Legislative Update: 4/21/2015

Congress to Give President Obama Unilateral Authority to Increase Foreign Workers

Despite opposing the executive amnesty, the Republican-controlled Congress is on the verge of granting President Obama authority to implement his immigration agenda through trade agreements. Late last week, Congress struck a deal on legislation that gives President Obama fast-track trade promotion authority (TPA). Created in 1974, TPA gives the President the authority to negotiate trade deals for a period of time that Congress can approve or disapprove (by a simple majority vote). (See 19 U.S.C. §§ 2191-94; The Hill, Apr. 16, 2015) However, under TPA Congress cannot amend the deal so this restriction is essentially Congress ceding power to the executive branch. (See 19 U.S.C. §2191(d)) TPA expired on July 1, 2007 but remained in effect for agreements that were already under negotiation — the last of which was approved in 2011. (See 19 U.S.C. §3803(a)(1)) The Obama Administration has been seeking the reauthorization of TPA since 2012. 

Ceding this fast-track trade promotion authority to the Obama Administration has huge implications for immigration policy. Currently, the Obama Administration is negotiating a large trade deal with 11 Latin American and Asians countries, known as the Trans-Pacific Partnership (TPP). If approved, the TPP will increase immigration. Specifically, a “key feature” of the TPP is a “temporary entry” guest worker program. (See The Hill, Apr. 13, 2015; Office of the U.S. Trade Representative, TPP Outline) The scope of this new guest worker program is unclear, as the official outline of the deal merely describes it as “Specific obligations related to individual categories of business person are under discussion.” (Office of the U.S. Trade Representative, TPP Outline)

Importantly, if Congress passes TPA, it will have effectively ceded its control over immigration to the President. The U.S. Constitution gives Congress the power to “establish an uniform Rule of Naturalization.” (U.S. Const. Art. I, sec. 8, cl. 4) Moreover, the Supreme Court has interpreted this provision as granting Congress plenary (exclusive) power over immigration policy. For example, in Galvan v. Press, the Court held that “the formulation of policies [pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” (Galvan v. Press, 347 U.S. 522, 531 (1954)) Similarly, in Kleindienst v. Mandel, the Court ruled, “[t]he Court without exception has sustained Congress’ plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” (Kleindienst v. Mandel, 408 U.S. 753, 766 (1972))

Late last week, the debate in Congress over the fast-track trade promotion authority stalled when lawmakers officially introduced TPA legislation, casting doubt on its passage. The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 gives the President TPA authority for three years with the option of a three year renewal. However, unlike previous versions of TPA, this bill includes a provision where 60 votes in the Senate could turn off the fast-track process without expressly voiding the trade agreement. Republicans generally support TPA because trade agreements tend to favor business interests. Yet, liberals “overwhelmingly” oppose TPA, with Sen. Bernie Sanders (I-VT) saying “trade agreements have forced wages down in America” while the Congressional Progressive Caucus called it “a threat to our constituents, our economy, and the checks and balances that make our democracy work.” (Washington Times, Apr. 19, 2015)

The Senate Finance Committee is expected to work on the TPA legislation tomorrow.

ICE Released 30,000 Criminal Aliens in FY 2014

Last Tuesday, the House Judiciary Committee revealed that U.S. Immigrations and Customs Enforcement (ICE) released 30,558 criminal aliens with a total of 79,059 criminal convictions back onto the streets in fiscal year 2014. (House Judiciary Press Release, Apr. 14, 2015) These convictions included 86 homicide convictions; 186 kidnapping convictions; 373 sexual assault convictions; 449 commercialized sexual offenses; 1,194 battery convictions; 1,346 domestic violence convictions; and 13,636 driving under the influence of alcohol convictions. (Id.; see ICE Breakdown)

The same day, the House Judiciary Committee held an oversight hearing to question ICE Director Sarah Saldana, with a particular focus on these releases and the Administration’s toleration of “sanctuary” policies that also release criminal aliens on the streets. (House Judiciary Oversight Hearing, Apr. 14, 2015) Committee Chairman Bob Goodlatte (R-VA) criticized the Administration for claiming it must release criminal aliens because of the Supreme Court decision Zadvydas v. Davis. (House Judiciary Press Release, Apr. 14, 2015). That case held that a convicted criminal alien who had completed his sentence but whose country of origin refused repatriation could not be detained indefinitely. (See Zadvydas v. Davis, 533 U.S. 678 (2001)) However, Chairman Goodlatte pointed out that only eight percent of the criminal aliens, who had committed only 20% of the convictions, had been released because of Zadvydas v. Davis. (House Judiciary Press Release, Apr. 14, 2015)

