Making Sense of a Very Bad Vote

David Super

      It is difficult to overstate just how bad are the immigration provisions of the Emergency National Security Supplemental Appropriations Act, 2024.  For a great many people fleeing foreign oppression, this legislation would completely slam the door, offering no path to refuge no matter how compelling the evidence or how precise the compliance with procedural rules.  For them, this country is announcing that the boat is full. 

     Although framed as a bipartisan negotiation, Democrats were desperate both to move aid to Ukraine and to diffuse immigration as an election issue.  As a result, Republican negotiators essentially dictated terms.  Even Bill Clinton, who happily threw immigrants, low-income people and other vulnerable groups under the bus to ensure his re-election, managed to extract more moderation in the 1996 immigration bill.

     Yet as bad as the bill is, the same factors that led Democrats to capitulate in negotiations made them unwilling to vote against it.  The only liberal negative votes came from two Latinx Democratic senators, Independent Bernie Sanders, and the Democratic senators from Massachusetts, which has a formidable immigrants’ rights coalition.  The legislation failed only because all but four Republicans opposed it. 

     The fate of aide to Ukraine, Taiwan, and Israel now will be determined separately from immigration.  The question remains, however, what will be the consequences for immigration law of this overwhelming Democratic vote for this ghastly bill.  When Bill Clinton induced all but a handful of Senate Democrats to vote for an early version of what became the 1996 welfare bill that eliminated any right to family cash assistance, purged legal immigrants from public benefit programs, savagely cut food stamps and disability benefits, the eventual passage of legislation with those features was essentially locked in.  Are the sweeping concessions in this legislation now similarly assured of eventual adoption as law? 

     The answer is “no”, although this episode certainly highlights a serious vulnerability for the immigrants’ rights community. 

     First, today’s vote was to cut off debate on Senator Schumer’s motion to proceed to this legislation.  Effectively, Republicans filibustered even considering this legislation.  Conversely, all the Democrats supported was the legislation’s consideration.  Had the Democrats broken the Republican filibuster – which they would not have come close to doing even if all had supported it – all senators would have had the opportunity to propose amendments.  Thus, at most the Democrats voting “yes” were allowing a process to move forward that could in theory have yielded far more moderate legislation.  Nothing they did committed them to vote for final passage of the legislation in its current form. 

     Second, Democrats’ votes came explicitly in the context of a deal.  Republicans, Democrats, and the news media all repeatedly agreed that Democrats had opposed these provisions on their own and accepted them only to move the foreign aid provisions.  Longstanding congressional tradition holds that nothing is agreed until everything is agreed.  With Republicans rejecting the deal, Democrats are no longer bound.  On numerous important pieces of legislation – the Build Back Better social legislation of 2021-22 comes to mind – parties initially rejecting a deal negotiated on their behalf have been unable to go back to the original deal when it became clear they could not do better. 

     Third, immigration deals traditionally have proven especially flimsy.  Every Congress after the McCain-Kennedy immigration bill was introduced in 2005, the new bipartisan compromise moved sharply to the right from the prior version.  Former President Trump’s desire to run against President Biden on immigration will assure that no immigration legislation can move this year.  And next year Democrats will be no more bound by the provisions of this legislation than Republicans were by their prior compromises earlier in this century. 

     Finally, Democrats have several strong reasons to change their positions.  The text of this long and complex legislation was released only a few days before the vote.  Under the circumstances, senators may plausibly argue that they voted for the motion to proceed with the intent of reading it fully prior to voting on passage.  In addition, the immigration situation is extremely fluid.  Many of the problems that have aroused public ire spring from a grossly underfunded asylum system with long delays before it can adjudicate the merits of claims to stay in this country.  The annual appropriations legislation due next month may fund reduction of that backlog – and if Republican resistance to increased funding prevents unsnarling the asylum system, Democrats may conclude that that should be their priority. 

     More broadly, several other important national priorities militate strongly enough against this legislation to give senators cover for moving in a different direction.  Reducing immigration is a bizarre agenda for a country whose unemployment rate has been below four percent for two years (and counting) that is facing a demographic tsunami with the Baby Boomers’ retirement.  Disregarding our international obligations to those fleeing oppression will further undermine our world leadership at the same time we are already inspiring doubts by reneging on bipartisan commitments to support Ukrainians resisting authoritarian Russia’s invasion.  The legislation’s emphasis on costly and brutal immigration detention meshes badly with Republicans’ insistence on public frugality – and has been shown to be unnecessary by numerous trials of alternatives to detention.  Protracted labor shortages also imperil the fight against inflation that Republicans have persuaded voters is a paramount national mission. 

     It is never good for dreadful legislation to advance.  Today’s vote concerning the motion to proceed on immigration legislation, however, comes in a procedural and political context that mitigates substantially its importance in shaping future legislation. 

     @DavidASuper1