November 9, 2016

Post-Election Analysis 2016: Immigration

Arnold & Porter

Key Takeaways - Immigration


President-elect Trump campaigned with immigration reform as a top priority, a priority based on a few principles which reject business as usual in Washington. Now, he will have the capability to implement many of those principles, but will need congressional approval for implementation of his full immigration reform agenda.

We should expect to see President-elect Trump issue Executive Orders in the opening days of his Administration suspending, withdrawing, or limiting many of the executive actions President Obama took on immigration in the last eight years. The Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs are likely to be halted immediately. The Trump Administration will seek unprecedented new resources for the Border Patrol in upcoming budget requests as the President-elect often singled out Border Patrol officers − a cause and group he regularly championed in campaign speeches. It remains doubtful that the Trump Administration can actually request and receive from Congress enough money for a major increase in the deportation of illegal immigrants already in the country, so look for the White House to focus its efforts on making it more difficult for more illegal immigrants to enter the country.

The President will now need to focus on fulfilling his campaign promise to build a wall on the Mexican border, a wall he promised Mexico would pay for directly or indirectly. It will be easy for the President-elect to make such a budget request and to blame the Republican Congress if it fails to fund it in full while he pursues a plan for Mexico to pay. That will force Republicans in Congress to fund the wall, at least in part, because they will likely not want to handle the intra-party criticism that comes with blocking a signature program of the new President. We also expect to see President-elect Trump propose a tax on remittances to Mexico as the primary funding vehicle for the new wall.


President-elect Trump has made immigration reform one of his signature campaign issues and will likely try to push a policy reform measure through Congress before the 2018 mid-term election, where Republicans have the advantage to retake the Senate with 25 Senate Democratic seats in play. A Trump Administration's proposal will likely end a path to citizenship and include reforms on:

Border Security. President-elect Trump will propose building an "impenetrable physical wall" on the southern border, an idea frequently touted on the campaign trail. At this point, he does not intend to request funding from Congress to pay for the wall, but would require Mexico to cover all costs. He also will look to increase the number of Border Patrol agents.

Executive Orders. President-elect Trump will quickly repeal President Obama's executive orders DACA and DAPA. While most stakeholders expect the Trump Administration's immigration reform measure to be considered by Congress, it may be possible that some aspects of the proposal would be implemented through executive actions.

Deportations and Detentions. While he has not specified how, President-elect Trump will look to deport undocumented immigrants who have criminal records, as well as end catch-and-release practices. As part of the proposal, he has stated that a process will be in place to ensure the countries from which the immigrants left will accept them once deported. On the campaign trail, he also mentioned that he does not plan to place immigrants in detention centers.

Refugee Status. President-elect Trump has called for a "vetting" of Muslims entering the United States. He has characterized the Syrian refugee crisis as the "Trojan horse" and will most likely not set a goal for the number of Syrian refugees to enter the US, as President Obama created with a benchmark of 10,000 Syrian refugees in 2016. Trump's controversial proposal will receive considerable push back from immigration reform groups, as well as Democrats and some Republicans.

H-1B Visa Program. President-elect Trump also will look to reform the H-1B visa program, a non-immigrant visa that allows US companies to employ highly-educated workers. While Silicon Valley will look to protect the existing program, the President-elect has expressed concerns with the program related to wage theft and having immigrants eligible for H-1B visas pitted against US citizens for high-skilled jobs, particularly those in the tech industry. He could release a proposal increasing wages paid to H-1B visa recipients to an extent where companies may be more inclined to hire Americans for entry-level jobs. The proposal also may require companies to offer jobs to Americans first before foreign workers.

Sanctuary Cities. The Trump Administration will look to end sanctuary cities, which aligns with Republican efforts in the House and Senate this year.


President-elect Trump has not indicated who is on his short list to serve as his Secretary of Homeland Security, but former New York City Mayor Rudy Giuliani's name has been floated. With Giuliani being one of Trump's top surrogates and given his experience as mayor of New York City during the September 11, 2001 terrorist attacks, President-elect Trump will view him as well positioned for the Cabinet position. Law enforcement unions were a source of strong support for the Trump campaign and we would not be surprised if the Secretary of Homeland Security comes from the ranks of successful big city police chiefs or even from the military.


