Legislative Update: 4/12/2016

Obama Slashes Syrian Refugee Vetting Time to Three Months

As part of a new surge operation aimed at meeting President Obama’s self-imposed goal of resettling 10,000 Syrian refugees by the end of the fiscal year, the administration has decided to rush the refugee vetting process that is supposed to ensure the safety and security of the American people. (Washington Times, Apr. 7, 2016) “While the resettlement process usually takes 18 to 24 months, under the surge operation this will be reduced to three months,” said Gina Kassem, the regional refugee coordinator in Amman, Jordan. (Id.)

Approximately 1,000 refugees processed through a new resettlement center in Amman were resettled in the United States last week, marking the first wave of the surge. (Id.) The center was opened last February to help meet the president’s goal and is expected to interview 600 Syrian refugees daily. (Id.) Kassem noted that the amount of refugees resettled in the country could eclipse 10,000. (Id.) “[10,000] is a floor, not a ceiling and it is possible to increase the number,” she said. (Id.)

The decision to expedite the vetting process contradicts reassurances given by President Obama when he lectured Americans leery of accepting refugees after the deadly Paris massacre last November. (CNS News, Apr. 7, 2016) “Understand, under current law, it takes anywhere from, on average, 18 to 24 months to clear a refugee to come into the United States,” the president said. (Id.) “They are subjected to the most rigorous process conceivable.” (Id.) Now, just two weeks after the attacks in Brussels and renewed promises by ISIS to infiltrate operatives in Western nations to carry out terrorist attacks, the president is putting the American public at risk by making an already inadequate vetting process even less secure.

Obama’s Non-Enforcement Agenda Leads to Another Senseless American Death By an Illegal Alien

In a drunken street car race in Omaha on January 31, illegal alien Eswin Mejia, driving on a suspended license, killed 21 year-old Sarah Root. In a March 15 hearing, Sen. Ben Sasse (R-NE) grilled Immigration and Customs Enforcement (ICE) Director Sarah Saldana as to why ICE agents failed to detain Mejia. Her conflicting testimony dissatisfied Sen. Sasse, who requested a written response to his questions. (See FAIR Legislative Update, Mar. 22, 2016) Outrageously, in her subsequent response to Sen. Sasse, Saldana stated that Mejia wasn’t detained by immigration officials because his offense did “not constitute a crime of violence”. (See Saldana Letter to Sasse, March 2016)

Mejia was charged with felony motor vehicle homicide on February 3, three days after the crash. (Grassley and Goodlatte Letter to DHS, Mar. 2, 2016) Since he had various traffic infractions and failed to appear in court, local authorities reportedly contacted ICE numerous times to notify the agency of Mejia’s elevated flight risk and request that ICE take custody of him, but ICE denied their requests. (See FAIR Legislative Update, Mar. 22, 2016) Mejia later posted bond and is now a fugitive from justice. (Id.)

An ICE spokesman initially stated that the agency did not detain Mejia because his arrest for felony vehicular homicide “did not meet ICE’s enforcement priorities.” (Id.) These narrow enforcement priorities were laid out in a November 2014 policy memo issued by Department of Homeland Security (DHS) Secretary Jeh Johnson. (Id.; see DHS Enforcement Priorities Memo) The memo places a priority on the apprehension, detention, and removal of illegal aliens with felony records, significant misdemeanor convictions, gang ties, and those who pose terrorist threats. (See FAIR Legislative Update, Nov. 24, 2014) However, ICE may refuse to take custody of illegal aliens from state and local law enforcement when such aliens exhibit criminal behavior, but have not been convicted of a felony and most misdemeanors. (Id.)

More details have since emerged about Mejia, who is a citizen of Honduras. He first encountered Border Patrol agents in May 2013 when he unlawfully crossed the border in Nogales, AZ as a 16 year-old unaccompanied minor (UAC). (See Saldana Letter to Sasse, March 2016) Because of a loophole in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 Mejia “was allowed to stay” since UACs from Central America cannot be promptly returned to their home countries. (P. Law 110-457; see FAIR Legislative Update, Dec. 15, 2015) As “required” by law, claimed Saldana, Mejia was issued a Notice to Appear and was released to his brother’s custody by the Department of Health and Human Services Office of Refugee Resettlement. (See Saldana Letter to Sasse, March 2016) However, because of court backlogs due to the surge of UACs Mejia’s immigration hearing date was scheduled for April 19, 2016 — nearly three years after he illegally entered the country and months after he killed Root. (See FAIR Legislative Update, Feb. 16, 2016)

aldana belatedly determined that ICE’s initial response not to detain Mejia was a mistake and he was placed on ICE’s “Most Wanted” list. Senator Sasse blasted Saldana’s response as “bureaucratic nonsense” for not addressing why ICE did not detain an illegal alien who killed an innocent woman and is now on the run as one of ICE’s most wanted. He has requested Homeland Security Department Secretary Jeh Johnson provide the answers lacking in Saldana’s response. (See Sasse Letter to Johnson, Apr. 4, 2016)

