Legislative Update: 1/27/2015

Flawed Border Bill on Fast Track; House Leaders Want Vote Soon

House Leadership continued its efforts to push through what it calls the “toughest border security bill ever set before Congress” by originally scheduling a floor vote tomorrow on H.R. 399, the “Secure our Borders First Act”. (Leader’s Weekly Schedule, Jan. 26, 2015) However, citing the bad weather hitting the east coast, Leadership removed H.R. 399 from the floor schedule yesterday afternoon. (See Majority Leader Floor Schedule)

GOP Leadership has from the start placed the bill on a fast track to reach the floor. Barely into ten working days of the new Congress, House Homeland Security Chairman Michael McCaul (R-TX) introduced H.R. 399 and announced that the committee would mark-up the bill in five days. (See H.R. 399, as introduced)

The House Homeland Security Committee held the mark up of H.R. 399 last Wednesday. (House Homeland Security Committee Press Release, Jan. 21, 2015) Democrats voiced concern about the speed at which House Leadership was pushing the bill and before one amendment could be offered employed procedural tactics to protest, including asking the clerk to read the entire bill out loud, which brought the debate to a standstill. The Committee recessed for some time, after which Chairman McCaul presented an 82-page bill, which included the original and Republican amendments. (See Miller Amendment to H.R. 399) Chairman McCaul called for a vote, which split straight down party lines, with all 18 Republicans voting for the bill, and the 12 Democrats opposing.

As amended, H.R. 399 gives the Department of Homeland Security (DHS) five years to achieve operational control of the U.S.-Mexico border and imposes certain penalties if it fails to do so. It also:

• Requires that DHS place specific resources in each border sector along the Northern and Southern borders, but then allows Customs and Border Protection (CBP) to alter the plan if “border security threats” so require; 
• Requires DHS to construct hundreds of miles of roads, and authorizes roads for private land owners;
• Requires DHS to construct and heavily man “forward operating bases,” near the border — a practice to which the Border Patrol Union strongly objects and has called “an enormous waste of taxpayer money”;
• Gives DHS another seven years to implement a biometric exit system — a mandate that has already been in federal law for over a decade;
• Requires Border Patrol Agents be given access to federal lands along the U.S.-Mexico border; and
• Creates a new Border Security Verification Commission to certify whether DHS has achieved operational control of the border. 

H.R. 399, however, only adds approximately 50 miles of pedestrian fencing along the border. When asked about the small number, Chairman Mike McCaul responded that his bill puts “fencing where fencing is needed… In our conversations with outside groups, experts and stakeholders, we learned that it would be an inefficient use of taxpayer money to complete the fence.” (The Daily Caller, Jan. 20, 2015)

Legislators have expressed serious qualms about substance. Senator Jeff Sessions (R-AL) disapproved of the way H.R. 399 “delays and weakens the longstanding unfulfilled statutory requirement for a biometric entry-exit visa tracking system.” (Sessions Press Release, Jan. 20, 2015) Representative John Fleming (R-LA) found “too many loopholes” in H.R. 399. (Roll Call, Jan. 22, 2015) Congressman Dave Brat (R-VA) criticized H.R. 399 for “leav[ing] enforcement in President Obama’s hands.” Specifically, Brat added that the bill appropriates “$10 billion in a slush fund to help the status quo do what it’s doing now.” (Breitbart, Jan. 22, 2015)

Before the committee hearing last Wednesday, FAIR announced it opposes H.R. 399. (See FAIR Press Release, Jan. 20, 2015) FAIR President Dan Stein said:

“Under policies in place by this administration, illegal aliens no longer need to sneak across to gain entry to the U.S.,” said Stein. “Would-be illegal aliens understand that being caught at the border will likely result in them being released — often with authorization to work in the U.S. They understand that interior and workplace enforcement has been gutted, and that there is no credible threat of removal once here. That’s why we saw tens of thousands of illegal aliens simply turn themselves in at the border last summer. Ultimately, H.R. 399 amounts to an expensive seven-year timetable to close the ‘backdoor’ of illegal entry, while we maintain policies that allow inadmissible aliens to walk through the front door.”

