Legislative Update: 5/5/2015
Ten Percent of Births in U.S. to Illegal Aliens
Last Wednesday, for the first time in ten years, the House Judiciary Subcommittee on Immigration and Border Security examined the issue of granting automatic citizenship to those born in the U.S. in a hearing called “Birthright Citizenship: Is it the Right Policy for America?” (Hearing, Apr. 29, 2015) During the hearing, Jon Feere of the Center for Immigration Studies (CIS) demonstrated just how consequential the U.S.’s current policy of birthright citizenship was by highlighting that approximately one in ten births in the U.S. today are to illegal aliens. (Id.)
Every year, Mr. Feere testified, 350,000 to 400,000 children are born to illegal aliens in the United States who automatically become U.S. citizens. (Feere Testimony) He put this number in context by explaining that this number represents approximately 10% of all U.S. births today. Feere also warned that “birth tourism,” where a foreign citizen travels to the U.S. solely with the intention of giving birth on U.S. soil so that the child will obtain U.S. citizenship, is becoming increasingly common. (Id.) Though the numbers are difficult to calculate, he stated, based on the limited government data available, CIS estimates 35,000 to 36,000 expectant mothers come to the U.S. as birth tourists. (Id.)
But the other question that loomed over the hearing was whether Congress is really powerless to reform this crucial aspect of our current immigration law because of language in the 14th Amendment of the U.S. Constitution. (Id.) The other three witnesses, Professors Lino Graglia, law professor at the University of Texas at Austin; Dr. John Eastman, Director of the Claremont Institute’s Center for Constitutional Jurisprudence; and Richard Cohen, President of the Southern Poverty Law Center, spent most of their time on this question. (Id.) Professors Eastman and Graglia forcefully argued that, contrary to the frequent assertions by supporters of the policy, Congress’ hands are not tied. (Id.)
Chairman of the full Judiciary Committee, Bob Goodlatte (R-VA), began the hearing by stating that it is “far from settled” whether the Constitution mandates “automatic” citizenship. He noted that while the 14th Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” Congress and the courts have never clarified what “subject to the jurisdiction thereof” means. (Id.) Goodlatte also said he believes birthright citizenship is the wrong policy for the U.S., and that members of Congress, have the duty to “have an open and honest discussion about the consequences” of it.
In their testimony, Professors Eastman and Graglia examined the legal arguments why Congress can indeed restrict the Executive branch’s current practice of granting birthright citizenship without amending the Constitution. (Id.) Dr. Eastman explained that while today the phrase “subject to the jurisdiction” is often used to mean subject to the laws of the U.S., this meaning does not comport with the “text or history” surrounding the adoption of the citizenship clause. (Eastman Testimony) Rather, he argued, at the time Congress adopted the 14th amendment, “subject to the jurisdiction” required a person to not have “allegiance” to a foreign power. (Id.) Therefore, children born to parents here temporarily would not be citizens — they would still be citizens of their parents’ country. (Id.) Both the majority and the dissenting justices of the Supreme Court, he said, accepted the “allegiance” understanding of the phrase in the 1870’s with the Slaughterhouse cases. (Id.; see the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36)) The majority, Professor Eastman explained, noted that the main purpose of the citizenship clause was to establish citizenship for emancipated African-American slaves. (Eastman Testimony) It also, he said, went on to add that the phrase “subject to its jurisdiction” excluded “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” (Id.)
Professor Graglia similarly made the point that those who ratified the 14th Amendment could not have meant to bestow automatic citizenship on the children of illegal aliens because there were no restrictions on immigration at the time. (Graglia Testimony) Rep. Raul Labrador (R-ID), a former immigration lawyer who said he’d “long been a defender” of birthright citizenship itself, agreed that was a key distinction. (Hearing, Apr. 29, 2015) He questioned how the 14th Amendment could possibly have been meant to grant automatic citizenship to the children of those who were not permanent legal residents, when at the time, such categories of people did not exist in the way they do now. (Id.)
