FAIR Legislative Update April 1, 2013
In an about-face, Judiciary Chairman Pat Leahy (D-VT) vowed he would move “comprehensive” immigration reform legislation through the Senate “with all deliberate speed” once the Gang of Eight introduces its bill. (Daily Caller, Mar. 27, 2013) His comments came in response a March 19 request from fellow Judiciary Committee Member Jeff Sessions (R-AL) and five other GOP Committee Members sent the Chairman that Leahy uphold his commitment to ensuring any “comprehensive” immigration reform bill moves through the regular order. (See FAIR Legislative Update, Mar. 25, 2013)
Moreover, Leahy’s response indicated he only intends to offer Committee members as little time as possible to review what will likely be a very lengthy, technical bill. “Under the Rules of our Committee, you will have your rights protected to hold over the legislation the first week that it is listed on the Committee’s agenda,” Sen. Leahy wrote to Sen. Sessions. “After that, you will have the right to circulate and offer amendments,” he continued, underscoring the speed at which he intended to move the legislation. (Washington Examiner, Mar. 27, 2013)
In response, Sen. Sessions criticized Leahy for vowing to move the bill before the American people have an opportunity to study the legislation. “Chairman Leahy effectively informed Committee members that he has every intention of moving on a rushed timetable that would make it impossible for lawmakers or the public to properly assess a bill of this magnitude,” Sen. Sessions responded in a press release. (See Sen. Sessions’ Statement, Mar. 27, 2013) “Specifically, it seems the Chairman is arguing we can put a bill on the floor two weeks after the Gang of Eight potentially produces legislation in early April,” he continued. (Id.)
Interestingly, Senate Gang of Eight leader Marco Rubio (R-FL) appeared to agree with Sen. Sessions that the Committee should not rush the process of reviewing the legislation. “We will need a healthy public debate that includes committee hearings and the opportunity for other senators to improve our legislation with their own amendments,” Sen. Rubio said in a press release Sunday. “Eight senators from seven states have worked on this bill to serve as a starting point for discussion about fixing our broken immigration system. But arriving at a final product will require it to be properly submitted for the American people’s consideration… In order to succeed, this process cannot be rushed or done in secret.”
The Gang of Eight is expected to introduce the legislation the week of April 8, upon returning from a two-week Easter recess.
Only a week after talks stalled, the AFL-CIO and Chamber of Commerce say they reached agreement on the details of a new guest worker program to be included in the Senate Gang of Eight’s amnesty bill. (Politico, Mar. 30, 2013; Reuters, Mar. 28, 2013) Negotiations between labor and business had stalled at the beginning of Congress’s Easter recess over a variety of details, including the size of a new guest worker program, wages, and whether certain industries would be exempt from the program. (See FAIR Legislative Update, Mar. 25, 2013)
It was not certain over the past week, whether the AFL-CIO and the Chamber of Commerce could agree on several contentious issues. While reports indicated that the parties had agreed that the new guest worker program will be capped at 200,000, the issue of wages continued to cause division. (Reuters, Mar. 28, 2013) Appearing on C-Span Wednesday, AFL-CIO President Richard Trumka on Wednesday said that guest worker wages must be high enough so that they don’t hurt American workers. (C-Span Newsmakers, Mar. 27, 2013) “If there are shortages [of workers] in this country,” he argued, “we ought to be able to bring people in, at a fair wage, a wage that doesn’t relegate them to poverty and doesn’t drag down American wages.” When asked specifically what the AFL-CIO considers a fair wage, Trumka replied: “What we said is let the Department [of Labor] decide. You don’t issue visas at wages that will hurt American wages or benefits. So everyone wins.”
On Thursday the AFL-CIO sounded an optimistic note that it and the Chamber of Commerce are closer to an agreement. “We have moved off poverty level wages and are moving forward and are working on a standard that will protect U.S. workers,” said an AFL-CIO representative. (Reuters, Mar. 28, 2013) “I think there is an agreement that it should be a standard and we are finalizing what that standard should say.” The Chamber of Commerce also suggested that progress is being made on the issue of wages, saying foreign workers participating in the new guest worker program would “be paid the greater of actual wages being paid to comparable American workers or the prevailing wages as determined by the Department of Labor.” (Id.)
