Legislative Update: 9/2/2014

Obama Reiterates Promise for Administrative Amnesty; Question is When

President Obama gave his clearest statement to date that he is moving forward with his plan to bypass Congress and unilaterally exempt millions of illegal aliens from deportation. “Have no doubt: In the absence of congressional action, I’m going to do what I can to make sure the system works better,” the President declared last Thursday. (Politico, Aug. 28, 2014) Reiterating the “blame Republicans” message, White House Press Secretary Josh Earnest added, “The president is determined to act where House Republicans won’t.” (Reuters, Aug. 27, 2014)

With the President determined to grant administrative amnesty to approximately 5 million illegal aliens, the only question is the timing. Obama originally planned to announce his decision around Labor Day but that self-imposed deadline is now in doubt. A week ago, White House Press Secretary told reporters that they could expect the White House to make news on immigration at the end of the summer. (White House press briefing, Aug. 25, 2014) However, last Thursday the President suggested at a press conference that the crisis of illegal alien minors pouring over the southern border may have shifted his timeline. “Some of these things do affect time lines,” said the President, “and we’re just going to be working through as systematically as possible in order to get this done.” (Associated Press, Aug. 28, 2014) Now, the media is speculating on the timing, with MSNBC claiming White House officials told them the President will act this Friday (September 5) when he returns from a trip to Europe while others expect Obama to act closer to the end of September, noting that summer technically ends on September 21. (See Breitbart, Aug. 25, 2014; Chicago Sun-Times, Aug. 25, 2014) On the other hand, some political strategists say that any moves before the November elections means Obama has given up hope of Democrats maintaining their Senate majority. (Washington Post, Aug. 27, 2014)

Tellingly, nearly every vulnerable Democratic Senate candidate is voicing opposition to the President’s action, despite all of them voting for the Senate’s mass guest worker amnesty bill (S. 744) last year. Senator Mark Begich (D-AK) said, “To me, securing our borders has to be the priority, and that should be the president’s focus.” (Id.) Senator Kay Hagan (D-NC) blamed House Republicans for not passing amnesty but said she believes immigration “should be addressed legislatively and not through executive order.” (Id.) Likewise, a spokesman for Sen. Jeanne Shaheen (D-NH) said the Senator “believes Congress must address our broken immigration system with a comprehensive fix, and would not support a piecemeal approach issued by executive order.” (Id.) Notably, Sen. Shaheen has seen a double digit lead in the polls disappear because her opponent, Scott Brown (R), started running ads on Shaheen’s pro-amnesty stance. (Id.) Additionally, pro-amnesty Kentucky Democratic Senate candidate Alison Lundergan Grimes, who is challenging Minority Leader Mitch McConnell, said she opposes Obama’s plan to act alone. (Id.)

Sensing the importance of immigration to voters, Republicans are making immigration the focal point of their campaigns. In a blistering statement from the National Republican Senatorial Committee, the campaign arm for GOP Senate candidates, the NRSC charged, “Executive amnesty would not only subvert the law, but depress wages, and hurt the poorest Americans most of all — including legal immigrants looking to rise into the middle class. Workers are hurting.” (See Breitbart, Aug. 26, 2014) The statement continues, “Executive Amnesty would be the political equivalent of nuclear explosion for Democratic candidates like Mary Landrieu, Kay Hagan, Mark Pryor and Jeanne Shaheen. Democrats are terrified of this issue. President Obama’s Executive Amnesty would inject adrenaline into an electorate already eager to send him a message of disapproval.” (Id.)

