Nascent immigration talks are colliding with election-year politics over the border, a significant hurdle to chances of a deal.
Advocates say they are willing to give Senate Judiciary Committee chairman Dick Durbin (D-Ill.) broad leeway as he looks to revive bipartisan talks.
And, they argue, there are incentives for Congress to capture the long sought legislative white whale now amid multiple court fights, including on a key Obama-era program, and the threat of a GOP-controlled House starting in 2023.
But there are also tripwires that could scuttle already uphill chances of an agreement: Several Democrats are wary of the administration’s actions on the border. And Republicans view immigration as a key campaign attack heading into November.
“The politics of immigration right now … and the politicization of the border issues, it’s just, from my point of view, it’s poisoned the well to work cooperatively,” said Douglas Rivlin, the director of communications for America’s Voice.
Trying to get a deal on immigration has proven to be a heavy lift even in non-election years.
A 2013 effort, which included a pathway to citizenship, passed the Senate only to stall in a GOP-controlled House. A 2018 attempt, which took place early in the calendar year, fell apart after the Trump administration and the Department of Homeland Security (DHS) came out hard against a bipartisan group’s proposal that would have provided $25 billion for the border wall.
Immigration has also emerged as a lightning rod issue for Republicans, as many in the party have followed Trump’s shift to the hard right on the issue.
To try to avoid traps that have quickly snared previous talks, Durbin indicated that he would ask senators to pitch bills that they’ve already introduced that have bipartisan support.
“We want to sit at a table and ask members who have immigration, bipartisan immigration bills, to come and propose those bills to us and see if we can build a 60-vote plus margin for a group of bills. It may not be possible, but I think it is,” Durbin told The Hill.
Durbin’s staff is in touch with Sen. John Cornyn’s (R-Texas) staff. Durbin also pointed to legislation from Sen. Tammy Duckworth (D-Ill.) to prevent the deportation of undocumented immigrants who served honorably in the military.
Sens. Michael Bennet (D-Colo.) and Mike Crapo (R-Idaho) are also trying to get a deal related to agricultural workers, a key area for immigration groups.
Meanwhile, Sen. Thom Tillis (R-N.C.), who is expected to be involved in Durbin’s group, pointed to a broader scope that included immigration reform, overhauling the asylum process, Deferred Action for Childhood Arrivals (DACA) and Title 42, the Trump-era program that allows for the rapid expulsion of migrants at the border and blocks them from seeking asylum.
Potentially adding pressure for lawmakers is the threat that federal courts strike down or curtail DACA, which allows undocumented immigrants brought into the country as children to stay as long as they meet certain school and work requirements, amid a fight in the Fifth Circuit.
And advocates are hoping that the potential of a GOP-controlled House, and the looming retirement of pragmatic-minded Senate Republicans, also helps drive negotiations, even if it’s in the lame duck.
“I think a Republican-controlled House, with a Jim Jordan as chair of House Judiciary rules out moving immigration next year,” said Ali Noorani, the president and CEO of the National Immigration Forum.
Noorani added that, “We’re pretty clear-eyed about this and trying to look at this as the balance of the calendar year.”
Kerri Talbot, the deputy director of the Immigration Hub, acknowledged that “it’s always hard to do stuff right before a midterm election, or a regular election” but pointed to the post-election session as “a possibility for really a more serious conversation.”
Any discussions in the Senate are still in the early stages but advocates float that a deal, at minimum, could pair a DACA fix, agricultural workers and temporary protected status (TPS) holders with some border security.
But there are plenty of sticking points—namely election year jockeying and increasingly entrenched divisions on immigration.
“I think with DREAM it’s challenging because Republicans are holding it up for asylum reform and so then it becomes very challenging to get a consensus,” Talbot said, referring to the DREAM Act.
The effort also dovetails with an escalating and complicated fight over immigration and Title 42 that has divided Democrats. Title 42 is a law that the administration used to block asylum-seekers from court hearings during the pandemic.
Republicans have ramped up their attacks over the administration’s decision to lift Title 42, effective May 23, as they seize on immigration and the border as an effective tool to use in key Senate races.
Democrats “got to this point by aiding and abetting Biden’s radical immigration agenda. And Biden is repaying them for their support by telling them to kick rocks,” the Senate GOP arm tweeted about the Democratic divisions over Title 42.
To get an immigration deal through the Senate, an agreement would need at least 10 GOP senators assuming all 50 members of the Democratic voted for it.
Any attempt by Republicans to negotiate with Democrats on an immigration deal would be all but guaranteed to spark attacks from within their own party, including potentially from Trump.
“The politics have changed on immigration within the Republican Party to where they are much more unified around being the anti-immigration party than they previously were,” Rivlin said.
There also could be a balancing act for Democrats.
Several moderates, who are up for re-election in November, have been pushing for Biden to be more assertive on the border as they face GOP attacks on immigration.
“It’s complicated by what’s going on at the southern border; if that gets progressively worse, it will soak up all the energy on immigration,” Durbin said, shortly before the Senate’s two-week break.
The division between Biden and Democrats, as well the attacks from Republicans, have only intensified since then.
That’s also sparked pushback from some progressive and outside groups over frustration that members of their own party are mirroring GOP language. Any immigration agreement would have to have enough border security to pacify moderates, who could be wary of getting attacked by Republicans, without losing the rest of the caucus.
Underscoring the complicated political calculus for Democrats up in November, a Politico/Morning Consult poll released earlier this month found that while only 26 percent of Democrats opposed Biden’s Title 42 decision, 52 percent of Independents opposed it.
“If it doesn’t have enough at the border you lose Hassan, Sinema,” Noorani said, referring to Sens. Kyrsten Sinema (D-Ariz.) and Maggie Hassan (D-N.H.).
“But,” he added, “if it has too much border enforcement but not enough in terms of protections, it’s going to be really hard to hold onto the folks on the left side of the caucus.”