Legislative Update: 7/21/2015

Grilled after Steinle Murder, Obama Administration Stands By Policies

Last Tuesday, before the House Judiciary Committee, Homeland Security Secretary Jeh Johnson stumbled over questions about why he stood by policies that allowed San Francisco officials to release Kate Steinle’s alleged killer onto the streets. (House Judiciary Committee, July 14, 2015) During the hearing, Committee members repeatedly asked about lax immigration policies at both the federal and local levels that contributed to the tragic death of Kate Steinle in the sanctuary city of San Francisco. (See FAIR Legislative Update, July 8, 2015; BGOV Transcript, July 14, 2015)

House Judiciary Chairman Bob Goodlatte (R-VA) opened the hearing by pointing out that the criminal alien who allegedly shot Kate Steinle two weeks ago was only one of tens of thousands of criminal aliens released from custody and put back on the streets. (Id.) As a result of the Administration’s lax policies, he said, there are “almost 180,000” convicted criminal aliens on the streets awaiting removal proceedings and another “almost 170,000” who have already been ordered removed currently living freely in American communities. (Id.; see Judiciary Committee Press Release, July 14, 2015) This number continues to rise, Chairman Goodlatte continued, having gone from 270,000 to almost 350,000 in less than three years, a 28% increase. (Id.; see video clip; see BGOV Transcript, July 14, 2015) He squarely pointed the blame for this situation at both DHS, which had released 30,000 criminal aliens last year alone, and 276 sanctuary cities, which released 8,000. (Id.) Meanwhile, Goodlatte noted, the Department of Homeland Security (DHS) fails to utilize the number of detention beds authorized by Congress. (Id.)

This led Chairman Goodlatte to ask Johnson why DHS had not made it a priority to convince or require such jurisdictions to honor ICE detainers. (Id.) While some Representatives noted how willing the Obama Administration was to sue Arizona and other states to strike down their immigration enforcement laws, Johnson offered in response no more than that he would continue to personally request that officials from non-cooperative jurisdictions to change their minds. (Id.) In fact, Johnson told members of the Committee he didn’t want to see any federal legislation giving DHS more authority. (Id.) He ironically also blamed Secure Communities itself, the effective enforcement program originally supported and widely implemented by the Obama Administration, for somehow causing jurisdictions to stop cooperating with DHS. (Id.; see FAIR Legislative Update, Apr. 28, 2015)

A number of Republican representatives on the committee were appalled at Johnson’s position that “politely asking for cooperation from sanctuary cities” was all he was willing to do as Secretary of Homeland Security for the United States of America. (BGOV Transcript, July 14, 2015) For instance, Representative Trey Gowdy (R-SC), Chairman of the Immigration Subcommittee of the Judiciary Committee, asked him to help “reconcile” how the Administration “can empower a city like San Francisco to ignore federal law” but “won’t empower state and local law enforcement to actually enforce immigration laws.” (Id.; see video clip) Looking directly at Johnson he said, “You, to me, outrank the city supervisors in San Francisco” and thus shouldn’t have to ask for cooperation. (See video clip) The Constitution makes this clear, Rep. Gowdy pointed out, as the supremacy clause means that “federal law trumps state law, so God knows it trumps the law in San Francisco.” (See video clip)

Yet Secretary Johnson refused to explain if he believes DHS has no legal choice but to bow to the will of sanctuary cities. When Representative Lamar Smith (R-TX) asked him if he believed that San Francisco and other sanctuary cities are violating current federal law, he answered that he does not have “a legal judgment on that question.” (BGOV Transcript, July 14, 2015; see video clip) But though Johnson, an accomplished attorney, refused to apply any legal analysis to such a question, he repeatedly suggested that dismantling programs that kept criminal aliens off the streets was a choice forced on the Administration because keeping them would be an untenable legal position. (Id.) The Administration had abandoned Secure Communities, he said, because it was “becoming an item of litigation in court.” (See video clip) Suggesting the mere existence of lawsuits, combined with political objections from the amnesty lobby, DHS decided to end the program altogether. (Id.)

