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The super-complicated Rubio-Cruz immigration fight explained

The immigration fight that the two senators got into at Tuesday's debate was complex -- but critical to the Republican race. Here's the backstory.
Presidential candidate Ted Cruz looks over at rival candidate Marco Rubio before a joint meeting of the U.S. Congress in the House of Representatives Chamber, Sept. 24, 2015. (Photo by James Lawler Duggan/Reuters)
Presidential candidate Ted Cruz looks over at rival candidate Marco Rubio before a joint meeting of the U.S. Congress in the House of Representatives Chamber, Sept. 24, 2015. 

Sens. Marco Rubio and Ted Cruz are locked in an ongoing fight over immigration that spilled over into Tuesday’s debate. Cruz attacked Rubio for authoring a bipartisan immigration reform bill, while Rubio countered that Cruz, too, would legalize undocumented immigrants.

It’s a critical conflict in the race, both on policy and politics. But like a lot of disputes involving two senators, the fight rests on a complicated argument over policy, procedure, and tactics. Let’s review the substantive points one by one.

What are Rubio and Cruz fighting over?

The core argument between Rubio and Cruz concerns two separate, but related, issues. The first issue is their current position on immigration and how much they overlap. The second is over what role each man played in the 2013 debate over the bipartisan “Gang of Eight” immigration bill, which passed the Senate before dying in the House.

Rubio’s argument is that from a 10,000-feet-in-the-air perspective, they’re currently similar on immigration reform’s most basic question – whether to deport the estimated 11 million undocumented immigrants in America or grant many of them legal status once new border security measures are put into place. They’ve also both supported expanding legal immigration, an issue that’s become more controversial within the GOP since Donald Trump’s nativist campaign took off.

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“As far as Ted's record, I'm always puzzled by his attack on this issue,” Rubio said in Tuesday’s debate. “Ted, you support legalizing people who are in this country illegally. Ted Cruz supported a 500-percent increase in the number of H-1 visas, the guest workers that are allowed into this country, and Ted supports doubling the number of green cards.”

The legal immigration fight is easy to referee. Cruz reversed his position on the H1B program and green cards recently in favor of a freeze on legal immigration until the economy improves. But he never denied that he supported these proposals in the pre-Trump era (in fact, he bragged about it just a few months ago).

But on illegal immigration, things get more complex. Cruz has spent months and months and months ducking questions as to what he would eventually do with undocumented immigrants, usually saying it’s a “conversation” for another time once the border is secure. Read this exchange with Chuck Todd on Meet The Press from July. It’s almost painful how much Cruz does not want to address this topic.

That changed on Tuesday, though, when Rubio challenged Cruz to say whether he favors legal status or not. For the first time, Cruz appeared to shift decisively against it.

“I have never supported legalization, and I do not intend to support legalization,” Cruz said.

Rubio’s camp pointed to the phrase “intend” as an obvious weasel word, but Cruz’s campaign chair went further and told reporters after the debate that he “unequivocally” would not grant legal status to undocumented immigrants. Instead he favored “attrition through enforcement,” which is essentially the “self-deportation” approach Mitt Romney advocated in 2012.

Cruz’s transformation looks complete, which puts more distance between him and Rubio in the current debate on legal and illegal immigration alike.

Okay, that’s their positions now. But what’s all this talk about the Gang of Eight bill?

Cruz’s argument is that Rubio’s standard for judging their differences is ridiculous. The real issue should be their records: Rubio co-authored the Gang of Eight bill, which would have implemented border security and legalization simultaneously, and barnstormed conservative media to pass it in the Senate until the right revolted and he backed off. Cruz denounced the bill from the start and voted against it.

“[T]here was one commentator that put it this way that, for Marco to suggest our record's the same is like suggesting the fireman and the arsonist because they are both at the scene of the fire,” Cruz said on Tuesday.

While Cruz did not support the Gang of Eight bill, Rubio argues that Cruz’s record during the 2013 debate proves he was further left on legal status for undocumented immigrants than his conservative supporters probably realize. On Tuesday, he asked Cruz to confirm or deny whether he “[fought] to support legalizing people that are in this country illegally.”

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The key evidence is a failed amendment Cruz submitted to the Gang of Eight bill that would have eliminated its path to citizenship, but offered a route to work permits and green cards for undocumented immigrants instead. At the time, Cruz argued that his colleagues should pass it because it was a compromise that might attract more conservative votes in the House.

“I don't want immigration reform to fail. I want immigration reform to pass,” Cruz said in one May 2013 Judiciary Committee hearing. “And so I would urge people of good faith on both sides of the aisle, if the objective is to pass common sense immigration reform that secures the borders, that improves legal immigration, and that allows those who are here illegally to come in out of the shadows, then we should look for areas of bipartisan agreement and compromise to come together. And this amendment, I believe, if this amendment were to pass, the chances of this bill passing into law would increase dramatically.”

