Legislative Update: 6/4/2014

Homeland Security Secretary Calls for Amnesty to Resolve “Legal Ambiguity” of Illegal Aliens

Last Thursday, the House Judiciary Committee held an oversight hearing of the Department of Homeland Security (DHS) to question Homeland Security Secretary Jeh Johnson. (See Judiciary.house.gov, May 29, 2014) The hearing marked Johnson’s first appearance before the Judiciary Committee since becoming Secretary in December 2013.

At the hearing, key Republicans decried the unlawfulness of the Administration’s “prosecutorial discretion” policies. The Chairman of the Committee, Bob Goodlatte (R-VA), began by stating that “the Obama Administration is twisting the concept of prosecutorial discretion beyond all constitutional recognition, all in an unprecedented effort to create immigration enforcement free zones.” (Goodlatte Opening Remarks, May 29, 2014) Representative Trey Gowdy (R-SC) — Chairman of the Immigration Subcommittee — also examined the Secretary on the issue, asking him if there were “any” limits on the doctrine of prosecutorial discretion. (Bloomberg Government Transcript, May 29, 2014) Johnson claimed that the doctrine does not permit “wholesale abandonment of the law,” but could not come up with a single example of a limit to the doctrine. (Id.)

The Secretary used the hearing to push the Administration’s case for amnesty, though he avoided using the term itself. While denying that the Administration’s “deferred action” policies constituted an “amnesty,” he proclaimed amnesty necessary because illegal aliens are currently in a state of “legal ambiguity” after state laws that have recently passed giving them privileges. (Bloomberg Government Transcript, May 29, 2014; see FAIR Legislative Update, Jan. 29, 2014; FAIR Legislative Update, Oct. 9, 2013) He said to the Committee: “There are states now where they are permitted to have driver’s licenses. [The] California Supreme Court says that an undocumented immigrant in this country can practice law. So they’re not going away. They’re not going to self deport.” He continued: “I would rather see us reckon with this population than to continue in the state of legal ambiguity we’re in right now.” (Bloomberg Government Transcript, May 29, 2014) Even when Rep. Doug Collins (R-GA) objected to this description of the status of illegal aliens, Secretary Johnson reiterated that if “they are here undocumented but there are states that permit them to have driver’s licenses,” that he “consider[s]” that to be an “ambiguous legal state.” (Id.) 

When pressed as to why the Administration’s policies should not be considered amnesty Secretary Johnson struggled to articulate a distinction. Representative Lamar Smith (R-TX) read Black’s Law Dictionary’s definition of amnesty: “a pardon extended by the government to a group or class of persons.” He then asked Secretary Johnson if under Black’s Law Dictionary’s definition, whether Johnson agreed that the Administration’s policies have resulted “in amnesty to hundreds of thousands” of people. (Id.) In response, Johnson insisted that he does not “consider” what the Administration did to be amnesty, “as I understand the concept of amnesty, and I think I do.” However, when Rep. Smith probed him as to why his conception of amnesty differed from that of Black’s Law Dictionary, Secretary Johnson, who previously served as the Pentagon’s top lawyer, responded only that he was not sure of the answer. (Id.; Politico, Oct. 18, 2013)

Obama’s Pentagon Plans to Allow Illegal Aliens to Join Military

Bypassing Congress, the Obama Administration plans to allow illegal aliens who have received a reprieve from deportation under the President’s Deferred Action for Childhood Arrivals (DACA) program to enlist in the U.S. military. (Huffington Post, May 30, 2014) Pro-amnesty Defense Secretary Chuck Hagel confirmed the Administration’s plans in a letter to certain senators last week, telling them that he has “taken initial action to allow for the enlistment” of DACA recipients. (The New York Times, May 31, 2014)

