With Congress back this week to work on the measure, Senate negotiators want to pick up as many as two dozen Republican votes in a show of force that compels the House to act. But the result has to be much stricter than the current version of the bill to give it any hope of passing there either. They’ve got to do it without alienating the vast majority of Senate Democrats who like the bill as it is.

And whatever happens, it has to keep Sen. Marco Rubio (R-Fla.) satisfied…

Rubio, a key member of the Gang of Eight, is shopping around a proposal to have Congress — not the Department of Homeland Security — write the border control strategy that would be a prerequisite for most of the other elements of reform. Rubio hasn’t yet landed on specific parameters, but, arguing that Americans don’t trust their government to get it right, Rubio wants lawmakers to craft the plan at the outset, rather than leave the details up to the Obama administration…

Rubio doesn’t see how the current version of the legislation gets enough votes to break a filibuster, let alone the 70-plus votes that Gang of Eight leaders want. Republicans view border security as a threshold issue, and many have told him that the requirements must be tightened before they can even consider backing the bill, Rubio has said.


Democrats are likely to look skeptically on any major border security changes in the bill, a delicately negotiated compromise that strengthens immigration enforcement while providing a route to citizenship for the estimated 11 million immigrants who entered the country illegally or overstayed their visas. But Democrats are also expected to try to accommodate Rubio to retain his support…

At the same time, Rubio appears sensitive to Democratic objections that unrealistic border triggers would prevent immigrants from achieving legal status, and is trying to develop an acceptable approach

The changes Rubio is considering draw from an approach suggested by Sen. Rand Paul (R-Ky.), who has indicated he is open to an immigration overhaul. Paul’s views are influential with tea party conservatives, and his support could give the bill a substantial boost by persuading other Republicans to vote for it.


In other words, instead of Napolitano writing the “parchment barrier” that’s supposed to prevent new illegal immigration, Chuck Schumer’s staff will prepare it. This is presented as an improvement. As Jonathan Strong quotes Mike Lee on today’s home page with regard to the budget debate, “Trust us. We’re Congress!”

Congress has already tried this approach of specifying the details of a border-control strategy, to little effect. The Secure Fence Act of 2006 (pdf here, but don’t worry — remarkably, it’s only three pages long) lays out in extraordinary detail where “at least 2 layers of reinforced fencing” are supposed to be built along the Mexican border…

In other words, Congress crafted the border plan at the outset, specifying where some 650 miles of fencing was to be placed, rather than leave the details up to the Obama Bush administration. How’d that work out?


[T]his solution is just as worthless as Rubio’s border commission was. Once Congress writes a plan, there is nothing in the bill that guarantees President Obama’s DHS will actually implement it. Conservatives, like Sens. Mike Lee, R-Utah, and Ted Cruz, R-Texas, introduced amendments that would make the legalization of illegal immigrants contingent on the actual implementation of border security. But the pro-amnesty Republicans and their Democratic allies on the Senate Judiciary Committee voted down all of those amendments. Democrats simply will not allow any changes to the bill that alter its fundamental amnesty-now-for-enforcement-later framework.

Majority Leader Harry Reid, D-Nev., has said he is confident of getting the 60 votes he needs to pass Rubio’s immigration bill in the Senate. And he’s probably right. The real target of Rubio’s new security sales job is the House. And it is unclear how much, if any, headway he is making.


Rubio seems to have in mind that this paperwork plan will be somehow written by Congress, not by the Department of Homeland Security. Then the President–initially, President Obama–can enforce, defer, waive, modify and otherwise fail to implement the plan as he or she sees fit.

Would the change in the plan’s authorship be a real impediment to the Gang of 8′s instant legalization? I suppose it might be if it required another vote of both chambers months down the road. But not if it’s set up under some sort of legislative-veto arrangement–where it goes into effect unless both houses vote to stop it. Or if it is somehow mandated, but not required as a prerequisite for RPI-style legalization–e.g. missing the deadline or otherwise blowing off the mandate has no consequence,. Or if it’s added before initial passage of “comprehensive” legislation–perhaps by downloading DHS’s thumb-drive plan into the text of the Gang of 8 bill. I would expect Rubio and his staff to explore all three options.

Under this theory, if Rubio gets his way, he’ll have another fig leaf scared conservatives can use to rationalize their support of legalization (and he will have stroked Sen. Rand Paul, perhaps winning his vote). If he loses, he’ll stay on the bill anyway.


Goodlatte is particularly clear on one point: He does not like the Senate bill, which grants undocumented immigrants a provisional legal status before the border is fully secured…

“There’s a long pathway to citizenship in the Senate bill, but the legal status is given almost immediately,” Goodlatte said. He criticized promises in the Senate proposal to implement a strengthened e-verify system for employers and enhancements to border security that include a way to document both entry and exit that would come after the initial legalization for immigrants. “That is the trap. That is the mistake that was made in 1986. We can’t repeat it again,” he said.

Continued delay by the bipartisan House group is pushing Goodlatte toward a piecemeal approach because he does not want to cede initiative to the Senate. “My goal is to produce a bill out of the House or a series of bills out of the House that addresses all of the issues related to fixing our broken immigration system,” he said. “Then obviously we would have to work out very substantial differences with the Senate, and therefore a conference [committee] would in my opinion be the way to do that.”


Sen. Chuck Schumer, D-N.Y., believes that 70 U.S. senators might ultimately support the Gang of Eight’s immigration package, but White House Press Secretary Jay Carney warned him not to start the victory lap too early

“The Senate legislation may not contain every specific element we have called for, but it does represent an important step towards the broad principles the president has made clear need to be a part of common-sense immigration reform,” Carney said. “We believe that the bill that emerged from the committee reflects the president’s principles. And, we believe that the bill that passes through the Senate with bipartisan support should and needs to reflect the president’s principles, and we will be engaged in that process as it moves through the Senate and beyond.”

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