Those charged with enforcing and implementing our immigration laws also oppose H.R. 399. The union that represents Border Patrol Agents, the National Border Patrol Council (NBPC), opposes H.R. 399. Council Spokesman Shawn Moran said, “[O]verall, H.R. 399 will not be effective in securing our borders… [W]e believe in its entirety, it will only serve as window dressing and was drafted without any input [from] front line agents who are protecting our border.” The union that represents thousands of officials at U.S. Citizenship and Immigration Services (USCIS) also opposes H.R. 399. Ken Palinkas, head of the USCIS union, opined that “H.R. 399 — Chairman McCaul’s legislation — does nothing to preclude anyone in the world from turning themselves in at the US border and obtaining automatic entry and federal benefits.”

Prior to removing the bill from the schedule, House GOP leadership anticipated passage of H.R. 399. (Politico, Jan. 21, 2015; Roll Call, Jan. 22, 2015) Senators have already introduced H.R. 399’s companion bill in the Senate. (See Flake Press Release, Jan. 21, 2015)

Senate GOP Leadership Backpedaling from Defunding Strategy

Less than two weeks after the House passed a Department of Homeland Security (DHS) appropriations (funding) bill that defunds President Obama’s executive amnesty programs, Senate GOP leadership appears to be backing out of the defunding strategy. (See FAIR Legislative Update, Jan. 20, 2015) Instead, the Senate leaders are crafting two alternative options: pass another short-term DHS funding bill to punt the issue further into 2015 or pass a “clean” DHS funding bill that fully funds the Department and the President’s executive amnesty. (Politico, Jan. 21, 2015)

Despite the U.S. Constitution clearly bestowing the “power of the purse” to Congress, Senate GOP leaders continue to downplay it as the best option for stopping President Obama’s executive amnesties. During the GOP retreat, just days after the House passed their defunding bill, Senate Majority Leader Mitch McConnell (R-KY) merely said, “We’re going to try to pass” the House bill. (See FAIR Legislative Update, Jan. 20, 2015) Then, on Sunday’s 60 Minutes, McConnell took a slightly stronger stance, adding “I think it’ll be vigorously supported by the vast majority of my members.” (CBS News ‘60 Minutes’, Jan. 25, 2015) Still, Senate Majority Whip, Sen. John Cornyn (R-TX) also voiced reluctance to defund the President’s executive amnesty, saying, “It may be that it’s not always going to be the case that appropriations bills are the best way to achieve our goals.” (Politico, Jan. 21, 2015)

Rank-and-file Republicans from both chambers pushed back against what appears to be growing reluctance from Leadership. “We need to honor our commitments,” Sen. Ted Cruz (R-TX) said. (Politico, Jan. 21, 2015) “Republicans all over the country campaigned, saying, ‘If you give us a Republican majority in the Senate, we will stop President Obama’s illegal and unconstitutional amnesty.’ We should do exactly what we said we would do.” (Id.) True immigration reformer Sen. Jeff Sessions (R-AL) declared, “For sound policy and the rule of law Congress has a clear duty to fund DHS but to reject the President’s unlawful amnesty… A vote against the House bill is a vote to turn the Congress into a museum piece.” (Sessions Press Release, Jan. 16, 2015) Similarly, Rep. Raul Labrador (R-ID) charged, “It’s uncanny to me that our leadership… is already sending the message that we’ve already lost this battle.” (The Hill, Jan. 21, 2015) Representative Tim Huelskamp (R-KS) added, “We didn’t promise we were going to cop out. Plan B always seems to be not talking on this president.” (Id.) 

Senate Majority Leader Mitch McConnell (R-KY) has yet to schedule floor debate on the DHS appropriations bill but the upper chamber is expected to consider some funding measure the first week of February. Current funding for DHS expires on February 27.

Obama Uses State of the Union Address to Pick Amnesty Over Funding DHS

In his first State of the Union Address since voters overwhelmingly rejected his immigration agenda, President Obama used Tuesday night’s speech to double down on amnesty. Although he stopped short of demanding “comprehensive” immigration reform in this year’s address, Obama sent a clear message to the American people: he is willing to jeopardize national security to maintain his executive amnesty programs.

On two separate occasions during the address, President Obama defended his unilateral dismantling of our immigration laws. First, buried in a paragraph promoting middle class economics the President announced his intention to veto the House-passed Department of Homeland Security (DHS) funding bill that also defunds the executive amnesty programs. Disguising his message by referring to the DHS bill as “refighting past battles on immigration when we’ve got to fix a broken system,” Obama declared that the bill has “earned my veto.” (Remarks by the President, Jan. 20, 2015) Later on, he again advocated for amnesty. Noting that “passions still fly on immigration” and claiming that “no one benefits” when illegal aliens are deported, President Obama said “it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.” (Id.)

