FAIR Legislative Update June 17, 2013
Texas' senior Republican Senator, John Cornyn, has quickly emerged as the key negotiator in the passage of the Gang of Eight's amnesty bill.
Offering a 134-page amendment to address the bill's lack of border security measures, the second-ranking Senate Republican has announced that if the Senate adopts his amendment, he will vote for the Gang of Eight's amnesty legislation. (Washington Post, June 5, 2013; Politico, June 13, 2013)
However, while Cornyn's amendment (called "RESULTS") makes several improvements to the bill, it does not change the bill's core amnesty-first, enforcement-later approach. Under the amendment, DHS must still submit a border security plan within 6 months, at which time DHS may begin processing applications for "registered provisional immigrant" status (RPI status). However, the Cornyn Amendment sets forth a list of specific items that must be included in the plan, such as the current state of operational control and situational awareness, an assessment of threats, surveillance capabilities, and a fencing strategy — although no fencing is actually required and no specific money is specifically set aside to construct fencing. (p.14-15)
In addition, the Cornyn Amendment does not change the fact that Congress is actually debating amnesty legislation despite the fact that DHS has no official metrics for measuring border security. The amendment merely requires DHS, 90 days after enactment, to "implement metrics to measure the effectiveness of security between ports of entry along the Southern border." It also requires DHS to "implement metrics to measure the effectiveness of security at Southern border ports of entry." (p.21-25)
With the amnesty program already underway, the Cornyn amendment makes only a few changes to the triggers that must be met before DHS can issue green cards to RPI aliens. The most notable change is a requirement that DHS implement a biometric entry and exit program, but even there, the amendment only applies that requirement to air and sea ports of entry, but not land ports of entry. Moreover, it does not require the implementation of a biometric exit program at land ports of entry any time in the future. (p.7-9)
But, despite the fact that the Cornyn amendment still does not place a single obstacle in the way of illegal aliens gaining amnesty plus work and travel authorization, some Gang of Eight Senators are opposing it, calling the amendment a "poison pill" aimed at taking down the bill. "It's not possible for us to support [Cornyn's] amendment as it is presently written" said Sen. John McCain (R-AZ). "It's a poison pill." (Huffington Post, June 12, 2013) According to a Senate aide, Sen. Schumer (D-NY) told Sen. Cornyn on the senate floor, "You know full well that this a deal killer." (NY Times, June 14, 2013) Sens. Schumer and McCain even went so far as to spread falsehoods in their Senate speeches about the costs and provisions of Sen. Cornyn's amendment, which Cornyn quickly corrected. (See Brietbart.com, June 12, 2013)
Sen. Marco Rubio (R-FL) is going so far as to draft an alternative amendment. "A bunch of senators have been working on it," he said on the Hugh Hewitt radio show Thursday. "A lot of Republicans want to be supportive of something but need to be able to go back home and tell people that they have taken serious steps to make sure this never happens again." He also threatened the bill would not pass without the amendment. "It is going to have to be in there or this is not going to pass," he said. (Roll Call, June 14, 2013)
Sens. McCain and Graham are also leading the charge for an alternative to the Cornyn amendment, though it is unclear whether these are the same efforts in which Sen. Rubio is engaged. Several GOP Senators are allegedly involved in the drafting, including Sens. Bob Corker (R-TN) and Sen. John Hoeven (R-ND). (Politico, June 13, 2013) "Generally speaking, all of us are just trying to find that sweet spot that addresses the Democratic sensibilities and ours," said Corker. (Id.) "There are a lot of healthy conversations happening." (Id.) Sen. Hoeven also made a statement about the talks, saying, "We're trying to road test ideas, get input and maybe come up with something that can be kind of a consensus-type approach." (Id.)
Interestingly, Sen. Cornyn has already told his colleagues he'd be willing to make changes to the amendment. Though he claimed he would not concede on the "fundamental substance" of his proposal, the Senator has been unclear as to which provisions are on the table. "There are certain elements that are non-negotiable, specifically the mechanism by which we would guarantee the security measures in the bill would actually be implemented," he said. (The Hill, June 14, 2013)
Minority Leader Mitch McConnell has already endorsed the Cornyn amendment. "Sen. Cornyn, I think, has got, in my view, the key amendment to put us in a position where we can actually look at the American people with a straight face and say we are going to secure the border," McConnell told reporters. (Id.) "That's going to be a very, very important amendment." (Id.) In addition, several GOP Senators have signed-on as co-sponsors: Sens. Lamar Alexander (TN), John Barrasso (WY), Roy Blunt (MO), Richard Burr (NC), Saxby Chambliss (GA), Mike Crapo (ID), Orrin Hatch (UT), Johnny Isakson (GA), Mike Johanns (NE), Mark Kirk (IL), Rob Portman (OH), Pat Roberts (KS), and Roger Wicker (MS).
