Legislative Update: 5/12/2015 
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Legislative Update: 5/12/2015


Rep. Brooks Fights to Remove Amnesty Provision from Defense Bill

Congressman Mo Brooks (R-AL) is spearheading an effort to remove amnesty language from the National Defense Authorization Act (NDAA). Two weeks ago, during a marathon House Armed Services Committee markup, Rep. Ruben Gallego (D-AZ) offered an amendment that declares the Secretary of Defense should authorize Deferred Action for Childhood Arrivals (DACA) recipients to enlist in the military. (Gallego Amendment) The Armed Services Committee adopted the amendment in the middle of the night by a vote of 33-30, with six Republicans joining all committee Democrats. (NDAA Markup Roll Call Vote #8

Now, Rep. Brooks is calling on Rules Committee Chairman Pete Sessions (R-TX) to strip the Gallego language from the NDAA when it passes through his committee on the way to the House floor. In a letter co-signed by 24 other GOP House members, Brooks demands that Sessions remove the Gallego amendment from the NDAA, calling its inclusion “a severe threat to passage of the NDAA.” (Brooks Letter to Rules Committee, May 5, 2015) “Especially in this time of increased terrorism, our national security should not be threatened by allowing such controversial language on a program we have rejected three times as unconstitutional,” the letter continues. (Id.) “The Rules Committee has the power, and indeed the duty, to prevent such a threat to our national security.” (Id.) If Chairman Sessions fails to use his power as head of Rules Committee and remove the language, Rep. Brooks has already filed an amendment that will strip the Gallego amendment from the bill.

Even pro-amnesty Sen. John McCain (R-AZ) opposes including the Gallego language in the NDAA. “We’re not doing anything on immigration,” the Gang of Eight Senator said of the NDAA. (The Hill, May 5, 2015) “The defense bill is for defense, not for ‘Dreamers.’” (The Hill, May 6, 2015)

Nevertheless, Rep. Gallego defended his amendment. Claiming that his amnesty language “shouldn’t be controversial,” Gallego charged, “A bipartisan group of members in the House Armed Services Committee passed this amendment and there is no reason to strike it from NDAA [sic] other than to appease the fringe of the GOP.” (Gallego Press Release, May 6, 2015)

Thus far, Chairman Pete Sessions’s office has been noncommittal on how the Rules Committee will handle the amnesty language. In an emailed statement to inside-the-beltway publication Congressional Quarterly, Rules spokeswoman Jill Shatzen merely said, “Maintaining the rule of law, especially in areas related to our national security, is an issue of utmost importance to the Chairman.” (CQ Today, May 6, 2015) She continued, “The Committee is still accepting and carefully considering amendments to the NDAA, including the amendment submitted by Congressman Brooks. The Chairman is working with his colleagues and will consider all options available as they relate to this issue.” (Id.)

The NDAA markup on the House floor is expected to begin tomorrow.


Hillary Clinton Pledges to Outdo Obama’s Lawlessness on Immigration

Last Tuesday, at an event in Las Vegas, Hillary Clinton told a group of amnesty activists she would not only continue President Obama’s unilateral amnesties if elected president, but expand them beyond what even President Obama currently claims is the limit of his authority. (breitbart.com, May 5, 2015; Politico, May 5, 2015) She also promised to pressure Congress to pass a law providing “full and equal citizenship,” though she did not say exactly which illegal aliens would qualify. (BGOV Transcript, May 6, 2015) But, “if Congress continues to refuse to act,” she vowed to use executive power to go “further.” (Id.) She would expand the scope of aliens eligible for deferred action to include the “parents of dreamers” and others with “sympathetic” cases. (Id.) But even this expansion of President Obama’s executive amnesty, she said, would be “just the beginning.” (Id.) She also promised to transform “enforcement and detention practices,” claiming the Administration had left “much more to do.” (Id.)

During her comments, Ms. Clinton attacked her Republican opponents’ positions on immigration. (Id.) “Not one” of the Republican candidates for president, she said, is “clearly and consistently supporting a path to citizenship.” (Id.) She said that when Republican candidates talk about “legal status” without citizenship, “that is code for second class status.” (Id.)

