Legislative Update: 3/5/2014
Audit Shows Obama Administration Undermines Worksite Enforcement
In February, the Office of Inspector General (OIG) of the Department of Homeland Security (DHS) released a report on its audit of the Obama Administration’s worksite enforcement strategy from 2009 to 2012. The audit revealed that the Administration has continually reduced fines for businesses caught employing illegal aliens. (See OIG’s “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process” (OIG Report), February 2014)
In April 2009, Homeland Security Investigations (HSI), the branch of U.S. Immigration and Customs Enforcement (ICE) responsible for worksite enforcement, announced that its new strategy would focus on businesses hiring illegal workers rather than the workers themselves. (OIG Report, p. 3) That is, ICE substituted audits of the I-9 documents required for new hires with fines for violators for worksite raids where illegal alien workers are arrested. (See Ice Fact Sheet, Apr. 1, 2013; Ice Fact Sheet, Jun. 26, 2013; ICE News Release, Jul. 1, 2009; New York Times, Jul. 9, 2010) Though the audit found that HSI was enforcing the law as required by the Immigration Reform and Control Act (IRCA), it also found that HSI was undermining its enforcement strategy in two ways: by regularly negotiating with businesses to reduce fines for violations of IRCA, and by failing to adequately oversee and evaluate its field offices. (OIG Report p. 6; see also Washington Times, Feb. 25, 2014)
The audit found that from fiscal years 2009 through 2012, HSI reduced penalties on employers who hire illegal aliens an average of 40%, from $52.7 million to $31.2 million. (OIG Report p. 5, 9) Of 1,174 final orders, 68% were reduced, 28% of those by more than half. For instance one employer’s fine was reduced from $4.87 million to $1.25 million. (Id.) While these reductions are legal, OIG found, “knowledge that fines can be significantly reduced may diminish the effectiveness of fines as a deterrent.” It noted that HSI has not analyzed how these reductions “affect either employer’s compliance or the rates of recidivism.” (Id. p.9)
The audit also found that HSI headquarters failed to properly oversee the field offices and ensure ICE guidance and procedures for the I-9 process were uniformly implemented. (OIG Report p.14) In particular, the audit found that HSI’s file documentation maintenance was poor, and that key documents were often missing, preventing headquarters from properly supervising inspections and verifying employee compliance. (Id. p. 10) Field offices therefore were inconsistent in their treatment of employers, sometimes issuing warnings when fines were appropriate. For instance, the Los Angeles and Miami field offices seemed to have developed a practice of relaxing penalties based on “hardship” for the businesses breaking the law, although the lack of protocols and supervision made this inconsistency difficult to track. (Id. p.7-8, 10-11)
The report casts doubt on the Obama Administration’s claims that the revised worksite enforcement strategy is an example of “smart and effective enforcement” that makes the best use of limited resources and targets the “employers who egregiously violate employment laws.” (See DHS Fact Sheet, Oct. 4, 2011). These significant fine reductions suggest some of the worst offenders have merely been given a slap on the wrist. Yet even as the Administration has continued to claim that preventing employers from hiring illegal aliens is crucial, President Obama has in the past provided excuses for lenient worksite enforcement, stating that “most businesses want to do the right thing, but a lot of them have a hard time figuring out who’s here legally, who’s not.” (Id.) As such, President Obama both overlooks and underscores the need for making the E-Verify program mandatory for all businesses, which allows them to quickly ascertain the work status of pending employees.