But while both sides hinted progress had been made on the issue of wages, there still appeared to be disagreement over whether certain industries are in fact experiencing a labor shortage. Again on C-SPAN, Trumka said that construction workers should be exempt from any new guest worker program because they are high-skilled. “We want to see some of them, the high-skilled jobs exempt,” said Trumka. “I think everybody agrees to that.” Trumka pointed out that there is no shortage of construction workers in the U.S. “Look, it’s almost laughable for you to ask me a question about construction when you’ve got 25 or 30% unemployment rate…Until the unemployment rate gets down to a certain level, you don’t bring them in.”
As of Friday, however, that issue seemed mostly resolved. Construction unions said they had succeeded in persuading the negotiators to exclude certain types of higher-skilled jobs — including crane operators and electricians — from the guest worker program. (The New York Times, Mar. 29, 2013) Tamar Jacoby, the president of ImmigrationWorks, an organization that lobbies for more immigration on behalf of businesses, said the new guest worker program would start at 20,000 visas a year, and could grow as high as 200,000 based on a formula. (Id.) Still participants in the program said that the details of the program were still being negotiated.
Only a few details of the AFL-CIO/Chamber agreement are known. According to The New York Times, the program, which would create a “W” guest worker visa, would grant foreign workers 20,000 visas the first year, 35,000 the second year, 55,000 the third, and 75,000 in the fourth year. In the fifth year, the number of foreign workers granted W visas would be tied to the unemployment rate, the ratio of job openings to unemployed workers and other factors. The program would be capped at 200,000 new workers per year, one-third of which would go to businesses with fewer than 25 employees. No more than 15,000 visas per year would go to construction occupations. (The New York Times, Mar. 30, 2013)
More importantly, it is uncertain how sturdy the agreement is, and whether it could survive any amendments in Committee or on the Senate floor. Business groups, such as Immigration Works USA are already suggesting that the program is not large enough. (National Journal, Apr. 1, 2013) And even though the AFL-CIO has signed off on the deal, it is far from certain that the American people, who have been struggling to survive in the face of long-term, high unemployment, will support the creation of yet another foreign guest worker program.
According to House “Gang of Eight” Member Rep. John Yarmuth (D-KY), the group is “very close” to releasing its comprehensive immigration reform bill. “We’ve really resolved all of the truly contentious issues,” Yarmuth announced in an interview last Wednesday. (MSNBC, Mar. 27, 2013) “I’m very optimistic… In our group, everybody is really committed to getting this done. We know we have to deal with the immigration issue and this is the best opportunity we’ve had in generations.” (Id.)
Anonymous sources familiar with the negotiations elaborated on the aspects of the plan dividing the bipartisan group. According to the sources, the House Gang has yet to reach consensus on the following issues: a path to citizenship, reforming the visa process for high-tech workers, and the process for introducing and voting on a bill. (Politico, Apr. 1, 2013)
Specifically, the group plans to attempt to make the bill more palatable to the American people by calling the citizenship provision a “pathway to status.” Under this “pathway,” it will take approximately 20 years for an amnestied illegal alien to become a U.S. citizen once the border is deemed secure. (Id.) The newly amnestied aliens would obtain a green card after 10 years and pay back taxes, a “hefty” penalty, gain English proficiency, and make an admission that they broke the law. (Id.) Then, the amnestied alien could gain citizenship in another 10 years. (Id.)
The length of time to obtain citizenship is designed to make the bill appear less costly. Specifically, the Congressional Budget Office, which is charged with assessing the budgetary impact of a bill, can only consider a 10-year period to reach its estimate. Thus, the group’s 20-year plan skirts the CBO’s scoring ability. (Id.) Additionally, the bipartisan group plans to offset the cost of securing the border by increasing visa fees and Republicans in the group want to make the amnestied aliens ineligible for entitlement programs. (Id.)
The Republican members of the group are debating internally and in consultation with House Leadership on how to proceed with legislation because the House is poised to take a piecemeal approach to immigration reform. (Id.) Although three committees have jurisdiction on immigration issues — Judiciary, Education and Workforce, and Homeland Security — Republicans are considering only going through the Judiciary Committee or even bypassing the committee process entirely. (Id.) The sources revealed that it is essential for Gang of Eight Member Rep. Raul Labrador (R-ID) to sign off on the deal to ensure eventual passage. (Id.)