Even pro-amnesty Sen. Marco Rubio (R-FL), who authored S. 744 with Sen. Chuck Schumer (D-NY), is criticizing the President’s planned unilateral action. Rubio, who is not up for reelection in 2014 but has White House aspirations for 2016, told Breitbart News “the only way you’re going to be able to deal with this issue is by first securing the border and ensuring that illegal immigration is under control.” (Breitbart, Aug. 26, 2014)

But even if the President delays announcing his new administrative amnesty program to spare vulnerable Democrats, the White House is already laying the ground work to justify the massive abuse of executive power it is contemplating. Indeed, administration officials recently leaked the planned legal justification for the President’s go-it-alone approach: Congress granted Obama the authority to exempt broad classes of aliens from deportation because it did not allocate enough money to fully enforce immigration laws. (Associated Press, Aug. 27, 2014) This argument, however, ignores that — until the recent crisis of illegal alien minors crossing the border unfolded — the President and his appointees have not asked Congress for additional money to increase deportations. Moreover, the Administration consistently fought spending on immigration enforcement measures such as the State Criminal Alien Assistance Program (SCAAP), the 287(g) program, and detention beds, yet spent enormous resources conducting deportation reviews, implementing the Deferred Action for Childhood Arrivals program (DACA), and suing states to strike down local immigration enforcement measures. Finally, the argument that the President can unilaterally halt deportations of illegal aliens because he doesn’t have the money to enforce the laws is wholly contradictory to the argument amnesty advocates were making only 18 months ago, when they pointed with great fanfare to a Migration Policy Institute (MPI) report that (falsely) claimed there had been a “dramatic surge in immigration enforcement resources” since 1986. That surge in immigration enforcement spending, amnesty advocates argued, had not fixed our immigration system and therefore Congress should pass “comprehensive” immigration reform. (See FAIR Legislative Update, Jan. 14, 2013)

How Many UACs Have Been Released in Your County?

As American children across the country head back to school this fall, the Department of Health and Human Services (HHS) has finally released county level data on the numbers of unaccompanied alien minors who will be joining them after being released to “sponsors” throughout the United States. (See Office of Refugee Resettlement)

The table released by HHS last week shows each county where 50 or more minors have been released to sponsors from the beginning of January to the end of July. (Id.) The data covers 126 counties in 32 states, and provides information on 29,890 of the 37,477 total minors released to sponsors during this period. (Id.) The two counties receiving the most illegal aliens were Harris County, Texas with 2,866, and Los Angeles County with 1,993. (Id.) Statewide data released previously also showed that the four states receiving the greatest number of illegal alien minors were Texas, New York, Florida, and California, which all received over 3000 minors, though Maryland and Virginia received the most per state population. (Office of Refugee Resettlement)

American citizens will be responsible for the education of these minors. In May, the Administration revised its 2011 policy to public elementary and postsecondary educators to require “equal access” to K-12 education for illegal aliens. (See FAIR Legislative Update, May 21, 2014) Not only did the revised guidance declare that Supreme Court precedent and federal civil rights law prohibit school districts from excluding illegal aliens, the Administration also added language that expressly protected illegal alien parents and guardians from having to provide state issued identification or a social security number. (Id.) FAIR has estimated that in the 2014-2015 school year, it will cost American taxpayers $761 million to educate the 37,000 unaccompanied alien minors released this year. (FAIR Fact Sheet, Aug. 25, 2014)

The HHS data surprised some state officials. For instance, Governor Bobby Jindal (R- LA) noted last Wednesday that the Administration sent over a thousand minors to Louisiana “without telling us, without telling social services, without telling the schools,” despite a promise from cabinet officials only a month ago that no minors would be released without warning. (breitbart.com, Aug. 27, 2014) He also complained about the cost, saying that the county of Jefferson Parrish, which alone received 533 illegal alien minors, was “literally having to hire more and more teachers that speak Spanish, they’re thinking about having to offer bonuses and stipends.” (Id.; Office of Refugee Resettlement)

These 37,000 minors released across the country may be only the first wave that HHS reports. While the surge of minors travelling through the desert to the border has slowed during the hot summer months, the U.S. Committee for Refugees and Immigrants expects a second wave to begin in the fall when the weather cools. (Washington Examiner, Aug. 14, 2014) Despite repeated promises by the Administration that the unaccompanied alien minors streaming across the border would be sent home rather than integrated into the United States, only 280 minors have been deported while these 37,000 have been released. (Washington Examiner, Aug. 29, 2014; seeWashington Post, Jul. 7, 2014; Real Clear Politics, Jul. 6, 2014)