To achieve its goal of enlisting illegal aliens, the Administration plans to use the “Military Accessions Vital to National Interest” (MAVNI) program. (Id.; Huffington Post, May 30, 2014) Established in 2008, the military uses MAVNI to enlist non-immigrants (meaning LEGAL, temporary aliens) who have certain language or health care skills. (See Dept. of Defense MAVNI Fact Sheet, May 2012) The program was created using a provision under federal law that allows the Secretary of Defense to enlist individuals that he deems “vital to the national interest,” allowing him to enlist non-immigrants in spite of the general rule that only U.S. citizens and legal permanent residents are eligible to serve. (See 10 U.S.C. 504(b)) The MAVNI program is lucrative to aliens because it allows non-immigrants who enlist to receive expedited citizenship and bypass the general requirements that one first obtain a green card, and then hold that green card for at least five years, before gaining citizenship. (See INA §§ 328, 329; see also Executive Order 13269)

However, no sooner did Defense Secretary Hagel confirm the Pentagon’s intent to expand MAVNI to illegal aliens than he also announced he would delay implementation of his plan until August. The delay comes at the request of the President, who has stated he wants to wait until after the House breaks for August recess to take any executive action on immigration. (The New York Times, May 31, 2014) Last week, President Obama also asked Secretary Jeh Johnson to hold off on announcing any administrative changes to immigration enforcement in an effort to give House Republicans one last chance to pass amnesty before the President acts unilaterally. (Los Angeles Times, May 28, 2014)

Cecilia Muñoz, the White House domestic policy director confirmed the Administration plans to delay action on either front until August. “These are both modest steps, neither of which we are taking at this time,” she said downplaying the gravity of the Administration’s potential actions. (The New York Times, May 31, 2014) “We will reassess once we see what Congress does or doesn’t do,” she continued. (Id.)

News of the Administration’s plans to unilaterally pursue a military DREAM Act came after true immigration reformers killed efforts to attach it to the annual defense authorization bill. (See FAIR Legislative Update, May 28, 2014) For more information, see FAIR’s policy statement on illegal aliens joining the military.

Obama Delays Deportation Review to Give Boehner Time to Pass Amnesty

In an attempt to get House Republicans to pass amnesty legislation, President Obama instructed Department of Homeland Security (DHS) Secretary Jeh Johnson not to relax deportation policy before the August Congressional recess. (Associated Press, May 27, 2014) A White House official explained the decision, saying Obama “believes there’s a window for the House to get immigration reform done this summer, and he asked the secretary to continue working on his review until that window has passed.” (Politico, May 27, 2014) “The president really wants to maximize the opportunity to get a permanent solution enacted, which requires Congress,” added Cecilia Muñoz, the director of White House Domestic Policy Council. (Associated Press, May 27, 2014)

The timing of the delay, just two months after Obama ordered the review amidst pressure from pro-amnesty activists to halt all deportations, is significant for two reasons. (See FAIR Legislative Update, Mar. 19, 2014) First, the strategy of delaying unilateral action puts pressure on House Speaker John Boehner (R-OH) to move immigration legislation. Boehner, who last week declared that there was “nobody more interested in fixing this problem than [he is],” has repeatedly cited distrust in Obama to enforce the law as the reason for not taking up an amnesty bill. (The Hill, May 27, 2014) By delaying unilateral action, the White House hopes the move will nullify Boehner’s justification for not moving an immigration bill. Second, it comes after most GOP primaries have passed; meaning pro-amnesty Republicans might be more willing to compromise on a bill prior to the November general elections. (See Federal Election Commission 2014 Primary Dates) Most political observers point to the June 10 primary, including David Brat’s challenge of House Majority Leader Eric Cantor (R-VA), as the end of the GOP “primary season.” (See Associated Press, May 27, 2014)

The response to the policy delay from pro-amnesty activist groups was mixed. Just before the delay was announced, a coalition of open borders groups wrote to Obama to “strongly urge” him to delay administrative action and “give the House Leadership all of the space they may need.” (National Immigration Forum Letter, May 27, 2014) That statement was signed by the National Hispanic Christian Leadership Conference, National Immigration Forum, Service Employees International Union, Sojourners, The Leadership Conference on Civil and Human Rights, and the United States Conference of Catholic Bishops Committee on Migration. (Id.) But groups of so-called DREAMers (illegal aliens who claim to have been brought to the country unlawfully as minors) criticized the President’s decision to delay unilateral action. “The time for space has come and gone,” declared Lorella Praeli, a leader of United We Dream. (New York Times, May 27, 2014)

