FAIR Legislative Update December 13, 2010

Senate Last Stop for DREAM Act

After a week of rapid activity and political maneuvering, the Senate is now poised to take up the House-passed version of the DREAM Act.  Wednesday night, the House passed its version of the bill (H.R.5281), less than 24 hours after it was introduced, by a vote of 216-198. Thursday morning, the Senate was scheduled to vote on whether to proceed with debate on its own bill (S.3992). However, Senate Majority Leader Harry Reid (D-NV) successfully moved to table his own bill, saying there would be “no point” to taking up legislation that would not go anywhere because the House had already acted.  Reid then promised action on H.R.5281 this week and said he hopes to send it directly to the President’s desk.

H.R. 5281 is similar to the Senate DREAM Act in that it grants amnesty to illegal aliens up to 30 years old who claim to have lived in the U.S. for five years and “initially entered” before the age of 16.  H.R.5281 does this by granting illegal aliens a 5-year period of conditional nonimmigrant status if they have completed high school, have a GED, or have been admitted to a college or university (including online schools).  H.R.5281 allows these aliens to extend this status for another five years (or longer) if the alien completes two years of college or military service. An alien may apply for a green card after ten years.  However, DHS may waive the educational and military requirements, both at the point of renewing an alien’s conditional nonimmigrant status and at the point of granting a green card.   H.R.5281 charges an initial fee of $525 upon granting conditional nonimmigrant status and a subsequent fee of $2,000 upon renewal.

The chances of passage in the Senate are uncertain at this point. Many Senators have already voiced their objections to the DREAM Act, but amnesty supporters are hoping that House passage of the bill will create significant momentum and help persuade a handful of wavering Senators to support it.  (The Hill, Dec. 13, 2010) The Senate is expected to vote on it this week as one of the final measures of the lame-duck session of Congress.

Supreme Court Reviews Arizona’s E-Verify Law

Last week the U.S. Supreme Court heard oral arguments in Chamber of Commerce of the U.S. v. Whiting, a lawsuit filed by the U.S. Chamber of Commerce in an attempt to strike down Arizona’s mandatory E-Verify law.  The statute (H.B. 2779) was signed into law by the former Governor of Arizona and current Homeland Security Secretary, Janet Napolitano, in 2007. H.B. 2779 requires that all state employers (public and private) confirm that employees are work-authorized through the federal E-Verify system.  The law authorizes the state to suspend or revoke the business licenses of employers determined to have “knowingly” or “intentionally” hired illegal aliens. Mirroring federal law, H.B. 2779 also contains a rebuttable presumption that employers who utilize E-Verify have not intentionally hired illegal aliens.

The Chamber of Commerce, which has consistently opposed E-Verify measures and supported mass guest worker programs, sued the State of Arizona to strike the law shortly after it was enacted in 2007.  InWhiting, the Chamber and other open borders groups contend thatArizona’s mandatory E-Verify statute is unconstitutional because it violates the Due Process Clause of both the U.S. and Arizona Constitutions, and the Commerce and Supremacy Clauses of the U.S. Constitution. The Chamber has primarily argued that because Congress implemented the E-Verify system as a voluntary pilot program, Arizona is preempted from making it mandatory. 

However, the defendants—city attorneys in Arizona responsible for enforcing the law—have countered that when Congress implemented E-Verify, it only precluded the Secretary of Homeland Security (not the states) from making its use mandatory.  Defense Counsel Mary O’Grady argued, “[A]s long as it’s not a burden to the objectives of Congress, we think that we can require employers within our jurisdiction to use E-Verify.” (Transcript of Oral Argument pp. 37:12)  “We don’t impose a penalty against employers who fail to use it.  The consequences are the same as they are under federal law,” she said. (Id. at pp. 37:19)

The Chamber also argues that the provision in H.B. 2779 that permits Arizona to suspend or revoke the business licenses of employers who knowingly and intentionally hire illegal aliens violates a federal statute on the employment of illegal aliens. That statute, 8 U.S.C. 1324a, provides that federal law regarding the employment of illegal aliens “pre-empt[s any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ … unauthorized aliens.”  (8. U.S.C. § 1324a(h)(2); Pl.’s SAC ¶ 141) Chamber attorney Carter Phillips argued, “[I]t seems to me quite remarkable to think that Congress intended through a parenthetical referring to ‘through licensing laws’ to allow the State to adopt an entire alternative shadow enforcement mechanism …”  (Transcript of Oral Argument pp. 7:16) However, the defendants argued that H.B. 2779 was not an alternative enforcement mechanism, but rather a permissible licensing scheme.  Defense Counsel O’Grady explained, “States traditionally have the authority to regulate the conduct of employers within their jurisdiction to determine what conduct warrants issuance of a State license and to determine what conduct justifies suspending or revoking such a license.” (Transcript of Oral Argument pp. 29:2)

Arizona’s E-Verify law is unique in the nation because it requires both public employers (i.e. state agencies) and private employers to use the system in an effort to discourage illegal immigration. Since the Chamber first challenged the law, both the U.S. District Court in Arizona and the Ninth Circuit Court of Appeals have upheld it.  The U.S. Supreme Court is expected to issue its decision sometime this spring.