Following the President’s address, newly elected Sen. Joni Ernst (R-IA) gave the Republican response, but did not specifically mention immigration. Despite telling the American people that the GOP “heard the message you sent in November — loud and clear,” Ernst merely noted that Republicans will “work to correct executive overreach.” (Politico, Jan. 20, 2015)

In contrast, FAIR blasted President Obama’s immigration position. “Last night, President Obama issued an explicit threat to veto a DHS Appropriations bill that would defund his amnesty plan demonstrating his willingness to hold the security of the nation hostage to his political goal of rewarding millions of illegal aliens,” charged Dan Stein, FAIR’s president. (FAIR Press Release, Jan. 21, 2015) “The president’s insistence pushing forward with an unlegislated plan to grant amnesty and work authorization to some 5 million illegal aliens is also glaringly inconsistent with the overall theme of his speech, which addressed the plight of America’s middle class,” Stein continued. (Id.) “There are very few things the president could do that would be more damaging to American workers than implementing an unlegislated policy that grants as many as 5 million illegal aliens work authorization and the right to compete legally for any job in our economy.” (Id.)

Illegal Alien Driver’s Licenses Invite Fraud to States

States that grant driver’s licenses to illegal aliens are beginning to see growing evidence of fraud in the application process.

This month, the Vermont Department of Motor Vehicles (“DMV”) announced that many out-of-state aliens have been fraudulently applying for driver’s licenses in Vermont. (Watchdog, Jan. 22, 2015) The Vermont DMV made this announcement after it uncovered that at least 130 applications at just one of its DMV offices last month were filled out using false address information. (Id.) When applicants later arrived in person to take the driving portion of the test, investigators learned that many of these applicants were illegal aliens who had paid $2,000 to individuals in New York for help to obtain Vermont driver’s licenses. (Id.)

Vermont is not the only state experiencing high instances of fraud in relation to its driver’s license law. New Mexico Governor Susana Martinez recently reignited her appeal to dump New Mexico’s driver’s license law that allows illegal aliens to receive regular driver’s licenses, in violation of the REAL ID Act. (KOAT Albuquerque, Jan. 20, 2015) Indeed, New Mexico has experienced high instances of fraud as a result of granting driver’s licenses to illegal aliens. During an audit between August 2010 and April 2011, investigators found that as much as 75 percent of foreign national license applications were phonies. (KRQE) Between that same period, investigators also uncovered 37 percent of foreign national requests for appointments came from out-of-state, most from Arizona, Georgia, and Texas. (Fox News, Jan. 25, 2012)

Tennessee, which also passed a law to give driver’s licenses to illegal aliens in 2004, has similarly experienced high instances of fraud in the application process. (Watchdog, Jan. 22, 2015) The state ultimately repealed the law in 2007 after it became apparent to officials that granting driver’s licenses to illegal aliens contributed to “an excess of fraudulent resident documents.” (Id.)

This month, the State of California is flooded with new applicants for driver’s licenses after it began implementing Assembly Bill 60, its new law which grants driver’s licenses to illegal alien residents. After the first week of implementation, the California DMV reported that over 46,200 aliens had applied for the special license. (KHTS, Jan. 6, 2015) Of this number, only about a third of the applicant pool passed both the written and driving portions of the test, with 64% of applicants failing. (Id.) California’s new law is expected to cost the state over $220 million dollars over the next three years to implement. (Senate Appropriations Committee Fiscal Summary)

Driver’s license legislation is proving once again to be a hot topic in state legislatures for the third year in a row, with some legislators still pushing to extend driving privileges to illegal aliens despite the mounting evidence of fraud in states that already do. For example, legislators in Rhode Island and Texas reintroduced legislation this month to extend driver’s licenses to illegal aliens, after unsuccessful attempts in both states to push the idea last year. (Valley Breeze, Jan. 14, 2015; House Bill 68; Senate Bill 132)

Legislators in other states, however, are seeking a step back. In New Mexico, legislators followed Governor Martinez’s appeal and introduced bills change the state’s law. Representative Paul Pacheco introduced House Bill “H.B.” 32 that would amend New Mexico law to only grant lower tier “driver’s privilege cards” to illegal aliens instead of regular driver’s licenses. (H.B. 32) Representative William Rehm went even further by introducing H.B. 79 to repeal New Mexico’s law completely and reduce the period of validity for driver’s licenses to only an alien’s period of authorized stay. (H.B. 79)