Category: gang of eight

Immigration bill enters the “operational control” morass

Sen. John Cornyn (Gage Skidmore, Flickr/Creative Commons)

Sen. John Cornyn (Gage Skidmore, Flickr/Creative Commons)

One decent sign that you might not be very concerned about passing immigration reform is that you’re working with John Cornyn on the issue. Marco Rubio is doing this, apparently to amend the border-security provisions of the immigration bill that he previously negotiated. Cornyn does not at all appear to be a gettable vote on immigration, even if his amendment passes. Rubio may be trying to use these alleged negotiations to get other security concessions, but until I can read his mind I’m going to be a little worried.

The amendment they’re allegedly working on looks like it would be terrible policy-wise. It revives the concept of “operational control” as a significant border enforcement criterion. The problem is that “operational control” is an impossible standard except where it is muddled beyond the point of meaning anything. It is inscrutable and just the kind of thing that can open the door to further endless fighting on whether the border is secure enough.

Cornyn wants to modify the “triggers” in the bill (which would have to be met before a path to citizenship can start) to include stronger border-control provisions. His amendment allegedly would requite a 90 percent apprehension rate across all southwest border sectors and 100 percent “operational control.”

What is operational control? No one exactly knows.

Normally less than half the southwest border has been deemed to be under it. The rhetorical implication is that the rest of the border is out of control. When you look at it, this is not at all what the criterion is intended to mean, but it’s basically the only thing that using “operational control” adds to the debate: another tool for fearmongering about whether there is sufficient control of the border.

The definition of “operational control” is sort of a mess. The Secure Fence Act of 2006 provides the statutory definition:

[T]he prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.

This standard is clearly impossible and absurd, the same as declaring that a police department lacks control over its jurisdiction unless it can prevent all crime.

The Border Patrol has attempted to use a more nuanced definition of “operational control,” but it is not clear what this definition has achieved. This GAO report has the neatest rundown of the whole matter. The Border Patrol says operational control extends over “the number of border miles where Border Patrol had the ability to detect, respond, and interdict cross-border illegal activity.” But isn’t there some ability to do this over basically the whole border, and the issue is that the degree of ability varies? The problem — which is just a corollary of the larger problem of judging border-control effectiveness — is there are no ironclad quantitative guidelines to deciding when these abilities have become sufficient.

A certain amount of the border that is under operational control is “controlled,” while the rest is of the “operationally controlled” part of the border is not “controlled,” but rather “managed.”

Seriously. “Controlled” has meant that unauthorized crossings can be interdicted basically at the immediate border; “managed” has meant that there is an ability to do the same in the “border zone” (100 miles). However, neither implies 100 percent success, leading to the question of how much control is needed for “control.” Then, among border miles not under “operational control” in either of those senses, most miles are “monitored,” “meaning that across these miles, the probability of detecting illegal crossborder activity was high; however, the ability to respond was defined by accessibility to the area or availability of resources.” (Interestingly Cornyn-wise, the worst sectors have tended to be in Texas.)

So, let’s say that 100 percent operational control is required. There are possible ways to make something like this feasible. Increases in border-security resources are going to be part of the bill, and if you put more enforcement resources where monitoring is already good, then it would stand to reason much of the border would move from being “monitored” to “managed”. “Managed” would have to continue to be categorized under “controlled.” The bipartisan compromise already includes increased surveillance, so those areas that are not even “monitored” will probably become at least monitored. However, 100 percent control is probably impossible in any case, and DHS would need continued leeway to define operational control, which conservatives like Cornyn hate the idea of. And the Secure Fence Act definition is definitely impossible.

There’s been a tendency for past proposed “triggers” (such as the “90 percent apprehension rate”) to be represented in ways that miss nuances which make them more feasible. But while we haven’t seen specific proposals yet, this John Cornyn, so I expect the most difficult possible scenario. It’s safe to assume he’ll try to make it as hard as possible for anyone to become legalized, and he has not indicated any level at which the border will be sufficiently secure for him.

Regardless, using “operational control” demonstrates a lack of seriousness about improving border security, because “operational control” is simply a morass — it is a standardless standard that a new immigration bill should banish entirely from border-enforcement policy.