Meanwhile, House Republican leadership insisted that this “window” did not change anything from their perspective. “Enforcing the law as written isn’t a ‘concession’ – it is the President’s solemn responsibility,” said Boehner spokesman Michael Steel. (Roll Call, May 27, 2014) Steel also accused Obama of playing politics with the issue while jeopardizing national security. (Id.) “This does not open the door to anything… It just avoids slamming the door, locking it, dead-bolting it and swallowing the key,” said a House leadership aide. (New York Times, May 29, 2014) Judiciary Chairman Bob Goodlatte (R-VA) also rebuked the move last Thursday during an oversight hearing with DHS Secretary Johnson. “When the president says he’s going to set a time limit and then consider taking actions himself… that makes doing immigration reform harder not easier,” Goodlatte declared. (BGov Transcript, May 29, 2014)

However, the strategy of delaying unilateral action until the August recess is politically beneficial to the Obama Administration. First, the President and his Senate Democratic allies are already framing the delay as a grace period and will blame House Republicans if they do not move legislation in the next two months. “The House Republicans are now out of excuses not to pass immigration reform and the ball is in their court. Supporters of reform have bent over backwards to give the House space to act, and now it’s time for them to do so,” declared Gang of Eight leader Sen. Chuck Schumer (D-NY). (Politico, May 27, 2014) Next, in the event the House does not act by August, the Obama Administration believes it could act unilaterally to significantly limit deportations without much publicity while Congress is out and many American families are on summer vacation. Finally, by delaying action, the Administration hopes to increase voter turnout from pro-amnesty activists in an attempt to maintain the Senate Democratic majority and possibly cut into the Republican majority in the House.

Obama’s DREAM to Cost Taxpayers Over $2 Billion

According to a letter sent to Senate and House appropriators last week, the Obama Administration estimates that U.S. taxpayers will spend approximately $2.28 billion next year on unaccompanied minor illegal aliens that enter the United States. (See also Politico, June 1, 2014) That’s up from $868 million this year, according to the Administration’s estimate. (Id.)

Addressed to Senate Appropriations Chairwoman Barbara Mikulski (D-MD), the letter from the Office of Management and Budget (OMB) assumes the number of unaccompanied minors will continue to flood the border at unprecedented levels. Indeed, the number of unaccompanied illegal alien minors crossing the border has increased ten-fold over the last three years. According to Health and Human Services (HHS) projections, the agency responsible for the minors once they enter the country, the annual number of arriving unaccompanied minors has increased from 6,560 in FY2011 to an estimated 60,000 in FY2014. (See Testimony of HHS Official Mark Greenberg at p.5, May 7, 2014; see also HHS Year in Review, Feb. 4, 2014) Moreover, the Administration estimates that the number will rise to 130,000 in FY2015, the basis for the $2.28 billion OMB estimate. (Reuters, May 28, 2014)

To cope with the surge in unaccompanied minors crossing the border, President Obama established Monday an interagency “Unified Coordination Group” to direct Federal response efforts to the growing issue. “The influx of unaccompanied alien children (UAC) across the southwest border of the United States has resulted in an urgent humanitarian situation requiring a unified and coordinated Federal response,” a memorandum issued by the President reads. (See Presidential Memorandum, June 2, 2014) In response, Homeland Security Secretary Jeh Johnson announced that he was appointing Federal Emergency Management Agency (FEMA) Administrator Craig Fugate as the Federal Coordinating Official. “In this role, Administrator Fugate will, subject to my oversight, direction and guidance, lead and coordinate Federal response efforts to ensure that Federal agencies are unified in providing relief to the affected children,” Johnson said. (See Johnson Press Release, June 2, 2014; see also Reuters, June 2, 2014)

The Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program and promotion of a military amnesty — in addition to its sweeping non-enforcement policies — have no doubt contributed to the massive influx in illegal alien minor border crossers. Announced June 15, 2012, DACA grants work authorization and a reprieve from deportation to certain illegal aliens up to the age of thirty. While those entering the country after the program was announced are supposed to be precluded from benefitting under it, the hope of a future amnesty coupled with DACA’s lax documentation requirements have contributed to the growing wave. Moreover, another Administration policy — revealed in an order by a Texas federal judge last December — of DHS reuniting unaccompanied minor border crossers with their parents in the U.S., has also likely contributed to the high number of crossers. (See Fox News, Dec. 19, 2013) 

True immigration reformers in Congress agree. Senator Jeff Sessions (R-AL) said, “This is a direct result of the President’s statements that he was not going to enforce the law with regard to people who entered the country as youngsters. It’s an open invitation for others to come.” (Breitbart, June 2, 2014) Chairman of the House Judiciary Committee, Bob Goodlatte (R-VA), also issued a statement. “The recent surge of children and teenagers from Central America showing up at our Southern border is an Administration-made disaster and now President Obama is calling in FEMA to mitigate the damage. Word has gotten out around the world about President Obama’s lax immigration enforcement policies and it has encouraged more individuals to come to the United States illegally…” (See Judiciary Committee Press Release, June 2, 2014)

Even Administration officials have admitted that its policies have helped cause the drastic influx. In fact, Customs and Border Protection (CBP) Commissioner Gil Kerlikowske conceded before a hearing of the House Appropriations Homeland Security Subcommittee in April that both “[t]he deferred action, the family reunification, is an issue,” that has contributed to the increase in border crossings. (See FAIR Legislative Update, Apr. 9, 2014; see also Breitbart.com, Apr. 3, 2014)

House Bills Would Increase Immigration Enforcement Funding

Last week, the House worked on two annual appropriations bills that would promote immigration enforcement in fiscal year 2015. (See CQ Roll Call, May 27, 2014) First, the House Homeland Security Appropriations Subcommittee marked up a bill to increase funding for the Department of Homeland Security (DHS). (House Appropriations Committee Press Release, May 27, 2014) Then, the House passed the Commerce-Justice-Science appropriations bill Friday that contained several provisions to boost enforcement. (House Appropriations Committee Press Release, May 30, 2014)

Overall, the FY2015 DHS appropriations bill increases funding for Immigration and Customs Enforcement. Specifically, it increases “salaries and expenses” for the agency to $5.5 billion from $5.2 billion the previous fiscal year. (See House Appropriations Committee Subcommittee Draft of 2015 DHS bill at p. 10; see also FAIR Legislative Update, Jan. 22, 2014) The Subcommittee’s bill also retains the 34,000 minimum number of detention beds, rejecting the President’s proposal to eliminate 3,461 in his proposed FY2015 budget. (See House Appropriations Committee Press Release, May 27, 2014; see also DHS Budget in Brief at p. 13) Homeland Security Subcommittee Chairman John Carter (R-TX) addressed the disparity in the proposals for ICE funding by saying, “we are fighting against the President’s irresponsible and potentially disastrous budget proposal that deteriorates ICE’s ability enforce our immigration laws and cuts funds to secure our border to dangerous levels.” (See House Appropriations Committee Press Release, May 27, 2014)

Furthermore, the DHS bill would give Customs and Border Protection (CBP) roughly $8.3 billion for 2015 “salaries and expenses,” which is approximately $15 million more than Congress allocated in FY2014. (See House Appropriations Committee Subcommittee Draft of 2015 DHS bill at p. 6; see also P.L. 113-76 at p. 248) In particular, the bill would fund border security technology at $412.5 million, which is an increase of $61 million above last fiscal year, and $50 million above the President’s request. (See House Appropriations Committee Subcommittee Draft of 2015 DHS bill; White House, DHS Budget; House Appropriations Committee Press Release, May 27, 2014) The DHS appropriations bill will go before the full Appropriations Committee before going to the House floor for a vote. 

