Comprehensive Immigration Reform in the House: Will the SAFE Act Pass?

By Tom K. Wong, Ph.D., tomkwong@ucsd.edu, @twong002

After the Senate passed S.744 attention shifted immediately to the House. While an upcoming July 10th conference wherein Republican representatives are set to gather to discuss immigration will provide greater clarity in terms of what we can expect in the weeks ahead, Speaker of the House John Boehner has already indicated that he will adhere to the Hastert rule when it comes to immigration reform. What this means is that we are unlikely to see S.744 debated and then voted on in the House. Rather, we are likely to see stand-alone immigration bills introduced, debated, and then voted on, one by one (e.g., the piecemeal approach).

While a House vote on S.744 or an equivalent comprehensive immigration reform package is still possible, the next series of posts in the CIR 2013 Blog will focus on simulating vote outcomes for the major stand-alone bills that are already working their way through the House, beginning with the Strengthen and Fortify Enforcement Act or SAFE Act.

The SAFE Act focuses on interior immigration enforcement. While Title III of S.744 also focuses on interior immigration enforcement, the SAFE Act is distinct. First, the SAFE Act would make being undocumented, more specifically, “being unlawfully present in the United States,” a federal crime. It is already a federal crime to enter the U.S. without authorization. The SAFE Act would thus add the act of living (without authorization) to this list. The bill also provides states and localities “specific congressional authorization to assist in the enforcement of federal immigration law and includes provisions to facilitate their assistance.” Moreover, as described by the House Judiciary Committee, it allows states and localities to enact and enforce their own immigration laws, which speaks directly to state-level immigration policies such as Arizona’s SB 1070 and Alabama’s HB 56.

The SAFE Act carries many of the hallmarks of H.R. 4437 – the restrictive immigration enforcement bill passed in the House in 2005, which sparked nationwide protests in 2006. For example section 203 of H.R. 4437 also made unlawful presence a crime and section 220, among other sections, also affirmed the authority of states and localities to assist in enforcing federal immigration laws.

While proponents of the SAFE Act see tougher interior immigration enforcement as an essential component of immigration reform, critics oppose it as an overly punitive measure. The SAFE Act is thus sure to be a lightning rod of controversy as the immigration debate moves forward in the House.

Will the SAFE Act pass in the House?

The answer is yes and no. Congressional efforts to tighten interior immigration enforcement did not end with H.R. 4437. Year after year, legislation has been introduced that either affirms the authority of localities to enforce federal immigration laws or facilitates and enhances it. These distinctions are meaningful, as the varying degrees of restrictiveness in interior immigration enforcement have led to markedly different vote outcomes.

Thus the conclusion is that the SAFE Act will likely pass, but if it is amended so that the bill includes stricter and even more punitive enforcement provisions it will not.

The following provides two examples.

SAFE Act “Lite”

An analysis of 2,067 roll call votes that speak to local law enforcement cooperation with federal immigration officials (e.g., “affirms the inherent authority of,” prohibits federal funds for sanctuary cities) shows passage. Analyzing these past votes and then simulating a vote for current House representatives shows 233 “solid yes” votes. An additional 9 representatives are categorized as “lean yes.” This gives us a range of 233 to 242 potential “yes” votes. Among these, 232 are Republicans and 10 are Democrats. Contact author for full list.

SAFE Act

However, during the 2005 debate over H.R. 4437 an amendment was introduced and voted on (the Sullivan amendment) that moved interior immigration enforcement further to the right along a permissive/restrictive spectrum. This amendment not only sought to affirm the authority of localities to enforce immigration laws, but it also facilitated and enhanced their ability to do so via changes to immigration detention (see section 240D of the amendment; in short, all apprehended undocumented immigrants, with some exceptions, would be held in immigration detention). Surprisingly, the Sullivan amendment was criticized by Republican Representative Jim Sensenbrenner as being “unworkable” given it would lead to overcrowding of immigration detention centers and thus “all of a sudden, there are going to be criminal aliens that are going to be either released on the street or not being put in detention simply because there are not the slots that are available” (see Sullivan amendment link for text from Congressional record). He also voiced practical concerns about infrastructure and costs.

The amendment would have also changed the landscape of interior immigration enforcement by expanding the practice of expedited removal nationwide. Expedited removal gives the Department of Homeland Security (DHS) the authority to remove (deport) undocumented immigrants without the oversight of an immigration judge. Currently limited to border regions, the Sullivan amendment would have extended this practice to all parts of the country, wherever undocumented immigrants where apprehended. Democratic Representative Sheila Jackson-Lee criticized this aspect of the amendment for clearly violating civil liberties and rights of due process.

Analyzing the Sullivan amendment and then simulating a vote for current House representatives shows 193 “solid yes” votes. An additional 15 representatives are categorized as “lean yes” – 9 Republicans and 6 Democrats. This gives us a range of 193 to 208 potential “yes” votes. 32 Republicans are categorized as “lean no.” Contact author for full list.

Conclusion

If the SAFE Act simply affirmed the authority of localities to enforce federal immigration laws and withheld federal funds from sanctuary cities, the results show passage by a healthy margin with 233 to 242 “yes” votes. However, the SAFE Act goes further than this – it is yet unclear how far it will go. If what the SAFE Act ultimately becomes is analogous to the Sullivan amendment, then the results show no passage with only 193 to 208 “yes” votes.

To be clear, the contrast I make here between the “SAFE Act Lite” and the Sullivan amendment represent two very different positions along the interior immigration enforcement spectrum. However, this is instructive in that it shows that moderate reforms to interior immigration enforcement can attract bipartisan support, whereas more extreme reforms are likely to attract broader bipartisan opposition. This broader opposition, as the Sullivan amendment shows, can not align across claims to civil liberties and rights of due process, but also on “workability,” meaning the practicality and costs associated with significant changes to interior immigration enforcement. I should note here that what constitutes “extreme” is a major wildcard. If representatives today have a softer view of extreme than they did in 2005, then we can expect more support for interior enforcement measures such as those included in the Sullivan amendment (and vice versa).

As the SAFE Act moves closer to final passage and the details of the bill become clearer, I will update this analysis. 

Tom K. Wong, Ph.D., is an assistant professor of political science at UC San Diego. He is an expert on immigration politics and policy. He is a research associate at CCIS and beginning in fall 2013 he will be Director of the International Migration Studies Program at UC San Diego.