As we approach the November election, most politicos are talking about whether the Democrats will retain control of the US Senate. Given the number of seats Democrats are defending and the general unpopularity of President Obama, many oddsmakers are giving the Republicans the edge.

If immigration reform were a serious possibility in the near future, I might be more concerned about how flipping the Senate to the Republicans would impact the immigration debate. But Republicans in the Senate haven’t been the main obstacle to reform. The House of Representatives’ hardcore anti-immigrant caucus (which is mostly GOP) has been the major problem. The Senate’s GOP members have tended to be more moderate than their House counterparts and if they take control, they’re also not likely to succeed in pushing a hostile enforcement-only agenda. That’s because

  • There are several Republican Senators – particularly those who voted for last year’s comprehensive bill – who would balk at the approach
  • The Democrats still can filibuster which means simply having 50 or 51 Republicans in the Senate won’t be enough to move a bill, and
  • President Obama would presumably veto any enforcement-only bill that he received

What I think is likely to produce an immigration deal, believe it or not, is the President’s issuing a major executive order on immigration. There are several reasons for this.

First, the Democrats will see a major popularity boost with Latino voters when the President takes action and this will be seen as important to the 2016 Democratic presidential candidates. Republican presidential candidates may know that taking a tough line on immigration will play well with the GOP base, but it will be a killer in the general campaign. Many of the serious candidates will be quietly encouraging the House and Senate to pass some legislation to take the heat off during the general campaign.

Second, House Republicans have actually made a lot of progress working out legislative proposals and were it not for Eric Cantor’s primary defeat in June, we might have actually seen Republicans move a bill. This was actually pretty close to happening. One of the sticking points in the GOP’s internal negotiations was over the number of green cards to be granted. There are a number of House GOP lawmakers with influence on immigration policy who opposed any net increase in the number of green cards provided for in the Immigration and Nationality Act. However, President Obama could make the issue moot if, as many predict, his order changes the way green card numbers are counted and consider families as a unit rather than pulling separate numbers. If this happens, then immigration reform advocates in the House GOP’s caucus can simply remove such proposals from those being considered. And that could make it easier to come to agreement on a final series of reform measures.

Third, many in the GOP are warning that an executive order will kill prospects for immigration reform. But I could see it simply spelling the end of any effort to get a comprehensive proposal passed. That was really already the case up until June. If the GOP wants to completely ignore the Senate’s immigration bill and go its own way with a series of GOP bills that deal with the array of issues that need addressing, they might have some more leeway to do this and label it a response to President Obama’s “lawless” approach.

It’s still very early to say what will be in an executive order. Many are urging the President to “go big” and argue that whether the order is massive or minor, opponents will claim it is massive. So you might as well just go for what’s best from a policy perspective and not worry about the politics. The President has said he is interested in doing as much as he can toward accomplishing what was in the Senate’s comprehensive immigration bill so that would support the arguments of an order being vast.

Regarding the timing, the latest news is that the order will come before the end of the year. This past weekend, White House press secretary Josh Earnest told Telemundo’s Jose Diaz-Balart that the President would “make good” on his promise to implement executive action by the end of the year. The President’s chief of staff also told Hispanic members of Congress that action would come during “the holidays” which presumably means in the period between Thanksgiving and New Year’s.

The timing may depend, believe it or not, on what’s happening in Louisiana. The Bayou State has a complicated electoral system and there are going to be nine candidates on the ballot competing for Mary Landrieu’s Senate seat. Unless one of them crosses 50%, there will be a runoff election. Landrieu is leading in that race – slightly – to Republican Bill Cassidy, but neither of them are anywhere close to the 50% mark in the polling that has taken place recently. That means that Landrieu and Cassidy are likely to face off in a runoff race on December 6th.  President Obama could very well hold off on issuing an executive order until that runoff is over, especially if control of the Senate is still up in the air.


Greg Siskind