Legislative Update: 6/20/2017
Trump Administration Officially Ends DAPA
By: Robert Law
President Donald Trump followed through with one of his major campaign promises last week, terminating one of President Obama’s unconstitutional amnesty programs. On June 15, Department of Homeland Security (DHS) Secretary John Kelly announced that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) amnesty program is officially rescinded. (DHS DAPA Rescission, June 15, 2017) Additionally, Secretary Kelly voided the 2014 expansion of the Deferred Action for Childhood Arrivals (DACA) amnesty program. (Id.; see FAIR Legislative Update, Nov. 24, 2014)
Shortly after the American people rejected President Obama’s anti-enforcement agenda during the 2014 elections, then-DHS Secretary Jeh Johnson issued a series of memos on November 20, 2014 that further eroded the rule of the law. One memo attempted to expand DACA by increasing the deportation reprieve (and work authorization) from two years to three and broadening the categories of illegal aliens who would qualify for the executive amnesty program. (Id.) DAPA was a new amnesty program, similar to DACA, which granted deportation relief and work authorization to the illegal alien parents of U.S. citizen or green card holder children. (Id.) The Migration Policy Institute (MPI) estimated that at least 3.6 million illegal aliens would qualify under DAPA. (MPI’s DAPA Study, February 2016)
Politically, ending DAPA and the expansion of DACA was easy because no illegal aliens ever benefited from these amnesty programs. Back in 2015, Federal District Judge Andrew Hanen issued a nationwide injunction blocking DAPA and expanded DACA after Texas and 25 other states sued. (See FAIR Legislative Update, Feb. 18, 2015) That injunction has remained in effect since the Supreme Court split 4-4 upholding the injunction and sending the case back to Judge Hanen for litigation on the merits. (See FAIR Legislative Update, June 28, 2016) In his memo officially rescinded these lawless amnesty programs, DHS Secretary Kelly declared “there is no credible path forward to litigate the currently enjoined policy.” (CITE, June 15, 2017)
While the official rescission of DAPA is welcomed news, the Trump administration has disappointedly decided to break its campaign promise on ending DACA. Earlier this month, U.S. Citizenship and Immigration Services (USCIS) published first quarter 2017 data on DACA, revealing that the federal government granted amnesty to over 17,000 illegal aliens for the first time and renewed executive amnesty for over 107,000 DACA recipients. (See FAIR Legislative Update, June 13, 2017) At a rate of 192 new illegal aliens amnestied per day, the Trump administration is approving unconstitutional DACA applications at the same rate as the Obama administration. Worse, in the same memo ending DAPA, Secretary Kelly affirmed that the “June 15, 2012 memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.” (DHS DAPA Rescission, June 15, 2017)
In a press release, Dan Stein, FAIR’s president, applauded the official termination of DAPA and called on the Trump administration to end DACA. “We commend the Trump administration for following through on its promise to formally end DAPA, President Obama’s illegal and unconstitutional attempt to grant several million illegal alien parents a de facto executive amnesty and work authorization,” Stein said. (FAIR Press Release, June 16, 2017) “Clearly, DACA raises the same legal questions that ultimately resulted in the termination of DAPA. This calls into question the legitimacy of DACA as well.” (Id.)
By: Robert Law
In a blatant example of judicial activism, a federal judge in Georgia ruled that the federal government is limited in its ability to enforce the law against illegal aliens who received “temporary” executive amnesty. (Washington Post, June 12, 2017) District Judge Mark. H. Cohen, representing the Northern District of Georgia, ordered ICE to temporarily reinstate Jessica Colotl’s Deferred Action for Childhood Arrivals (DACA) status on June 12, despite the agency’s decision that the applicant was no longer eligible after she committed a crime. (Order) Colotl is a 28 year old Mexican citizen residing illegally in Georgia. (Id.)
Specifically, Judge Cohen ordered ICE to temporarily reinstate Colotl’s DACA status and reconsider her DACA renewal application. (Order) As a result, Colotl will also regain work authorization that she initially received when she became a DACA recipient. (Id.) Judge Cohen justified the order by reasoning that the agency did not follow its own procedures in the termination of her status. (Id.)
DACA is an unconstitutional administrative amnesty created by the Obama administration in 2012 to defer removal proceedings for certain illegal aliens. (See FAIR Legislative Update, June 19, 2012) To become a DACA recipient, an illegal alien must have entered the country under the age of 16 and have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, in addition to other requirements. (Id.) Furthermore, illegal aliens who ICE determines “pose a threat to national security or a threat to public safety” are ineligible. (Id.) Once an illegal alien becomes a DACA recipient, they are then also eligible to receive work authorization and a social security number. (Id.)
Despite conflicting with a handful of federal laws, the Obama administration framed DACA as an exercise of prosecutorial discretion. (Id.) Memorandum issuing the program reinforce this categorization by stating the DACA program is merely a deferment of deportation and “confers no substantive right, immigration status, or pathway to citizenship.” (Napolitano Memo, June 15, 2012) The agency also has repeatedly reminded the public that the exercise of discretion can be terminated at any time.
