, the Cornyn amendment included numerous efforts to scale back other important aspects of the bill, including more discretion for judges and even tougher enforcement measures than currently exist or were proposed.

At the end of the day, the politicians are reckoning that doubling the Border Patrol and putting as much fence on the border as possible is a better bet than allowing legalization to be tied to something that can’t be proven. Anyone who can count can determine whether 20,000 Border Patrol agents have been hired. It’s virtually impossible to guarantee that the border is ever 100% secure. To further complicate matters, the Corker-Hoeven amendment isn’t even the name of the amendment anymore. All of the negotiated provisions agreed to over the last few days have been folded into an existing amendment offered by Senator Leahy.

A vote on cloture over the Leahy amendment as modified will take place Monday evening. Assuming that vote succeeds—and from the type of speeches Members were giving on the floor Friday afternoon, they do seem to think it will succeed—there are two more cloture votes and two more substantive votes left. There would be a vote on cloture of the Judiciary Committee substitute on Thursday and, if that goes forward, final votes on Friday. There may still be a chance to get a few noncontroversial amendments into the bill if there is unanimous consent to do so (something opponents of the bill have thus far opposed). This dizzying sequence of events puts many advocates in a quandary, having to carefully weigh what is lost and what is gained.

Good policy would take us in a different direction, but politics often trumps policy. Given the tenor of immigration politics today, it remains amazing that there are so many good and effective ideas in S. 744. At the end of the day, the question is always, “do you have the votes?” It appears that the Gang of 8 has rolled the dice and thinks that if they want to preserve all the good in the bill, they have to swallow a bitter pill of additional border security. They are probably right. 

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