However, Representative Steve King (R-IA) challenged Johnson’s claim that Secure Communities itself that was causing so many jurisdictions to ignore ICE detainers. Rather, King argued, it was the Administration’s willingness to accede to the demands of the American Civil Liberties Union (ACLU). (BGOV Transcript, July 14, 2015) He pointed out that the ACLU had sent a letter to local law enforcement nationwide in 2012 telling them that ICE detainers are voluntary because “no penalty existed.” (Id.; see ACLU Letter, Oct. 2012; see video clip) He then pointed to a letter sent by the Administration to Members of Congress expressly stating it would not fight to make detainers mandatory. (Id.; ICE Letter, Feb. 25, 2014) Rep. King thus suggested that it was the Administration’s undermining of its own authority that caused so many jurisdictions to stop respecting it. (BGOV Transcript, July 14, 2015)

While Johnson did not respond to Rep. King’s statement that DHS is “cooperating” with the ACLU, his decision to abandon Secure Communities and issuing detainers the face of “litigation” could be interpreted as confirmation that such cooperation is going on. (Id.) While Johnson avoided actually naming the organization that has threatened such aggressive litigation, it was indeed the ACLU. (See FAIR Legislative Update, May 21, 2014; FAIR Legislative Update, Sept. 30, 2014) Nor did he mention that this litigation which stopped the Administration from using proven means of immigration enforcement, Secure Communities, was merely one district court case that no longer even applies to the current ICE detainer form. (FAIR Legislative Update, May 21, 2014) Of course, while the Administration abandoned an effective enforcement program as “legally and politically controversial” once a single judge sided with the ACLU, it vowed to fight on for the far more politically controversial DAPA program despite 26 plaintiff states securing a victory in another district court against it. (FAIR Legislative Update, Feb. 18, 2015) 

Members of Congress were clearly dissatisfied with Johnson’s evasive responses. (BGOV Transcript, July 15, 2015) They were further dismayed at the Secretary’s apparent detachment from the very event that has brought the issue of sanctuary cities back into the spotlight. (Id.) Noting that the Obama Administration had recently reached out to victims’ families (such as the Trayvon Martin family), Representative Steve Chabot (R-OH) asked if Johnson knew whether the Administration had reached out to the Steinle family after the murder. (Id.) First, Johnson seemed not to recognize her name at all, asking “Who?” (Id.) But even after he acknowledged that he knew about her death, he claimed he didn’t know whether any members of the Administration had reached out in condolence. (Id.; see video clip)

House Advances DHS Funding Bill that Denies Money to Sanctuary Cities

Last Tuesday, the House Appropriations Committee passed the fiscal year 2016 Homeland Security (DHS) appropriations (funding) bill with important immigration enforcement provisions. Notably, the Committee added several amendments targeting “sanctuary cities” — state and local jurisdictions with policies that obstruct immigration enforcement. These amendments came in response to the death of Kate Steinle, who was allegedly shot and killed by Francisco Lopez Sanchez, an illegal alien with seven felony convictions and five deportations. (See FAIR Legislative Update, July 8, 2015)

During the mark-up (amendment process), the Committee approved two amendments that place restrictions on sanctuary cities. First, the committee approved by a 28-21 party line vote, Rep. Kevin Yoder’s (R-KS) amendment that prevents sanctuary cities from receiving DHS grants, including Federal Emergency Management Agency (FEMA) funds. (House Appropriations FY16 DHS Summary) DHS Subcommittee Chairman John Carter (R-TX) praised the amendment, “A state or local government that opts to ignore the homeland security [implications] of this policy does not warrant Homeland Security grant funding.” (CQ Today, July 14, 2015) Additionally, the committee adopted by voice vote Rep. John Culberson’s (R-TX) amendment that requires Immigration and Customs Enforcement (ICE) to detain illegal aliens who fall under the Obama administration’s Priority 1 or Priority 2 classification until they are deported. (House Appropriations FY16 DHS Summary) “We’re going to keep holding [the Obama administration to] their word,” said Culberson. “Make sure that those offenders are not released onto the streets of the United States and that they are incarcerated and held until they are removed back to their country of origin…. We cannot enforce the law unless people know that there’s consequences.” (CQ Today, July 14, 2015)

Remarkably, all committee Democrats opposed the amendments targeting sanctuary cities despite overwhelming support from voters. Indeed, a recent Rasmussen Reports poll of likely voters found that 58% believe the federal government should cut off funds to sanctuary cities. (Rasmussen Reports Poll, July 10, 2015) By comparison, only 32% disagree and 10% are undecided. (Id.) Additionally, the poll found that 62% believe the Justice Department should take legal action against sanctuary cities while only 26% oppose DOJ action and 12% are undecided. (Id.)

