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October 31, 2016

Immigration 2017—Opportunities and Challenges

(Editor’s Note: This story was written in late October, prior to the November election.)


We are about to conclude one of the strangest campaign seasons in American politics in any of our lifetimes.  We had two of the most unpopular major party nominees either party has ever put forward.  We saw a campaign that diverted into the personal and scandalous at almost every turn, leaving many critical issues woefully unaddressed in the political discourse.  Yet, one issue both Hillary Clinton and Donald Trump addressed was the issue of immigration reform.  It seems safe to say there will be some kind of effort on immigration reform in 2017.  So, what should we expect in 2017?

Regardless of a Clinton or Trump victory on November 8, the U. S. Congress is still responsible for writing and passing immigration legislation.  It remains unclear what the make-up of the House and Senate will look like, but it appears likely that the Senate will be split close to 50-50, maybe with one party holding a one or two seat advantage.  With the 60 vote threshold for most legislation in the Senate, the math for how to get to 60 votes is going to be a more significant challenge than in 2013 when the Democrats held a 55-45 seat advantage.

In the House, the Republican majority, by all indications, is expected to shrink, with most estimates projecting the GOP to lose between 10-15 seats.  Most of these losses will be in districts where the Republican was more likely to support some kind of compromise on immigration reform.  With those losses, the Freedom Caucus will have greater proportional strength within the Republican Conference, and will be pushing Speaker Paul Ryan and Majority Leader Kevin McCarthy to take a more enforcement-oriented and restrictionist stance on the issue.  The House has and will likely remain the most significant hurdle to passing meaningful immigration reform.


Trump Administration outlook

Outside of his expressed commitment to build a wall and enforce our immigration laws, much about Donald Trump’s immigration plan remains a mystery.  His primary advisors on the issue all come from a more restrictionist view on the issue.  We can expect to play defense in a Trump Administration on enforcement.  While some are hopeful he will understand the immigration challenges facing agriculture, his expressed policy statements and rhetoric to this point do not provide any solid assurances.

Additionally, while any administration does not have the resources currently to deport all 11 million falsely-documented individuals in our country today, agriculture remains low hanging fruit for anyone looking to increase deportations.

That said, if a President Trump wants to move legislation through Congress to build a border wall, there will be a number of Democrats and even Republicans who will insist that we deal with other broken aspects of our immigration system, and some kind of compromise could emerge.

A Trump Administration would be more likely to place political appointees friendly to employers within the Department of Labor, so we would have a stronger opportunity to argue for regulatory improvement to the H-2A program, but would still have to fight significant union opposition to such efforts.


Clinton Administration outlook

Hillary Clinton has expressed a strong commitment to advancing comprehensive immigration reform legislation in the first 100 days of a Clinton Administration.  If Speaker Ryan is able to start a constructive process in the House and is able to see a product pass that meets the satisfaction of a majority of the Republican conference, we could see a meaningful compromise bill passed into law.  Whatever is able to clear a Republican House and pass an evenly divided Senate will certainly have to be more “conservative” and Republican-leaning than the legislation that passed the Senate in 2013.  The political question that won’t be clear until next year is what is the magic combination that satisfies enough Republicans and can still be signed by a President Clinton?

On the regulatory front, we cannot expect to see any significant changes in the political leadership at the Department of Labor or relief from overly-burdensome H-2A regulations.  Further, in addition to Clinton’s close ties with the United Farm Workers, she endorsed the California ag overtime legislation.  While we would expect some kind of incentivized legal status for our current workforce to be an easier sell with a Clinton White House, when it comes to negotiating wages and visa caps, we cannot expect to have an ally for the interests of farmers under a Clinton Presidency.


Where can we look for hope?

While watching this issue over the past 10-15 years, it is fair to say no one is holding their breath that 2017 is the year meaningful reform will finally address our concerns.  But there is still a glimmer of hope on the horizon, and opportunities that could arise even in the midst of opposition and challenge.

First, it is likely we will have divided government, so if either side wants to accomplish their primary objectives related to legislatively reforming the immigration system, there has to be some give and take.  Agriculture has historically made a strong case for action, and even under a more enforcement-oriented scenario, there is a case to be made for why the immigration system must be reformed for farmers before a new enforcement regime takes effect.

Second, there is significant interest in immigration reform at the state level.  The National Association of State Departments of Agriculture (NASDA) recently incorporated the Agriculture Workforce Coalition’s (of which Western Growers is a founding member) policy position on immigration into its national platform.  Furthermore, there are a number of governors talking about the need to reform the immigration system in a manner that would encourage investment and job creation at a state and local level.  It remains to be seen, what kind of political spark, a push from outside Washington, D.C., could provide to finally move immigration reform.

Third, everyone on all sides of the immigration debate acknowledges our current immigration system is broken, and as Winston Churchill said, “Americans will always do the right thing…after they’ve exhausted all the alternatives.”

Regardless of the political climate on immigration, Western Growers will remain at the forefront of efforts to both advance immigration reform and shape the policies and proposals that will eventually become law.