However, Ms. Clinton’s own position on immigration has been inconsistent. Last week, she claimed that her new stance was inspired by “the image” of the families of migrant workers in the fields near Chicago that she saw at age 12 and “never” got “out of [her] mind.” (Id.)  However, in 2003, she described herself as “adamantly against illegal immigrants.” (See RNC video clip) During her last presidential campaign, in 2007, Ms. Clinton first supported granting driver’s licenses to illegal aliens before reversing and coming out firmly against them. (Weekly Standard, Apr. 16, 2015) And only last summer, she said that the unaccompanied alien minors needed to be sent home because allowing them to stay just because they got across the border sends a message “contrary to our laws” that encourages more illegal border crossing. (Washington Times, Jun. 17, 2014)

Her latest position, however, precisely mirrors the demands that amnesty activists made just before her Las Vegas event. (NBCnews.com, May 5, 2015) An activist from the Dream Action Coalition told reporters she wanted Clinton to use her speech to voice support not only for “immigration reform” but also to pledge she would “use her executive authority” as president if Congress refuses to pass amnesty legislation. (Id.) Another activist from the National Day Labor Organizing Network said he hoped she would promise “to go beyond” what President Obama has done. (Id.)

Even the Obama Administration is not yet defending Ms. Clinton’s promise to expand President Obama’s executive amnesty. Last Wednesday, White House Press Secretary Josh Earnest told reporters that he would let her team answer whether her proposals were legal, saying there could be “a legal explanation that they have that you should ask them about.” (Politico, May 6, 2015; video clip) He reiterated that the Obama Administration stands by the opinion of the Office of Legal Counsel, which the President used to justify its November actions. (Id.; see OLC opinion, Nov. 19, 2014) But the opinion specifically rejects deferred action for the parents of DACA recipients—the very policy mentioned by Clinton as her first planned executive amnesty. (Id. at 32-33) This opinion, along with the President’s insistence that November’s executive amnesties already encompassed the furthest limit of his authority, clearly made it awkward for the White House to defend Clinton. (See e.g. New York Times, May 6, 2015) Yet, given that the President also said the actions he took in November would be illegal 22 times before he actually took them, this awkwardness may not last very long. (See Speaker.gov, Nov. 19, 2014)


DOJ Confesses to Judge DHS Violated Injunction with 2,000 Extended DACA Approvals

Last Thursday, the Department of Justice (DOJ) filed another “Advisory” with U.S. District Judge Andrew Hanen, confessing that the Department of Homeland Security (DHS) had given three year DACA permits to 2,000 applicants even after Judge Hanen issued an injunction on February 16 blocking all such approvals. (DOJ Advisory, May 7, 2015) The DOJ had already confessed in March that DHS had granted 100,000 such expanded approvals starting in November even though DOJ attorneys told the Judge that no part of expanded DACA would be implemented until February. (FAIR Legislative Update, Mar. 10, 2015)

Last month, Judge Hanen ruled that the previously revealed misrepresentations constituted “misconduct” and granted discovery to determine precisely how it occurred before determining what sanctions would be appropriate. (See FAIR Legislative Update, Apr. 14, 2015) In this order, Judge Hanen set out an initial schedule for both parties to respond, ordering the DOJ to respond first, and then giving the Plaintiff States ten days after that to determine what else they would need in order to figure out how the DOJ’s misrepresentations in court had come about. (Id.) DOJ filed its response to that order for discovery on April 30, a response that included many redactions and over 1,000 pages of documents submitted in camera (only for the judge). (DOJ Response, Apr. 30, 2015) In its response, the DOJ claimed that it did not attempt to mislead the court and asked that the Judge not review the materials it submitted nor allow the Plaintiff States to see them. (Id.) The Plaintiff States therefore were set to file their own response on Monday May 11. (DOJ Advisory, May 7, 2015)

The DOJ’s latest advisory reveals that U.S. Citizenship and Immigration Services (USCIS) had “discovered” that it had granted 2,000 more three-year permits after Judge Hanen’s injunction. (Id.) It promised to convert these three-year permits to two-year permits and claimed to be “gathering additional information” about how the “errors” occurred. (Id.) The DOJ claimed that its counsel only learned of these further 2,000 extended DACA approvals the day before filing the advisory. (Id.) It also acknowledged that the timing of its advisory—giving the Plaintiff States only one full business day before their own response was due—might mean the States would need an extension. (Id.)

Whether the grant of extended DACA approvals in direct violation of a court order was deliberate or a result of sloppiness ensuing from DHS’ effort to rubberstamp as many applications as possible is unknown at this time. But either way, the latest advisory calls into question whether the Plaintiff States can hope a Court’s order can stop expanded DACA or even DAPA applications while DHS continues to administer DACA unimpeded.


