Policy and Legislation : Legislative Update — January 7, 2008
In this Update:
Omnibus Appropriations Bill Guts Fencing, Other Immigration-Related Provisions
Senator Dorgan Criticizes Bush Administration for Pursuing Mexican Trucking Program
Omnibus Appropriations Bill Guts Fencing, Other Immigration-Related Provisions
On Wednesday, December 26, 2007, the President signed into law the 2008 Omnibus Appropriations Bill (H.R. 2764), funding the various agencies of the federal government through fiscal year 2008. The bill is a combination of the various spending measures completed by the House and Senate this session that either stalled in conference or were vetoed by the President. To appease the Administration and secure adequate votes, multiple changes were made to this aggregate bill, mostly to reduce government expenditures. However, the Omnibus bill also altered several immigration-related provisions that had been included in previous appropriations bills.
In a few cases, the changes were positive. For example, the omnibus bill no longer includes language added by Senator Barbara Mikulski (D-MD) to the Commerce, Justice and Science Appropriations bill (H.R. 3093) that would have extended the returning worker provision of the H-2B program. The Mikulski amendment would have extended an existing loophole that allows current H-2B workers who are returning to the U.S. to enter without counting towards the H-2B cap. Because of this loophole, there are currently over 200,000 H-2B workers employed in the U.S. despite the 66,000 cap. Because this language is no longer in the omnibus bill, the number of H-2B workers should drop to 66,000.
Unfortunately, most of the changes made in the omnibus bill undermine prior efforts at true immigration reform. The most egregious change is the gutting of the Secure Fence Act of 2006 (see Division E, § 564). The changes to the Secure Fence Act made in the Omnibus Appropriations Bill can be summarized as follows:
- The Omnibus Appropriations Bill strips the requirement that there be two layers of reinforced fencing. This language was based on an amendment offered by Senator Kay Bailey Hutchison (R-TX) to the Homeland Security Appropriations bill this fall.
- The Omnibus Appropriations Bill requires Homeland Security to consult each and every affected entity — the Department of Interior, Department of Agriculture, the State, local governments, Indian tribes and property owners — "to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near" the sites where the fence is proposed to be built. This consultation - which must be done before construction takes place - all but ensures serious and significant delays. This language was also based on the same Hutchison amendment offered to the Homeland Security Appropriations Bill.
- The Omnibus Appropriations Bill strips Homeland Security of its authority to build the remainder of the 700-mile fence unless it decides where it will locate the rest of the fence and consults with affected private interests by the end of fiscal year 2008.
- The omnibus bill removes the language in the Secure Fence Act that specifies where the fence is to be built. Instead, the bill vests full discretion over the location of the fence with Homeland Security, which is given the authority to build fencing in locations it determines will most effectively deter illegal border crossings.
Congressman Duncan Hunter (R-CA), who drafted the Secure Fence Act, reacted harshly to the changes made to the Secure Fence Act, and in particular the removal of the double fence requirement. "Pulling back from the double fence mandate is a prescription for failure that will only allow more smugglers, criminals and illegal aliens to enter the United States through our land border with Mexico." (WorldNetDaily, December 17, 2007).
In addition to the changes made to the Secure Fence Act, the Omnibus Appropriations Bill amends the Western Hemisphere Travel Initiative (WHTI) by delaying its implementation (see Division E, § 545). Passed in 2004, the WHTI is a program intended to bolster security by requiring citizens of the United States, Canada, Mexico and Bermuda coming into the U.S. to present passports or other secure documents. The WHTI requirements have been implemented at international airports, but the passport requirements are not yet in place at land ports of entry. Under prior law, Homeland Security had until September 1, 2009, at the latest, to put the program in place. The Omnibus Appropriations Bill makes September 1, 2009 the earliest date on which the WHTI requirements may be implemented. Not only does this further delay the land portion of the program, it also appears to withdraw the systems put in place at international airports until September 1, 2009.
Finally, the Omnibus Appropriations Bill dropped important language relating to Equal Employment Opportunity Commission (EEOC) lawsuits against employers. When the Commerce, Justice, and Science Appropriations legislation was debated last fall, Senator Lamar Alexander (R-TN) added language that would have eliminated funding for EEOC compliance actions against employers that had English language policies in place. There was also substantial support for this amendment in the House, which by motion instructed its conferees to keep the language in conference on a 218 to 186 vote. (House Vote No. 1076).
Senator Alexander offered the language in reaction to a recent discrimination lawsuit filed by the EEOC against the Salvation Army, which had required workers in a Boston store to learn and speak English in the workplace. In that case, the Salvation Army had terminated two Spanish-speaking employees who had not made efforts to speak English at the workplace, despite being given a year to learn basic English. The EEOC sued the Salvation Army, complaining the English language policy deprived the employees "of equal employment opportunities and otherwise adversely affected their status as employees because of their national origin. . . ." (EEOC Complaint, March 30, 2007).
Under Title VII of the Civil Rights Act, businesses are prohibited from using English language policies as a pretext for discrimination based on ethnicity or national origin. And, in the past, the EEOC has prosecuted businesses that have used English language policies to that effect. However, in the Salvation Army case, the EEOC identified the English language policy itself as a form of discrimination, without concerning itself with whether there was any discriminatory motive behind the policy or whether it had any significant discriminatory effect. The Alexander amendment would have required the EEOC to back away from what appears to be a novel interpretation of the law.
Senator Dorgan Criticizes Bush Administration for Pursuing Mexican Trucking Program
While several immigration-related provisions were removed from the Omnibus Appropriations Bill for fiscal year 2008, one that remained was a provision that stripped funding for the Bush Administration's controversial Mexican trucking pilot program. Senator Byron Dorgan (D-ND) originally offered this language as an amendment to the Transportation, Housing and Urban Development Appropriations Act. The amendment passed on a 75-23 vote and has since remained in the every version of the appropriations bill through final passage of the Omnibus Appropriations Bill.
Last week, however, the Federal Motor Carrier Safety Administration (an agency within the Department of Transportation) announced its intention to continue the controversial project, claiming that the Omnibus bill only prohibited it from using funds "to establish" a Mexican trucking program. In a prepared statement, FMCSA stated, "In accordance with the 2008 omnibus appropriations act, the U.S. Department of Transportation will not establish any new demonstration programs with Mexico. The current cross-border trucking demonstration project — established in September — will continue to operate."
Senator Dorgan last Friday sharply criticized the Administration for continuing the very Mexican trucking program the provision of the Omnibus legislation was meant to halt. In a letter to Transportation Secretary Mary Peters, the Senator described as "arrogant and wrong" the Department of Transportation's ongoing efforts to continue the program. "The provision included in the omnibus spending bill was clearly written and designed to put the brakes on the current pilot. Failure to end the pilot program, I believe, will put the Department of Transportation in direct violation of federal law," said the Senator. (CongressNow, January 4, 2008). In addition, an outraged Teamsters Union has asserted that it will press ahead with a pending lawsuit in a federal district court in San Francisco to stop the project. (E-Trucker.com, January 4, 2008).
- FAIR Statement Regarding a Recent Report Published by the Southern Poverty Law Center (December 14, 2007)
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