Republicans, DHS Secretary Spar over Immigration Enforcement
Last Tuesday, the Senate Judiciary Committee held a Homeland Security (DHS) oversight hearing with Secretary Jeh Johnson as the sole witness. Throughout the hearing, Republicans and Secretary Johnson sparred over various elements of President Obama’s immigration agenda. (Video available here)
Chairman Chuck Grassley (R-IA) called the hearing an “opportunity to question the administration’s policies as well as an opportunity for the department to take responsibility for its actions.” (Bloomberg Government Transcript, Apr. 28, 2015) Senate Republicans, said Grassley, object to a variety of DHS practices, including : (1) the “rubber-stamping” of deferred action applications, (2) placing illegal aliens on a path to citizenship; and (3) releasing criminal aliens into the community. (Id.)
Most of the hearing, however, focused on recent data that shows removals have significantly decreased since 2009. (See Washington Times, Apr. 14, 2015) Chairman Grassley charged, “It’s clear to me that the department no longer seems to have a will to enforce immigration laws. And I start with the statistics — interior removals plummeting from 237,000 in fiscal year 2009 to 102,000 in fiscal year 2014.” (Bloomberg Government Transcript, Apr. 28, 2015) Senator Ted Cruz (R-TX) agreed, stating, “I am very concerned by the lack of enforcement at the border, the lack of enforcement of our immigration laws.” (Id.) Noting that the drop in deportations began almost exactly at the beginning of President Obama’s “illegal amnesty,” he asked, “How do you explain a 41 percent drop in removals of aliens here illegally?” (Id.) Citing the same statistics, true immigration reformer Sen. Jeff Sessions (R-AL) declared, “All this has led, I believe, millions to conclude if they come here illegally, they’ll be successful.” (Id.)
Secretary Johnson dismissed the GOP concerns that the Obama administration is not enforcing immigration laws. “Our investment in border security is showing good results,” he claimed. (Id.) “I believe our downturn in the [apprehension] numbers is due to that.” (Id.) “There are fewer people attempting to cross the southern border,” he claimed. (Id.)
Instead, Secretary Johnson claimed the downturn in removals was due to several factors. First, ignoring that there are already about 12 million illegal aliens in the U.S. , he argued that removals for the fiscal year are lower because apprehensions for the fiscal year are lower. (Id.) Secretary Johnson, also ignoring the fact that the Obama Administration outright opposed amending the relevant laws, claimed he could not quickly deport illegal aliens because they “are increasingly from noncontiguous countries and the process of a removal of someone from a noncontiguous country is more time-consuming.” (Id.) Finally, when DHS could, but did not, withhold grant funds to ensure local cooperation, he blamed sanctuary cities for “passing laws, ordinances that prevented cooperating with us in our enforcement efforts.” (Id.)
Not surprisingly, these answers did not convince the Judiciary Republicans. Chairman Grassley rebuked Secretary Johnson’s explanation of moving resources to the border as “a red herring.” (Id.) Senator Cruz rejected Johnson’s claim that he wants to focus on removing criminals, noting that “the number of criminal aliens deported from the interior has declined 23 percent since last year and declined 39 percent since the peak of 2011.” (Id.) “So when it comes to violent criminals, the department is not stepping up its efforts,” Cruz said. (Id.) Senator Cornyn (R-TX) added, “I’ve always found it strange that we count success when the number of people actually detained goes down… The truth is you may not be doing as good a job and fewer people are being detained.” (Id.) Secretary Johnson merely replied that he has “heard of that allegation” when Sen. Sessions said agents are being instructed not to report groups of illegal aliens larger than 20. (Id.)
