FAIR Legislative Update July 26, 2010
Senate Blocks DeMint’s Effort to Stop Arizona Lawsuit
The DeMint Amendment to de-fund the federal lawsuit against Arizona was defeated last week by a 55-43 procedural vote, with no debate or final vote on the amendment allowed. (Roll Call Vote #214, July 21, 2010). As FAIR reported last week, Senators Jim DeMint (R-SC) and David Vitter (R-LA) introduced the amendment to the small business bill (H.R.5297) that would deny the federal government funding to sue Arizona over its recently enacted immigration enforcement law, SB 1070. (See FAIR’s Legislative Update, July 19, 2010). Before the vote, DeMint defended SB 1070 and argued that the Obama administration is suing Arizona for enforcing laws the federal government has chosen to ignore. “This bill is very clear. Its intent is to support and enforce the federal law, to protect the citizens of Arizona. Our federal government should be doing its job to secure our borders rather than trying to bully and intimidate the people of Arizona. We should not be suing and really hassling the people of Arizona for doing what we should be doing here, and that is protecting the citizenry.” (C-SPAN, July 21, 2010).
Hundreds of illegal alien students staged a protest near the U.S. Capitol in Washington, D.C. last week demanding Congress grant them amnesty. (The Washington Independent, July 20, 2010). Dressed in caps and gowns, they held a mock graduation ceremony in a church and lobbied members of Congress to pass the DREAM Act, a broad amnesty measure disguised as an educational initiative that would allow millions of illegal aliens under the age of 35 who meet a very loose definition of “student” or serve in the military to qualify for green cards. The DREAM Act also allows states to grant in-state tuition benefits for illegal aliens, displacing legal residents competing for a fixed number of college admission slots and taxpayer subsidies.
Many of the illegal alien protesters publicly declared their unlawful status in front of the White House, risking deportation and arrest as they boldly chanted, “Undocumented and unafraid.” (The Washington Independent, July 20, 2010). "I'm not going to lie and say that I'm not afraid of someone coming in and trying to arrest me, but I can't let that fear take over my life," said a student at the University of Massachusetts whose parents were deported back to Brazil a couple of years ago. (Washington Post, July 21, 2010). Another activist stated, “We can't live our lives afraid that there's always something going to happen to us, just because we are undocumented.” Id.
Dozens of the activists also staged sit-ins inside a senate office building, resulting in 21 arrests for disorderly conduct. Those charged should be referred to U.S. Immigration and Customs Enforcement (ICE), but an ICE spokeswoman admitted, “We don't necessarily take action on everyone who is referred to us." (Washington Post, July 21, 2010). It seems that ICE’s unwillingness to enforce the law has emboldened the advocates, as Carlos Saavedra, national coordinator of the United We Dream Network pointed out, “They know we're here, and we have not seen anything more than Park Police telling us to move here and move there.”
Illegal aliens have been stepping up their demands for the DREAM Act in recent months, again risking deportation as protestors were arrested after staging a sit-in in Senator John McCain’s office (R-Ariz.). (SeeFAIR's Legislative Update, May 24, 2010). Amnesty advocates are now pushing Congress to pass the DREAM Act with or without “comprehensive” immigration reform. “We cannot wait one more year,” said Virginia Gonzalez of the Immigrant Youth Justice League. (The Washington Independent, July 20, 2010). Capitol Hill newspapers report that Senate Majority Leader Harry Reid (D-Nev.), who is under enormous pressure as he faces a tough reelection battle, may push the DREAM Act instead of “comprehensive” immigration reform before the November elections. (Roll Call, July 21, 2010). His spokesman said that Reid “shares the desire of the DREAM Act students to see the DREAM Act enacted as soon as possible.” Id.
The DREAM Act was first proposed in 2001 and has been re-introduced in subsequent Congresses. Senator Dick Durbin (D-Ill.) reintroduced the latest version of the legislation in the Senate last March. It is not clear what Senate Democrats’ strategy is regarding the DREAM Act, due to conflicting statements from their leadership. Id. Senate Majority Leader Harry Reid (D-Nev.) has said he wants “comprehensive,” not “piecemeal,” immigration reform. But his spokesman recently declined to comment on Reid’s plans for the DREAM Act or an amnesty bill, saying he would defer to Durbin, the party’s second-ranking senator, on his plans for the bill. Id. Durbin took part in last week’s protest on Capitol Hill, and declared, “We can pass the DREAM Act this year.” But he also said in May that he planned to keep a low profile on the DREAM Act because, “I don’t want anyone to think I’m pushing the DREAM Act at the expense of comprehensive immigration reform.” (The Hill, May 24, 2010).
