The conventional wisdom on immigration and Congress is that nothing is happening and nothing is going to happen for the foreseeable future. It's wrong. It is true that a comprehensive immigration bill the likes of which President Bush endorsed in 2007 won't pass this year, but it is not true that nothing is going on.
The makings of an immigration grand bargain are all over the Capitol.
Arizona will make its case before the Supreme Court on Wednesday that the state was justified in passing a law requiring police officers to check the immigration status of the people they stop. A federal ruling would give the state the ability to make warrantless arrests of suspects whom officials reasonably suspect are deportable. The legal arguments are about federal preemption of state law, but the state's political arguments lay the blame squarely on Congress and the administration. Arizona's Republican governor, Jan Brewer, complains that her state has suffered disproportionately from the national problem of illegal immigration because Washington has failed to address it.
"Fail" may be too strong a word. Passing legislation is difficult under any circumstances, but the political volatility of immigration makes any congressional action much harder. Still, elected officials are trying, and thus laying the groundwork for future deals.
Democrats have made several attempts to pass legislation to legalize undocumented college-bound students. Now Sen. Marco Rubio, R-Fla., is floating among his GOP colleagues a new Dream Act that would give those students legal status but not citizenship. That conversation eventually could produce compromise legislation that would offer a contorted path to citizenship for some undocumented kids. It also accomplishes Rubio's goal of toning down the rhetoric on illegal immigration, which has alienated many Hispanics from the Republican Party.
Sen. Chuck Grassley, R-Iowa, is proposing a high-tech immigration bill that would tighten up the H-1B temporary visa program and change the per-country allocations of employment-based green cards. Sen. Chuck Schumer, D-N.Y., is hoping to add visa provisions for Irish nationals and is working with Grassley on the H-1B changes. That conversation could produce compromise legislation to ease some of the concerns about high-tech foreign workers.
In the House, Rep. Zoe Lofgren, D-Calif., has under lock and key the draft of a broad compromise immigration bill agreed to in secret by Republican and Democratic negotiators in the last Congress. That bill was never introduced because of the raucous political environment, coinciding with the rise of the tea party, that made Republicans wary of sticking their necks out. But the document still exists and could be the basis of future talks. "It was a consensus product that would have worked and still could work," Lofgren said in an interview last month. "It tells me that there is a place you can get to. Was it exactly the bill I would have written? No. But was it fair? And would it have worked? Yeah."
No one denies that border states such as Arizona have dealt with more than their fair share of problems from illegal immigration. When Janet Napolitano was governor of Arizona in 2005, she declared a state of emergency along the U.S.-Mexico border. As DHS secretary, she has presided over ramped-up federal enforcement efforts against illegal immigration.
The problem has yet to be solved, and that is why Arizona is arguing before the Supreme Court for the right to address illegal immigration in its own way. Yet, however the justices rule on that question, it won't alter the course of the conversations among policymakers on Capitol Hill.