House. Rep. Bob Goodlatte (R-VA) will continue to chair the House Judiciary Committee and Rep. John Conyers (D-MI) will continue as ranking member. Rep. Trey Gowdy (R-SC) will likely remain the chair of the Subcommittee on Immigration and Border Security, with Rep. Zoe Lofgren (D-CA) staying on as ranking member.

Senate. We expect Sen. Chuck Grassley (R-IA) to remain chair of the Judiciary Committee and Sen. Patrick Leahy (D-VT) staying on as the ranking member.


Immigration reform will be a top legislative priority for both parties. While Congress will not overhaul the immigration system until 2017, in the lame-duck session it is likely that both chambers will look to reauthorize the EB-5 Regional Center Program temporarily or long-term, which was set to expire on September 30. The somewhat controversial program allows immigrants to apply for legal permanent residence if they invest $500,000 in a US commercial project or create 10 jobs in the country. While Congress extended the program as part of the continuing resolution (CR) ending on December 9, there are technical and legal questions raised by the Congressional Research Service (CRS) about whether the program's extension through a CR properly meets the sunset provisions outlined in the law.

Democrats and Republicans in both chambers also will prioritize immigration reform on their agenda as major reforms have not been enacted since 2000. Both parties understand the importance of appealing to Latino voters, especially Republicans, who remain wary that Latino support for Democrats will cost them future national elections even as this year's election swung in large part on immigration proposals opposed by Latino voters. In the House, Speaker Paul Ryan (R-WI) has indicated his willingness to address immigration reform in 2017, despite his hesitations to do so in 2016. Additionally, following the presidential campaign, there will be considerable pressure on both parties to address national security concerns as it relates to border security.

In the House, Speaker Ryan or his successor will have serious challenges to contend with in getting meaningful immigration reforms passed, and he may largely defer to President-elect Trump to show hardliners that some of their proposals can't pass. The Speaker would then be able to offer some more moderate proposals that could pass. There also will be large numbers of members that have served in Congress for less than six years, which means the leadership will need to spend significant time educating members on relevant immigration reform issues and the recent legislative history of those issues. The President-elect's biggest battles with his own majority in the House may come from the questions building a wall along the southern border and enacting a ban of all Muslims or Muslims from certain countries. While Speaker Ryan expressed the need for strong border security, a Trump Administration may be at odds with Speaker Ryan's position on border security and an all Muslim ban, which Ryan has denounced as unconstitutional.

Additionally, congressional Democrats will do their best to unify around an alternative comprehensive immigration reform bill, which will give Latino voters and their allies something to rally around in the immigration fight and heading into the 2018 mid-term elections. For Democrats in the House, efforts to reform the immigration system are already underway as Reps. Luis Gutiérrez and Zoe Lofgren have held discussions about drafting immigration reform legislation to be introduced in 2017.

Given the narrow margin of party control in the Senate, there will be questions about a "Gang of 8" revival and its influence it could have over immigration reform discussions, especially as many Democratic stakeholders will view the closely-divided Senate as the singular check on a Trump Administration. Current Senate Majority Whip John Cornyn (R-TX) has called the revival of the "Gang of 8" as a "non-starter," while other Senators have expressed interest, including presumed Minority Leader Chuck Schumer (D-NY), an original "Gang of 8" member. Other original "Gang of 8" members who may be most likely interested in the group reconvening are Sens. Jeff Flake (R-AZ) and Robert Menendez (D-NJ). Of note, Sen. Flake has been a staunch critic of President-elect Trump throughout the election. Yet, there are original members, including Republican Sens. John McCain (AZ) and Marco Rubio (FL), who will be much more careful about articulating their immigration positions this year, especially since President-elect Trump carried both their states in this week's election.