Obama to Nominate Sarah Saldaña to Lead Immigration and Customs Enforcement (ICE)

Last Thursday, President Obama indicated his intention to nominate Dallas prosecutor Sarah Saldaña to be Director of Immigration and Customs Enforcement (ICE). (White House press release, Aug. 28, 2014; see also Wall Street Journal, Aug. 28, 2014)

Saldaña has spent the past three years as the U.S. Attorney for the Northern District of Texas (Dallas News, Aug. 29, 2014). Notably, her nomination to be a U.S. Attorney was supported by Republican Senator John Cornyn (R-TX) but opposed by Democrat Eddie Bernice Johnson (D-TX) for her role in prosecuting Dallas Democrats for corruption. (Wall Street Journal, Aug. 28, 2014; NBC News, Aug. 27, 2014) Prior to her work as a federal prosecutor, Saldaña was employed in private practice at the law firms Haynes and Boone, LLP and Baker Botts LLP. (White House press release, Aug. 28, 2014) She also clerked for Judge Harold Barefoot Sanders at the U.S. District Court for the Northern District of Texas, and was employed at the Equal Employment Opportunity Commission, the Department of Labor, and the Department of Housing and Urban Development. (Id.) Ms. Saldaña received her law degree from Southern Methodist University. (Id.)

The position of ICE Director was left vacant by John Morton when he resigned over a year ago. (See Washington Post, June 18, 2014) In his four-year tenure as ICE Director, Morton crafted a series of memoranda which granted administrative amnesty to illegal aliens through the adoption of numerous non-enforcement policies. (SeeFAIR’s Morton Memos webpage)

Obama’s pick to lead ICE was announced quietly along with seventeen other nominees for various Administration posts prior to the Labor Day weekend. (See White House press release, Aug. 28, 2014) Reports indicate that the White House would like to move this nomination through the Senate for confirmation this September. (Wall Street Journal, Aug. 28, 2014) However, the timing of the nomination — which may coincide with President Obama’s announcement of a sweeping administrative amnesty program — could put Ms. Saldaña on the hot seat in Congress before the Senate even votes on her confirmation. 

Mexican President Peña Nieto Calls California “The Other Mexico”

In his trip to California last week, Mexican President Enrique Peña Nieto praised the state’s policies that welcome illegal aliens from Mexico. Speaking before a group of Mexican nationals in Los Angeles, Nieto vowed to work for Mexican nationals wherever they live and declared, “This is the other Mexico.” (Los Angeles Times, Aug. 25, 2014) 

Upon his arrival, President Peña Nieto was greeted warmly by Governor Jerry Brown (D-CA), who had visited Mexico City less than a month ago. Governor Brown introduced the Mexican president to a crowd waving the colors of the Mexican flag at the Millennium Biltmore Hotel in Los Angeles. (Los Angeles Times, Aug. 25, 2014) Brown told the crowd that, whether or not they were citizens, they were “all welcome in California today.” Brown added, “I don’t know anywhere else in America where the people themselves are supporting such a massive investment in people who don’t even speak English.” (CBS Los Angeles, Aug. 25, 2014) To be sure, California invests $25.3 billion annually in state and local taxpayer funds on services for the estimated three million illegal aliens in the state. (See FAIR California Cost Study, 2014)

After speaking in Los Angeles, Peña Nieto traveled to the state capitol to address a joint session of the California Legislature. The Mexican President said, “I want to thank you for everything you have done favoring migrants.” (Los Angeles Times, Aug. 27, 2014) Particularly, Peña Nieto specifically voiced his gratitude for California’s law granting drivers’ licenses to illegal aliens. (Id.; See FAIR Press Release on AB 60) In addition to drivers’ licenses, California has also enacted laws this year that provide benefits, in-state tuition, licenses to practice law, and sanctuary to illegal aliens. (See FAIR Legislative Update, Oct. 9, 2012)

