FAIR Legislative Update September 20, 2010
Senate Braces for DREAM Act Vote
Senate Majority Leader Harry Reid (D-NV) dropped a bombshell announcement last Tuesday when he told reporters in the Capitol he would offer the DREAM Act as an amendment to the FY 2011 Defense Authorization Bill (S.3454) when the bill comes to the Senate floor this week. (Reid press conference, Sept. 14, 2010) Republicans immediately decried the effort to attach such a controversial bill to the Defense bill. Minority Leader Mitch McConnell (R-KY) said adding elements unrelated to defense spending to the defense authorization bill would make it “needlessly controversial.” (CQ Today, Sept. 14, 2010) Minority Whip Jon Kyl (R-AZ) said it would be a mistake to attach the immigration measure to the defense bill. (Id.)
Senator John McCain, Ranking Member of the Armed Services Committee, went one step further, promising to block the bill from coming to the floor (Roll Call, Sept. 15, 2010) “It’s a pure political act for Harry Reid, who is worried about his own re-election and that of the Democrats in the Senate,” McCain said. Senator John Cornyn (R-TX) echoed McCain’s comments, saying in a statement that the amendments were “transparently political” and a curious departure from the Democrats’ pledge to focus on jobs and the economy during this work stretch. (Id.) Meanwhile, Reid denied that the move was political, saying “[i]t has nothing to do with Democrats or Republicans. It has everything to do with fairness.” (CQ Today, Sept. 14, 2010)
Other Senators made speeches on the Senate floor taking issue with the DREAM Act itself. Senator David Vitter (R-LA) denounced how the bill permits states to give in-state tuition to illegal aliens. Calling the bill an amnesty disguised as an educational initiative, he said it was “an insult to legal taxpaying citizens.” (C-Span video, Sept. 15, 2010) Senator Jeff Sessions (R-AL) objected to Senator Reid’s decision to take up the DREAM Act at a time when neither Congress nor the President is enforcing our immigration laws. “We have got to end this lawlessness,” he said. “The first thing you do when you want to end illegality on immigration policy is stop subsidizing it. For heaven’s sake, stop subsidizing it.” (C-span video, Sept. 16, 2010)
On Thursday, Senate Majority Leader Reid filed a motion to proceed on the Defense Authorization Bill, and scheduled a vote for Tuesday (tomorrow) afternoon. (Congress Daily, Sept. 16, 2010). At this point, it is still uncertain whether Reid can get the 60 votes he needs to move the bill forward. (Id.) However, if Senator Reid is able to get the 60 votes to pass the motion to proceed, general debate will take place on the bill and it is likely Reid will fulfill his promise to offer the DREAM Act as an amendment.
The possibility of a vote on the DREAM Act sent activists on both sides of the immigration debate into overdrive. Amnesty advocates held “pray-ins” in several Senate offices on Thursday while members of the Congressional Hispanic Caucus met with President Obama in the White House to plot strategy. (Roll Call, Sept. 15, 2010) Friday, senior officials from the White House held an “off the record” phone call with activists saying they would do everything they could to make sure the Defense Authorization Bill moves forward. Meanwhile true immigration reform groups such as FAIR and Numbers mobilized their members and activists through a series of alerts and media appearances.
The last time the DREAM Act came up for a vote was in 2007. At that time, the bill – S.2205, which was subject to a cloture vote – failed 52-44, with four Senators not voting. (Roll Call Vote 394, Oct. 24, 2007) Since 2007, however, the debate over immigration reform has only intensified and the make-up of the Senate has changed significantly. It is uncertain at this point, how many Senators will vote for the motion to proceed, and if that passes, how many will vote for the DREAM Act.Stay tuned to FAIR for updates during the week…
The American Spectator reported last Thursday that a new leaked memo from the Department of Homeland Security clearly demonstrates the Obama Administration has been contemplating using its administrative power to grant amnesty to the entire illegal alien population. (The American Spectator, Sept. 16, 2010) FAIR has since obtained a copy of the memo, dated February 26, 2010, and is able to confirm its contents.
The beginning of the 10-page memo details how the Department of Homeland Security (DHS) has “long envisioned” a two-phase amnesty program to legalize “those who qualify and intend to stay here.” The first phase would include registration, screening, and the granting of “interim status that allows illegal aliens to work in the U.S.” The second phase would grant legal permanent resident status (i.e. green card status) to those who met additional requirements.
However, the memo goes on to explain how DHS can use “deferred action” or “deferred enforced departure” to circumvent Congress and still grant illegal aliens amnesty across the board. The memo reads: “In the absence of legislation, much of Phase 1 of the program could still be implemented, either by the Secretary of Homeland Security granting eligible applicants deferred action status, or the President granting deferred enforced departure.”
- Deferred action status is what Homeland Security grants when it decides, in its own discretion, not to remove an illegal alien. Those who receive deferred action status usually also receive work authorization. There is no statutory basis for deferred action status, as it is merely referred to in the federal regulations (See, e.g. USCIS Ombudsman memo, Apr. 6, 2007 (citing 8 C.F.R. 274a.12(c)(14)). The decision to grant deferred action status is unreviewable by the courts.