House Strips Funding for Secure Driver’s License Program

Last Wednesday the House passed a continuing resolution on government funding which effectively cut off money to implement secure and legitimate identification cards.  (Full Year Continuing Appropriations Act, 2011, Dec. 8, 2010)  The resolution provided that funds are not to be used for the system known as the “Real ID hub.”  By including this provision in the resolution, the House is obstructing the ability of states to verify documents individuals present for identification cards. 

The REAL ID act was originally passed in May, 2005, after the 9/11 Commission urged the U.S. to improve its system for issuing identification documents.  (9/11 Commission Recommendations: Implementation Status, Dec. 4, 2006; Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, 2005)  The REAL ID Act set minimum standards for the creation and issuance of driver’s licenses that states must adopt in order for those licenses to be accepted for federal purposes—including boarding airplanes or entering federal buildings.  (Section 201(3) of the Act)  Among other things, these standards provided that states could not issue driver’s licenses to illegal aliens.

One of the main ways REAL ID envisioned improving the security of driver’s licenses was by requiring the states to verify source documents used to obtain them.  Thus, under regulations issued pursuant to the Act, states must verify that an individual’s social security number and name match through the Social Security Administration.  (Title 6, Part 37.13 of the Amendments) States must also verify the applicant’s birth certificate electronically through Electronic Verification of Vital Events (EVVE) system managed by the National Association of Public Health Statistics and Information Systems.  (Id.)  If applicable, states shall also verify documents issued by the Department of Homeland Security (DHS) through the Systematic Alien Verification for Entitlements (SAVE) system to guarantee the person is legally in the United States.  (Id.)  In addition, states must check with other states to guarantee an individual does not have multiple IDs or criminal records in other states.  (Section 202(d)(12) of the Act)

To accomplish all these tasks, the Department of Homeland Security (DHS) in 2008 started funding for the development and testing of a verification hub that would enable states to query federal and non-federal document-issuing authorities and verify applicant source documents. (DHS Announces $79 Million in State Grants for REAL ID, June 20, 2008)  The hub would act as a central router of information, allowing states to quickly verify the identity, legal status and social security number of an applicant through this common database.  DHS began by awarding $17 million to Missouri to lead the development of the verification hub.  (Id.)  Four other states — Florida, Indiana, Nevada, and Wisconsin — were granted $1.2 million to partner with Missouri for the first phase of hub testing and implementation.  

REAL ID has long faced opposition from certain amnesty supporters, including Homeland Security Secretary Janet Napolitano, who has consistently demonstrated opposition to REAL ID.  (CNN, Apr. 22, 2009) Not long after becoming Secretary of Homeland Security, Napolitano spoke out about her goal to repeal the REAL ID act.  (Id.) During her time as Governor of Arizona, Napolitano signed a bill to bar Arizona’s compliance with the Act.  (The Arizona Republic, June 18, 2008)  Then, as Secretary of Homeland Security, Napolitano waived the states’ deadline to meet the REAL ID requirements by December 31, 2009, giving states until May 2011 to come into compliance.  (DHS Release, Dec. 18, 2009; FAIR Legislative Update, Dec. 22, 2009)  Napolitano has also promoted the passage of PASS ID, legislation that would significantly undermine the REAL ID Act.  (FAIR Legislative Update, Dec. 14, 2009)

Although the House-passed funding bill strips funding for REAL ID hub, the Senate has not yet acted on that legislation and may introduce its own funding bill instead.  According to FAIR’s sources, more than one Senate office is privately objecting to the defunding of this program and is looking for ways to reinstate the money.

Washington Post: Homeland Security Padded FY 2010 Deportation Numbers

A front-page article published in the Washington Post last week accused the Department of Homeland Security (DHS) of padding its FY 2010 deportation numbers.  (Washington Post, Dec. 6, 2010) In October, DHS announced it had “removed more illegal aliens than in any other period in the history of our nation” during the 2010 fiscal year.  (DHS Enforcement News, Oct. 8, 2010) However, interviews and internal communications cited in the Washington Post article indicate the Department’s record number of 392,862 deportations (also called “removals”) was padded. 

First, the article charges that ICE included 19,422 removals in FY 2010 that were really from the previous fiscal year.  (Washington Post, Dec. 6, 2010) The Post article also describes how ICE extended a Mexican repatriation program beyond its normal operation dates, adding 6,500 to the final removal numbers.  (Id.)