San Francisco to Pay for Lawyers for Illegal Aliens

Last Wednesday, San Francisco officials announced that the city would provide $100,000 in taxpayer funds toward legal services for illegal aliens. (Associated Press, Aug. 27, 2014) 

The City plans to give the money to the Lawyers’ Committee for Civil Rights, which in turn plans to use the funds to train 400 private lawyers to provide immigration legal services pro bono. The program is an expansion of the San Francisco Right to Civil Counsel program, which used taxpayer funds to provide legal services for clients in landlord-tenant cases. (See San Francisco Board of Supervisors Press Release, Aug. 27, 2014)

Remarkably, some California lawmakers want to spend more than $100,000 on lawyers for illegal aliens. San Francisco Supervisor David Campos advocates for $1.2 million in public funding for immigration legal counsel. (San Francisco Gate, Aug. 27, 2014) California Governor Jerry Brown, Senate President pro Tem Darrell Steinberg and Assembly Speaker Toni Atkins introduced a legislative proposal to spending $3 million for nonprofits who provide legal assistance to unaccompanied alien minors. (See Governor Brown press release, Aug. 21, 2014)

Maine Fights to Stop Municipalities from Giving Welfare to Illegal Aliens

The Maine Department of Health and Human Services (“DHHS”) has filed a counterclaim in a lawsuit against the Maine Municipal Association, an association who represents Maine cities, to force the cities of Portland and Westbrook to stop providing General Assistance benefits to illegal aliens. (Bangor Daily News, Aug. 13, 2014) The Maine Municipal Association filed the suit in July to contest the state’s directive to remove illegal aliens from the program. (American Journal, Aug. 13, 2014) General Assistance is a taxpayer-funded service, administered through Maine’s municipalities, that purchases basic necessities, including food and housing, for individuals who cannot afford them. Maine law requires the state to reimburse its cities for 50-90 percent of the cost of these benefits, depending on need. (Me. Rev. Stat. tit. 22, § 4311)

DHHS directed municipalities to remove illegal aliens from the program to conform to federal law. (American Journal, Aug. 13, 2014) Previously, DHHS rules only required an applicant to demonstrate need for General Assistance benefits to be eligible. (Portland Press Herald, Jun. 12, 2014) The application process did not include any verification by the state or the municipality of the applicant’s immigration status. (Id.) However, federal law prohibits states from providing public benefits to illegal aliens unless the state’s legislature has passed a law affirmatively providing for such. (8 U.S.C. 1621) Currently, no Maine law affirmatively authorizes the agency to provide any sort of public benefits, including General Assistance, to illegal aliens. (Portland Press Herald, Jun. 12, 2014)

Eric Conrad, the Maine Municipal Association’s communication director, stressed that the Association is only contesting whether the Agency’s directive is enforceable, and is “not arguing in court that illegal immigrants should receive benefits.” (American Journal, Aug. 13, 2014) A statement issued by the association stated, “[The Maine Municipal Association] believes the action is necessary to see whether the DHHS directive is legally binding, as it was issued without the standard and long-followed rulemaking procedures that govern virtually every other directive and regulation coming from the state.” (Id.)

Lewiston Mayor Robert Macdonald said he welcomed Maine Municipal Association’s lawsuit. “At least this will clarify it,” Macdonald said. (Bangor Daily News, Aug. 18, 2014) “This will tell us if we face a lawsuit and just where we stand. If we fight a lawsuit, even if we end up winning, we lose because it costs us so much.” (Id.)Mayor Macdonald also expressed his support of Maine Governor Paul LePage’s effort to limit General Assistance to citizens and qualified aliens. (Id.) “I hope this turns out that the governor is right… It’s just additional money we have to pay for people, and we should not have to because they are here illegally.” (Id.)

The court has yet to address either claim. On Friday, August 15, the Maine Municipal Association filed a motion to remand the case from federal court to state court. Currently, there is no state legislation pending to address the conflict.