Why Immigration Legislation Is Difficult, but Can Be Easier

By Andrew R. Arthur on July 12, 2017

As the Center for Immigration Studies reported on Thursday, June 29, 2017, the House of Representatives:

[P]assed two significant immigration enforcement bills addressing sanctuary policies and public safety.

H.R. 3003: The No Sanctuary for Criminals Act, the most decisive action yet against sanctuary cities, addresses state and local prohibitions on communication with federal immigration enforcement by authorizing detainers and withholding DHS grants from the noncompliant among other changes to the law. The legislation is required because the most egregious sanctuary cities continue to remain defiant, putting the safety of their communities at risk in order to protect criminal aliens from deportation.

H.R. 3004: Kate's Law, named after illegal alien victim Kate Steinle, will help ensure that deportation is not a revolving door for serial immigration scofflaws. The government will now have greater ability to impose tougher consequences on criminal aliens who return, wrongly betting that we are not serious about our laws.

Although most who support immigration enforcement lauded these bills, some also complained that they did not do enough, contending that the House should have taken up the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, H.R. 2431 (115th Cong., 2015), as well or instead.

I have been, twice, a House staffer, and I want to offer some perspective on why I believe congressional leadership has chosen to bring these two bills, at least as a preliminary step, to the floor.

There are many tokens and tchotchkes that government employees can amass over their careers. The second-most valued item that a staffer can receive (just below a presidential signing pen) is the "redline bill". This is a ceremonial facsimile of an enacted bill, bordered in red, and signed by the speaker of the House, the vice president or, president pro tem of the Senate (or his or her designee), and the president. These are given by leadership to staff who have worked on the bill and brought it to fruition, and it is valued because it represents the labor that goes into passing even the simplest of bills.

Oddly enough, the "Schoolhouse Rock" episode "I'm Just a Bill" provides a fairly good view of the difficulty of the legislative process. I will try to flesh this tortuous procedure out a little bit more, however, by pulling back the curtain just a bit.

One of the first things that a new staffer does when he or she arrives on the Hill is to go to a class in the Library of Congress with the Congressional Research Service (CRS), which is probably one of the most underappreciated entities in government. As its website states:

The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for more than a century.

CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan. Its highest priority is to ensure that Congress has 24/7 access to the nation's best thinking.

Do you want to know how the Spratly Islands impact America's national security? Call CRS. What goes into closing a post office? CRS. Freshwater harmful algal blooms? CRS. They are the go-to people for the indecipherable and arcane, with one of the world's most selective, but powerful, audiences.

This initial CRS meeting is intended to teach the new staffer the legislative process. And I can still remember the first thing that the CRS teacher said: "You think Congress exists to pass laws. That is wrong. Congress exists to keep bad laws from getting passed." I have since learned that this is largely true, but (1) "bad laws" are in the eyes of the beholder, and (2) even good laws struggle to get passage. But here is how the process is supposed to work (in pertinent part), courtesy of CRS:

Introduction and Referral of Legislation. Once a Member of the House or Senate introduces a bill, it is typically referred to the committee (or committees) in that chamber with jurisdiction over its elements. Committees do not formally consider each of these referred bills. The committee chair has the primary agenda-setting authority for each committee and identifies which bills will receive formal committee attention during the course of the two-year Congress.

Committee Consideration. A committee may conduct hearings on a bill to provide committee members and the public an opportunity to hear from selected parties (e.g., a federal agency or organized interest) about the bill's strengths and weaknesses. If the committee wants to formally recommend that the bill receive consideration from its parent chamber, it will hold a markup on the bill, at which committee members vote on any proposed amendments. The markup concludes when the committee agrees, by majority vote, to report the bill (with any recommended changes adopted in the markup) to its chamber.

Floor Scheduling. In the House, majority party leaders generally decide which bills will receive floor consideration; typically, they schedule a bill for a type of streamlined floor consideration, or instead ask the Rules Committee to propose a set of tailored parameters for floor consideration. In the Senate, bills are brought to the floor only after the Senate agrees to a motion (typically offered by the majority leader) to proceed to a specific bill or, alternatively, if no Senator objects to a unanimous consent request to bring it up.

House Floor Consideration. In the House, most bills that receive consideration do so under a procedure called "suspension of the rules," which limits debate to 40 minutes and prohibits floor amendments, but requires two-thirds of Members voting to agree. Most other bills are considered under tailored debate and amending parameters set by the terms of a special rule reported by the House Rules Committee (which effectively operates as an arm of the majority party leadership). The House first votes to adopt the special rule and then can proceed to debate and potentially amend the bill (typically accomplished in a setting called Committee of the Whole). After any debate and amending process is complete, the House then typically votes on a minority party alternative (through a vote on a motion to recommit) before proceeding to a final vote on passage.