Moreover, Chairman Goodlatte pointed out that ICE released these criminal aliens even as ICE apprehensions have dropped 40% since this time last year, with administrative arrests of criminal aliens dropping 32%. (Id.) In fact, the number of criminal aliens removed from the interior of the country has fallen by more than half since 2008. (Id.) The “factors” behind these falling numbers, Goodlatte argued, are ICE’s new enforcement priorities that shrink “the universe of criminal” aliens ICE can remove, the end of Secure Communities, and ICE’s decision to limit the use of detainers and not defend its detainer authority. (Id.; see FAIR Legislative Update, Mar. 31, 2015)

During the hearing, ICE Director Saldana had few answers for the release of criminal aliens. Representative Lamar Smith (R-TX) asked Director Saldana why the administration “intentionally endanger[ed]” Americans by releasing thousands of criminal aliens into our neighborhoods. (Bloomberg Government Transcript, Apr. 14, 2014) Director Saldana first claimed that “the Chairman” noted that about “half in 2014” were a result of Zadvydas. (Id.) After Rep. Smith corrected her that the number was 8% not almost half, she said “Congress lays out due process” for “every person that is detained” and that ICE “cannot deport any individual without an order from the court.” (Id.) She also said that 35% of convicted criminal alien releases were “under orders from the immigration courts that we have to comply with.” (Id.)

Chairman Goodlatte, who practiced immigration law before being elected to Congress, pointed out to Director Saldana that, contrary to her statements implying that those 35% of the releases had been forced upon ICE, in fact ICE does not always need an immigration court order to deport an individual. (Id.) He asked her if she was not aware that Immigration and Nationality Act (INA) Sections 235, 238, and 241 “explicitly state” when “expedited removal” is appropriate. (Id.) In those cases, one of which applies to aggravated felons, Congress allows ICE to simply deport illegal aliens rather than force the agency to add them to the backlog of cases in drawn out removal proceedings. (Id.; see INA Section 238: Expedited Removal of Aliens Convicted of Committing Aggravated Felonies) When she answered that she was aware, he told her that was what she “should” be doing. (Bloomberg Government Transcript, Apr. 14, 2014)

Director Saldana also sought to blame the courts for ICE’s failure to prevent criminal aliens from being released onto the street as a result of “sanctuary policies” by state and local governments. (Id.) Chairman Goodlatte explained that 200 jurisdictions refuse to honor ICE detainers, and have denied 12,000 in 2014 and 3,000 so far in 2015. (Id.) He also pointed out that even Saldana herself had testified in support of mandating these jurisdictions to cooperate with ICE before reversing herself the next day. (Id.; see FAIR Legislative Update, Mar. 31, 2015) He said: “while you flip flop before Congress and the American people,” ICE officers need to put themselves at unnecessary risk apprehending criminals who were already in law enforcement custody. (Bloomberg Government Transcript, Apr. 14, 2014) Why, he asked, did ICE persist in the “fool’s errand” of “politely asking” for cooperation, instead of taking an aggressive stance defending its own authority? (Id.) Her answer was that there was “a morass of lawsuits across the country,” and that she was committed “to asking communities to assist us” and to “persuade” them their communities would be safer if they cooperated. (Id.) 

Representative Smith pressed her on why the Administration had limited itself to asking for cooperation, rather than trying to “force local communities to follow the law.” (Id.) He noted that the administration had “never filed any lawsuit against any entity” or “done anything” to enforce Secure Communities. (Id.) Her answer was that “there are plenty of lawsuits out there that are still in the middle of litigation,” so she was not going to “get in the middle of those.” (Id.) She said that she had personally met with law enforcement officials, rather than “sitting on [her] hands.” (Id.)

While lawsuits by groups like the American Civil Liberties Union (ACLU) have indeed been attacking ICE detainers in sympathetic jurisdictions, it is the Administration’s choice not to appeal such rulings by a single federal district judge rather than let them set national precedent, as it certainly does when its amnesty policies lose in district court. (See FAIR Legislative Update, May 21, 2014; FAIR Legislative Update, Mar. 17, 2015)

SSN Locking Tool Now Available Nationwide

Last Monday, U.S. Customs and Immigration Services (USCIS) announced that the tool designed to combat illegal aliens who steal identities in order to game E-Verify, called Self Lock, is now available nationwide. (USCIS Press Release, Apr. 13, 2015) In an effort to give workers more protection against identity theft, USCIS created myE-Verify which allows employees and job seekers to create an account that manages their personal information. (USCIS Press Release, Oct. 6, 2014) Self Lock is a tool available to people with myE-Verify accounts that allows individuals to lock their social security numbers, preventing unauthorized use of the social security number within E-Verify. (Id.) USCIS initially launched Self Lock in October 2014 in five states and the District of Columbia but the added protections are now available throughout the country. (See FAIR Legislative Update, Oct. 14, 2014; USCIS Press Release, Oct. 6, 2014) 

