The 2013 Gang of Eight comprehensive immigration reform bill is the signature achievement of Marco Rubio's four years and ten months in the U.S. Senate. Yet in the first four Republican presidential debates, in which Rubio has played an increasingly prominent role, he has not been asked even once about the specifics of the legislation.
Despite that omission, it seems likely that if Rubio continues to rise in the GOP race, someone, somewhere will pay attention to his most important accomplishment. The 1,197-page Gang of Eight bill is so far-reaching, and at the same time so detailed, that it provides a sharp picture of where Rubio would like to take the U.S. immigration system. Rubio has renounced parts of his own work, but it's not clear which parts, and it's not clear if he has renounced them for good or only until he determines they are more politically practicable.
So until Rubio faces the inevitable questioning about his work, here are some features of the Gang of Eight legislation that might attract discussion as the Republican race goes forward.
1.) More immigration
Comprehensive immigration reform means more immigrants coming to the United States, and with the Gang of Eight Rubio would have dramatically increased that number. "The legislation would loosen or eliminate annual limits on various categories of permanent and temporary immigration," the Congressional Budget Office wrote in its 2013 assessment of the legislation. "If [the bill] was enacted, CBO estimates, the U.S. population would be larger by about 10 million people in 2023 and by about 16 million people in 2033 than projected under current law."
Those numbers are wildly out of touch with the wishes of Republican voters — and of all voters, for that matter. Recently Pew Research asked Americans whether immigration should be "kept at its present level, increased or decreased." Among Republicans, just 7 percent supported increasing the level of immigration, which is at the heart of the Gang of Eight. Among independents, 17 percent supported increased immigration, along with 20 percent of Democrats. So while huge majorities do not support increasing immigration, the gap is particularly large among Republicans, whose presidential nomination Rubio is seeking.
2.) Immediate legalization of illegal immigrants
A fundamental and, as it turned out, fatal flaw of the Gang of Eight was apparent the first day Rubio and his fellow lawmakers announced the reform project, on Jan. 28, 2013. "On day one of our bill, the people without status who are not criminals or security risks will be able to live and work here legally," Rubio's co-author, Democratic Sen. Charles Schumer, said in a press conference with Rubio and the rest of the Gang.
Conservatives — the ones who remembered the debacle of the 1986 immigration deal, in which legalization of illegal immigrants came first but promised border security measures never happened — were stunned. They demanded that new border security and interior enforcement measures be in place and running before legalization.
Rubio and the Gang refused, writing into the bill a provision by which illegal immigrants would become "registered provisional immigrants" or RPI. In a Spanish-language interview with Univision in June 2013, Rubio reassured supporters of the bill that legalization, or what became known as RPI status, would not have to wait for security.
"Let's be clear," Rubio said. "Nobody is talking about preventing the legalization. The legalization is going to happen. That means the following will happen: First comes the legalization. Then come the measures to secure the border. And then comes the process of permanent residence."
Later in the interview, Rubio stressed that he would not insist on security measures as a condition for legalizing currently illegal immigrants. "As for the legalization, the enormous majority of my colleagues have accepted that it has to happen and that it has to begin at the same time we begin the measures for [the border]," Rubio said. "It is not conditional. The legalization is not conditional."
After voting for the bill, Rubio backed away from immediate legalization, arguing that comprehensive reform is not politically possible without a requirement that security measures be in place before legalization.
3.) Leniency for illegal immigrant criminals
Throughout the months of writing and promoting the Gang of Eight bill, Rubio reassured skeptics the legislation would be very tough on illegal immigrants who are criminals. They wouldn't be allowed to stay. "They will have to come forward and pass a rigorous background check," Rubio said in April 2013. "If they're criminals, they won't qualify."
When the bill's language was made public, Rubio's promises didn't seem so tough. The legislation forbade the legalization of immigrants who had been convicted of a felony or of three or more misdemeanors. But there were some big exceptions.
First, if breaking the immigration laws was an "essential element" of any criminal conviction, it wouldn't count.
Second, the bill said the three misdemeanors that could disqualify an immigrant would count as three misdemeanors only "if the alien was convicted on different dates for each of the three offenses."
That meant that in the case of a person accused of multiple misdemeanors, and convicted of them during a single court session — a fairly common occurrence — the multiple convictions would count as just one conviction for the purposes of the Gang of Eight bill. Given that in some U.S. jurisdictions, some cases of vehicular manslaughter, drunk driving, domestic violence, sex offenses and theft are all categorized as misdemeanors, an illegal immigrant could be convicted of multiple serious crimes and still stay in the country.