Last Thursday, the Senate rejected a key border security amendment to the Gang of Eight's "comprehensive" immigration reform bill (S. 744) by a 57-43 vote. (Roll Call Vote #148) The amendment, authored by Senator Chuck Grassley (R-IA), ranking member of the Judiciary Committee, would have prohibited the Secretary of Homeland Security (DHS) from granting illegal aliens amnesty ("registered provisional immigrant" status) until the Secretary has maintained effective control of the border for at least six months. (The Hill, Jun. 13, 2013)
In a telling move, Senate Majority Leader Harry Reid (D-NV) used a procedural move to table the amendment — the first one offered on the Senate floor. Senator Chuck Grassley blasted Reid for his obstruction. "This vote proves this ‘open and fair process' is a farce," Grassley charged. (Id.) "The majority is afraid of having a true vote on my amendment.... This is not the right way to start off on a very important bill," he said. (Id.) "It really looks like the fix is in and the bill is rigged to pass basically as it is." (Breitbart, Jun. 13, 2013) Gang of Eight leader Sen. Chuck Schumer (D-NY) led the charge against the Grassley amendment. "It says that the 11 million people living in the shadows cannot even get the provisional status to work and travel until the secretary of Homeland Security says the border is completely secure and we know that will take years," Schumer said. (The Hill, Jun. 13, 2013) "The problem is very simple, what do we do for five or six years until the border is fully secure?" (Id.)
The strong-arm tactics by Senate Democrats on the Grassley amendment may have jeopardized the support of Sen. Orrin Hatch (R-UT), who voted in favor of the bill in the Judiciary Committee after getting his way on an amendment to eliminate protections for U.S. workers under the H-1B "skilled" worker visa program. "I was promised by leaders in the Gang of Eight they would work with me," on back taxes and healthcare amendments Hatch said after the vote. (Breitbart, Jun. 13, 2013) "As I've said, I'd like to support the bill, and make no mistake about it, I don't want people stiffing me on things I consider to be important without even talking, without even working with me to resolve any problems they may have. And, I'm not the kind of guy who takes that lightly." (Id.) "If this is going to be a political exercise, count me out," Hatch warned. (Id.)
The amendment was opposed by all Senate Democrats except for Sens. Mark Pryor (D-AR) and Joe Manchin (D-WV). (Roll Call Vote #148) Alaska Republican Sen. Lisa Murkowski joined the four Gang of Eight Republicans — Sens. Marco Rubio (R-FL), Lindsey Graham (R-SC), John McCain (R-AZ), and Jeff Flake (R-AZ)-- and the Democrat majority to kill the amendment. (Id.)
Senator Marco Rubio (R-FL) last week scrambled to explain his decision to vote against a key border security amendment offered by Senator Grassley to the Gang of Eight amnesty bill (S.744). The Grassley Amendment (#1195) would have simply provided that the Department of Homeland Security (DHS) could not begin processing amnesty applications until the border has been under effective control for at least six months. The amendment failed 57-43, with all Gang of Eight members voting against it.
The very same afternoon, Senator Rubio hit the talk radio circuit to explain why he voted against an amendment that would put border security before amnesty. However, speaking to hosts such as Andrea Tantaros (Audio, June 13, 2013) and Hugh Hewitt (Transcript, June 13, 2013), Rubio offered little more than falsehoods and circular logic.
Senator Rubio offered three arguments against the amendment. "One," said Rubio, "it would delay the process of registering people. We can't wait another four years of de facto amnesty. We cannot wait another four years with 11 million people living in this country illegally without knowing who they are or why they're here." (Interview with Andrea Tantaros, June 13, 2013)
Through this argument, one he uses often, Senator Rubio absurdly suggests that the fix for "de facto" amnesty is a real amnesty. He entirely ignores the reason illegal aliens live and work in the U.S. without fear of any consequences is because the Obama Administration refuses to enforce our immigration laws and adopts policies that shield illegal aliens, like DHS's prosecutorial discretion policy and the Deferred Action for Childhood Arrivals program. He also outright ignores the fact that the Gang of Eight legislation essentially bans all immigration enforcement during the first 2 ½ years after enactment by barring the removal of any illegal alien during the 30 month application process until DHS has made a final decision on any illegal alien's amnesty application. Thus, if Congress were to pass S.744, the result would be amnesty AND no enforcement of our immigration laws.
Senator Rubio also suggests that there is great urgency to identify illegal aliens currently in the United States, and argues that the U.S. is more secure if we legalize them faster. However, illegal aliens who have records that would flag them as a national security threat will not come forward to be identified. They will simply remain underground. But illegal aliens with no records who are involved in terrorist activities will come forward to gain legal status, official government identification documents, and travel authorization. The 1986 amnesty legalized several known terrorists.