Update: According to this summary (which is different than the one linked above), a 90 percent apprehension rate across all sectors and 100 percent “effective control” are the same thing: That is, Cornyn defines effective control according to the apprehension rate. We’ll see what ends up coming from Cornyn, but, you know, that’s not what “effective control” has ever meant in the past. Anyway, basically the only accomplishment of “effective control” as a criterion has been to give immigration reform opponents a tool with which to argue that the border is out of control, notwithstanding security improvements. That’s to say that if what Cornyn is concerned about is the apprehension rate, then he could just call it the apprehension rate. The use of “effective control” instead would hint at the rhetorical and political intentions of establishing such high standards.

Could Jeff Flake bail on immigration reform?

Taken in earlier days, when Jeff Flake was smiling. (Gage Skidmore/Creative Commons)

Taken in earlier days, when Flake was smiling. (Gage Skidmore/Creative Commons)

I don’t know the answer to that question. In fact, the idea is wholesale speculation. But I knew that by asking it, you’d click! And while the question is speculation, that doesn’t make it baseless speculation.

I’ve been finding it hard not to wonder. On Monday, Public Policy Polling released a survey in the wake of Sen. Jeff Flake’s vote against expanded background checks, placing his net approval rating among Arizona voters at a very low -19 (32 percent to 51).

That is an ugly number for Flake, even from a Democratic-leaning firm. And while he digests it, Flake is also in the midst of placing both of his hands on another extremely hot issue and gripping hard, as a member of the Gang of Eight. Newly vulnerable in the polls, I wonder if he’ll continue to have an appetite to put himself out there on another controversial issue.

I don’t think bailing on immigration reform would achieve anything for Flake. After his gun control vote, his standing has deteriorated most significantly among independents and Democrats. Flake has usually been considered broadly popular, though he won election in November by only 3.9 percent. While by any measure he’s very conservative, independent voters and Democrats have typically seen him as admirably principled. Positioning himself in Congress as anti-spending in nearly all instances, his fervency on that issue led to conflicts on spending with Republican Congressional leadership and the Bush administration that largely lent Flake credibility. (It did come back to bite him somewhat in his Senate campaign.)

Notwithstanding, independents and Democrats strongly supported the idea of expanded background checks. Since his vote against them — despite support in Arizona (according to PPP) of 70-26, including 92-6 among Democrats and 71-24 among independents — Flake has suffered some really rough headlines in Arizona. Flake’s friendship with Gabby Giffords, and subsequent failure to support her on the background checks measure, has cast Flake in an especially craven role in what the president called overall a “shameful day,” and has given The New York Times a crushing illustration with which to lead articles about why a very popular bill died.

Independents and Democrats are also the voters likeliest to be attracted to Flake’s leadership on immigration. Perhaps Flake calculated that if he wanted to spend his capital with Republicans on immigration, he couldn’t alienate them on guns. (This is despite the fact that PPP finds majority support for Republicans on the background check bill, and polls typically find pluralities of Republican voters in favor of immigration reform.) Maybe Flake completely means what he says about the “beauty of a six-year term” and will just vote how he wants.

Many activists see it necessary to bring the fight to senators who voted against expanded background checks. Some of those senators will be an important part of the success of the immigration reform effort. Flake is one of them. I don’t know whether bruising from the gun issue will change his posture in office in a way that will lead him to take a different tack on immigration. It depends on what Flake’s conception of his own political capital is. I can’t imagine that shying away on immigration would make Flake any more popular in Arizona among voters he alienated with his gun-control vote, or that it would resurrect his reputation for political courage. But things in Congress have a way of operating according to self-contained, parallel logics.

Marco Rubio, immigration reform and our terrible Senate

Sen. Marco Rubio (Gage Skidmore, Flickr/Creative Commons)

Sen. Marco Rubio (Gage Skidmore, Flickr/Creative Commons)

To people who support immigration reform and watched the effort sink in the summer of 2007, the last week has presented a couple of jump-out-of-your-chair developments: Agreements have apparently emerged between the Chamber of Commerce and the AFL-CIO about a non-agricultural low-skill guest worker program, and the Senate “Gang of Eight” seems to have agreed among themselves, too. The kind of populist backlash that doomed earlier efforts hasn’t happened yet. The conservative media still seems to be on board. Suddenly, an effort which seemed like it may be moving too slowly a couple of weeks ago now has an aura of inevitability, or “momentum,” an independent lifeforce that guides policy proposals to their fate.