House Examines Ways to Stop Administration from Circumventing Congress
Last week, the House Judiciary Committee held a hearing to examine legislative approaches available to address the president’s failure to execute the laws as passed by Congress. This hearing builds on a hearing the committee held late last year where both Members of Congress and legal experts asserted that President Obama has violated the Constitution by taking several unilateral actions on immigration. (See FAIR Legislative Update, Dec. 11, 2013)
In his opening remarks, Chairman Bob Goodlatte (R-VA) criticized President Obama for circumventing Congress to accomplish his own policy agenda. “Since taking office President Obama has increasingly pushed the boundaries on executive power beyond their constitutional limits,” Goodlatte charged. (Rep. Goodlatte opening statement, Feb. 26, 2014) “The President has no authority to bypass Congress and unilaterally waive, suspend, or amend the laws based on his policy preferences.” (Id.) Specifically, Goodlatte referenced the requirement in the U.S. Constitution that declares the President “shall take care that the laws be faithfully executed.” (U.S. Const., Art. II, sec. 3)
In particular, Goodlatte said that the President’s Deferred Action for Childhood Arrivals (DACA) initiative, launched months before the 2012 election, was an unconstitutional backdoor enactment of the DREAM Act. Under DACA, the Department of Homeland Security stopped deporting illegal aliens who allegedly came to the U.S. before the age of 16 and meet other criteria under the failed DREAM Act, which Congress rejected as recently as 2010. (See FAIR Legislative Update, June 19, 2012) Congress has considered the DREAM Act various times over the ten years preceding the Administration’s implementation of DACA but has never passed the bill into law.
Also during the hearing, true immigration reformer Rep. Diane Black (R-TN) testified about her bill to finally end the Administration’s illegal alien lobbyist position. In February 2012, the Obama Administration created a new “Public Advocate” position to serve as a point of contact for illegal aliens and pro-amnesty groups. (ICE Press Release, Feb. 7, 2012) Despite signing an appropriations bill last year that included Black’s amendment to eliminate the Public Advocate position, President Obama defied it by simply changing the title while keeping the same job description (and continuing to employ the same individual in its post). (See FAIR Legislative Update, Dec. 18, 2013) In response, Black introduced the Immigration Compliance Enforcement (ICE) Act, H.R. 3732, which would prohibit federal funds from being used to fund any position at ICE that performs the exact or “substantially the same” functions as the former “Public Advocate” or “Deputy Assistant Director of Custody Programs and Community Outreach” jobs. (See H.R. 3732 § 3) During her testimony, Rep. Black called the administration’s action an “outrageous shell game” that is “a perfect example of this pen and phone president circumventing the will of Congress to force his own agenda and is exactly why the American people cannot trust this Administration.” (Rep. Black testimony, Feb. 26, 2014)
The House Judiciary Committee marked up both the ICE Act, as well as a bill to reign in executive branch overreach (H.R. 4138), this morning. Stay tuned to FAIR for details…
An investigation by National Review Online uncovered that a Jordanian terrorist was able to immigrate to the United States and eventually become a U.S. citizen. (National Review Online, Feb. 26, 2014) According to the report, Rasmieh Yousef Odeh was convicted in an Israeli military court in 1969 for her role in several bombings which killed at least two people and injured many others. (Id.) Under the Immigration and Nationality Act, an alien who “has engaged in a terrorist activity” is inadmissible to the United States. (INA 212(a)(3)(B)) Yet, despite spending 10 years in prison as a convicted terrorist, Odeh gained citizenship in 2004. When Odeh’s terrorist ties were uncovered last November, she was working as an Obamacare navigator in Illinois, a position that allegedly requires applicants to undergo a comprehensive Federal Bureau of Investigation (FBI) background check. (Id.) Remarkably, Odeh’s FBI report does not include any previous criminal offenses, indicating that the federal government failed to uncover her terrorist ties despite a prior conviction in another country. (Id.)
The revelation of Odeh’s ability to successfully navigate the U.S. immigration system despite being a convicted terrorist comes just weeks after the Obama Administration unilaterally took steps to weaken a federal law that prohibits those who provide “material support” to individuals or organizations engaged in terrorist activity from being admitted to the United States. (See FAIR Legislative Update, Feb. 12, 2014) Additionally, this coincides with the Obama Administration’s push to grant amnesty to the 12 million illegal aliens in the country, where the ability to pass background checks is supposed to be a condition of eligibility. Yet, the government’s failure to detect a convicted terrorist when she applied for U.S. citizenship, and again when she applied for the Obamacare navigator position, raises serious doubts about the Administration’s ability to adequately execute background checks during any future amnesty.
