Plenty of Blame to Go Around for 'Caravan' and Mass Illegal Immigration Generally

Why is a 60-vote supermajority required to pass any legislation?

By Dan Cadman on October 24, 2018

In a series of tweets and public remarks, President Trump has blamed Democrats for the rolling crisis heading toward our border as the 3,000-turned-7,000 strong (and growing) "caravan" continues to head north through Mexico toward our southern border (see here and here).

The president is right, in my opinion, to apportion a great deal of the blame on intransigent progressive Democrats who favor open borders and sanctuary jurisdictions, and who — even as they accuse the president of playing midterm politics with this crisis — are receiving their own private election cycle talking points advising them to try to duck discussions of illegal immigration and sanctuary policies at all costs and keep voters' eyes focused instead on safer subjects such as health care (see here and here).

But it isn't just congressional Democrats who have obstructed the legislative fixes needed to close the loopholes that have lent themselves to this crisis — gigantic loopholes that have either been caused by a flawed asylum and credible fear system, about which my colleagues and I have written endlessly, and by an activist judiciary that frustrates application of the law at every juncture (see, e.g., here and here).

The truth is that there's plenty of blame to go around. The Senate, under Republican leadership, has been the chamber where good enforcement-minded immigration legislation goes to die. The reason is that Senate Majority Leader Mitch McConnell has resisted altering the rules governing filibuster and cloture, with the practical effect that, since it takes 60 votes to kill a filibuster — for instance, by Democratic senators determined to spike an enforcement-oriented immigration bill — no bill can pass the Senate without mustering 60 votes. In a closely divided Senate, that's an impossibility.

If, however, McConnell had ever shown himself willing to unbend and kill that rule, a simple majority of 51 senators would have sufficed to enact good legislation. And there has been plenty introduced, including the Davis-Oliver bill that found its way into both the House and Senate a few years ago and then collapsed from exhaustion.

Allegedly, McConnell has resisted changing the rules in fear that if the majority flips party hands, he would have triggered Democrats' ability to pass future legislation. That's true. But if the Senate flips hands, who doesn't believe that the first thing Sen. Chuck Schumer will do is kill the filibuster/cloture rules for that very purpose?

Now here's the final irony: McConnell has been taking victory laps for his masterful performance and political skills in getting two new ostensibly conservative jurists onto the Supreme Court, as well as a number of other judges to the federal district and circuit courts.

How did he do that? Why, he killed the filibuster and cloture rules for confirmations to be sure that simple majorities would suffice to seat them on the bench.