77% of Likely Voters Think Illegal Immigration is a “Serious” Problem

Last Monday, Rasmussen released a poll of likely voters showing that 77% now believe illegal immigration is a “serious” problem, with 51% saying it is “very serious.” (Rasmussen Reports, May 4, 2015) Only 19% believe illegal immigration is not a serious problem, with only 3% indicating it is “not at all” serious. (Id.)

In addition, the new poll shows that voters’ preferred solution to this serious problem is enforcement instead of amnesty. Sixty-three percent say that gaining control of the border is more important than “legalizing the status of undocumented workers already living in the United States,” the highest since December 2011. (Id.) Only 30% of likely voters believe legalization is more important than border security, the lowest in two years. (Id.) Of those, 83% of Republicans and 65% of unaffiliated voters prioritize border security. (Id.) Only among Democratic voters do more people believe legalization is more important, and even they are narrowly spilt, with 42% prioritizing border security and 48% prioritizing legalization. (Id.)

Most voters also believe amnesty will make the problem worse. Fifty-eight percent believe that providing “a pathway to citizenship” to current illegal aliens would just encourage more illegal immigration: 72% of Republicans, 63% of unaffiliated voters, and 40% of Democrats. (Id.) Meanwhile, more voters than ever, 62%, believe the U.S. is not deporting illegal aliens aggressively enough. (Id.)


Texas Committee Advances Driver’s License Bill for Illegal Aliens

On April 27, the Texas House Committee on State Affairs passed House Bill (“H.B.”) 4063, which grants driving privileges to illegal aliens living in Texas by creating a new conditional driver’s permit. The Committee passed H.B. 4063 by a 7-3 vote, with two Committee members absent. (Texas Legislature Online)

To be eligible for a Texas conditional driver’s permit under H.B. 4065, an applicant must reside in Texas for at least one year, be ineligible to obtain a social security number, be unable to present documentation showing that they are authorized to be in the United States, and have no felony convictions on record. (H.B. 4063) A Texas conditional driver’s permit differs from a standard Texas driver’s license because the conditional driver’s permit may only be accepted as a valid proof of identity by the state for driving purposes only. (Id.) A conditional driver’s permit will also not meet requirements set by federal law under the REAL ID Act to be used for federal identification purposes, which include boarding an aircraft or entering a federal building. (REAL ID Act of 2005)

State Representative Byron Cook, sponsor of H.B. 4065, argued that granting driving privileges to illegal aliens will make roads safer because of the large number of illegal aliens residing in Texas. (Amarillo Globe-News, May 8, 2015) “I am struck by the fact that every day, hundreds of thousands of people are on our Texas roads and highways without a driver’s license, without a permit to drive and without insurance,” stated Cook. (Id.) Currently, Texas is estimated to have an illegal alien population of over 2 million people. (Id.)

Research regarding unlicensed drivers, however, does not support Representative Cook’s hypothesis. In 2011, the AAA Foundation for Traffic Safety released a report that analyzed traffic accident data collected by the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System database. (AAA Foundation for Traffic Safety, Nov. 2011) The AAA report reveals that from 2007-2009 less than 5 percent of the drivers involved in fatal car accidents nationwide were unlicensed drivers. (Id.) More than 95 percent of all drivers involved in fatal car accidents were licensed drivers or driver’s whose licenses were suspended, revoked, expired, cancelled, or denied. (Id.) As a result, any correlation asserted by advocates of illegal alien driver’s licenses between road safety and unlicensed illegal alien drivers is tenuous at best.

Additionally, granting driver’s privileges to illegal aliens does not guarantee that illegal alien drivers will purchase auto insurance. For instance, New Mexico, which issues illegal alien driver’s licenses, is also home to the one of the highest percentage of uninsured drivers in the United States. (Insurance Information Institute Council, 2012)

Opponents of H.B. 4063 contended the bill will encourage even more illegal immigration into the state. “I am tired of my citizenship becoming meaningless when we give special privileges to persons who have already broken the law,” stated Jack Finger of San Antonio, who testified against the bill.

The full House of Representatives must approve of H.B. 4063 before it can be sent to the Senate for consideration. If passed, H.B. 4063 will be effective on September 1, 2015.