Senate Floor Consideration. In the Senate, once the chamber has agreed to bring up a bill, it can be considered under rules and practices that allow for a wide-ranging debate and amendment process. A defining feature of Senate floor consideration is that no rule permits a numerical majority to end debate and proceed to a final vote on most questions (e.g., a bill or amendment). Thus, Senators may wage a filibuster, effectively threatening extended debate or other actions that would delay or prevent a final vote. The Senate's cloture rule provides a process, however, by which a supermajority of the Senate (usually three-fifths) can, over a series of days, place a limit on debate (as well as limits on amendments) and eventually reach a final vote. These rules and practices provide extraordinary leverage to individual Senators, but frequently the Senate decides it can more effectively act by putting aside the formal rules and instead agreeing—by unanimous consent—to tailored parameters on debate and amending.

Resolving Differences Between the Chambers. At some point in the legislative process, either the House must act on a Senate bill or the Senate must act on a House bill, because only one can be presented to the President. One chamber frequently agrees to a bill — without changes — that was sent to it by the other, but sometimes each chamber proposes changes to a bill sent to it by the other. The chambers resolve their differences on the competing proposals either through a back-and-forth trading of alternative proposals (called amendments between the houses) or by convening an ad hoc conference committee in which House and Senate Members from the relevant committees are appointed to hammer out a compromise called a conference report. After both chambers have agreed to identical text (either by agreeing to the other chamber's proposal during amendments between the houses or by agreeing to the conference report), the bill can be presented to the President.

Presidential Action. The President has 10 days, excluding Sundays, to sign or veto a bill. If it is vetoed, it can only become law if Congress agrees — by two-thirds in each chamber, separately — to override the veto. Successful overrides of presidential vetoes are rare, so Congress typically must accommodate the President's position earlier in the process.

 Again, this is how the process technically works. But, this is like reading the NFL rulebook and taking the field for a set of downs in football. The "playbook", the strategy that makes all off the actions above occur, is just as critical in getting your bill to the Rose Garden for a signing ceremony.

Subcommittee hearings are held to identify issues and create a record that staff can refer to in the bill drafting process. Talking points and member statements support legislation in committee and support, or oppose, amendments. Votes are whipped. Floor statements are drafted for members for and against bills on the floor. Staff are on the floor during amendments and votes to explain provisions and amendments.

Once the bill goes to the other body, supporters of the bill have to lobby leadership there to bring the bill to the floor. More statements are drafted. Members and staff meet with wavering members. "Dear colleague" letters are distributed. Votes are whipped. If the bill is passed, it may go to conference.

At conference, meetings are held, alliances are formed and broken, arms are twisted, trade-offs are made, conference report language is drafted and redrafted. An agreement is reached. Or not.

The more complicated a bill is, the more controversial any given provision, the harder it is to get the votes you need: 218, or 60, and both (and sometimes less). Congressional math is easy. A senator or a member who supports almost every section of a bill, but cannot for legislative reasons support one, may not be able to vote for the whole because of that one. Every member knows: "If you don't represent your constituents, soon you won't represent your constituents." This is not to say that politicians just want to get reelected: Most run because they have a lot of work they want to do. The remaining unfinished work will not get done if you get voted out.

Congressional victory builds on congressional victory, however. Once a bill is passed and threatened consequences for supporters don't materialize, the next vote gets easier. Biased polling gets exposed. Plus, a senator or member who cannot vote for one bill can substitute for the support of a senator or member who cannot vote on the next one.

In addition, although the country seems polarized, "American politics continues to be fought between the 40-yard lines," as the Seattle Times said during a previous political realignment. Sometimes you get a 20-yard gain, but sometimes you settle for moving the ball four yards and getting three more downs.

This is really the best way to view the recent House consideration of Kate's Law and The No Sanctuary for Criminals Act. What happened to Kate Steinle is unfathomable, and the process that led to her killing is inexcusable. If alien criminals can be dissuaded by stern sentences from reentering this country after breaking the law once, there is no serious argument why it should not be done. And if alien criminals cannot be so dissuaded, the public can be kept safe from their predations through incarceration. Enough is enough.

We should expect to see this bill in the Senate, soon. Its introduction there will identify those senators who are enthusiastic about immigration enforcement, and those who will need some prodding to make the changes that are needed to keep the American people safe. That is when the voters will need to make their voices heard.

The No Sanctuary for Criminals Act is a heavier lift, but its prospects in the Senate would be bolstered by passage of Kate's Law. Kate's Law will focus attention on sanctuary cities, the dangerous policies they have embraced, and the dangers posed by criminal aliens generally. Detainer authority will help ICE stop criminal aliens before they become recidivists. Criminal aliens will be detained during removal proceedings to prevent them from offending again. And, if The No Sanctuary for Criminals Act is passed, expect more immigration-enforcement bills to make their way to the floor.

"Laws, like sausages, cease to inspire respect in proportion as we know how they are made." So said John Godfrey Saxe, lawyer and poet, not Otto von Bismarck, although he was an expert on both. I beg to differ. Washington can often seem to be cold and indifferent to the concerns of the average American. But there can be some reason, and hope, behind its workings.