FAIR Legislative Update July 6, 2010
Less than two months after Members of Congress from both sides of the aisle declared immigration reform dead in 2010 (See FAIR’sLegislative Update, May 17, 2010), President Obama is trying to resurrect attempts to grant amnesty to the approximately 11 million illegal aliens currently living in the United States. Speaking at American University in Washington on July 1, Obama reiterated his support for a “pathway for legal status” for illegal aliens. (Speech Transcript, July 1, 2010).
Early in his speech, the president argued “that being an American is not a matter of blood or birth.” Obama went on to acknowledge that “our borders have been porous for decades,” and noted that the federal government’s failure to enforce immigration laws has created a “breach,” causing “states like Arizona…to take matters into their own hands.” Nonetheless, the president condemned Arizona’s new immigration law,SB 1070, as “ill-conceived” and “divisive.” “Our task then,” Obama argued, “is to make our national laws actually work – to shape a system that reflects our values as a nation of laws and a nation of immigrants.” (Speech Transcript, July 1, 2010).
Making his pitch for amnesty, the president attempted to define what he described as “the two poles” of the immigration debate. On one hand, Obama noted, “there are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws.” While the president acknowledged “the sense of compassion that drives this argument,” he went on to describe such an approach as “indiscriminate” and “unwise and unfair.” (Id.).
Obama then defined the other pole of the immigration debate as endorsing an effort “to round up and deport 11 million people.” The president claimed that “[s]uch an effort would be logistically impossible and wildly expensive” and argued that “a program of mass deportations would disrupt our economy and communities in ways that most Americans would find intolerable.” Obama then attempted to lay down a position somewhere between “the two poles” – one that he described as “a practical, common-sense approach.” (Id.).
Laying the groundwork for his scheme, the president argued that, under his direction, “[t]he southern border is more secure today than at any time in the past 20 years.” (Id.). Obama made this assertion despite a number of well-documented instances of border violence in recent months, including: the murder of Arizona rancher Rob Krentz; the gruesome murders of three people with ties to the U.S. Consulate in the Mexican border city of Ciudad Juarez by Mexican drug cartels; the issuance of a safety alert by Obama’s own Department of Homeland Security (DHS) to law enforcement officers in west Texas warning of retaliatory killings by Mexican “assassin teams”; the shooting of an Arizona sheriff’s deputy by illegal aliens; and reports that Mexican drug cartels control parts of Arizona. (See FAIR’s Legislative Updates fromApril 5, 2010; April 12, 2010; May 3, 2010; and June 21, 2010).
Through his remarks, the president seemingly signaled surrender on truly gaining control of our porous borders: “Our borders are just too vast for us to be able to solve the problem only with fences and border patrols.” Therefore, Obama argued, “businesses must be held accountable if they break the law by deliberately hiring and exploiting” illegal aliens. The president said his administration has “already begun to step up enforcement against the worst workplace offenders.” (Speech Transcript, July 1, 2010).
After touting his administration’s record on immigration enforcement, Obama went on to endorse what he had originally defined as one of “the two poles” of the immigration debate: amnesty for illegal aliens. The president explained that his version of immigration reform would include an amnesty program that would require illegal aliens to “admit they broke the law”; “register”; “pay their taxes”; “pay a fine”; and “learn English.” In addition, the president endorsed the DREAM Act – legislation that would (1) grant amnesty to illegal aliens who entered the country as children and meet minimal education requirements and (2) reverse current law to allow states to provide taxpayer subsidized in-state tuition to illegal aliens. (Id.; See FAIR’s DREAM Act Legislative Analysis). The president, however, did not explain how this proposal was different from or novel vis-à-vis amnesty legislation that was overwhelmingly rejected by the American people in both 2006 and 2007.
Nevertheless, President Obama concluded his speech with a call for Republicans to support his plan: “Reform that brings accountability to our immigration system cannot pass without Republican votes. That is the political and mathematical reality.” (Speech Transcript, July 1, 2010). However, Sen. Lindsey Graham (R-SC) – an ardent supporter of amnesty for illegal aliens – stated earlier this year that the real reason Obama and the Democrats have been unsuccessful in pushing amnesty is that “there are at least a double-digit number of Democratic Senators who would not support comprehensive immigration reform with a pathway to citizenship today.” Graham added: “Let’s be clear, the lack of support for comprehensive immigration reform is not a Republican problem, it is an institutional problem. There is just not the appetite – on either side of the aisle – for this issue right now.” (Graham Press Release, May 5, 2010).
