FAIR Legislative Update June 28, 2010
Obama May Use Executive Power to Grant Amnesty
There has been increasing chatter in Washington, D.C. that the Obama administration is considering bypassing Congress to grant amnesty to millions of illegal aliens. The rumors began when two Members of Congress became impatient with the Senate’s unwillingness to take up the DREAM Act, and asked the administration to essentially grant amnesty through an executive order. (Durbin Press Release, April 21, 2010). As FAIR has reported, amnesty activists have stepped up their efforts to lobby for the DREAM Act in recent months, even staging protests that have led to arrests and potential deportations. (See FAIR’s Legislative Update, May 24, 2010). It now appears that lawmakers and the administration may cave to the pressure by delivering the DREAM Act by any means possible, including an attempt to thwart Congress and issue amnesty by executive order, though the legality of such action is questionable.
In April, Senators Dick Durbin (D-Ill.) and Richard Lugar (R-Ind.) sent a letter to Homeland Security Secretary Janet Napolitano requesting that she halt deportations of illegal alien students who would be eligible for cancellation of removal or a stay of removal under the DREAM Act legislation. (Durbin Press Release, April 21, 2010). The DREAM Act was first proposed in 2000, and has been re-introduced in successive Congresses, including as recently as 2009. Neither chamber has since acted on the pending legislation, largely due to overwhelming opposition by the American public. It is a broad amnesty measure disguised as an educational initiative that would allow millions of illegal aliens who meet a very loose definition of “student” to qualify for green cards. Additionally, it provides in-state tuition benefits for illegal aliens that will displace legal residents competing for a fixed number of college admission slots and taxpayer subsidies. (See FAIR’s Legislative Analysis).
Durbin and Lugar have suggested that the Obama administration overcome the bill’s unpopularity in Congress by temporarily stopping deportations of DREAM Act students by granting them “deferred action.” (Durbin Press Release, April 21, 2010). The senators concede that these illegal aliens are “technically out of status,” but urge Napolitano to halt deportations in spite of this. Deferred Enforced Departure (DED), authorized by the President, suspends the deportation of an illegal alien and allows the alien to seek a work permit and legal status, usually for a designated period of time. (USCIS DED Fact Sheet). However, a Congressional source told Fox News that lawmakers have learned from “sources” that the administration is considering flexing its authority to grant the status on a mass basis. (Fox News, June 23, 2010). While DHS could only grant deferred action to those illegal alien students already identified for deportation, any action along these lines would be tantamount to granting amnesty to the millions of illegal alien students who would be able to live and work in the U.S. for as long as the administration deemed appropriate—and who would benefit from the DREAM Act, should it ever be enacted by Congress. (See CRS Report, January 19, 2010).
Several senators have expressed serious concern about the possibility the President would grant amnesty administratively, and have asked the president to explain whether he is considering using Deferred Enforced Departure or any other blanket remedy. (Grassley Press Release, June 21, 2010). In a letter addressed to the President, Senator Chuck Grassley (R-Iowa), joined by Senators Orrin Hatch (R-Utah), Jim Bunning (R-Ky.), Saxby Chambliss (R-Ga.), Jim Inhofe (R-Okla.), Johnny Isakson (R-Ga.), Thad Cochran (R-Miss.), and David Vitter (R-La.), described any such plans as “amnesty in disguise.” (Id.). Urging the White House to abandon any such plans, the Senators stated, “[S]uch a move would further erode the American public’s confidence in the federal government and its commitment to securing the borders and enforcing the laws already on the books.” (Senators’ Letter to Obama, June 21, 2010).
The Mexican government, aided by several U.S. law firms, has inserted itself into a lawsuit against Arizona’s new immigration enforcement law, SB 1070, by filing an amicus brief in the case urging the U.S. court to strike down the law. (Mexico’s Amicus Brief ). The lawsuit, filed by open borders advocates such as the Mexican American Legal Defense and Education Fund (MALDEF) and the American Civil Liberties Union (ACLU), claims that the law is unconstitutional, and seeks to overturn it before it goes into effect in July. (CNN, June 22, 2010).
According to the Mexican government, it has a right to intervene in U.S. domestic policy and challenge a law that is overwhelmingly popular with the American public because “Mexico has a right to protect the interests of its nationals” and “[It] is gravely concerned that SB 1070 will lead to disparate treatment among Mexican nationals in the U.S., as well as disparate treatment as compared to U.S. citizens.” Mexico claims that the law will result in “racial profiling and detentions of Mexican citizens without regard to whether they have taken any actions or exhibited any behavior indicating they are guilty of a crime or ‘unlawfully present’ in the U.S.” (Mexico’s Amicus Brief).
Governor Brewer reacted quickly to the news of the brief, stating, “I am very disappointed that the national government of our neighbors and friends to the south has chosen to file a brief in federal court that distorts the truth about Arizona and the United States.” (Brewer Press Release, June 22, 2010). Brewer described the brief as based on “false assertions and factual inaccuracies,” arguing that “Arizona’s immigration enforcement laws are both reasonable and constitutional.” (Brewer Press Release, June 22, 2010). She added, “I will continue to fight tirelessly to protect the citizens of Arizona, and to defend Arizonans in federal court.” (Id.).
