How Politically Feasible is President Biden’s Immigration Plan in Congress?


Image credit: “No Immigration Ban” by John is licensed under CC BY-SA 2.0

Nikki Aminmadani

In an effort to pass long-term immigration reform, Sen. Bob Menendez, (D-NJ) and Rep. Linda Sanchez (D-CA) formally introduced President Joe Biden’s US Citizenship Act of 2021 to their respective legislative bodies of Congress on February 18th. 

One of the central pieces introduced in the legislation is its eight year pathway to citizenship for the estimated 11 million undocumented immigrants currently residing in the US, as long as they entered the US by January 1st, pay taxes, and pass a background check. Other aspects include removing current restrictions on family-based immigration and widening worker visas for more non-US citizens seeking to work in the US. Additionally, the bill proposes investing more into running ports of entry to increase processing rates, as well as funneling up to $4 billion into countries with struggling economies in order to proactively address humanitarian crises that are forcing people to escape their home countries.  

President Biden’s most recent predecessors, President Barack Obama and President Donald Trump, had to govern largely by executive action in the immigration sphere, making it difficult to implement reform with durability beyond the current president’s term. Given the Democratic majority in the House, the legislation can be expected to swiftly pass. In the Senate, however, the political environment is much more complicated given its 50-50 composition along party lines. 

While Vice President Kamala Harris could cast a tie-breaking vote if the vote is 50-50, the filibuster will likely be invoked by Senate Republicans in order to begin a period of “unlimited debate.” Hopes of removing the filibuster to resolve this issue is also unrealistic as some moderate Democrat Senators have already signaled that they will not consider removing it. Other possible strategies being considered include passing the bill in smaller parts or utilizing the budget reconciliation process to circumvent fears of filibuster. 

The importance of passing comprehensive and resilient legislation comes in the aftermath of the Trump administration’s immigration policies, widely considered by scholars to have been inhumane. Vanderbilt Professor of Law Robert Barsky adds from an ethical and human rights based perspective that “the destruction of the resettlement and refugee asylum programs under Trump was at shocking variance with the recent history of US refugee policy and it was also, from my standpoint, illegal.” He cites the Trump administration’s repeated violations of the US 1980 Immigration and Naturalization Act, which is based on the 1967 Refugee Protocol that President London B. Johnson had signed onto. Under these obligations, specific standards were outlined that US refugee policy would be required to adhere to. 

Looking forward, Barsky expects that President Biden will sign an executive order or bill that will give legal status to undocumented immigrants and revert to the refugee policy enshrined by the 1980 Immigration and Naturalization Act. He also adds that President Biden “must be aware that immigration fueled Trump’s constituents, and if we don’t want just another back-and-forth, between legality and intolerance, he must try to bring some Republicans on board before the next election.”

Much anticipation simmers for how the Biden administration will navigate the overhauled immigration system as legislative pathways to immigration reform that uphold ethical and legal standards continue to become increasingly complicated and controversial.