Finally, Rubio gave the Secretary of Homeland Security broad authority to issue waivers to criminal immigrants. "The secretary may waive [the misdemeanor and other requirements] on behalf of an alien for humanitarian purposes, to ensure family unity, or if such a waiver is otherwise in the public interest," the bill said. That could mean almost anything
4.) An unclear enforcement guarantee
During the selling of the Gang of Eight, Rubio pushed back against skeptics who suggested the executive branch — whether the Obama administration or any other administration — would actually enact tough border security. Rubio's trump card was the bill's provision for something called the Southern Border Security Commission. Made up of border state governors plus representatives appointed by the president, the House and the Senate, the commission, according to Rubio, would take charge of border security if an administration failed to do so.
Rubio promised conservatives that the commission would have actual authority to enact security. The bill "requires if the Department of Homeland Security does not achieve 100 percent operational awareness and 90 percent apprehensions on the border, they lose control of the issue, to a commission, not a Washington commission, to a local commission, made up of the governors of the four border states ... where they will then finish the job of securing the border, including the fencing plan," Rubio told radio host Mark Levin in April 2013. Rubio told many other people the same thing.
It wasn't true. When the bill came out, it said the commission's "primary responsibility ... shall be making recommendations" to the president and Congress on "policies to achieve and maintain the border security goal." The bill said the commission would have six months to write a report with security recommendations; after giving its advice, it would be disbanded within 30 days.
The commission was, in other words, just another Washington commission. It had no actual power to do anything, regardless of what Rubio said.
5.) An imbalanced work force
Almost all immigration reformers, Rubio included, argue that the current American immigration system allows in too many unskilled immigrants and too few skilled ones. Rubio used that argument for the Gang of Eight. "I'm a big believer in family-based immigration," he told The Wall Street Journal in January 2013. "But I don't think that in the 21st century we can continue to have an immigration system where only 6.5 percent of people who come here, come here based on labor and skill. We have to move toward merit and skill-based immigration."
When the Gang of Eight bill was released, it became clear that Rubio and the Gang, while increasing high-skilled immigration into the United States, increased low-skilled immigration even more.
"[The bill] would allow significantly more workers with low skills and with high skills to enter the United States — through, for example, new programs for temporary workers and an increase in the number of workers eligible for H-1B visas," the CBO noted. "Taking into account all of those flows of new immigrants, CBO and [the Joint Committee on Taxation] expect that a greater number of immigrants with lower skills than with higher skills would be added to the workforce."
6.) The legalization trigger loophole
Many conservatives worried that the legalization for illegal immigrants, once offered, would inevitably become permanent. Rubio sought to reassure them by explaining that the Gang bill would require a "trigger," by which registered provisional immigrants could attain permanent status only after a long set of border security measures were put into place.
The actual bill, however, directed the secretary of Homeland Security to start the permanent legalization process even if the conditions had not been me. The Gang bill specified that permanent legalization would begin 10 years after passage of the legislation, whether or not the border provisions were in place. Even if the delay was the result of lawsuits tying up progress on border security, the bill said permanent legalization would go forward.
7.) Government micromanagement and special favors
The Gang of Eight bill included page after page of new laws governing the agricultural sector of the economy. After months of delicate negotiations between labor and business, Rubio and his colleagues decided to dictate wages, to the penny, for millions of agricultural workers. The bill specified a number of categories — agricultural products graders and sorters; animal breeders; farmworkers and crop, nursery and greenhouse laborers; agricultural equipment operators, etc.
For each, it laid out specific pay rates for 2014, 2015, 2016 and beyond. For example, farmworkers would be paid $9.17 an hour in 2014, $9.40 an hour in 201, and $9.64 an hour in 2016. Agricultural equipment operators would be paid $11.30 an hour in 2014, $11.58 an hour in 2015 and $11.87 an hour in 2016. And so on. Rubio and the Gang then set out a detailed formula for determining wages in the years after 2016.
As for special favors, Rubio and the Gang gave a number of breaks to specific business areas — tourism, cruise ship operators, meat packing plants and more. Perhaps the most famous is what might be called the Snowboard Exception. The original version of Rubio's bill extended the time limit for visas for "a ski instructor seeking to enter the United States temporarily to perform instructing services."
Not long after the bill was released, an amended version appeared, changing the language to "a ski instructor, who has been certified as a level I, II or III ski and snowboard instructor by the Professional Ski Instructors of America or the American Association of Snowboard Instructors ... seeking to enter the United States temporarily to perform instructing services." The snowboard instructors, ignored in the original bill, got their break in the final version.