Yarmuth declared that the House bipartisan group is playing the more important role towards eventual passage of legislation because it would ensure Republican support and guaranteed passage of an amnesty bill. “One of the things that we’re dealing with is the issue of making sure House Republicans, who are in the majority, are comfortable with whatever package comes to the floor of the House,” Yarmuth said. (MSNBC, Mar. 27, 2013) “The sensitivity is would House Republicans be open to a bill that comes from a Democratic-controlled Senate or from a Democratic President. That’s why we think our effort is most important. If we can get one through the House then the odds of actually getting it signed into law improve a lot.” (Id.)
Yarmuth also indicated that Members of the House Gang of Eight have been talking with their Senate counterparts, who also claim to be nearly finished with their amnesty bill. “The bottom line is we’re very close,” declared Sen. Chuck Schumer (D-NY). (The Hill, Mar. 27, 2013) “I’d say we’re 90 percent there. We have a few little problems to work on,” Schumer said, but he indicated that the Senators were working together during the two-week recess to complete their negotiations. (Id.)
Both “Gangs” are expected to introduce their respective pieces of legislation the week of April 8.
In an effort to continue to keep the immigration issue front and center while Congress is on its two-week Easter recess, President Obama conducted interviews with major Spanish language networks Telemundo and Univision.
During the taped interviews, President Obama expressed confidence that Congress would pass an amnesty bill this summer so long as the Senate Gang of Eight stays on track to introduce legislation the week of April 8. “If we have a bill introduced at the beginning of next month as these senators indicate it will be, then I’m confident that we can get it done certainly before the end of the summer,” President Obama told Telemundo. (The Hill, Mar. 27, 2013) “My sense is that they are close,” Obama added on Univision. “My expectation is we’ll see a bill on the floor of the Senate next month.” (CNN, Mar. 27, 2013)
The President rejected the notion of securing the borders prior to granting amnesty to the nation’s 11-12 million illegal aliens. “[W]e don’t want to make this earned pathway to citizenship a situation in which it’s put off further and further into the future,” Obama said. “There needs to be a certain path for how people can get legal in this country, even as we also work on these strong border security issues.” (The Hill, Mar. 27, 2013)
President Obama also dismissed a rift in negotiations between the U.S. Chamber of Commerce and the AFL-CIO over a new guest worker program that will be part of the Senate’s comprehensive immigration reform plan. This split is not “threatening to doom the legislation,” insisted President Obama. “It’s a resolvable issue.” Currently the two groups disagree over how many guest workers should be allowed in the country (although the latest reports say the groups have agreed on a phased-in 200,000) and the wages they should be paid. (Id.)
Finally, President Obama reaffirmed his commitment to introducing his own legislation if the Senate ultimately fails to come to an agreement. If there’s a “breakdown,” he told Univision, “I’m prepared to step in. But I don’t think that’s going to be necessary,” the President concluded. (Id.)
Ana Avendaño, the AFL-CIO’s immigration director, told reporters last week that a guest worker program is not a necessary component of “comprehensive” immigration reform. (Politico, Mar. 27, 2013; See also ABCNews.go.com, Mar. 28, 2013) Instead Avendaño said that granting amnesty to the roughly 12 million illegal aliens in the U.S. was the AFL-CIO’s real priority. “It is the call for legalization that is driving this whole process and anything that distracts from that is really either irrelevant or is certainly not strong enough to be able to support the momentum behind this bill,” said Avendaño. (Politico, Mar. 27, 2013)
But Avendaño also said that she expects the Senate Gang of Eight to move forward whether the AFL-CIO and Chamber of Commerce can agree to the terms of a new guest worker program. Arguing that there is momentum now for getting a bill done, she was non-committal in whether the AFL-CIO would support whatever that Gang of Eight included in the bill. “We are going to see something and we will see what happens during the political process.” (Id.)
Avendaño’s comments reflect how controversial the issue of importing more guest workers to the United States is, especially when unemployment is high. If a guest worker program were not included, the bill would likely lose support from many Republicans. And, if the AFL-CIO opposed a “comprehensive” immigration reform bill because of the guest worker program, it would likely lose support from many Democrats.