Representation for Illegal Aliens Left Unanswered by Supreme Court Ruling

In a unanimous 8-0 ruling, the Supreme Court ruled that states may apportion voting power based on the general population rather than the number of eligible voters. At issue in Evenwel v. Abbott was how the principle of “one person, one vote” should be determined to comply with the equal protection clause of the 14th Amendment. (SeeFAIR Legislative Update, June 2, 2015) Two voters in Texas, Sue Evenwel and Edward Pfenniger, sued their state for using a count of the general population rather than the number of eligible voters to determine state senate districts. (Id.) The plaintiffs claimed that they live in a district with substantially fewer numbers of non-citizens than other districts, and as a result, their votes for state senate are diluted in comparison to the votes of citizens in other districts. (Id.) The Supreme Court rejected their argument that states must use the number of eligible voters in order to comply with the “one person, one vote” principle, holding that “a State may draw its legislative districts based on total population.” (Evenwel v. Abbott, 578 U.S. ___, 1 (2016))

Importantly, the Court’s narrow ruling leaves unanswered the question whether States can exclude non-citizens, including illegal aliens, when establishing voting districts. As Justice Ginsburg’s majority opinion notes, “we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population.” (Id. at 19) Justice Thomas authored a separate concurring opinion highlighting the distinction. “I agree with the majority that our precedents do not require a State to equalize the total number of voters in each district,” Thomas wrote. (Id. at Thomas, J. concurring) “I write separately because this Court has never provided a sound basis for the one-person, one-vote principle.” (Id. at 1) After a thorough review of the Constitution, Thomas concluded “a State has wide latitude in selecting its population base for apportionment. It can use total population, eligible voters, or any other nondiscriminatory voter base.” (Id. at 17)(internal citations omitted)

Oral Arguments Nearing, Mapping Out Potential Outcomes in U.S. v. Texas

The Supreme Court is gearing up to hear oral arguments in United States v. Texas — the 26 state lawsuit challenging President Obama’s November 2014 executive amnesty programs — on April 18. With the untimely passing of Justice Antonin Scalia earlier this year, there will be only eight justices to decide the case.

4-4 Split Vote

Many legal experts believe a 4-4 outcome is particularly likely in this case, with the four justices appointed by Republican presidents expected to side with the states and the four justices appointed by Democratic presidents expected to side with the administration. In the event of a tie vote, the lower court’s decision stands. Under this scenario, the Fifth Circuit Court of Appeals ruling in favor of the states will be upheld. Last November, the Fifth Circuit kept in place Judge Hanen’s injunction blocking the implementation of Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). (See FAIR Legislative Update, Nov. 17, 2015) With the injunction still in place, the case will return to Judge Hanen for the parties to litigate the merits of whether President Obama has the authority to unilaterally grant executive amnesty. After Judge Hanen rules on the merits, the case will assuredly be appealed to the Fifth Circuit by the losing party and then appealed again to the Supreme Court. In total, the litigation is expected to last several years before it returns to the Supreme Court and, by that time, Justice Scalia’s vacant seat will be filled.

However, there are other notable implications for a 4-4 vote. A tie vote means there is no Supreme Court precedent. Additionally, the SCOTUS is unlikely to provide an analysis when it rules on the appeal later this year and instead offer a simple statement affirming the lower court’s holding. This is notable because when the high court accepted the case, it specifically asked the parties to brief and argue whether DAPA and expanded DACA “violates the Take Care Clause of the Constitution, Art. II, §3.” (See FAIR Legislative Update, Jan. 19, 2016)

No Ruling This Term

Since U.S. v. Texas is one of the most important cases before the Supreme Court, another option for the justices is to push its decision until later by keeping the 4-4 outcome and ordering a reargument of the case. The Supreme Court generally exercises this authority when it wants to identify additional issues for consideration, it determines more time is needed to resolve a case, or it believes the issue presented to be so significant as to warrant a decision by all nine justices.

It is not uncommon for the Supreme Court to reargue cases. Historically, the high court has reargued cases like Brown v. Education, Roe v. Wade, and Citizens United v. the Federal Election Committee. While there are no set rules or procedures for rearguing a case, it can be used to clarify issues that were not fully explored during oral arguments. However, some experts have stated that rearguing the U.S. v. Texas case may not be a viable option because this is an election year and the vacancy on the Court may not be filled before the new term. Further, once a new President is elected, the issue may be moot.

5-3 Majority Ruling

The other potential outcome is a 5-3 majority ruling in favor of one of the parties. Though considered highly unlikely, one of the Democratic-appointed justices joining with the four Republican appointees to uphold the injunction would be particularly significant. This scenario would establish Supreme Court precedent rejecting President Obama’s claimed executive power and presumably the decision would include an analysis on the Take Care Clause question.