In announcing the expansion of Self Lock, USCIS Director Leon Rodriguez said, “Since its inception, E-Verify has provided employees with valuable online tools and resources regarding the employment eligibility verification process.” (USCIS Press Release, Apr. 13, 2015) “myE-Verify signifies a significant step forward for added transparency, features, and identity protection.” (Id.) Although Congress has yet to pass mandatory E-Verify legislation, in a 2013 survey, 92% of users reported that E-Verify is effective in screening new employees. (E-Verify Survey Report, Apr. 30, 2014)

California Committee Passes Bill to Provide Health Care Coverage to Illegal Aliens

On April 15, the California Senate Committee on Health passed Senate Bill (“S.B.”) 4 which makes sweeping changes to the state’s health care laws by providing illegal aliens with health care coverage. (Sacramento Bee, Apr. 15, 2015) S.B. 4, which was introduced by Senator Ricardo Lara, will open up Medi-Cal, California’s taxpayer-funded health care program for poor citizens, to illegal aliens. It will also either allow illegal aliens to seek a federal waiver permitting them to purchase health insurance on the state exchange, or if the federal government does not approve, the bill will create a new taxpayer-funded exchange to give health care insurance to illegal aliens. (S.B. 4)

Specifically, the bill allows the State of California to circumvent the provisions in the Patient Protection and Affordable Care Act (known as Obamacare) barring illegal aliens from enrolling in the state health care exchange. It does so by allowing the state to accept waivers from the federal government allowing illegal aliens access to the California Health Benefit Exchange. (Id.; PPACA § 1332) If the federal government does not agree to grant waivers in mass to California’s illegal aliens by 2017, S.B. 4 will instead create a new exchange solely for illegal aliens. (S.B. 4) To do this, S.B. 4 requires the same executive board that governs the California Health Benefit Exchange established under Obamacare to facilitate the enrollment of individuals who are ineligible to purchase coverage through the exchange because of their immigration status into qualified health plans. (Id.) By funding the new exchange with state money and surcharges on qualified plans, S.B. 4 is able to avoid federal law’s prohibition. (Id.)

In addition, S.B. 4 extends eligibility for full-scope Medi-Cal benefits to illegal aliens. (Id.) Federal law currently prohibits illegal aliens from receiving Medi-Cal, which is partly funded by federal money. S.B. 4 gets around this prohibition by only using California taxpayer money in funding illegal aliens’ Medi-Cal coverage. (Id.)

Senator Lara introduced a similar bill, S.B. 1005, last year which proved unsuccessful after the Senate Appropriations Committee reported the bill would cost California taxpayers over $1.3 billion a year if just 40% of illegal aliens currently residing in California enrolled. (Courthouse News, Apr. 16, 2015, S.B. 1005 Fiscal Summary) California currently has the largest population of illegal aliens in the country. As of 2014, California’s illegal alien population was estimated to be almost 3 million people, costing state taxpayers over $25.3 billion a year. (FAIR Report, 2014)

At last week’s hearing on S.B. 4, State Senator Janet Nguyen announced her concern that S.B. 4 would strain California’s already over-burdened Medi-Cal program. (Sacramento Bee, Apr. 15, 2015) “We don’t have enough doctors … willing to accept Medi-Cal patients,” Senator Nguyen said. (Id.) “What happens when we add millions more people to a system that is already struggling to serve its members?” (Id.)

By removing all immigration status requirements for Medi-Cal eligibility, S.B. 4 will likely add thousands, if not millions, of new subscribers to the program despite the program’s current budget crisis. In 2011, the Legislature was forced to slash Medi-Cal funding by 10 percent. (Los Angeles Times, June 10, 2013) Reportedly, the cuts will already reduce provider accessibility and services and the overall quality of healthcare for the millions of California residents already dependent on Medi-Cal. (Id.) S.B. 4 will only further strain Medi-Cal by depleting the resources keeping it afloat and further reduce access to quality medical services for all Californians enrolled in Medi-Cal.

The Senate Appropriations Committee must consider S.B. 4 before it can be sent to the full Senate for a vote. The full Senate and Assembly must approve S.B. 4 before it can reach Governor Jerry Brown’s desk for signature.