The dual house nature of the U.S. Congress leads to funny things at times. The immigration reform effort has been relatively uneventful in the Senate, with the Senate version of the bill sailing through several potential minefields relatively unscathed. (Well, at least compared to the House version of the bill, which is going through the wringer in the Republican-controlled chamber.)
The House was always thought of as the more difficult chamber for any immigration bill, but some have not given up hope on the turbulent negotiations that have taken place, seeing a possible way forward after the dust clears. But it all depends on Speaker John Boehner (R-Iowa).
The House is currently locked in negotiations to produce some form of bill but it has been a difficult struggle. Although principles of the bill have been worked out by the bipartisan House version of the Gang of Eight, every single contentious detail they hit has threatened to sink the process. On Wednesday, the latest hurdle was overcome after a dispute over a health care provision involving immigrants was solved.
But the next hill to climb involves the E-verify employment verification system, one of the key carrots handed out to Republicans to sweeten the bill. It is a “trigger,” meaning that if the system is not up and running in five years, it will shut down the entire legalization system.
Democrats have begrudgingly gone along with the measure, but are not happy about its critical link to the entire program. So Democratic legislators want to make sure that E-Verify system is not subject to the rough dimension of congressional appropriations, basically protecting the system from suddenly having its funding cut or withheld by a congressperson who decides they dislike the legalization process. This would set in action the trigger process and destroy the entire project.
According to Politico, Republicans are privately saying they are not going to bend on this point. If this becomes an issue, this could be the hill that the bipartisan House bill dies on.
There are rumblings that if the talks collapse, the House will still want to pass some kind of bill before the Senate passes one. If the Senate passes a bill with strong support (the latest goal is 70 senators), there will be enormous pressure on Boehner to pass it from Republican Party elites and political strategists, who desperately want to have an issue they can point to try to make inroads with much-needed voting blocks such as Hispanic voters.
If the talks collapse, Boehner could use several other GOP-based bills and ram them through the chamber before the Senate bill passes. This would allow the whole thing to go to conference committee, were the differences between the two bills out be ironed out, and a "compromise" bill would be send back to both Houses of Congress.
But while the resulting bill would probably pass the Senate, it is unlikely to pass the informal Hastert rule in the House. The rule, implemented by former Speaker Dennis Hastert in 2004, states that unless a majority of the majority party supports legislation, it will never come to the floor for a vote, even if the legislation could pass with the minority party and a minority of the majority part supporting it.
Boehner has violated the Hastert rule four times during the 113th Congress, on the fiscal cliff bill, on Hurricane Sandy relief, on the extension of the Violence against Women Act, and on a bill regarding the federal acquisition of historic sights.
Even if the bipartisan bill somehow emerges and gets voted on, which would probably require violating the Hastert rule, and goes into conference committee, Boehner would still need to violate the rule a second time.
The problem is that to pass any immigration reform Boehner will have to go against the anti-immigration contingent, congressmen afraid of a Tea Party primary challenge for being "soft on borders," and those who simply do not want to give President Obama a "win" out of either partisan hatred or fear of the electoral consequences in blood red distracts.
Boehner is the kingmaker for immigration reform, but it is a crown of thorns that will bloody him no matter how he sets it down. Violating the Hastert rule would cause an uproar in his caucus that could make his term as speaker difficult, but letting immigration reform die would put even worse optics on the Republicans who already have a historic high unfavorable rating of 59%.
It's enough to make Boehner cry. Again.