Special 2010 Election Update

Election Update

As of Wednesday afternoon, less than 24 hours after polls closed, Republicans had gained 60 seats in the House and 6 seats in the Senate. The most significant story is the changeover in control of the House of Representatives from Democratic to Republican. Republican control of the House means a change in leadership of the key committees relevant to immigration-Lamar Smith will likely become chair of the Judiciary Committee and Steve King will chair the Immigration Subcommittee. Both have called for extremely tough enforcement measures and have been fierce critics of legalization proposals calling them "amnesty".

Lamar Smith was the architect of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) of 1996, arguably the most punitive enforcement law to pass Congress. IIRIRA came only two years after Republicans swept the 1994 elections under circumstances that have already been compared to the current political environment in which a Democratic president faced an emboldened Republican party flush from recent victory. IIRIRA severely curtailed due process and judicial review, greatly expanded the aggravated felony definition, and created the mandatory detention provision INA 236(c). A decade later, the House passed H.R. 4437 which brought waves of protests nationwide that hardworking individuals should not be labeled as criminals. H.R. 4437 went so far as to criminalize the work of churches and social service organizations who provide humanitarian assistance to those without legal status.

In the new 112th Congress, we should expect proposals of a similar tone as IIRIRA and H.R. 4437. These proposals will likely place further limits on judicial review, criminalize unlawful presence, and increase penalties for illegal entry or reentry. Expansion of expedited removal, which has gradually crept further into the interior and now covers anyone found within 100 miles of a border region, could also be among the new proposals. Many of the proposals will not gain enough support but will nonetheless further polarize public attitudes about immigration.

Under a Republican controlled House, there likely will be more funding appropriated for border and interior enforcement, notwithstanding the $600 million Congress appropriated in August for these purposes. Finally, with the power of the gavel in hand, Smith and King will likely conduct oversight hearings demanding that the Obama Administration prosecute immigration laws even more aggressively. Of course, this administration with its record breaking deportation figures and spending on border security has done more on enforcement than any previous administration.

Mandatory employment verification bills will surely be introduced in the new year. In 2007, the Secure America with Verification and Enforcement Act (SAVE) was introduced by Heath Shuler (D-NC), Brian Bilbray (R-CA), and Tom Tancredo (R-CO). The SAVE Act would have expanded the existing Basic Pilot employment verification system (now known as E-Verify) to cover all employers and all workers in just four years, without addressing the well-documented flaws of the current system.

While not quite as dramatic as the change in House majority, Senator Harry Reid's re-election victory in Nevada is also major news, especially for those concerned about immigration. As Senate majority leader, Reid has the final word on what that chamber's agenda is going to be. Sharron Angle, Reid's challenger, repeatedly attacked his stance on immigration reform calling him "the best friend" to illegal immigrants. Reid's response was to lean in to the immigration issue by promising to bring up the DREAM Act during the lame duck session. At the end of the day, though Reid was trailing Angle in the pre-election polls by 3 or 4 points, he was able to pull off a convincing victory. Given the slim Democratic majority in the Senate, it remains to be seen whether Reid can bring DREAM to the floor.

Finally, Reid's victory sends a strong signal that campaigns fueled by anti-immigrant messaging do not guarantee results at the polls. For more on how immigration played out in key elections see AILA's report.

A Reid loss would have shaken up the Senate Democratic leadership structure, but now the Senate will likely retain the same people in the leadership positions that affect immigration matters, specifically Reid himself and Chuck Schumer (D-NY) who is expected to remain as chair of the Immigration Subcommittee. The divided Congress and highly polarized environment will make the path toward immigration reform tougher than ever. With the Senate leadership more supportive of broader immigration reform and the House focused on border security and enforcement, gridlock will prevail. Only if major compromises are made on both sides will there be a chance for a major immigration bill to pass. Pro-business Republicans might be in favor of improvements for business visas but that will take a back seat to enforcement measures, including provisions generally opposed by business that make it harder to gain access to needed foreign workers. All these concerns will be overshadowed by the lagging economy and the high unemployment rate.

No doubt the 112th Congress will hold many new and challenging political battles for AILA. Moving forward, we will need to work together to protect and promote fair and meaningful immigration policy. AILA national is beginning the process of renewing our advocacy strategy – can you help us? Please share your ideas and suggestions for working with the new congress by emailing us at advocacy@aila.org.

Cite as AILA Doc. No. 10110462.