The ruling sharply contradicts the notion that DACA is a temporary deferment of deportation and can be revoked at any time by the federal government. Judge Cohen’s decision supplants the federal government’s discretion and forces the Trump administration to maintain the enforcement priorities of the former administration. The Trump administration is likely to appeal the decision.
By: RJ Hauman
Last week, the U.S. House of Representatives passed Rep. Lou Barletta’s (R-PA) legislation to deny health care tax credits to illegal aliens and ensure that these taxpayer dollars only go to individuals with a valid Social Security Number (SSN). The Verify First Act, H.R. 2581, passed by a bipartisan vote of 238-184 and now goes to the Senate for consideration. (H.R. 2581; House Roll Call Vote 306) “Every taxpayer dollar that goes to someone committing fraud is a dollar that is not going to help working families and those who truly need and deserve assistance,” Barletta said in a press release. (Barletta Press Release, June 13, 2017) “My bill would fix this problem by verifying that an individual is legally entitled to taxpayer-funded benefits before those dollars go out the door.” (Id.)
Federal law explicitly prevents illegal aliens from receiving tax credits. Despite this, a recent report by the Senate Homeland Security and Governmental Affairs Committee found that nearly 500,000 illegal aliens received approximately $750 million in taxpayer-funded health care subsidies as of June 2015. (Senate HSGAC Report, Feb. 8, 2017) Under Obamacare, the federal government pays health care tax credits on a “temporary basis” to individuals who are unable to verify their citizenship. (Id.) If an individual is ultimately unable to verify their immigration status, the funding is suspended and the Internal Revenue Service (IRS) attempts to recoup overpayments from the individuals who were wrongly covered. (Id.) This challenging practice – known as “pay and chase” – is costing taxpayers millions. (Id.)
As a complement to the recently passed American Health Care Act (AHCA), the Verify First Act ensures that the IRS has verified that an individual is a citizen, national, or lawfully present in the United States before the advance health insurance premium tax credit is disbursed. This will be done by checking an applicant’s SSN or other immigration documents. Additionally, the legislation prohibits the use of the Individual Taxpayer Identification Number (ITIN), which are issued without verification of legal status.
While it is unclear if the Senate will take up the Verify First Act or insert similar language in a revised version of the AHCA, the legislation has the clear support of the Trump administration. “If H.R. 2581 were presented to the President in its current form, his advisors would recommend that he sign the bill into law,” read a Statement of Administration Policy issued by the White House. (Statement of Administration Policy, June 13, 2017)
By: Shari Rendall
On June 9, Governor Bill Haslam (R-TN) signed House Bill (HB) 1041 into law making Tennessee one of the toughest states in the country on criminal aliens. The bill allows judges to tack on extra years to a criminal’s sentence if the individual who committed the crime was “illegally or unlawfully” in the country. (HB 1041) The judge, however, is not bound to add the sentencing enhancement. (Id.)
Representative Ron Gant (R-94), the bill’s sponsor, said, “This is a common sense piece of legislation that not only works to keep Tennesseans safe, but also punishes undocumented criminals to the fullest extent of the law.” (See Tennessee House Republican Caucus Release, Apr. 4, 2017)
However, instead of seeing the bill as a deterrent, those opposing the legislation plan to challenge the law’s constitutionality with a red herring argument, claiming, “Immigration status is a federal civil matter, not something the states can legally determine.” (The Tennessean, May 12, 2017) Further they argue that the bill raises equal protection concerns because it treats individuals differently based on nationality.” (Id.) While signing the bill, Governor Haslam said that the administration’s legal team is very confident about the constitutionality of this law.
The Massachusetts’ Joint Committee on Public Safety and Homeland Security held a hearing on June 9 on two dangerous sanctuary bills. House Bill 3269 (HB 3269), and the Senate version (SB 1305), ironically called the Safe Communities Act, endanger the citizens of Massachusetts by obstructing immigration enforcement and shielding illegal aliens from enforcement.
Just prior to the hearing, Governor Charlie Baker (R-MA) announced his opposition to the bill. He urged lawmakers in the Bay State to defeat the bill and not make Massachusetts a sanctuary state. The legislation, said Governor Baker “would prevent the Massachusetts State Police from upholding our policy to detain individuals for federal authorities that have been convicted of heinous crimes, like murder and rape.” (NECN News, June 9, 2017) Despite opposing Massachusetts becoming a sanctuary state, Governor Baker believes sanctuary policies should be decided at the local level. (See Mass Live, May 1, 2017)
While Governor Baker’s opposition to Massachusetts becoming a sanctuary state is good news, efforts to oppose this legislation must continue. The government in Massachusetts is divided – the Governor is a Republican, while the legislature is overwhelmingly Democratic. If the legislature sends Governor Baker this sanctuary legislation and he vetoes it, the legislature needs two-thirds in each house to override it. In the Senate, 34 out of the 40 members are Democrats and in the House, the numbers are 125 out of 160. However, key Democrats, like House Speaker Robert DeLeo, have not jumped on the sanctuary state bandwagon. (See Boston.com, Feb. 17, 2017)