An estimated 65,000 illegal alien students graduate from U.S. high schools every year, according to the Urban Institute. If passed, the Dream Act would grant amnesty to at least 2 million illegal aliens, according to a 2007 study by the Center for Immigration Studies (note that the bill considered in 2007, S.2205, had a lower age limit of 30).
Passage of the DREAM Act would:
- Reward parents who violated immigration laws through their children, and provide a powerful incentive for more illegal immigration.
- Transfer student slots and tuition subsidies to illegal aliens at a time when state higher education budgets are being slashed, admissions curtailed, and tuitions increased.
- Accelerate chain migration and exponential population growth because illegal aliens who are granted green cards will be able to petition the government to grant their parents and relatives legal status too.
Last Wednesday, the ACLU and the Mexican American Legal Defense and Educational Fund (MALDEF) filed separate lawsuits in Omaha’s U.S. District Court seeking an immediate injunction of the city of Fremont’s new immigration ordinance. Both suits also seek to invalidate the ordinance on constitutional grounds, charging the law violates the Supremacy Clause “because it attempts to regulate matters that are exclusively reserved to the federal government.” (Fremont Tribune, July 21, 2010). In addition, the ACLU charged that the Fremont law would encourage “discrimination and racial profiling against Latinos and other who appear to be foreign born, including U.S. citizens.” (Washington Post, July 21, 2010).
The residents of Fremont, Nebraska passed the local immigration ordinance by ballot initiative on June 21 of this year. The law takes substantive steps in solving the city’s illegal immigration problem by requiring employers to use E-Verify and prohibiting landlords from renting apartments to illegal aliens. The ordinance is set to go into effect July 29.
Now, this small town of 25,000 is being targeted by two federal lawsuits. Supporters of the ordinance are defending this law as a grassroots effort on the part of local citizens to enforce federal immigration laws that have been neglected. State Sen. Charlie Janssen of Fremont, who supported the ordinance while he served on the Fremont City Council, declared unequivocally, “Let's make it clear that the unlawful parties here are the immigrants that chose to break federal and state laws by coming here illegally in the first place. The bottom line is that they are not ‘undocumented workers,’ they are illegal aliens.” (Fremont Tribune, July 21, 2010). Public opinion polls have consistently shown overwhelming support in Nebraska for cracking down on illegal aliens. A recent Rasmussen survey found that 73% of Nebraskans support the adoption of Arizona’s immigration law in Nebraska, the highest level of support from any state. (Rasmussen, July 19, 2010).
City officials and local supporters of the ordinance are gearing up for a pricey legal fight. The ACLU and other amnesty advocates have attempted in the past to dissuade other towns such as Hazelton, Pa. and Farmers Branch, Tex. from enforcing immigration laws with the threat of costly legal battles. Now City Attorney Dean Skokan warned that Fremont’s legal costs could accumulate to millions of dollars. Ira Mehlman, a spokesman for FAIR, described the lawsuits as an attempt to “intimidate local governments from taking action.” (Washington Post, July 21, 2010). Last week, Nebraska’s junior Republican Senator Mike Johanns introduced legislation that would require the federal government to pay legal costs incurred by local and state governments in the course of defending their immigration laws from federal government lawsuits. Johanns explained that he wanted to “level the playing field for states and communities that might otherwise be crushed financially by federal litigation.” (Lincoln Journal Star)
Senior Homeland Security officials announced last week that the 1,200 National Guard Troops President Obama agreed to send to the U.S.-Mexico border would begin arriving August 1st. According to National Guard Bureau Chief General Craig McKinley, who joined Customs and Border Protection Commissioner Alan Bersin and Immigration and Customs Enforcement (ICE) Director John Morton at a Pentagon press conference last week, the troops deployed will consist of entry identification teams and criminal intelligence analysts. The entry identification teams will assist Customs and Border Protection personnel and the criminal intelligence analysts will assist ICE. (C-Span video of press conference, July 19, 2010)
Although the level of National Guard troops being deployed is significantly lower than under the Bush-era Operation Jumpstart, they will operate under similar rules of engagement. General McKinley told reporters that although troops will be armed, their role is to be merely supportive and their ability to use force will be limited to self-defense only. Commissioner Bersin added: “The National Guard is there to support the efforts of law enforcement, not to have a direct law enforcement role, not to confront, unless confronted, any particular threat.” (Id.)