Lawmakers Question DHS Secretary about Department’s Priorities
Members of the House Homeland Security Committee questioned Department of Homeland Security (DHS) Secretary Jeh Johnson on whether DHS would continue the non-enforcement immigration policies of his predecessor, Janet Napolitano. (Bloomberg Government Transcript, Feb. 26, 2014) Congressmen expressed concerns about Johnson’s comments favoring amnesty and whether he properly vetted his own chief of staff. Lawmakers also specifically questioned whether DHS is rubber-stamping immigration paperwork, enforcing laws against visa overstays, and using border security metrics.
In particular, Johnson tried to distance himself from comments he made in favor of amnesty in January. (See audio of remarks in CNS News, Jan. 24, 2014; see also FAIR Legislative Update, Jan. 29, 2014) Representative Paul Broun (R-GA) said to Johnson, “You claim that so-called comprehensive immigration reform is a matter of homeland security, and have even gone so far as to say that those here legally have, to quote you, ‘earned the right to be citizens,’ unquote, which clearly signals that you favor amnesty.” (Bloomberg Government Transcript, Feb. 26, 2014) Backpedaling, Johnson claimed he was misquoted by the journalist and tried to tie his comments to the amnesty afforded in the Senate mass amnesty bill, S. 744. (Id.) Nonetheless, in his prepared remarks, Johnson reiterated his support for amnesty by noting, “I believe that, as a matter of homeland security, we should encourage these people to come out of the shadows of American society, pay taxes and fines, be held accountable, and be given the opportunity to get on a path to citizenship like others.” (Jeh Johnson Testimony, Feb. 26, 2014)
Johnson also defended the hiring of Christian Marrone as his chief of staff, who an increasing number of lawmakers claim is unfit for the job based on his potential involvement in various scandals as a staffer in the Pennsylvania legislature. (See FAIR Legislative Update, Feb. 26, 2014) Representative Jason Chaffetz (R-UT) said that testimony indicates that he was involved in “fraudulent” behaviors that cost millions of dollars to the City of Philadelphia. (Bloomberg Government Transcript, Feb. 26, 2014) Johnson defended Marrone, citing his “administrative organizational skills, his ability to put together a budget process and his ability to identify inefficiencies.” (Id.)
In addition to questioning Johnson’s ability to vet his most senior staff, the House Committee asked questions about whether the Department is adequately reviewing applications for immigration benefits. Representative Lou Barletta (R-PA) referred to the way that “employees within the DHS say that they are pressured to rubber-stamp citizenship and visa applications and lack the resources to adequately investigate applicants.” (Id.) Representative Broun echoed that concern with regard to the refugee program, saying, “I’m not sure that these refugees are being vetted as thoroughly as they should be. We have a lot coming from places around the world, where there are a lot of people who want to do harm to Americans.” (Id.)
Representatives Jeff Duncan (R-SC) and Candice Miller (R-MI) focused on the high rate of visa overstays. Noting that ICE devotes less than two-percent of its investigative resources investigating overstays, Rep. Duncan asked, “Don’t you think we ought to ramp up that percentage, put more effort in effectively enforcing the immigration laws that we have with regard to these overstays…?” (Id.) Johnson replied that “we should correlate resources to the removal” of aliens who pose greater national security and public safety threats. (Id.) Meanwhile Candice Miller (R-MI) reminded Secretary Johnson that his predecessor, Janet Napolitano, promised to give Congress a report with statistics on visa overstays and enforcement by the end of 2013, but Congress has yet to receive it. Johnson said that the report was still in draft form because he wanted more opinions before giving it to Congress.
