Study: Explaining the Immigration Reform Impasse, Post-9/11

Although opinion polls continue to show substantial majorities in favor of comprehensive immigration reform – essentially, enforcement plus a path to citizenship for illegal immigrants – Congress has yet to deliver the goods, and shows no sign of doing so in the coming months. There are many possible explanations for this policy impasse, but one of the most cogent explanations was put forth recently by an immigration scholar, Dr. Marc Rosenblum, in a study released by the Migration Policy Institute (MPI) and the Woodrow Wilson International Center for Scholars – two well-respected, non-partisan think tanks in Washington. (See U.S. Immigration Policy Since 9/11: Understanding the Stalemate Over Comprehensive Immigration Reform, by Marc R. Rosenblum, MPI/Woodrow Wilson Center, Aug 2011.)

According to Rosenblum, the attacks of September 11, 2001 dealt a blow to the process of reforming our immigration system, a blow from which – for a variety or reasons – it never fully has recovered. Rosenblum notes that Congress passed several minor immigration reform measures during President Clinton’s second term, and that the new administration of George W. Bush made immigration reform a high priority, meeting several times with Mexican President Vicente Fox to plan an ambitious re-working of U.S. border policies and immigration priorities, one combining stepped-up enforcement with a broad legalization policy for millions of undocumented immigrants. Less than a week before the infamous attacks of 9/11, Presidents Bush and Fox met in Washington to ink a framework agreement that favored prompt action on immigration reform. (See also, Mexico-United States Dialogue on Migration and Border Issues, 2001-2005, by K. Larry Storrs, Congressional Research Service, updated 02.Jun.2005.)

The same day, the Bush administration praised the Senate for passing immigration reform legislation saying it, “will help unite families and make America more welcoming of new immigrants.” The White House statement continued:

“Allowing qualified immigrants to become lawful residents of the United States without first being forced to leave the country and their families is the right thing to do. This week, President Fox and President Bush have continued to work toward our shared goal of making the migration of families and workers between our nations more orderly, humane, legal, and safe. The President is heartened by the Senate’s action and he looks forward to the House acting quickly to send this legislation to his desk.”

(See President Commends Senate Action on Immigration Legislation, Statement by the White House Press Secretary, 06.Sep.2001.) That momentum for reform came to an abrupt halt less than a week later; the 9/11 attacks turned the country’s attention to the immediate need to secure the nation’s borders from the mortal threats that confronted us. The precise nature and extent of those threats was difficult to pin down, so Congress and the Bush administration passed a flurry of measures that – it was hoped – would protect the country from further harm. Other pressing needs went by the wayside for the time being, including comprehensive immigration reform.

According to Rosenblum, that did not mean that border issues went untouched in the months after 9/11; far from it. Securing our borders became the paramount task of the government, but as Rosenblum notes, “The public debates and new policy measures that followed initially conflated antiterrorism measures with immigration control. Five sweeping antiterrorism measures that also affected immigration in critical ways were enacted in the next four years.” Rosenblum breaks these down into three groups:

  • Organizational Changes – taking the Immigration and Naturalization Service (INS) away from the Justice Department, and breaking it up into three agencies – U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), all under the mantle of the new anti-terrorism super-agency, the Department of Homeland Security (DHS)
  • Expanded Enforcement Powers within the United States – new anti-terrorist measures provided that noncitizens could be detained indefinitely, and curbed due process protections in certain immigration cases
  • Visa Security, Immigration, and Border Controls – a variety of new measures designed to tighten documentation requirements for visas and drivers’ licenses, and track foreigners before, during, and after their visits to the United States

When this initial wave of anti-terrorist legislation passed, Congress revisited the idea of comprehensive reform, attacking the problem with what Rosenblum describes as a “three-pronged approach of enhanced immigration enforcement, visa reforms to increase legal inflows, and legalization for some of the estimated 12 million or so unauthorized immigrants living in the United States at that point.”

According to Rosenblum, President Bush pushed hard for this legislation in 2005, but the two houses of Congress found it difficult to reach common ground, with the Senate taking the more moderate approach favored by the President, and House passing an enforcement-heavy bill sponsored by Rep. James Sensenbrenner (R-WI). In 2006, a bipartisan group of Senators tried again, led by Ted Kennedy (D-MA), and John McCain (R-AZ), but again the legislation foundered as the House insisted on its own more draconian approach to CIR. They tried again in 2007, and again were unsuccessful.

Hopes for CIR revived after the 2008 election of President Barack Obama, who had promised to pass CIR within his first year in office, but those efforts were swamped by the economic collapse and the death of Senator Ted Kennedy. Bipartisan negotiations continued in 2009, with Senators Chuck Schumer (D-NY) and Lindsey Graham (R-SC) at the helm, but these efforts eventually collapsed for lack of GOP support.

The ultimate causes of these continuing failures to solve the CIR conundrum run deeper, Rosenblum argues; in the MPI study, he outlines three structural impediments to comprehensive reform:

  • Immigration policy tilts strongly toward enforcement, making it harder to get support for legalization measures and visa reforms; it’s politically easy to be “pro-enforcement,” in part because there are large groups that stand to benefit: “private detention contractors, construction and surveillance companies responsible for southern border enforcement,” as well as law enforcement personnel and their respective unions. By contrast, unauthorized immigrants can’t vote and have “little political power or influence.”
  • “Short-term political considerations have discouraged comprehensive reform efforts,” Rosenblum argues, noting that CIR frequently has been held captive by the election cycle and the shifting winds of political opinion.
  • “The difficult politics of comprehensive immigration reform,” is another factor; it’s easy to say no, and very difficult to craft workable compromise legislation that will satisfy the disparate interests of the diffuse coalition that wants some version of CIR – business groups, labor unions, immigrant-rights groups, religious organizations, civil-liberties groups, and so on.

The MPI/Woodrow Wilson Center study makes fascinating reading: it’s an illuminating work, and Rosenblum deftly dissects the difficult politics of CIR with considerable forensic skill. It’s a must-read for anyone who wants to understand why, ten years after 9/11, our immigration problems are still waiting to be cured.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.