Finally, Secretary Johnson doubled down on his support for President Obama’s executive amnesty. Senator Cornyn flatly asked him, “Do you regret the actions that you and the administration have taken that have gotten us to this point?” to which Johnson replied, “No, I do not, Senator.” (Id.) After Johnson justified the executive amnesty on the premise that Congress refused to pass “comprehensive” immigration reform, Cornyn shot back, “So do you think it’s an excuse for the president to act unconstitutionally because Congress doesn’t act quickly enough to suit him?” (Id.) Johnson replied, “I have what is in my judgment as a lawyer a very, very thoughtful opinion from the Office of Legal Counsel that we have the legal discretion to do what we did.” (Id.)
Colorado House Passes Bill to Shield Criminal Aliens from Enforcement
On Monday, April 27, the Colorado House of Representatives passed House Bill (“H.B.”) 1356, which shields criminal aliens from the enforcement of immigration law by prohibiting state and local law enforcement from complying with requests by the United States Immigration and Customs Enforcement (“ICE”). If H.B. 1356 also passes the state Senate, Colorado will become the third state in the country to enact a statewide law prohibiting cooperation with federal immigration authorities, after California and Connecticut.
Specifically, H.B. 1356 prohibits state and local law enforcement in Colorado from complying with an immigration detainer or administrative warrant issued by ICE. (H.B. 1356) An immigration detainer is a request from ICE to a state or local law enforcement agency to maintain custody of an alien for no more than 48 hours so that federal officials may assume custody for the purpose of removal from the United States. (Id.) An administrative warrant, as defined by H.B. 1356, is an immigration warrant of arrest, order to detain or release aliens, notice of custody determination, notice to appear, removal order, warrant of removal, or any other document, issued by an immigration agent that can form the basis for an individual’s arrest or detention for an immigration enforcement purpose. (Id.) Additionally, H.B. 1356 prohibits Colorado courts from considering the existence of an immigration detainer or administrative warrant as a deciding factor in setting bond in criminal cases. (Id.)
H.B. 1356 was introduced after Colorado became the first state in the country to have all of its county jails agree to ignore detainer requests by ICE in all circumstances pursuant to threats of litigation made by the American Civil Liberties Union (“ACLU”). Beginning last year, the ACLU sent letters to sheriffs’ offices all over the country urging them to stop honoring ICE detainers, arguing that any detention of an alien on the basis of an ICE detainer is a violation of the 4th Amendment. (ACLU letter, Apr. 29, 2014)
The ACLU letters threaten, in bold letters, that any law enforcement agency that continues to do so “may be held liable for damages” under federal law. (Id.) The ACLU, however, made these claims based on an erroneous reading from a single federal court decision handed down in April 2014: Miranda-Olivares v. Clackamas County (Case No. 3:12-cv-021317-ST). In that case, the court held that an ICE detainer alone did not substantiate “probable cause” to allow a continued detention of the alien after they are eligible for release for the original crime. (Id.) However, ACLU letters fail to mention, that since the ruling on Miranda-Olivares, ICE has changed the immigration detainer form it sends to state and local law enforcement to include language and information providing officers sufficient probable cause to satisfy the 4th amendment. With the new, more detailed immigration detainer form, the Miranda-Olivares case is no longer relevant to a claim of an unlawful detention on the basis of an ICE detainer. Nevertheless H.B. 1365, reiterates the ACLU letters’ claims in its “Legislative declaration” section. (H.B. 1356 § 1)
Anti-cooperation legislation, such as H.B. 1365, exacerbate public safety threats because they create safe havens that encourage illegal immigration and facilitate criminal activity, especially in regard to drug- and gang- related crimes, human trafficking, and identity theft. To be successful in deporting criminal aliens, ICE needs the assistance of state and local law enforcement agencies. If the local agency does not hold the alien for ICE, it simply releases the criminal back onto the streets.
H.B. 1356 now moves to the Senate Committee on State, Veterans, & Military Affairs where it must pass before going on to the full Senate for consideration. If the Senate approves the bill, it must then be sent to Governor John Hickenlooper’s desk for approval before it can become law.