8.) Fast tracks on the road to citizenship
During the selling of the Gang of Eight, Rubio repeatedly emphasized that newly-legalized illegal immigrants would have to go through years of procedures — maintaining a clean record, learning English, etc. — and still have to wait 10 years before even having a chance to apply for permanent legal residents, and only then if the border has been certified secure. Citizenship might lie many years beyond.
As it turned out, Rubio's bill contained some much quicker ways for illegal immigrants to gain permanent legal status. A provision in the Gang of Eight allowed immigrants with even a limited connection to the agricultural economy to gain legal status in half the time Rubio said. This is from a piece I wrote in April 2013:
The Gang of Eight bill creates something called a blue card, which would be granted to illegal immigrant farm workers who come forward and pass the various background checks the bill requires for all illegal immigrants. Instead of the 10-year wait Rubio described in media appearances, blue card holders could receive permanent legal status in just five years.
How does an illegal immigrant qualify for a blue card? If, after passing the background checks, he can prove that he has worked in agriculture for at least 575 hours — about 72 eight-hour days — sometime in the two years ending Dec. 31, 2012, he can be granted a blue card. His spouse and children can be granted blue cards, too — it can all be done with one application ...
[After five years], the legislation requires the Secretary of Homeland Security to change the blue card holder's status to that of permanent resident if the immigrant has worked in agriculture at least 150 days in each of three of those five years since the bill became law. A work day is defined as 5.75 hours.
Also, the immigrant can qualify for permanent residence with less than three years, of 150 work days each, if he can show that he was disabled, ill or had to deal with the "special needs of a child" during that time period. He can also shorten the requirement if "severe weather conditions" prevented him for working for a long period of time, or if he was fired from his agricultural job — provided it was not for just cause — and then couldn't find work.
So for many illegal immigrants, there was no 10-year wait. And Rubio and the Gang granted similar fast-track five-year status to so-called Dreamers who came to the U.S. before age 16 — and also to their spouses and children.
9.) An all-powerful Secretary of Homeland Security
For all its specificity, the Gang of Eight bill granted enormous discretionary powers to the secretary of Homeland Security; it would not be much of an exaggeration to say that for many of the seemingly hard-and-fast requirements in the bill there is a provision giving the secretary the authority to grant a waiver.
One way to see that is to search the bill's text for the phrase "the secretary may," which generally means the secretary has been given the authority to ignore or waive some requirement in the bill. The misdemeanor waiver earlier in this article is just one example. Waiving the blue card requirements is another.
There are more. For example, the secretary can re-admit to the United States an illegal immigrant who has been deported if the secretary determines it is in the "public interest." And in some cases, Rubio and the Gang gave "sole and unreviewable discretion" to the secretary to decide when an illegal immigrant may stay in the country legally.
10.) A disappearing back taxes requirement
During the sales period for the Gang of Eight, Rubio said many times that the bill would require immigrants to pay back taxes. "They would have to ... pay back taxes," Rubio told The Wall Street Journal in that January 2013 interview. But when the bill was released, the requirement wasn't much of a requirement. The legislation did not require illegal immigrants to pay back taxes in order to be given registered provisional immigrant status.
It did say that when, after five or 10 years, that immigrant applied for permanent legal status, he or she would have to have "satisfied any applicable federal tax liability," which the Gang defined as "all federal income taxes assessed." That meant the immigrant had to pay any existing IRS liability — except that as illegal immigrants, many had never filed paperwork with the IRS to pay taxes in the first place and thus had no existing liability in IRS files. No matter what Rubio said, the bill did not require all illegal immigrants to pay back taxes.
The Gang of Eight bill passed the Senate on June 27, 2013. The vote was 68-32; the winning total was reached by unanimous support of the Senate's 54 Democrats, plus 13 of Rubio's fellow Republicans, and of course Rubio himself. After the vote, Rubio turned on his own handiwork, with a spokesman saying he opposed passage in the House. The bill was stopped when Speaker John Boehner rejected efforts to bring it up for a vote and House Republicans declined to pass their own version of comprehensive immigration reform.
This year, Rubio refused to answer the question of whether he would sign the Gang of Eight bill if he were president. Future immigration reform, Rubio now argues, must be done piecemeal, with legalization measures coming after the implementation of security. But the Gang of Eight was a big bill. For many Republicans, and indeed for many in the public at large, its problems went far beyond sequencing. If Rubio continues to play a leading role in the Republican presidential race, those problems will receive renewed attention.