The law will take effect on July 29 unless the court blocks implementation by issuing an injunction. It will be up to the court to decide whether to accept the brief submitted by a foreign government in this case.
The Nogales, Arizona Police Department is on heightened alert after a Mexican drug cartel threatened to target off-duty police officers. The threat followed an early June drug bust in which two off-duty Nogales police officers riding on horseback outside the city seized 400 pounds of marijuana. (Fox News, June 22, 2010; Reuters, June 23, 2010).
According to Nogales Police Chief Jeff Kirkham, the department learned of the threats through informants: “The warning was … that the officers, if they are off duty, are to look the other way and ignore any drug trafficking loads that are coming across the border, otherwise they will be targeted.” Chief Kirkham added that his department has been unable to ascertain which cartel made the threat, though he noted that the Los Zetas and the Sinaloa Cartel are both currently trying to gain footholds in the Nogales area. Kirkham noted that he is taking the threats “very seriously”, adding that he has requested additional support from the Border Patrol. In addition, Kirkham has ordered his officers to carry communications equipment and weapons at all times: “We let them know that if they are to go out there, they are to be armed.” (Id.).
The cartel’s threats came in the midst of a debate over whether crime is rising in the southwest border region and, especially, in Arizona. A recent piece in The New York Times asserted that “the rate of violent crime at the border, and indeed across Arizona, has been declining, according to the Federal Bureau of Investigation, as has illegal immigration, according to the Border Patrol.” (The New York Times, June 19, 2010). However, well-known blogger Tom Maguire has generated considerable interest by pointing out that, while the overallcrime figures in Arizona may be down, the numbers have actually increased dramatically in cities outside metropolitan statistical areas and in non-metropolitan counties – areas which are much more likely to be along the border and trafficked by drug smugglers and illegal aliens. (JustOneMinute, June 20, 2010). In addition, Arizona Attorney General Terry Goddard has suggested that “the drop in violent crime rates might not reflect the continued violence” because crimes committed by smuggling organizations often go unreported. (The New York Times, June 19, 2010).
Last week, President Obama sent a letter to House Speaker Nancy Pelosi (D-Cali.) formally requesting $600 million in emergency funding to beef up border security, including the hiring of 1,000 more Border Patrol agents. (The Associated Press, June 23, 2010; Los Angeles Times, June 22, 2010; KGUN9, June 25, 2010). Last week’s funding request satisfies part of Obama’s previous promise to strengthen border security by seeking additional funding and deploying 1,200 National Guard troops to the border. However, the president has still failed to deploy the Guard troops to the border. (See FAIR’s Legislative Update, June 1, 2010).
In addition to $297 million for the 1,000 Border Patrol agents, Obama’s request seeks funding for:
- 160 new Immigration and Customs Enforcement (ICE) agents;
- Two unmanned aircraft;
- 30 Customs and Border Protection officers;
- 20 canine teams;
- Additional FBI task forces;
- Extra Drug Enforcement Administration (DEA) agents; and
- More Prosecutors and immigration judges. (The Associated Press, June 23, 2010; Los Angeles Times, June 22, 2010).
Obama’s request also seeks funding to help Mexican authorities with ballistics and DNA analysis. Additionally, the request seeks to redirect $100 million from the virtual fence program to repair fencing and improve infrastructure. (CongressDaily, June 23, 2010). President Obama commented on the funding request, claiming that it “would support efforts to secure the Southwest border and enhance federal border protection, law enforcement and counter-narcotics activities.” (Los Angeles Times, June 22, 2010). “This request responds to urgent and essential needs,” Obama added. (The Associated Press, June 23, 2010).
Interestingly, Obama’s request comes in the midst of a heated back-and-forth debate between the president and Senator Jon Kyl (R-Ariz.) concerning border security. Kyl claimed at a recent Tea Party event that, during a one-on-one meeting in the Oval Office, Obama had said to him, “[I]f we secure the border, then [Republicans] won’t have any reason to support comprehensive immigration reform.” “In other words,” Kyl added, “they’re holding it hostage. They don’t want to secure the border unless and until it is combined with comprehensive immigration reform.” (RedState, June 20, 2010). White House Communications Director Dan Pfeiffer dismissed Kyl’s charge, however, claiming that “The President didn’t say that and Senator Kyl knows it.” (ABCNews, June 21, 2010). Kyl spokesman Ryan Patmintra responded to Pfeiffer’s accusations: “There were two people in that meeting, and Dan Pfeiffer was not one of them. Senator Kyl stands by his remarks, and the White House spokesman’s pushback that you must have comprehensive immigration reform to secure the border only confirms Senator Kyl’s account.” (Id.).
