Fact Check

Did Ted Cruz Actually Support Legal Status for Undocumented Immigrants?

An amendment he proposed that seemed to offer legal status to undocumented workers may have been intended as a poison pill.
Updated on

The ways of the Senate are sometimes hard to translate, as demonstrated by the blowback over a parliamentary maneuver that Senator Ted Cruz of Texas (center) tried on immigration with the support of Senator Mike Lee of Utah (left).

Photographer: BRENDAN SMIALOWSKI/AFP/Getty Images

Under fire from Senator Ted Cruz for fighting "tooth and nail to try to jam [immigration] amnesty down the American people's throat" in 2013, Senator Marco Rubio retorted Thursday by arguing that the Texas senator has also backed legal status for undocumented immigrants.

"Ted is a supporter of legalizing people that are in this country illegally," he told reporters in South Carolina. "In fact, when the Senate bill was proposed, he proposed legalizing people that were here illegally. He proposed giving them work permits. He’s also supported a massive expansion of the green cards. He's supported a massive expansion of the H-1B program, a 500 percent increase. So, if you look at it I don't think our positions are dramatically different."

On Friday, Cruz said he "laughed out loud" when he heard Rubio's comment.

"It is laughingly, blazingly, on-its-face false," he said on conservative radio host Mike Gallagher's show, portraying himself as "the only person on that stage who has consistently opposed amnesty and indeed, who led the fight against the massive amnesty proposal in the Senate just a couple of years ago."

The growing fight illustrates a truism of presidential politics: The ways of the Senate are so arcane that they can trip up candidates who try to explain them to voters. The issue between Rubio and Cruz appears to be an example of a legislative tactic threatening to become a campaign trail liability. And it comes as both Republican presidential candidates see their standing improve in the polls after several strong debate performances.

What gives?

Illegal immigration

Rubio's assertion that Cruz "proposed legalizing people that were here illegally" is premised on an amendment the Texan proposed to the 2013 immigration bill that Rubio helped author as part of the bipartisan "Gang of Eight." The Cruz amendment would have stripped out the bill's controversial pathway to citizenship for undocumented immigrants, while keeping the provision that allowed them to gain legal status and work permits. Rubio's campaign says that means that Cruz is for making undocumented immigrants legal to work in the U.S., just not to proceed to eventual citizenship.

In a Judiciary Committee speech at the time, Cruz said his amendment would "remove the pathway to citizenship," but that the estimated 11 million people in the country illegally "would still be eligible for legal status" so they can come "out of the shadows." Cruz made a similar point that year to NPR and the New York Times.

But others who were monitoring the bill's progress at the time believe the senator was employing parliamentary jujitsu, adding a provision that would undermine support for the bill. The key evidence for that: Though Cruz's amendment failed, Alabama Senator Jeff Sessions and Utah Senator Mike Lee, two fierce Republican opponents of legalizing undocumented people, voted for it. Democrats, who controlled the Senate, had made a path to citizenship a non-negotiable component of reform.

In painting Cruz as a supporter of legal status for undocumented immigrants, "the Rubio campaign is spinning," said Mark Krikorian, an immigration activist who was working to scuttle the 2013 bill. "My sense is Cruz's amendment was clearly intended as a poison pill for the Democrats. It was a legislative tactic... You often introduce measures you hope will be poison pills if you're trying to kill a piece of legislation. Now, it didn't work in the end but it was a perfectly plausible attempt. I might've voted for it myself it I was in the Senate, to try and kill the bill."

Stephen Miller, a spokesman for Sessions, noted in an e-mail that "numerous conservatives offered amendments to the progressive Gang of Eight bill that were designed to improve enforcement or combat amnesty." He continued, "That does not mean these Senators supported the bill with those changes. That would be an extremely untenable interpretation."

Amanda Carpenter, an aide to Cruz at the time, told a Rubio adviser on Twitter that the Floridian is deliberately misrepresenting what her former boss was trying to do with his no-citizenship amendment.

Attempting to add poison pills to legislation is "an age-old tactic," says Worth Hester, an expert on legislative politics and professor at Georgetown University. Notes Molly Reynolds, an expert on Congress at the Brookings Institution: "Sometimes they offer amendments to bills even if they don't intend to support the underlying legislation. Often this is an attempt to make a particular point." 

Cruz went on to vote against the overall bill, while Rubio voted for it. It passed the Senate 68 to 32 in June 2013, then died in the House.

Cruz's campaign adamantly rejects the notion that his amendment meant he supported legal status. "He has never advocated for it," said Catherine Frazier, his spokeswoman. "Senator Cruz was doing his job as a senator to improve a fundamentally flawed bill, and two, to expose the bill for what it was, which was amnesty."

While Cruz may not support legalization, he hasn't definitively ruled it out. His position, his campaign said, is that he'll refuse to even discuss what to do with the undocumented population until the border is secure. "I'm not playing that game," Cruz said in an August interview on Fox News when pressed on whether he'd deport the people in the U.S. illegally. "It is a distraction from how we actually solve the problem."

Legal immigration

Rubio's assertions about Cruz's support for expanding legal immigration are correct. During the 2013 proposed an amendment to increase the statutory cap of 65,000 on annual H-1B visas—used by U.S. companies to hire skilled foreign workers—by 500 percent to 325,000. It failed, and he expressed his disappointment.

"I was pleased today to offer legislation that would have improved and expanded legal immigration by dramatically increasing the cap for high-tech temporary worker visas," Cruz said in May 2013, citing as evidence a study by the conservative American Enterprise Institute to argue that his plan would improve the immigration system as well as "encourage economic growth and create new jobs in America."

Now, as the H-1B program becomes a growing target on the right, Cruz is qualifying his position, saying he's working with Sessions, an ardent H-1B opponent, to come up with reforms to the program. "If I am elected president the H-1B program will not be used to replace American workers," he told Gallagher on Friday, adding that companies that attempt to do so "will face serious legal penalties and even prosecution."

As Rubio noted, Cruz also proposed an amendment to the 2013 bill that would have doubled the cap for annual green cards from 675,000 to 1.35 million.

The Texan has long portrayed himself as a strong supporter of legal immigration, even though most conservatives want to reduce immigration levels, polls suggest.