Now that we’re done talking about the business-labor negotiations, it’s time again to talk about — who else? — Marco Rubio. And it is concerning to immigration reform supporters that Marco Rubio seems to be attempting to suppress the momentum lifeforce by calling for hearings that are known to be its kryptonian opposite. As Alex Pareene notes, Rubio saying this isn’t just showmanship, but rather a call for actual delay.

The basic Rubio argument is that process is important. Well, is process actually important? With respect to everyday voters — the constituency who (when mobilized) torpedoed the last proposal — I’d say process almost never is important. Otherwise there would be real outrage about obstructionist Senate minorities or use of reconciliation procedures in the health care bill, for example. Instead, outrage about procedures seems mostly to be a complementary opinion to whatever one’s opinion on the actual policy is.

To whom does process matter? Well, political elites — very highly informed voters, journalists, and senators themselves — often say it matters to them.

I’d say that Rubio — assuming he intends to run for president in 2016 — is making a play for Republican elites and is gesturing toward their mistrust of Democrats. If Jennifer Rubin’s reaction is to be trusted, the strategy is working.

It also makes some sort of sense within the Senate’s nonsensical logics. The Senate elaborately maintains the institutional trappings of “the world’s greatest deliberative body,” performing dances around the notion of comity, while at the same time the overriding logic of partisanship thwarts such exercises at every turn. Senators simultaneously cause this to be the case through their actions while most also seem completely blithe about this reality. Within this paradox, comity is simultaneously doomed by partisan logics and taken rather seriously. So, if Rubio wants support later on in his career from a person like Jeff Sessions, being for hearings (even while being on the opposite side of the bill) may matter. (Ridiculously.)

Not coincidentally, Jeff Sessions both wants hearings and definitely will not want an immigration reform bill, no matter what those hearings end up producing. Therefore it’s easy to conclude that, in trying to give a person like Sessions what he wants, Rubio is sabotaging the bill. For Senate reasons, it might be good for Rubio to act all comity-like, seeming as if he wants a bill, and then not support it.

I’m not so sure about this. I don’t think Rubio is trying to sabotage the bill. Rather, I think he’s just willing to risk it becoming dragged down in order to best secure his own interests, which is pretty typical Senate behavior. Rubio has been so far out there on this issue — doing the conservative media rounds in January and February — that I don’t see how it benefits him to get nothing. It would leave him exposed on this issue while endangering his position with the many Republicans who sincerely do want to see immigration reform passed.

I think pro-immigration reform people should tentatively believe their luck, but the twisted logics of the Senate allow for outcomes that are logical within its structure but appear self-contradictory beyond the Capitol walls.

Is immigration reform moving too slowly?

Patrick Leahy (Flickr/Creative Commons)

Patrick Leahy (Flickr/Creative Commons)

I don’t think I agree with Patrick Leahy’s concern about the pace of immigration reform legislation. When the new push for immigration reform was announced in January, he had aimed for the Senate Judiciary Committee to start marking up a bill in April, and now that looks like it’s not going to happen. Being frustrated about this is understandable, but apart from that objective being unmet, what’s going on shouldn’t at this point be a cause for concern among supporters.

Stating the basic concern, a friend who is traveling abroad (and relying on me for updates) asked: “What’s going on with immigration reform? Did the sequester push it off the table? Is it just going to be stretched out forever like health care reform?” Embedded in this is one basic concern and one proposed solution, but neither of them make an incredible amount of sense.

Won’t this be like health care? (Or past immigration reform attempts?)

Everyone seems to agree that immigration can’t drag on for too long if it’s going to pass, because members who are up for re-election don’t want to touch such a politically sensitive issue too close to the midterms.

We’re only three months in to Congressional talks. Health care reform makes for an unattractive comparison, but it seems to me to be a very different story. It stagnated while the White House followed Max Baucus’s attempts to craft a bill that could bring Republicans on board with the effort. At the same time this was happening, it was becoming increasingly clear, especially by the summer of 2009, that the Republican Party was moving toward strong anti-Obama sentiment that would prevent them from backing any of his agenda.