President Obama has appointed an outspoken critic of local immigration enforcement as the new head of Immigration and Customs Enforcement’s (ICE) 287(g) program. (Examiner, June 26, 2010). Former Houston and Phoenix police chief Harold Hurtt is an odd choice for the top job because he has been highly critical of the very program he has been asked to lead. (The Desert Sun, June 29, 2010). Indeed in 2008, Hurtt went so far as to describe the 287(g) program as a burden on local law enforcement agents who “don’t want to be immigration officers.” (The Desert Sun, June 29, 2010). Hurtt also actively supported Houston’s sanctuary status. (Examiner, June 26, 2010). As the new director of ICE’s Office of State and Local Coordination, Hurtt will supervise outreach and communication between ICE and local law enforcement agencies regarding various immigration enforcement programs, including 287(g). (Fox News, June 25, 2010).
The 287(g) program provides training to local law enforcement so that they are able to identify illegal aliens by allowing them to investigate a suspect’s immigration status after an arrest has been made. (287(g) Program Overview). Currently, about 80 local police departments nationwide participate in the program, and more than 1,300 law enforcement officers have been trained and certified by the federal government since 2006. (Examiner, June 26, 2010). Despite Hurtt’s criticism of the 287(g) program, it has been popular with communities suffering the consequences of illegal immigration.
Homeland Security’s announcement of Hurtt’s appointment was met with outrage by the widow of Houston police officer Rodney Johnson, who was killed by an illegal alien with a long criminal record during Hurtt’s tenure. (Id.). Officer Johnson was shot in the head five times by a Mexican national during a routine traffic stop in 2006 who at the time was already a convicted child molester and DWI offender, who was deported to Mexico in 1999. His widow, who is also a Houston police officer, is suing Hurtt and the city for not participating in the 287(g) program, which she argues would have identified her husband’s killer as an illegal alien during one of his multiple arrests in Houston. (Fox News, June 27, 2010). Hurtt’s policies have also been blamed for enabling illegal immigrants to kill two police officers and seriously injure another while serving as the police chief in Phoenix. (Id.).
House Immigration Subcommittee Chair Steve King (R-IA) is also critical of Obama’s choice. “Here he is, he should be standing up for the letter of federal law,” said King. “I don't know how he can do that given the record that [Hurtt] has. I think this is another piece in the puzzle to granting some type of de facto amnesty.” (Examiner, June 26, 2010). ICE spokeswoman Kelly Nantel said that Hurtt has always been a proponent of the jail model of the 287(g) program. She stated, “I think the critics are only talking about half of what he said. He’s always been a strong proponent of every law enforcement agency making those decisions on their own.” (Fox News, June 27, 2010). ICE Assistant Secretary John Morton added, “Chief Hurtt is a respected member of the law enforcement community and understands the concerns of local law enforcement leaders. His experience and skills will be an invaluable asset to the ICEs outreach and coordination efforts.” But Curtis Collier of U.S. Border Watch responded, “There's no way you can head up an office if you don't believe in what the office is supposed to do.” (Fox News, June 25, 2010).
President Obama’s latest move is in line with the manner in which he has undermined immigration enforcement since taking office. Department of Homeland Security Secretary Janet Napolitano immediately ordered a review of the 287(g) program after her appointment, and since then has made changes to weaken the local-federal partnership. (Examiner, June 26, 2010). Early on, she made clear that she intended to only focus on the identification and removal ofcriminal aliens. (See FAIR’s Legislative Update, July 13, 2009). Hurtt’s appointment confirms that the Obama administration is determined to severely limit state and local immigration enforcement efforts.
Supreme Court Will Hear Challenge to Arizona’s E-Verify Law; Nominee Elena Kagan’s Involvement is Questioned
The United States Supreme Court has agreed to hear the case challenging Arizona’s 2007 E-Verify law, which punishes employers who hire illegal aliens. (Fox News, June 28, 2010). From the date of enactment, the Chamber of Commerce and other special interest groups have been trying to undo it, attacking it through a failed ballot initiative and also through a lawsuit. After the law was upheld by all lower courts, including the Ninth Circuit Court of Appeals, the Chamber asked the Supreme Court to hear the case. (Chamber of Commerce v. Candelaria). The Obama administration weighed in by asking the Court to strike down the law. (See FAIR’s Legislative Update, June 7, 2010).
