Marco Rubio, the freshman senator from Florida and perhaps a Republican candidate for president in 2016, declares that "95, 96 percent of the [Senate immigration] bill is in perfect shape and ready to go." Mr. Rubio's assessment raises two questions: 95 percent or 96 percent perfect to whom? And ready to go where?
Conceived in secrecy and operating in concert with the White House, the Gang of Eight is neither diverse nor representative of America. Sacrificing transparency to expediency, the Gang excluded 92 percent of senators — and the citizens they represent — from its proceedings. Gang members agreed to provide citizenship to virtually anyone present in the United States in exchange for additional promises of future enforcement. Negotiated by Big Labor, Big Business and other special interests, the Gang's 1,000-plus-page bill reflects its unrepresentative origins.
Senate committee consideration has done little to inspire public confidence. The Senate Judiciary Committee conducted two pro forma legislative hearings on April 22 and 23. Betraying his reputation for fairness, Judiciary Chairman Patrick J. Leahy, Vermont Democrat, invited groups to testify on behalf of those who violate U.S. immigration law but excluded representatives of federal law enforcement officers who have sworn an oath — and died — to defend it. This anomaly precluded objective appraisal of the bill's merits and prompted Immigration and Customs Enforcement union President Chris Crane to state: "Never before have I seen such contempt for law enforcement officers as what I've seen from the Gang of Eight."
The Senate Judiciary Committee legislative markup of the Gang's bill was a procedural formality. Broadly popular, common-sense amendments to strengthen enforcement and border security were not considered on the merits. Rather, amendment sponsors were personally derided — often by Gang members with seats on the committee — as obstructionists bent on dismantling the Gang's selfless solidarity. Gang commitments crumbled as "getting something done" took precedence over "getting it right." The product that emerged ignored the views of the special interest that should matter most: the American people.
Senate floor consideration raised additional process concerns. Supported by 70 percent of Americans, the border-security-first amendment from Sen. Chuck Grassley, Iowa Republican — which Mr. Rubio and other Gang members once touted as a precondition for their support — was quashed as a "poison pill" by Majority Leader Harry Reid. Authorization to complete a border fence that Congress approved seven years ago was defeated. The administration's badly diminished credibility and Attorney General Eric H. Holder Jr.'s April 24 statement that awarding citizenship to unlawful immigrants is a "matter of civil and human rights" render future enforcement commitments uncertain. A recent Congressional Budget Office finding that the Gang's bill will decrease illegal immigration by merely 25 percent from current levels added new urgency to prompt Senate passage.
Violating prior commitments and reprising methods utilized to pass "Obamacare," public scrutiny and informed deliberation are now viewed as mortal threats to the Gang's bill. Last-minute deus ex machina amendments supporting a "surge" of agents to patrol a vast, porous and unsecured border have not assuaged growing doubts about the Gang's bill, but reinforced the desperation of its supporters. It is hard to envision how a bill conceived, considered and ratified in these circumstances can be considered "95, 96 percent perfect."
Senators who vote for final passage won't confer legitimacy to the Gang's bill; they will be stained by it.
If the Gang's bill clears the Senate, it will do so only with a majority of majority Democratic senators. It will then head to the House, where it emphatically won't "be ready to go." Following the unparliamentary manner in which Obamacare cleared Congress, House leadership will ensure that immigration measures are considered under regular order to avoid alienating voters who returned control of the House to the GOP in 2010. Speaker John A. Boehner won't commandeer immigration matters from the Judiciary and Homeland Security committees. Both chairmen wisely reversed the Gang's "top-down" Procrustean approach by focusing on areas of broad bipartisan agreement — like the need for more highly skilled workers, employment verification and enhanced border security measures. If immigration proposals pass the House, the speaker will appoint conferees reflecting the House majority to resolve outstanding differences with the Senate. Given the complexity of issues presented, the House-Senate conference won't conclude quickly, nor should it. Members must be provided an opportunity to consult with their constituents over the August recess before casting votes on any House-Senate conference report.
Our Founders established a bicameral Congress to best effectuate the will of the American people. The legislative process is deliberately deliberative. Senate consideration of the Gang's immigration bill not only belies its self-designation as the "world's greatest deliberative body," it compels the House to consider immigration legislation with the openness and even-handedness the Senate has failed to exercise. It now falls to Mr. Boehner and the People's House to give voice to those the upper body has deliberately disregarded.
Robert N. Tracci served as counsel, chief legislative counsel and parliamentarian to the House Judiciary Committee from 2000 to 2006, as deputy assistant to the U.S. attorney general from 2007 to 2008, and special assistant U.S. attorney from 2009 to 2012.