The immigration policy conundrum after the midterm battle

In preparation for the US midterm elections, most analysts expected the Democrats to secure at least the 23 seat net gain in the House of Representatives necessary to achieve a Democratic majority. Despite US President Donald Trump’s abusive rhetoric and energetic campaigning for Republican candidates, as of this writing the Democrats hold a net increase of 37 seats, with the possibility of adding up to three more for a net gain of 40 seats as votes continue to be counted in races where every vote will, quite literally, count.

This is already the biggest “wave” since Watergate, made all the more remarkable by the tactics Republicans across the country used to drive down potential votes for Democrats: increased gerrymandering of electoral district boundaries, obstacles to voter registration, and myriad of efforts to reduce turnout. The fact that Democrats prevailed in a number of districts previously seen as strongly Republican is a serious challenge to Trump’s policies and rhetoric. The fact that the net increase is so large also gives the Democrats, spread across a broad spectrum of centrist to progressive views, a greater chance to block Trump policies requiring House approval, since the Democratic Party does not have to have the level of discipline in strictly block voting that the Republicans have so successfully practiced.

In contrast to the results in the House, however, Republicans have increased their majority in the US Senate by at least two, with one race (Mississippi) going into a runoff election. The divergent House and Senate outcomes are not inconsistent because winning statewide in a strongly Republican state is a much harder task than winning a Republican-leaning district (there are certainly strongly Republican districts, but those that flip in an upset such as this election are rarely the “hard core” districts). In addition, while each state, no matter how small the population, gets two Senators, House seats are distributed to states based on population. This means that the seven smallest states, five of which are strongly Republican, have the minimum of one representative out of 435 total, while still receiving two senators out of 100 total.

A key characteristic of both Senate and House contests was the razor-thin margins that determined so many of them. This reflects the ever-increasing polarization of the US public, with significant segments responding positively to the anti-immigrant and thinly veiled racist rhetoric, while others are repelled by it. In addition, the election results left Trump uneasy and angry about the closeness of the elections. In typical fashion, he has not hesitated to level unsubstantiated charges of corruption against election officials in areas where his candidates lost by a thin margin, particularly in extended vote counts. This is a drastic, potentially institution-rattling strategy, and speaks to the lengths Trump will go to rouse his base and achieve electoral victory. Unfortunately, we can expect to see much more of this behavior as he tries to get as much of his agenda adopted as possible before the new House takes office in January.

With respect to US immigration policy in the upcoming two years, the fact that the House is now controlled by Democrats means that major policy initiatives such as the proposed border wall are unlikely to get sufficient votes. Trump will likely respond in two ways. First, he will increase use of his executive powers to implement actions that could further raise obstacles to migration to the US and will motivate his base for the 2020 elections. We have already seen his theatrical skills at work in the deployment of US troops to the US-Mexico border to confront a caravan of asylum seekers in the run-up to the midterm elections.

The 7,000 troops assigned to the border outnumber the roughly 5,200 US troops that the administration estimates are deployed in Iraq, and total nearly half the 15,000 currently in Afghanistan. The visit to the troops by Secretary of Defense James Mattis only serves to increase the spotlight and intensify the perception of an invasion of the US southern border. Another recent example of using his executive platform is Trump’s statement that he is considering eliminating birthright citizenship via executive order, an action which would certainly be constitutionally controversial and result in lawsuits. The status of Deferred Action for Childhood Arrivals (DACA) remains mired in the courts with no expectation of early judicial resolution, or legislative action given the lack of expectation of bipartisanship between the Senate and House. And changes to asylum procedures such as requiring that asylum seekers pass through official customs checkpoints and denying domestic violence as a basis for asylum may be only the beginning of administration creativity in this sector. Second, Trump will threaten the use of his veto over policies favored by the Democrats unless they approve his immigration/refugee policies. That conflict could even produce a government shutdown in 2019 as Trump tries to increase resentment of the Democrats in the lead up to the primary campaigns for the 2020 presidential election.

With respect to US-Mexico relations more broadly, the impact of the midterm elections could disrupt the relationship as Trump and Democrats fight for policy dominance. Trump’s insulting and racist attacks on Mexico and Latinos will mobilize his base but at the expense of relations with Mexico. Andrés Manuel López Obrador was elected in Mexico on a very nationalist platform this past July and he will need to respond. Though López Obrador has tried to be respectful of Trump and work with him, Trump will not let good relations stand in the way of baiting Democrats and fueling the resentment among his base.

But Democrats will also make relations with Mexico difficult. Many analysts see the recently signed United States-Mexico-Canada Agreement (USMCA) as substantially akin to the North American Free Trade Agreement (NAFTA) and largely a cover so that Trump can pretend to have achieved gains. Trade with the US is so important for Mexico’s economy that even though López Obrador denounced NAFTA, he worked with outgoing President Enrique Peña Nieto to get a deal with the US. Democrats have been critical of NAFTA because of its alleged impact on US labor – one of their key constituencies and whose abandonment of the Democrats in 2016 made Trump president. Some important Democrats have questioned the benefits of USMCA for the US and its alleged failings will likely be used by them against Trump. A Democrat-dominated House may not approve the new treaty and although that means that NAFTA will continue, Trump could escalate the fight and try to unilaterally withdraw from NAFTA. It might take a few years for the courts to decide whether the President has the power to unilaterally terminate a trade treaty; in the meantime and to the detriment of Mexico’s economy, investor confidence in Mexico will fall and the modernization of a trade agreement to incorporate eCommerce and strengthen intellectual property rights will be put on hold.

Of course, events in Mexico responding to Mexican political dynamics will also influence the US-Mexico relationship. So the impact of the US midterms on the bilateral relationship will be hard to predict. But it is clearly unfortunate that Mexico and Latinos will be a political topic in the struggle between the Democrats and the President.