- Deferred enforced departure (DED) is a similar concept to deferred action, except that it requires a Presidential directive. Recipients of DED are not subject to removal from the United States, typically for a designated period of time, and usually receive work authorization. Like deferred action, there is no statutory basis for granting deferred enforced departure; it is a power based on the President’s authority to conduct foreign relations. (See USCIS website; see also DHS press release, Sept. 12, 2007)
Even more remarkable, the memo clearly contemplates the pros and cons of such unprecedented administrative action. Among the listed pros for such an action, the memo states: “A bold administrative program would transform the political landscape by using administrative measures to sidestep the current state of Congressional gridlock and inertia.” (emphasis added) However, among the cons, the memo states, “A program that reaches the entire population targeted for legalization would represent use of deferred action far beyond its limited class-based uses in the past…Congress may react by amending the statute to bar or greatly trim back on deferred action authority, blocking its use….”
Finally, the memo notes that “if going forward with a larger registration program that reaches the entire potential legalization population is not possible,” DHS still has other options. “We could propose a more narrowly-tailored registration program for individuals eligible for relief under the DREAM Act, AgJOBS, or other specifically defined subcategories.”
The memo concludes with a stunningly direct political analysis. “Done right, a combination of benefit and enforcement-related administrative measures could provide the Administration with a clear-cut political win. If the Administration loses control of the message, however, an aggressive administrative proposal carries significant political risk.” Regarding the timing of when to launch such measures, the memo states: “We would need to give the legislative process enough time to play out to deflect against charges of usurping congressional authority….This is likely to mean that the right time for administrative action will be late summer or fall—when the midterm election is in full-swing.” Then the memo cautions that if the American public reacts poorly to “an administrative registration effort, Congress could be motivated to enact legislation tying the Administration’s hands….A heated fight could also poison the atmosphere for any future legislative reform effort.”
In its article, The American Spectator suggested that the memo could possibly be related to another leaked USCIS memo, which FAIR and other organizations reported on in August. (See FAIR Legislative Update, Aug. 2, 2010) The memo does cover similar topics to the previously leaked USCIS memo, such as granting parole in place and waiving the three and ten-year bars, in addition to unapologetically plotting to usurp Congressional authority by granting administrative amnesty to the entire illegal alien population. However, Administration officials have yet to comment on the American Spectator article, or the memo that lies at the heart of it.
Addressing the Congressional Hispanic Caucus (CHC) Gala Wednesday, President Obama told CHC members and guests that he would do whatever it takes to support their efforts to pass the DREAM Act. (White House transcript, Sept. 15, 2010) The President acknowledged that many in the audience were frustrated with him for failing to move amnesty legislation “over the finish line,” but promised them that he would not walk away from this fight. “We need an immigration policy that works—a policy that meets the needs of families and businesses while honoring our tradition as a nation of immigrants and a nation of laws,” he said. “We need it for the sake of our economy, we need it for our security, and we need it for our future.”(Id.)
President Obama went on to blame Republicans for the failure to pass “comprehensive” immigration reform. “To make real progress on these or any issues, we’ve got to break the Republican leadership’s blockade,” said the President. “Without the kind of bipartisan effort we had just a few short years ago, we can’t get these reforms across the finish line.” The President accused most of the Republicans who voted for amnesty a few years ago from “walking away from that vote,” while conveniently forgetting to share that 16 Democrats voted against the Senate amnesty bill in 2007 (S.1639).
President Obama further asserted that the failure to pass amnesty legislation was the reason that “states like Arizona have taken matters into their own hands.” To loud applause, he proudly told the audience he was fighting the Arizona law because he felt it was the wrong way to deal with this issue. “It interferes with federal immigration enforcement. It makes it more difficult for … local law enforcement to do its job. It strains state and local budgets. And if other states follow suit, we’ll have an unproductive and unworkable patchwork of laws across the country.” (White House video, Sept. 15, 2010)
Finally, the President concluded his remarks by trying to build enthusiasm for the upcoming election. “Don’t ever believe that this election coming up doesn’t matter,” he said. “Don’t forget who is standing with you, and who is standing against you.”
The President’s speech came on the eve of a White House meeting between members of the Congressional Hispanic Caucus and Sen. Menendez (D-NJ) to plot a strategy for passing the DREAM Act through the Senate this week. CHC member and Rep. Gutierrez analogized the efforts between the Obama administration and the CHC to those of a football team, observing “I think the White House, the Democrats, and the allies that support serious immigration reform are going on offense and the President is our quarterback.” (Homeland Security Today, Sept. 17, 2010)
Following a closed-door meeting at the White House with President Obama and leaders of the Congressional Hispanic Caucus last Wednesday, Sen. Bob Menendez (D-NJ) announced that he plans to introduce a comprehensive immigration reform bill before the year’s end. (The Hill, Sept. 16, 2010) The new bill is part of immigration reform advocates’ newly unveiled three-point plan: press for immediate passage of the DREAM Act, rally behind immigration reform legislation that Sen. Bob Menendez is planning to introduce, and press President Barack Obama to provide “administrative relief” by easing up on Bush-era deportation policies. (Roll Call, Sept. 15, 2010) Sources familiar with the announcement say that the bill could be introduced even before the November 2 midterm elections, and would closely resemble the reform framework proposed by Sens. Chuck Schumer (D-N.Y.) and Lindsey Graham (R-S.C.) earlier this year. (Politico, Sept. 15, 2010) That proposal included amnesty, eased deportation proceeding requirements, and stripped state and local governments of their power to combat illegal immigration. (See FAIR Legislative Summary, Apr. 30, 2010)