As of now, the immigration debate in Congress looks little like this. For one, the political winds are pushing in the other direction: Rather that starting out in greater agreement with Obama and the Democrats and being pushed away, Republicans are starting from having had a divergent position from Obama’s and are being pushed toward a compromise. And while there’s no legislative language yet, coverage of what’s going on does seem to indicate that these talks are resulting in progress. There is already broad agreement on the policy planks that will be part of the bill (largely because these are the same as in the mid-2000s proposals). Further discussion has been about policy points (such as green card waiting times, guest-worker programs, and the path to citizenship) that are very important but are more specific than the basic outlines of the legislation. The health-care debate was much more wide open, and things were much slower to come together.

Based on progress in the Senate and the House, it doesn’t seem unreasonable to expect legislative language in the next few months. Things, in short, don’t seem so disconcertingly stagnant that supporters should be worried.

Shouldn’t the president be more prominent, in order to move things forward?

In the absence of legislative language from the gang of eight, Leahy says he wants Obama to put forward his own legislative language so that they can hold hearings about immigration reform. I don’t understand what this could achieve, other than seriously endangering the talks in Congress, which are by far the likeliest source of a reform that can be passed.

As previously discussed, it’s clear that — for reasons which are substantively vapid but nonetheless logical preoccupations for ambitious Republican politicians — any proposal emerging from Obama will be going nowhere. This is despite the fact that Obama’s proposal wouldn’t cross any red lines that they have previously laid out.

Obama is short-circuiting the destructive cycle of partisan reactionism by not being out there on this issue. This may not be a viable strategy when it comes to something like the budget, when Republicans in Congress and Obama are rather far apart on what they want to achieve.

The thing about immigration, though, is that the Republicans who are doing the negotiating actually largely agree with Obama — so if he withdraws from the bargaining, he will likely get a result that the White House considers acceptable. It’s the opposite of something like the budget fight, where the White House is the only possibly effective counterweight against policy proposals they consider unacceptable.

The bottom line (for now)

Any draft agreed upon by the Senate group is likely to be acceptable (if not perfect) to the White House, and viable in the Senate — and the Senate is less likely to produce this if the White House releases its legislative language ahead of the gang of eight’s.

The risk in following this strategy is that it requires patience, and this could push immigration reform into a timeframe that a lot of members of Congress might be uncomfortable with. There’s no evidence, though, that any negotiators are trying to scuttle the effort by stalling it, and it’s still relatively early. So in my estimation it’s not time for supporters of immigration reform to be worried.

What’s different in the new bipartisan immigration reform framework?

If you were paying attention to immigration reform in 2007, this should all seem familiar.

Wherever the proposals go, it seems inevitable that they will be based the same three policy pillars that previous proposals have also rested on — legal status for the presently undocumented, a reform of legal channels into the U.S., and improved border security/immigration enforcement.

When the tools to deal with the problem are so obvious and limited, only the political posturing around employing them will change. So what we’re set up for at the most basic level is a redo of the 2007 debate, to see whether the American political system is more ready for it. This will be interesting, and considering how people are generally down right now about the prospects of the U.S. political system doing anything big, this blog will be looking (speculating?) quite a bit about whether better prospects are possible now, as opposed to several years ago.

Something that might help improve those prospects are changes on the margins of the framework. These might provide needed political cover to members of Congress on the fence, or sweeten the deal. It seems secondary to note that, if enacted, then the system would have to deal with their policy implications.

There are few of these that jump out me in the bipartisan framework released by the eight senators:

  1. The ‘Border Security Commission’. Before moving forward in granting the undocumented citizenship, some panel of border-state or border-community experts would have to declare that border-security standards are met. However, staffers have made clear that this is only an advisory panel, at least as envisioned by the eight senators. (More on this in later posts.)
  2. An emphasis on exit monitoring. Somewhere around a third of ‘illegal immigrants’ entered legally but overstayed their visas. Currently no one checks your long-term visa when you exit the US to make sure you actually left. The framework wants to change that.
  3. Taking agricultural workers out of the process and putting them in a faster, less contingent one. When you have 11 million undocumented immigrants, many of whom participate in many places throughout the workforce, it seems difficult to argue that the agricultural workers are especially economically crucial, but the framework does that, for seemingly political reasons.

In addition, employment verification is added as a fourth rhetorical pillar. This has been part of previous proposals, but it has tended to be grouped in with border security and immigration enforcement. Isolating it is an interesting rhetorical choice that will receive some attention later, but the substance is essentially no different.

Of course, it’s difficult to tell what will really be different in a legislative proposal; there’s no legislative language. But the early language is perhaps a hint at how the eight senators think they might get a different political result than the last time.