The Court announced its decision to take the case on the same day Supreme Court nominee Elena Kagan’s confirmation hearings began in the Senate. There has been much debate concerning Kagan’s involvement in the Solicitor General’s brief filed in the E-Verify case, even though her name does not appear on the document. (Fox News, June 28, 2010). Prior to the confirmation hearings, fourteen House Republicans wrote a letter to Senator Jeff Sessions (R-AL), the ranking member on the Senate Judiciary Committee, asking him to press Kagan on her role in the administration’s challenge of the Arizona law. (Letter, June 24, 2010). The representatives wrote, “It has come to our attention that Supreme Court nominee Elena Kagan played a key role in authorizing the brief.” (House Judiciary Press Release, June 24, 2010). The representatives also stated that the Administration had “no legal basis” for the filing and claimed that Kagan played a “key role” in the decision. (Fox News, June 25, 2010).
As expected, her contribution to the government’s request that the law be overturned came up during the hearings. In Senator Sessions’ opening statement, he expressed concern over Kagan’s involvement in the administration’s decision to challenge the Arizona E-Verify law. “[A]s Solicitor General, Ms. Kagan approved the filing of a brief before the Supreme Court asking that it strike down provisions of the Legal Arizona Worker’s Act, which suspends or revokes business licenses of corporations which knowingly hire illegal immigrants, even though Federal law expressly prohibits such hiring. She did this even after the liberal 9th Circuit had upheld the law.” (Sessions Opening Statement, June 28, 2010).
Senator Jon Kyl (R-AZ), also discussed Kagan’s position on this issue involving his home state, “I’m deeply troubled by her decision as Solicitor General to urge the Supreme Court to review and strike down an Arizona law designed to prevent employers from hiring illegal aliens. The Ninth Circuit unanimously upheld the law because federal immigration law explicitly allows states to sanction employers through their business licensing regimes. I think there are legitimate questions about whether the brief authorized by Ms. Kagan – which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down—was motivated by political influence at the White House and within the Department of Justice.” (Kyl Statement, June 28, 2010).
Kyl also asked Ms. Kagan why the feds supported review when there was no conflict among the lower courts. Kagan responded that the federal government felt the issue was important because it was arising in a number of places around the country. (Talking Points Memo, June 29, 2010). It remains to be seen whether she will recuse herself from this case if she is confirmed. The Senate Judiciary Committee is scheduled to vote on her nomination on July 13 when they return from July 4th recess. (Executive Business Meeting Agenda).
On Monday, June 28, Tennessee Governor Phil Bredesen signed into law legislation that requires the Tennessee Peace Officer Standards and Training Commission to develop a procedure for verifying the citizenship status of individuals who are arrested, booked, or confined for any period in county or local jails. (The Tennessean, June 29, 2010;Conference Committee Report on House Bill No. 670 / Senate Bill No. 1141, § 1, ¶ (a)).
The new law requires that jail officials report an individual to the appropriate federal Immigration and Customs Enforcement (ICE) field office “if the keeper of the jail determines that the individual is in violation of the Immigration and Naturalization Act,” or if the individual’s citizenship status cannot be determined. (Conference Committee Report, § 1, ¶ (b)). The law also provides that Tennessee counties and localities that are already operating under federal-local immigration enforcement partnerships (such as 287(g) and the Criminal Alien Program (CAP)) are exempt from the new requirements. (Conference Committee Report, § 1, ¶¶ (c) & (d)). The law will take effect on January 1, 2011. (Conference Committee Report, § 2).
Opponents of the new law include the Tennessee Sheriffs’ Association, the notoriously anti-enforcement American Civil Liberties Union (ACLU), and the Tennessee Immigrant and Refugee Rights Coalition. The Sheriffs’ Association complained that the new law “would create an unnecessary paperwork burden,” while the Immigrant and Refugee Rights Coalition argued that it “will encourage profiling of Latinos and other minorities.” ACLU Tennessee Executive Director Hedy Weinberg argued that legal immigrants “should not be required to carry their papers” (The Tennessean, June 29, 2010), even though they are already required to do so under longstanding provisions in federal law. (8 U.S.C. 1304(e) and 8 U.S.C. 1306(a)).
The outspoken opponents of the Tennessee law, however, are apparently not representative of the views of all Tennesseans. According to a June 15 poll conducted by Rasmussen Reports, 60 percent of Tennesseans would support passage of an Arizona-style immigration law in their state, while nearly 80 percent believe that police should be required to check the immigration status of a suspected illegal immigrant that they’ve stopped. (Rasmussen Reports, June 15, 2010).