United We Dream activists participate in a rally in front of the White House July 28, 2014 in Washington, D.C.
Photo by Alex Wong/Getty

The battle over immigration action is only just beginning


Advocates of President Obama’s expected executive actions on immigration and border security would be wise to learn from the recent post-passage experience of the Affordable Care Act. Since its enactment, the GOP and their allies have mounted a sustained campaign to kill the ACA legislatively, politically and legally. Congressional Republicans have repeatedly tried to overturn Obamacare in vote after vote. States with Republican governors have refused to build exchanges and opted out of Medicaid expansion. And federal courts have altered (and may still throw out) critical parts of the law more than four years after its enactment. 

Related video: Bracing for executive action

Defending President Obama’s imminent action on immigration is likely to be even tougher than defending the ACA. While the president’s authority to act on immigration is well rooted in the law, it’s also true that the Republicans are a far stronger national political party now than they were when the ACA was enacted. On Capitol Hill, Republicans have more power today than they’ve had in nearly eighty five years. Across the country the GOP controls thirty-one governorships and two-thirds of the state legislatures. And in twenty three states, including some with large immigrant populations – Arizona, Florida, Nevada and Texas—the GOP controls the governorships and both legislative chambers. 

“Defending President Obama’s imminent action on immigration is likely to be even tougher than defending the ACA.”
This new, more potent GOP gives opponents of immigration reform an unprecedented ability to influence the national narrative and attack the president’s lawful executive action on immigration in the coming years. One should expect a full-on assault, including well-funded federal and state legal challenges and state and local initiatives designed to obstruct undocumented families from participating in an expanded deferred deportation process. 

While it is unclear whether Republicans will act against the president in the current lame duck session, they are certain to move next year to alter a law that in their minds grants the president far too much discretion over the immigration system. 

In the past two years, the GOP-dominated House twice passed laws designed to limit the president’s so-called “prosecutorial discretion,” thereby easing deportations on broad classes of undocumented immigrants with strong ties to the U.S. Given the results of the 2014 midyear elections, one should anticipate that versions of the 2013 “King Amendment” – which attacked a 2011 sweeping use of prosecutorial discretion known as the Morton Memos – will pass the House again, and then be introduced in the Senate. With 54 Republican Senators, it is possible the GOP leadership will cobble together the 60 votes necessary to pass it. While the president may veto the bill, the political damage of such a sustained attack on his power to implement common sense immigration enforcement could not only affect public support for executive action on deportations, but chill the willingness of undocumented families to come forward and participate in the temporary deferred action process. 

Nor can immigration reform advocates take comfort in the expectation that Republicans will ultimately shy away from their rabid opposition to immigration reform for fear of dooming the GOP for eternity. In 2014, Republicans took a series of dramatically anti-immigrant, anti-Hispanic actions – blocking the permanent legalization of 11 million undocumented immigrants for the fourth time in nine years, passing a myriad of mean spirited bills aimed at deporting 1.1 million DREAMERs, eviscerating a bipartisan Bush era anti-human trafficking law in order to expedite the deportation of kids and families seeking refuge at the border and taking away health insurance from tens of millions of struggling people, including Hispanics. 

“The GOP didn’t suffer at the ballot box for escalating their attacks on Hispanics and immigrants. To the contrary, they were rewarded with electoral gains across the country.”
In 2014, however, the GOP didn’t suffer at the ballot box for escalating their attacks on Hispanics and immigrants. To the contrary, they were rewarded with electoral gains across the country including gains with Hispanic voters – and a far stronger national Republican Party. At this point, immigration advocates might think twice about promising a surge against the GOP if it opposes the president on executive action – it is a political result that is neither guaranteed nor something they can deliver. 

Maybe we are wrong, and in the coming days the GOP will respond to the president’s executive actions by truly working with him to reform a long broken system. But expecting this outcome and underestimating the power and resilience the Republicans and their anti-immigrant allies, might not only let down millions of undocumented immigrants ready to benefit from a coming executive reprieve, but could contribute to the future rollback of programs critical to immigrant families already in place, like DACA and the ACA. 

The experience of the Affordable Care Act provides immigration reform advocates a powerful lesson. Even policies which are clearly in the national interest and work as intended can lose public support if advocates do not understand that the real battle begins the first day after the president acts. An early post election poll from USA Today shows how much work the president and his allies have to do in winning over the public – only 42% are in favor of the president acting without Congress. 

Related video: WH adviser responds to critics of executive action

So, while many may be celebrating the night the president appropriately uses his lawful authority to make our immigration system work better, that celebration may be short-lived if immigration advocates are not prepared for what promises to be a long and hard battle against a powerful, motivated and ruthless opposition. With the impending executive action, the battle for making sure it succeeds has only just begun. 

Simon Rosenberg is the president of NDN/New Policy Institute, a pro-immigration reform think tank based in Washington, D.C. David Leopold is the former president of the American Immigration Lawyers Association and a practicing immigration attorney based in Cleveland, Ohio.