On the other hand, some legal experts still believe there is a possibility that either Chief Justice John Roberts or Justice Anthony Kennedy could be swayed to side with Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor in favor of the administration’s position. In the event that a majority lifts the injunction, the Obama administration is expected to approve as many DAPA and expanded DACA applications as it can before the President’s term ends in January while the case is being litigated on the merits.

Ultimately, how Kennedy — who is always seen as the “swing vote” — and Roberts vote will determine the outcome of this case. Most Court watchers are continuing to predict this case will be a 4-4 tie and will be sent back to Judge Hanen for the parties to litigate the merits.

Stay tuned to FAIR’s United States v. Texas Resource Page throughout the Summer for updates on the case.

43 Republican Senators File Amicus Brief Opposing Obama’s Executive Amnesty

Last week, Majority Leader Mitch McConnell (R-KY) led nearly four dozen Senate Republicans in filing an amicus brief with the Supreme Court in support of the 26 states challenging President Obama’s unconstitutional executive amnesty programs.

The Supreme Court took up the states’ case, U.S. v. Texas, after the Fifth Circuit Court of Appeals last November affirmed a preliminary injunction blocking the Obama administration from moving forward with implementing the DAPA and expanded DACA amnesty programs. The Supreme Court is set to hear arguments on April 18 and expected to issue a ruling in June.

In the amicus brief, the senators rightfully note that President Obama’s use of executive action to grant de facto amnesty to millions of illegal aliens “stands in stark contravention to federal law and the constitutional principle of the separation of powers.” They add that the president’s executive overreach was an “explicit effort to circumvent the legislative process.”

While Majority Leader McConnell’s effort to file an amicus brief in support of the plaintiff-states should have had unanimous support from the Senate Republican Conference, it did not. Out of the 54-member conference, 43 senators signed the amicus brief, while 11 decided not to take a stand against amnesty and the administration’s usurpation of power only entrusted to the legislative body in which they serve.

The 43 Senate Republicans who joined the amicus brief are Senators Alexander, Barrasso, Blunt, Boozman, Capito, Cassidy, Coats, Cochran, Corker, Cornyn, Cotton, Crapo, Cruz, Daines, Enzi, Fischer, Graham, Grassley, Hatch, Hoeven, Inhofe, Isakson, Johnson, Lankford, Lee, McCain, McConnell, Moran, Paul, Perdue, Risch, Roberts, Rounds, Rubio, Sasse, Scott, Sessions, Shelby, Sullivan, Thune, Tillis, Vitter, and Wicker.

The 11 Senate Republicans who did not join the amicus brief are Senators Ayotte, Burr, Collins, Ernst, Flake, Gardner, Heller, Kirk, Murkowski, Portman, and Toomey.

Stay tuned to FAIR’s U.S. v. Texas Resource Page for updates on the most important case that the Court will decide this year.

Tennessee Sends E-Verify Legislation to Governor

The Tennessee General Assembly passed legislation that would strengthen the state’s E-Verify law on Thursday, April 7. (Tennessee Senate Republic Caucus, Apr. 7, 2016) E-Verify is a free, web-based program, created and maintained by the federal government, that allows employers to determine the work authorization status of newly hired employees.

The legislation, Senate Bill 1965 and House Bill 1830 (SB 1965/HB 1830), will make it harder for employers to hire illegal aliens, and will increase penalties for failure to verify a new employee’s eligibility to work in the United States. (Id.) Specifically, SB 1965/HB 1830 amends Tennessee law to require all employers with 50 or more employees to use E-Verify. (Amendment to SB 1965 § 7) As currently written, Tennessee law allows many employers to avoid using the program so long as they retain copies of certain employee documentation. (Tennessee Code Annotated, § 50-1-703)

The measure also strengthens penalties for employers who knowingly violate work authorization verification requirements by creating a $500 civil penalty per day if the employer fails to use E-Verify. The only way that employers will be able to get around the E-Verify requirement is if they submit an affidavit stating that using the program would pose an undue hardship. (Amendment to SB 1965 at § 16) Tennessee Senator Jim Tracy (R-14) and Representative Pat March (R -57) introduced SB 1965/HB 1830 to deter illegal immigration and make it harder for employers to hire unauthorized workers. “This bill strengthens the law to stop the influx of illegal aliens who come here fraudulently for employment,” Senator Tracy commented. (Times-Gazette, Apr. 8, 2016)

The lawmakers found that employers in the state were frequently violating the law and treating the risk of a one-time fine as a standard business expense. (Id.)”Over the summer, I got a progress report on the E-Verify law we passed in 2011,” added Senator Tracy. (Id.) “While the report showed the system is working, we saw there is room for improvements; particularly in dealing with bad actors that would rather pay a fine than follow the law we passed to ensure that companies are hiring legally eligible employees.” (Id.)

Governor Bill Haslam (R) must sign SB 1965/HB 1830 before it can become law. SB 1965/HB 1830, if signed, will go into effect on July 1, 2016. (SB 1965/HB 1830 at § 17)