Homeland Security Secretary Janet Napolitano last Tuesday reaffirmed the Obama administration’s opposition to securing the border before granting amnesty to the roughly 12 million illegal aliens in the United States. At an event hosted by the Christian Science Monitor on Tuesday, Secretary Napolitano said the Department of Homeland Security (DHS) would not develop an official metric for measuring border security. (Christian Science Monitor, Mar. 26, 2013)
Napolitano also argued against including any “trigger” in amnesty legislation that delays the issuance of green cards to illegal aliens until certain border security measures are taken. Claiming that doing so would create too much uncertainty for illegal aliens, she said the inclusion of a “trigger” is “not the way to go.” (TPM, Mar. 26, 2013) “There needs to be certainty in the bill so that people know when they can legalize and then when the pathway to citizenship, earned citizenship, would open up,” said Napolitano. (Id.)
Napolitano’s refusal to develop a border security metric is in direct contradiction to her October 2011 testimony before Congress and repeated promises administration officials have made to Members of Congress. In 2011, Secretary Napolitano told the House Judiciary Committee “it was clear that [Homeland Security] must focus on more comprehensive and accurate measurements of the state of border security.” (Napolitano Testimony, Oct. 25, 2011) She promised members of the House Judiciary committee that Customs and Border Protection was in the process of creating a measure that would holistically “capture the ‘state’ or ‘condition’ of the border” and would reflect “the big picture.” (Id.) In fact, Napolitano said, “Defining success at the border is critical to how we move forward,” and promised the index would be ready in early 2012. (Id.)
Napolitano’s statements Tuesday not only contradict her testimony to Congress, they reaffirm that the Obama administration does not want any method of measuring border security to interfere with an amnesty program it hopes to ram through Congress this spring. Just last week, DHS officials admitted to The New York Times that the Department had not developed an official metric for measuring border security over the past three years “because the president did not want any hurdles placed on the pathway to eventual citizenship for immigrants in the country illegally.” (The New York Times, Mar. 21, 2013)
Notably, the White House did nothing to distance itself from Napolitano’s statements. When asked at the White House Press briefing Tuesday about Napolitano’s refusal to develop an official metric of border security, White House Spokesman Jay Carney danced around the issue. “I think what [Napolitano] was saying — and the assessment we do agree with — is that there are a variety of metrics by which you can measure, and we do measure, progress on border security. And these are metrics that others use to measure border security, including Democrats and Republicans in the Senate and beyond the Senate, beyond the Congress. So we’re working with Congress on this, with the Senate on this. Progress has been made. Border security is one of the key principles that the President has put forward that has to be part of comprehensive immigration reform.” (White House transcript, Mar. 26, 2013)(emphasis added)
In contrast, FAIR decried Napolitano’s remarks. “It is crystal clear that the Obama administration wants to eliminate any impediment to granting amnesty to illegal aliens,” said Dan Stein, president of the FAIR. “And led by Secretary Janet Napolitano, the Department of Homeland Security is systematically laying the ground work to remove any obstacles.” (FAIR press release, Mar. 26, 3013)
Stein further warned Members of Congress that they should think very carefully whether they are willing to support amnesty legislation under these conditions. “Why should Congress prioritize amnesty for illegal aliens over border security?” he asked. “That is not in the interest of the Americans they represent. And the notion that the Obama administration will secure the border and enforce immigration laws in the future is downright laughable if it refuses to even develop a way to measure border security.” (Id.)
On March 26, 2013, Montana District Court for Lewis and Clark County denied a motion to enjoin Montana Legislative Referendum 121 (LR 121) in its entirety.
Enacted by 80 percent of Montana voters last November, LR-121 denies certain state services and state-taxpayer-funded benefits to illegal aliens who reside in Montana. (Great Falls Tribune, Mar. 29, 2013). Montana’s legislature placed LR-121 on the ballot by approving HB 638 during the 2011 legislative session (Representative David Howard (R-Park City), had sponsored HB 638).