The second reason Rubio said he voted against the Grassley amendment is because of money. According to Rubio, "We're going to require them to pay a fine and that's the money we're going to use to pay for the border security. If we don't get that fine money from the people that have violated our immigration laws, then the American taxpayer is going to have to pay for the border security ... or we're going to end up borrowing the money like we do now, 40 cents out of every dollar, and I want to prevent that from happening." (Interview with Andrea Tantaros, June 13, 2013)
Senator Rubio, however, either does not know what is in his own bill or is deliberately misleading Americans. S.744 already uses taxpayer money from the U.S. Treasury to pay for the border security provisions in the bill. It works this way. S.744 immediately creates a "trust fund" and transfers into it $8.3 billion from the U.S. Treasury. (p.872) Of that money, $3 billion is set aside to fund the border security measures. (p.876) Then, the bill provides that the first $8.3 billion that comes into the fund from fines and penalties is used to pay back the Treasury. (p.878) So, despite what Senator Rubio has told millions of Americans, fines from illegal aliens are not needed to pay for the border security measures and American taxpayers are (appropriately) already paying for the border security provisions in the bill.
Finally, Senator Rubio says he voted against the Grassley amendment because the amendment did not sufficiently detail the border plan. The amendment, he said, "basically leaves it up to the Department of Homeland Security to decide what the border plan should be. ...And that's one of the problems in the bill right now, one of the things that I'm going to help fix. We need to detail the border plan in the bill so we don't leave it to chance...."
This argument is a red herring. That is, saying the border security plan should have more detail has nothing to do with whether the border should be under effective control for six months before DHS is allowed to process amnesty applications. Other Senators, including Senator Rubio, plan to offer amendments that add detail to the border security plan. But nothing requires the two issues to be in one amendment. In fact, smaller, more focused amendments are desirable in that they isolate a particular issue under debate. The Senate will consider dozens of amendments over the next couple of weeks. The border security plan required by the bill will no doubt be central to several.
When all of Rubio's arguments are examined, it is clear he has no legitimate justification for voting against the Grassley Amendment. Senator Rubio has consistently said that border security needs to be improved in the bill, but clearly he believes in the amnesty-first, enforcement-later core of S.744.
Illegal aliens have recently filed two lawsuits in Nebraska challenging the State's policy of denying driver's licenses to illegal aliens, specifically Deferred Action for Childhood Arrivals (DACA) recipients. (Omaha World-Herald Bureau, Jun. 11, 2013). DACA, a policy adopted unilaterally by the Obama administration, grants temporary reprieve from deportation to aliens who were brought illegally to the United States before the age of 16 and meet certain other requirements. (FAIR Leg. Update, Jun. 19, 2012). Under DACA, applicants who are approved may also obtain work authorization. (USCIS, Consideration of Deferred Action for Childhood Arrivals Process, Sept. 14, 2012).
In a memo issued regarding guidance on the DACA program, Janet Napolitano stated that the program "confers no substantive right, immigration status or pathway to citizenship." (Napolitano DACA Memo, Aug. 15, 2012). As a result, Nebraska Governor Dave Heineman has refused to grant DACA recipients driver's licenses, stating "President Obama's deferred action program to issue employment authorization documents to illegal immigrants does not make them legal citizens. The State of Nebraska will continue its practice of not issuing driver's licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute." (See Gov. Heineman Statement, Aug. 17, 2012).
The first of the two lawsuits challenging the Governor's decision was filed on May 31, 2013 in federal court. The case was brought by the Mexican American Legal Defense and Educational Fund (MALDEF) on behalf of an illegal alien from Mexico residing in Lincoln, Nebraska. (Saldana v. Lahm, 13-3108). The complaint was filed against Rhonda Lahm, the Director of Nebraska Department of Motor Vehicles in her official capacity.
The illegal alien plaintiff argues that the Governor's policy to deny DACA recipients driver's licenses violates (1) the Supremacy Clause of the U.S. Constitution because it is preempted by federal immigration law and the federal government's exclusive authority to regulate immigration, and (2) the Fourteenth Amendment's Equal Protection Clause because it denies driver's licenses to DACA recipients but grants driver's licenses to other lawfully present aliens.
The second lawsuit was filed by the ACLU against Nebraska Governor Heineman, DMV Director Lahm, and the Nebraska DMV in state court. (Hernandez v. Heineman, D02CI130002124). The ACLU filed the suit on behalf of four DACA recipients who have each received Social Security Numbers and Employment Authorization Documents (EAD). Plaintiffs claim that prior to implementing any rule or regulation barring DACA recipients from obtaining driver's licenses, the defendants were required to follow the procedures set forth in Neb. Rev. Stat. 84-901, et seq., also known as the Administrative Procedures Act (APA), which would include giving published notice and holding a public hearing. Plaintiffs also claim that the Governor's policy to deny DACA recipients' driver's licenses violates the Due Process Clause of Article I, section 3 of the Nebraska State Constitution.
Similar lawsuits challenging state policies to deny driver's licenses to DACA grantees have been filed in Arizona and Michigan. (See Arizona Dream Act Coalition, et al v. Brewer and One Michigan v. Ruth Johnson). Additionally, Florida Governor Rick Scott recently vetoed a bill that would have granted driver's licenses to DACA recipients. (FAIR Leg. Update, Jun. 10, 2013).