Representative Miller and Congressman Lamar Smith (R-TX) criticized DHS for not having metrics to determine how secure the border is. Representative Smith declared, “we have no way of knowing, as we sit here right now, how secure or insecure the border is, other than 6.5 percent a few years ago was actually under actual control.” (Id.) Congresswoman Miller said, “I do think it’s important that we do have some actual metrics that the country can understand, that the Congress can understand, in regards to what kind of control we have at our border.” (Id.) Although Johnson responded to these concerns by agreeing that border security metrics were needed, he attributed DHS’s failures to operating “with the resources Congress has given us.” (Id.)
Oregon: House Votes to Hijack Ballot Title Process and Confuse Voters
On Thursday, the Oregon House of Representatives voted 36-24 to pass House Bill (H.B.) 4054, which would hijack the ballot title process established under Oregon law. If enacted, H.B. 4054 would not change the ballot process rules for all time, but instead make an exception to the normal process in just this one instance.
Representatives in the state House moved to change the process only after true immigration reformers and activists in the state were successful at getting a referendum added to November’s ballot that would overturn the state’s law that grants driver’s licenses to illegal aliens. The activists worked for months to get the signatures, documents, and proper language approved by the Attorney General so that all Oregonians could vote on the issue.
However, H.R. 4054 threatens to completely sabotage the work of Oregonians, whom these legislators claim to present. The bill would rewrite the state attorney general’s certified ballot title, bill summary, and questions to be posed to voters for a citizen-initiated veto referendum scheduled to appear on the November 2014 ballot. The referendum asks voters to approve or reject Senate Bill (S.B.) 833 that was passed last year, which grants driver’s licenses to illegal aliens. (Id.)
H.B. 4054 seeks to change the current ballot title in two major ways. First, it removes critical language regarding the very topic of the question voters are asked to decide. The ballot title and related language as certified by the attorney general clearly state that S.B. 833 grants driver’s licenses to illegal aliens. In an attempt to confuse and sway voters, the House version passed on Thursday removes any mention of this fact. The ballot title and related language is often the only description that many voters see and can have a dramatic effect on how a person votes.
Then, to make matters worse, H.B. 4054 insulates itself from the veto referendum process and prohibits judicial review of the revised ballot title. Under current Oregon law, any voter dissatisfied with the ballot title certified by the attorney general may appeal to the Oregon Supreme Court. Indeed, several parties have filed objections with the court here. H.B. 4054 would void those appeals.
Many legislators oppose H.B. 4054 because they believe the bill undermines the very purpose of the ballot initiative process: offering voters a way to check on the legislative process. “We’re tinkering with the process that was meant to get around us, the Legislature,” Representative Jason Conger said. (The Statesman Journal, Feb. 28, 2014) “It’s a slap in the face to those people who want to make their voices heard,” said Representative Cliff Bentz. (Id.)
Legislators who support the rewrite argue that it is necessary to express their intent in passing S.B. 833. “The reasons we (passed the law) were for providing access so that people could drive licensed and insured,” said Representative Jessica Vega Pederson. (The Oregonian, Feb. 27, 2014) “We want to make sure the ballot title reflects that intent. This is something we feel needs to be fixed.” (Id.)
Several major newspapers in Oregon have come out in opposition to H.B. 4054. The Oregonian editorial board has pulled no punches, calling H.B. 4054 a “disguised marketing effort” that seeks to bury the truth. (The Oregonian, Feb. 25, 2014) “The Legislature’s effort to write its own ballot title has nothing to do with accuracy. The effort, rather, betrays a belief that voters won’t approve S.B. 833 if they know what it actually does. This fear may be well-founded, but that’s no reason for lawmakers to debase their institution in this fashion.” (Id.) The Bulletin has called H.B. 4054 “legislative overreach” attempting “to hide the issue and confuse voters.” (The Bulletin, Mar. 2, 2014) The Statesman Journal has declared that “Legislators are mocking voters” and violating “the constitutional separation of powers” by interfering with the referendum process. (The Statesman Journal, Feb. 28, 2014) It recommends the Senate “deep-six” H.B. 4054. (Id.)
H.B. 4054 is now in the Senate Rules Committee awaiting consideration. If the bill passes the Senate, it must then be approved by the Governor before it can become law.