Secretary Napolitano Says Obama Administration Takes its Responsibility to Secure the Borders “Seriously”
Homeland Security Secretary Napolitano vigorously defended the Obama administration’s record on border security last Wednesday at a presentation at the Center for Strategic and International Studies (CSIS). “[F]rom day one,” she said, “the Obama administration has taken its responsibility here seriously. It has developed and implemented a clear strategy to obtain that personnel, those resources, that equipment and technology that’s truly required for the federal government to meet its responsibility along our nation’s border.” (Transcript of Homeland Security Secretary Janet Napolitano’s comments at the Center for Strategic and International Studies, June 23, 2010).
To support her assertion that the Obama administration is tough on border security, Secretary Napolitano cited existing programs and used her speech as an opportunity to announce multiple new programs for the Southwest border, some relating to state and local cooperation. These include:
- Creating a new partnership with the Major Cities Chiefs Association to establish a “Southwest border law enforcement compact.” This compact will create a mechanism by which state and local law enforcement agencies that aren’t on the border can detail officers to state and local law enforcement agencies that are on the border.
- Creating a system to “interlink” the information systems of all state, local and tribal law enforcement entities operating along the Southwest border with those of Homeland Security and the Justice Department.
- Establishing a suspicious activities reporting system (called SARs) for the Southwest border to help local officers recognize and track incidents related to criminal activity by drug traffickers.
- Strengthening the analytic capability of the state and major-urban-area fusion centers along the Southwest border so that they are better able to receive and share threat information.
- Partnering with the Office of National Drug Control Policy to implement Project Roadrunner, an automated license-plate recognition system.
- Deploying additional border patrol agents, ICE investigators, air assets and other technologies to the Arizona border to conduct targeted operations against the cartels, specifically around the Tucson sector.
- Expanding the illegal drug program to additional Southwest border ports of entry.
- Expanding the joint criminal alien removal taskforces, which are comprised of ICE agents and local law enforcement agents who identify and arrest convicted criminal aliens. These taskforces will now deploy surge teams to work with state and local jails that are within 100 miles of the Southwest border to help identify all removable convicted criminal aliens detained in jails “who, if released, would pose a danger to public safety.”
- Authorizing the Federal Aviation Administration to use Customs and Border Protection (CBP) unmanned aircraft system flights along the Texas border and in the Gulf region. (Transcript of Homeland Security Secretary Janet Napolitano’s comments at the Center for Strategic and International, June 23, 2010)
For supporters of Arizona’s new immigration enforcement law, it was noteworthy that while Napolitano repeatedly stressed that border security and the enforcement of immigration laws is primarily a federal responsibility, she simultaneously touted the extensive federal-state-local cooperation that was taking place. “The federal government is also collaborating with state and local law enforcement along the border more closely than ever before,” said Napolitano. “We are leveraging the resources and capabilities of over 50 law enforcement agencies to deter, deny and disrupt transnational criminal organizations. And we’ve increased the funding for state and local law enforcement that they can use to combat border-related crime….” (Id.).
Napolitano concluded her speech with a call for amnesty. “[M]aximizing our efforts,” she said, “will require more than just federal, state and local resources. It will also require Congress, working across party lines, to enact changes to our immigration laws so that we have a comprehensive set of reforms that meet the needs of our country.” Napolitano continued, “This notion that you’re going to somehow seal the border, and only at that point will you discuss immigration reform – that is not an answer to the problem.” (Id.).
On Monday, June 21, the people of Fremont, Nebraska approved an ordinance by ballot referendum that seeks to crack down on illegal immigration. The ordinance, which passed 57 percent to 43 percent, prohibits the renting of apartments to illegal aliens and requires all employers in the area to use the E-Verify database to confirm that their new hires have legal authorization to work in the United States. (Fremont Tribune, June 22, 2010).
The citizens of Fremont, a meat-packing town in eastern Nebraska with about 25,000 residents, expressed concern about losing their jobs to illegal aliens and the Federal government’s continued refusal to enforce immigration laws. “Most people would agree that the illegal immigration issue is one that needs to be dealt with, but for whatever reasons the federal and state governments have been either unwilling or unable to address the issue, so it fell upon the concerned citizens on the local level to step up and take control of their future,” said State Senator Charlie Janssen. (Fremont Tribune, June 22, 2010). The Fremont City Council, which originally challenged the ordinance in court, is expected to certify the election results next week. “We’ll just go ahead and follow the will of the people. We just need to implement it and move forward,” noted Mayor Skip Edwards. (Fremont Tribune, June 22, 2010). The ordinance will take effect 30 days from the date of certification. (Id.).
Anti-enforcement advocates are already lining up to challenge the ordinance. The Nebraska chapter of the American Civil Liberties Union (ACLU) has already stated that it will sue to block the ordinance from taking effect. ACLU of Nebraska Executive Director Laurel Marsh called the ordinance “un-American and unconstitutional.” (ACLU Press Release, June 22, 2010). ACLU of Nebraska Legal Director Amy Miller criticized the people of Fremont, stating: “There is no rational reason for Fremont to be worried about protecting our border.” (The Washington Post, June 24, 2010). FAIR Press Secretary Bob Dane, on the other hand, praised Fremont: “Fremont is an example of ‘If Washington won’t, Nebraskans will.” (Id.).