The New York Times and Texas Tribune talked to Cruz for a joint story at the time and came away convinced his position was a “middle ground” between conservatives who wanted to deport 11 million immigrants and moderates like Rubio who wanted to grant them a path to citizenship.

As Rubio put it to reporters last month, all this shows that Cruz “bragged about the fact that he did not undermine the pathway to legalization for people that were in this country illegally.”

What’s Cruz have to say about all this?

The legalization amendment – and Cruz’s own rhetoric around it at the time -- looks damning on the surface. But there may be more than meets the eye.

Cruz’s argument is that his intentions in offering the amendment were misunderstood. The real purpose wasn’t to legalize undocumented immigrants, it was to undermine the Gang of Eight bill through some procedural trolling. In this telling, Cruz was offering the amendment to show, as he put it last month, the “hypocrisy of Democrats” on citizenship.

At the time, conservative critics were warning that the Gang of Eight bill was a ploy by liberals to pad the ranks of their voting rolls because its path to citizenship would primarily affect Latino immigrants, and Latino voters lean Democrat. With that context in mind, Cruz argues his amendment was not his own position but a means to call Democrats' bluff by proving they were unwilling to give up on citizenship even if it meant losing GOP support for their stated goal of allowing undocumented immigrants to live in the country without fear of deportation.

Amanda Carpenter, a Republican strategist who served as Cruz’s communications director at the time, corroborated the senator’s version of events.

“At that point in time, the most important thing was to expose the path to citizenship, so he offered an amendment that would accomplish the goal,” Carpenter told msnbc.

The amendment might sound like a pretty esoteric bank shot to make a relatively banal point about the Gang of Eight bill. Welcome to the Senate! But it’s important to note some conservatives saw things the same way at the time, lending weight to Cruz’s explanation.

Rush Limbaugh, for example, gushed about Cruz when he introduced his legalization proposal. He even called it the “Limbaugh amendment.” 

“The point is to prove nobody cares about 'em coming out from the shadows and nobody cares about 'em being treated with dignity and nobody cares about any of that,” Limbaugh said at the time. “They're looked at as voters.”

As Cruz’s campaign notes, leading immigration hardliner Senator Jeff Sessions (R-Ala.) also voted for his amendment. If the most arch-conservative lawmaker on the issue perceived it as an amendment to undermine the Gang of Eight bill and not an endorsement of legalization, that has to count for something. 

So Cruz is off the hook then, right?

Here’s the trouble. Sessions and Limbaugh might have been fully in on the joke, but that doesn’t mean Cruz was. In fact, it doesn’t look that way at all.

If it were all a big piece of political theater, you’d think Cruz might have made clear that he didn’t support the bill’s legalization component – citizenship or not -- and just wanted to make a point. Instead, he kept emphasizing the alleged benefits that would come with his amendment and how important it was to pass it.

“It is…I believe critical to passing this bill to remove the path to citizenship and yet every single Democrat voted on party lines against this amendment,” Cruz said in a floor speech after it failed. 

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This gave Cruz a gigantic out depending on the political climate. It’s hard to remember today, but in 2013 it was possible to imagine a world in which some type of immigration reform became the GOP consensus and the bigger liability for Cruz was his opposition to legalization. In this scenario, he would have been able to cite his amendment as proof that he was fine with immigration reform in general; he just didn’t like the citizenship piece and a few other components that Democrats included.

National Review dug up remarks this week from an old Cruz appearance at his alma mater Princeton in May 2013 that sound exactly like that approach.

In his appearance, Cruz complained Democrats were trying to “torpedo the bill” with citizenship rather than adopt his compromise amendments. Moderator Robert George pressed him on the point: “If I’ve understood you correctly, you would actually grant current illegal immigrants, or at least some substantial portion of those who are here unlawfully, permanent status?”

“The amendment I introduced affected only citizenship; it did not affect the underlying legalization in the Gang of Eight bill,” Cruz responded.

Asked whether that would go too far for conservatives opposed to “amnesty,” Cruz predicted his amendments would create a workable bill. Importantly, he said that this was his motive.

“I believe that if my amendments were adopted, the bill would pass,” Cruz said. “My effort in introducing them was to find a solution that reflected common ground and fixed the problem.”

Instead, the party moved to the right, and now Cruz is using the exact same amendment to argue that he was leading the charge to kill immigration reform. It’s “heads I win, tails you lose” logic.

Cruz’s biggest pitch to conservatives is that he’s one of the few truth-tellers in a Senate where GOP leaders constantly try to hoodwink the right with phony show votes that have no chance of success. Now his argument is not to believe his repeated paeans to the need to bring immigrants out of the shadows with work permits, because it was all a stage play designed to accomplish a different goal. It doesn’t help that until Tuesday nobody was sure of his current position either. Voters will have to decide whether that fits his brand.