The officials also used the press conference to announce that six more aircraft would be dispatched to the border August 1st, at least for a period of time. Commissioner Bersin stated these “aviation assets” included A-350 helicopters, the so-called ASTARS, Black Hawks, DASH-8s “and a variety of fixed-wing and rotary operating aviation assets.” These aircraft will be deployed to the border, Bersin said, until Homeland Security Secretary Janet Napolitano determines they are no longer needed. (Id.)
During the press conference, all three officials were careful to describe the dispatch of the National Guard as only one additional effort the Obama Administration is making to secure the borders. CBP Commissioner described the Guard deployment as “a continuation of efforts that have been under way” and suggested that the deployment would be followed over time by the a request from the President to add 1,000 additional Border Patrol agents, more CBP agents at ports of entry, and two unmanned aircraft to patrol the border. Congress, however, is currently considering the FY 2011 Homeland Security Appropriations Bill and it remains to be seen whether Homeland Security will, in fact, devote more resources to the U.S.-Mexico border, even as drug cartel violence skyrockets. (Id.)
Eighty-one Members of Congress – 76 Representatives and five Senators – filed an amicus brief last week in U.S.A. v. Arizona to voice their support for Arizona’s new immigration enforcement law, SB 1070. The amicus brief (also known as a “friend of the court” brief) was filed to ensure that the Obama Administration’s voice was not the only voice that Judge Susan Bolton, the presiding judge in the federal lawsuit against Arizona, considered as she decides whether to issue a preliminary injunction against the law.
In their brief, the Members of Congress directly dispute the Justice Department’s claim that SB 1070 is preempted under the U.S. Constitution. The Justice Department (DOJ) claims that 1070 is preempted because it “impedes federal enforcement and policy priorities,” which in the case of the Obama Administration is to prioritize the apprehension and removal of criminal aliens. The DOJ argues: Arizona’s monolithic “attrition through enforcement” policy pursues only one goal of the federal immigration system—to the exclusion of all other objectives.” (See DoJ Motion and Memorandum of Law, p.17)
However, these Members of Congress argue that Supreme Court precedent clearly provides that only acts of Congress express federal immigration policy, not the Executive Branch’s enforcement authority or the current Administration’s political views. (See Amicus Brief, p. 4) They then demonstrate that Congress passed numerous statutes with the clear intent that state and local law enforcement officers assist in the enforcement of immigration laws. These include: (1) expressly reserving inherent state authority in immigration law enforcement (8 U.S.C. § 1357(g)(10) (2006)), (2) banning sanctuary policies (8 U.S.C. §§ 1373(a)-(b), 1644 (2006)), (3) requiring federal officials to respond to state inquiries (8 U.S.C.§ 1373(c) (2006)), (4) simplifying the process for making such inquiries (Law Enforcement Support Center (“LESC”)), (5) deputizing state and local officers as immigration agents through the 287(g) program (8 U.S.C. § 1357(g)(1) (2006)), and (6) compensating states that assist in immigration enforcement (8 U.S.C. § 1103(a)(11) (2006)). (Id. at 5).
Congressman Brian Bilbray (R-CA), chairman of the House Immigration Reform Caucus, and Congressman Trent Franks (R-AZ) led the effort to file the amicus brief, which was drafted with the assistance of FAIR’s legal arm, the Immigration Reform Law Institute, and the American Center for Law & Justice. In a joint statement, the Congressmen expressed frustration that the Obama Administration was spending its time and resources fighting Arizona, instead of welcoming its assistance in the enforcement of immigration law. "Arizona's law does not preempt federal statutes,” said Bilbray. “It is time to stop playing politics, roll up our sleeves and get to work on a bipartisan immigration bill that addresses America's border security, goes after employers who exploit illegal immigrants and reduces identity theft." Congressman Trent Franks (R-AZ) added, “The last thing this ridiculous lawsuit is doing is making our laws more clear or our border more secure, and President Obama must continue to hear that the Members who signed this brief, along with the American people, strongly oppose the ongoing politicization of this serious national security and federal immigration issue." (Press Release, July 21, 2010)