Similarly, the House Commerce-Justice-Science (CJS) appropriations bill, which passed the full House Friday, also contained provisions that would increase immigration enforcement. (See H.R. 4660) The CJS bill would increase funding for the State Criminal Alien Assistance Program (SCAAP) by $30 million compared to last year. (Id.) SCAAP funding reimburses states and municipalities for costs incurred from the incarceration of criminal aliens. (See Bureau of Justice Assistance SCAAP Guidelines; INA § 241(i)) Moreover, the House’s allocation of $210,000,000 in its CJS appropriations bill for fiscal year 2015 was a wholesale rejection of President Obama’s proposal to eliminate SCAAP funding altogether. (See H.R. 4660; White House Budget FY2015 at p. 156)

During floor debate, the House further improved the immigration enforcement provisions in the CJS bill. First, the House adopted by voice vote Rep. Doug Collins’ (R-GA) amendment to prohibit SCAAP funding from being used to reimburse sanctuary cities. (House Appropriations Committee H.R. 4660 Adopted Amendments at p. 5) Then, the House adopted two immigration-related amendments authored by Rep. Steve King (R-IA). One King amendment, approved by a vote of 218-193, would devote $5 million of Department of Justice (DOJ) funds to investigate the release of criminal aliens. (House Appropriations Committee H.R. 4660 Adopted Amendments at p. 2) The other King amendment, passed by a vote of 214-194, prohibited the DOJ’s State and Local Grant funding from being used in contravention of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). (Id. at p. 5) 

California Senate Passes Illegal Alien Loan Bill

Last week, the California Senate passed Senate Bill (“S.B.”) 1210, which establishes a loan program for illegal aliens at the California State University and University of California university systems. (S.B. 1210 Bill History) S.B. 1210 could cost the state as much as $9.2 million in the first year alone to provide student loans to an estimated 8,300 illegal alien students. (Sacramento Bee, Apr. 9, 2014)

Current California law already allows illegal aliens to receive in-state tuition and state-funded financial aid at public colleges and universities. (Id.; Cal Ed Code § 68130.5; Cal Ed Code § 69508.5) S.B. 1210 goes further by extending each illegal alien student a total of up to $20,000 in loans to finance their education. (S.B. 1210) Existing federal law prohibits states from using federal funds to benefit illegal aliens. As a result, California taxpayers (citizens and legal residents) would fund the loan program alone.

Janet Napolitano, former United States Department of Homeland Security Secretary who now heads the University of California, gave her support for S.B. 1210. (Fox News, May 22, 2014) “I don’t know any other country in the world that’s done that for [illegal alien] students, and in California we’ve done even more,” Napolitano said. (Id.) “Those students also qualify for in-state tuition even though they’re technically undocumented, and I’m supporting a bill now that would create a state loan bank for those students because they can’t get federal student loans.” (Id.) Despite her former position as head of federal immigration enforcement, Napolitano appears unconcerned that S.B. 1210 would encourage more illegal immigration into the United States. 

Napolitano’s support also comes despite California’s higher education system’s severe budget crisis. Between FY 2008 and FY 2013, California has reduced its financial support of public higher education by 29.8% and has increased tuition by 72%, one of the highest rates in the country, second only to Arizona. (Center on Budget Policy and Priorities, 2013) As a result of California’s annual tuition hikes, California students are now more in debt than ever, carrying an average of $20,269 in debt with more than 79% of its students relying on loans to fund their education. (Project on Student Debt, 2013) S.B. 1210 would only serve to further damage and strain delicate budgets, divert state resources from its citizen and legal resident student population, and impose additional burdens on California’s taxpayers.

The Senate has transmitted S.B. 1210 to the Assembly for consideration. To date, the Assembly has not assigned the bill to a committee for hearing. If passed by the full Assembly, Governor Jerry Brown must also approve the bill before it can become law.