The underlying bill, which was introduced before the Steinle murder, contains other important immigration provisions. Notably, the bill prohibits funds from being used on expanded DACA and DAPA while the federal injunction remains in effect. (DHS FY16 Appropriations bill) Additionally, the bill:

• Funds ICE at $5.8 billion, which is $200 million less than last year, but maintains the 34,000 detention beds.
• Bars funds for the illegal alien lobbyist position created by the Obama administration.
• Allocates USCIS $119.7 million for E-Verify, a decrease of $4.8 million compared to last year.
• Maintains CBP funding for 21,370 Border Patrol agents.
• Allocates $439 million for border security fencing, infrastructure, and technology which is an increase of $57 million from fiscal year 2015. (Id.)

Predictably, the Obama administration is already criticizing the House’s DHS appropriations bill. In a letter to Chairman Hal Rogers (R-KY), Office of Management and Budget Director Shaun Donovan claimed the bill includes “highly problematic ideological riders,” a clear reference to the immigration provisions. (CQ Today, July 14, 2015)

Next up, the DHS appropriations bill will go to the House floor debate and possibly more amendments. Once passed, the House and Senate will need to go to conference committee to resolve the differences between their versions of DHS funding.

DHS Implements Path to Citizenship for Illegal Alien Religious Workers

Yet again, the Obama administration is conceding to a court ruling it supports in principle rather than appealing the decision. In April, the federal Third Circuit Court of Appeals ruled that illegal aliens are eligible for religious worker visas, holding that U.S. Citizenship and Immigration Services (USCIS) regulatory requirement that religious work be performed while the alien is “in lawful immigration status” exceeds the agency’s powers. (See FAIR Legislative Update, Apr. 14, 2015; 8 C.F.R. § 204.5(m)(4)) Despite the ruling directly conflicting with INA Section 274A — which makes it unlawful to employ illegal aliens — the Obama administration declined to appeal the case. As a result, these illegal aliens will be put on a path to citizenship through the employment-based fourth-preference green card classification. (INA § 203(b)(4); INA § 101(a)(27)(C))

While the ruling is technically limited to the states within the Third Circuit, the Obama Administration has willingly expanded its application nationwide. In a policy memorandum, USCIS announced it has decided to “acquiesce” to the court’s ruling “nationally.” (USCIS Policy Memo, July 5, 2015) “Accordingly, USCIS will no longer require that the qualifying religious work experience for the 2-year period preceding submission of a … special immigrant religious worker petition be acquired in lawful immigration status if gained in the United States.” (Id.)

California Committee Passes Bill to Allow Illegal Aliens to Join State Obamacare Exchange

Last week, the California Assembly Committee on Health passed Senate Bill 4, which may allow illegal aliens buy health insurance on California’s health care exchange established under the federal Patient Protection and Affordable Care Act (also known as Obamacare). (Breitbart, July 15, 2015) The Committee passed the bill with a party line vote, of 12-6. (S.B. 4 History; Breitbart, July 15, 2015)

While the legislation establishing Obamacare generally bars aliens without “lawful presence” from participating in exchanges, S.B. 4 requires the state to apply for a waiver from the federal government in order to allow the state to enroll illegal aliens in the California Health Benefit Exchange. (S.B. 4; PPACA § 1332) If the federal government grants such a waiver, S.B. 4 would allow illegal aliens to enroll in the state Obamacare exchange. (S.B. 4)

Dan Stein, president of the Federation for American Immigration Reform, commented on S.B. 4. “A bill like this is a camel’s nose. If you see a camel’s nose under the tent, it’s not too long before the whole camel will be in the tent,” he said. (Politico, July 17, 2015) “Or the tent will be on the ground.” (Id.) Don Rosenberg, a retired entertainment executive and concerned California resident, explained his opposition to the bill. “The issue really comes down to, the more you offer, the more will come,” said Rosenberg. (ABC News, June 17, 2015) Currently, California has the highest population of illegal aliens in the United States, estimated in 2014 to be almost 3 million. (FAIR Report) Illegal immigration to the state was also estimated in 2014 to cost California taxpayers over $25.3 billion annually. (Id.)

The debate over SB 4 comes on the heels of other legislation California has adopted to help illegal aliens in California get taxpayer funded health care. In June, Governor Jerry Brown and members of the democratically controlled legislature crafted a deal to give illegal aliens in the state, under the age of 19, access to Medi-Cal, the state’s health care program for low income earners. (Legislative Update, June 23, 2015; S.B. 75) The plan, which was incorporated into the legislature’s budget, requires California taxpayers to cover the entire cost of health care for this class of illegal aliens. (S.B. 75)

The full Assembly must pass S.B. 4 before it can be sent to Governor Jerry Brown’s desk for approval. If signed into law, California may become the first state to allow illegal aliens access to its Obamacare health exchange. S.B. 4 would go into effect January 2017. (S.B. 4)