- prohibits state agencies from providing state services to illegal aliens (Section 1(1)). A “state service” includes employment with a state agency; qualification as a university system; student financial aid; professional license; unemployment benefits; vocational rehabilitation; services for victims of crime; and services for physically disabled (Section 1(6)(i)-(viii));
- permits state agencies to use the federal SAVE system or any other method to determine whether an applicant for state services is an illegal alien (Section 1(2));
- requires state agencies to notify Immigration and Customs Enforcement (ICE) of an illegal alien applying for a state service (Section 1(3));
- requires state agencies to require a person “seeking a state service” to provide proof of United States citizenship or legal alien status (Section 1(4));
- requires state agencies to execute any written agreement that federal law requires to implement the section (Section 1(5)); and
- defines “illegal alien” to mean “an individual who is not a citizen of the United States and has unlawfully entered or remains unlawfully in the United States.” (Section 1(6)(b)).
Despite Montana voters overwhelming support of LR-121, the day after it was passed, a pro-illegal alien advocacy group, the state’s largest union, and a Montana resident born in Canada filed a complaint against LR-121. (See Montana Secretary of State’s Official Election Results; see also FAIR Leg. Update, Dec. 17, 2012). The Plaintiffs requested the court preliminarily enjoin LR-121 to prevent its January 1, 2013 enactment (n injunction is an order of the court that requires a party to refrain from a particular act (Mont. Code Ann. § 27-19-101)).
The plaintiffs claimed that LR-121 violates their rights of (1) privacy, (2) due process, and (3) equal protection as provided by the Montana Constitution. They also claimed LR-121 is preempted by federal immigration law under the Supremacy Clause of the U.S. Constitution. (U.S. Const., Art. VI, Cl. 2).
The court dismissed the Plaintiffs’ claims that requiring individuals seeking benefits to demonstrate citizenship or legal residency and requiring state agencies to report unlawfully present individuals who seek benefits violates their right to privacy. The court noted regarding the latter “that the mandatory enforcement proceeding of which Plaintiffs are concerned is one that is encouraged by the federal government. Such being the case, it cannot be asserted that society would see such a referral from the state to the federal government as being an unreasonable violation of someone’s privacy.” The court also noted that because LR-121 was passed by referendum, the electorate believes that it is reasonable to inquire into a person’s immigration status to determine if they are eligible for state benefits.
The court also found no violation of equal protection under the Montana Constitution, meaning that the state’s objective of denying benefits to illegal aliens is legitimate and its classification of doing so through LR-121 is reasonable. And while the Court found no due process violation, it found it necessary to provide a limiting construction to Section 1(2). This means that in the determination of who is or is not entitled to benefits, the State cannot only use the SAVE system, but must also use other lawful methods of making a determination as to whether an applicant for state benefits is an illegal alien. The Court suggested that the state avail itself of 8 U.S.C. § 1373(c), which requires the federal government to respond to any state or local inquiry seeking to verify the citizenship or immigration status of a person.
In response to the plaintiffs’ claim that LR-121 is preempted by federal law, the court preliminarily enjoined a portion of the definition of “illegal alien” in Section 1(6)(b). Specifically, the court enjoined the use of the phrase “who has unlawfully entered or” in the definition because it includes individuals who might have entered unlawfully but subsequently legalized status.
If the Legislature does not address the issues presented by the court by passing legislation to formally amend the provisions discussed above, the case will continue to move forward.
According to the Sunlight Foundation, a government transparency and accountability organization, special interest groups supportive of granting amnesty and expanding legal immigration spent $1.5 billion lobbying Congress since the 2007 comprehensive immigration reform bill failed. (CNBC, Mar. 26, 2013)
The report, entitled “Untangling the Webs of Immigration Lobbying,” details the most active sectors lobbying on immigration issues, the total immigration-related bills lobbied upon, and the top two issues. (Id.) Specifically, the Sunlight Foundation examined 8,000 lobbying reports filed since amnesty legislation failed in 2007; 6,712 of which involved immigration lobbying. (Id.) For example, the two most active groups, “minority/ethnic groups” and “schools & colleges,” lobbied heavily for the failed DREAM Act. (Id.) Of the top 20 interest groups, only one does not actively advocate an expansive view of immigration policy. (Id.)
Remarkably, this massive attempt to buy immigration policy has had only a minimal impact on the opinion of Americans. Despite the overwhelming lobbying presence of open borders groups, a 2012 Pew Research poll found that nearly 70 percent of respondents to the “American Values Survey” agree that “we should restrict and control people coming to live in our country more than we do now.” (Id.; Pew Research Poll)