While discussions on immigration reform will include numerous issues, some of the key issues that will likely be considered are:

Border Security. Overall, Republican and Democratic leadership in both chambers will favor increased funding to support a multi-asset approach to secure the border, including more Border Patrol agents, aerial vehicles, land monitors, and drones. Republican leaders in both chambers, especially Speaker Ryan, will have to contend with those Republicans pushing to enact President-elect Trump's policy proposal to fund building a wall along the southern border of the country. While there may be bipartisan support to build a wall at certain points along the southern border, the issue overall will be a non-starter for Democrats. It will also be problematic for Republicans up for re-election in 2018 and who have a high population of Latino voters in their states. Congress also will consider the issue of granting the Border Patrol better access to federal lands to assist with enforcement. Both parties will approach legislating on border security from a national security perspective and introduce bills that better secure ports of entry in detecting and guarding against weapons of mass destruction threats.

Pathway to Citizenship. Democrats have indicated that reform measures that fail to include a pathway to citizenship are non-starters in both chambers. President-elect Trump has indicated he would not consider the pathway question until Congress has effectively improved border security. Senate Democrats will likely make this issue a central part of their efforts to derail any immigration bill that lacks a path to citizenship.

Employment Eligibility Verification and Worksite Enforcement. The current Employment Eligibility Verification (E-Verify) system, which confirms that employees are authorized to work in the US, has raised numerous concerns, including a lack of minimum and uniform standards of compliance for states. It is likely that Republicans will look to require all employers to use the E-verify system and address compliance standards and funding for the system. Many Democrats will likely take issue with the requirement, citing civil rights concerns and objecting to reforming the E-Verify system through a piecemeal approach. Depending on the language of the bill, privacy groups will raise questions should proposals require elements such as photo matching requirements. These groups will not only appeal to some Democrats, but also to libertarian and privacy hawk Republicans, such as Sen. Rand Paul (R-KY). Congress also will likely attempt to change the exemption from E-Verify for independent contractors because many allegedly use it as a workaround to avoid verifying the status of potential or new employees.

Visa Security and Refugee Status. One of the issues that will likely break partisan lines in Congress is reforming the H-2A worker program, which helps the agriculture industry address seasonal work demands that result in worker shortages. The industry will likely seek reforms that modernize and streamline the application process as agricultural employers have said it is too slow to meet industry's demands. Additionally, many in the agriculture industry will argue that Congress must reform the visa program to allow current skilled laborers to have a pathway to legal status.

Congress also will look to reform the H-1B visa program and will need to consider President-elect Trump's proposal, as he is concerned with wage theft and lowering incentives for companies to hire American workers.

There will be much debate over President-elect Trump's proposals for "extreme vetting" of people entering the US from countries with high Muslim populations, including how to address the Syrian refugee crisis. President-elect Trump characterizes the current process to allow Syrian refugees to enter the US as a "Trojan horse." While Democrats, Speaker Ryan, and other Republicans have denounced an outright ban on Muslims, the issue of a some type of ban may be considered.

Both parties will introduce legislative measures to modernize the visa security process with proposals to expand the Visa Security Program to locations where terrorist groups have a presence. Additionally, the reform would help federal agencies better detect fake documents, complete fraud assessments, and track individuals digitally. There also will likely be a debate on whether to authorize federal agencies to revoke visas of foreign nationals for security purposes.

President Obama's Executive Actions on Immigration. With a Republican Congress and administration, President Obama's first executive order on DACA in 2012 will be ineffective. The executive order grants illegal immigrants under the age of 31 years who came to the US at 16 years of age or younger a two-year stay of deportation and work permits. As such Democrats and some congressional Republicans will look to afford some protections for immigrants such as "DREAMers."

Sanctuary Cities. A Republican Congress will likely pass measures to defund sanctuary cities – cities and counties where local law enforcement decide not to cooperate with the federal government on immigration enforcement. Earlier this year, Republicans in the Senate were unsuccessful at passing a bill eliminating funding to sanctuary cities, led by Sen. Pat Toomey (R-PA), in large part due to Democrats unifying against the bill.

Our full analysis of the 2016 election is available below.

Post-Election Analysis 2016

(Downloadable PDF)


Dana Weekes
Dana Weekes
Managing Director
Washington, DC
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