FAIR Legislative Update May 1, 2012
The United States Supreme Court heard oral arguments Wednesday in the Obama Justice Department's (DOJ) lawsuit to enjoin key provisions of Arizona's SB 1070, which it heard on appeal from the 9th Circuit. Questions posed by the eight Justices hearing arguments in the case (Justice Elena Kagan recused herself) indicated the high court may well be on its way to upholding the legislation.
In particular, the Justices expressed skepticism over the Obama Administration's argument that its enforcement priorities preempt SB 1070. For example, Justice Antonin Scalia asked U.S. Solicitor General Donald Verrilli, who was arguing the case for the DOJ, whether he knew of any cases in which the basis of preemption is the "Attorney General's enforcement discretion" and called such "an extraordinary basis for saying that the state is preempted."(See Oral Argument Transcript, pp. 58-59, Apr. 25, 2012) When Solicitor General Verrilli responded that Arizona's criminalization of a failure to comply with federal registration laws was what's "extraordinary," Justice Scalia replied that such is already a crime under federal law and that Arizona was not doing anything beyond what the law already requires. (Id.; see also 8 U.S.C. §§ 1304, 1306)
Even Justice Sonia Sotomayor, who was appointed to the Supreme Court by President Obama, stated that the Administration's arguments were "not selling well." (Transcriptat p. 55) Asking for Solicitor General Verrilli to offer another argument, she asserted, "Frankly…it's not that [SB 1070 is] forcing you to change your enforcement priorities. You don't have to take the person into custody. So what's left or your argument?" (Id.)
The Court also appeared to dismiss Solicitor General Verrilli's argument that federal law preempts SB 1070 because it would interfere with the national government's ability to forge and maintain relationships with other countries. In response to this argument, Justice Kennedy responded, "So you're saying the [federal] government has a legitimate interest in not enforcing its laws?" (Transcript at p. 63) A few moments later, Scalia incredulously asked the Solicitor General, "So we have to enforce our laws in a manner that will please Mexico?" (Id. at 69)
Finally, the Justices questioned the Administration's desire to enforce U.S. immigration law. Mid-hearing, Chief Justice John Roberts commented to Solicitor General Verrilli, "It seems to me that the federal government just doesn't want to know who is here illegally or not." (Id. at 49-50)
At issue before the Supreme Court were four sections of SB 1070:
- Section 2: Requires state and local law enforcement officers, during a lawful stop, arrest or detention, to inquire about immigration status if the officer has reasonable suspicion to believe the individual is an illegal alien.
- Section 3: Provides that it is a violation of state law for an illegal alien to be in violation of the federal alien registration statutes.
- Section 5: Creates a misdemeanor offense that prohibits illegal aliens from applying for work, soliciting work in public places, or performing work in Arizona.
- Section 6: Authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense.
All four of these sections were enjoined by the Federal District Court for the District of Arizona. The 9th Circuit Court of Appeals then upheld that injunction. (See FAIR Legislative Update, Apr. 23, 2012)
Although Justice Elena Kagan recused herself from the case, five Justices must still decide in favor of the legislation, or certain provisions of it, for them to take effect. A four-four split would result in the 9th Circuit Court of Appeals' injunction being upheld. The Court is expected to issue its opinion in June.
ICE officials suspended over 16,500 pending illegal alien deportation cases last week. (FOX News Latino, April 25, 2012) This is the latest development in the Obama Administration's review of the nation's pending 300,000 immigration cases in an effort to grant amnesty to those not fitting its enforcement "priorities." (See FAIR Morton Memos Summary, Jan. 2012)
The Administration has made clear that it intends to suspend these cases indefinitely unless the alien is subsequently convicted of a crime meeting its priorities. (Id.) Moreover, it is estimated that the Administration grants work authorization to 90 percent of the illegal aliens whose cases it closes. (See Judiciary Committee Press Release, Apr. 25, 2012)
According to ICE, already 2,700 of the suspended cases have been permanently shelved. (Washington Post, Apr. 24, 2012) Moreover, statements by ICE officials indicate that many of these cases meet specific criteria found in Director John Morton's prosecutorial discretion memos and in the failed DREAM Act, such as college enrollment, longstanding unlawful presence, and arrival in the U.S. as a minor. (Id.; See FAIR DREAM Act Summary, Nov. 12, 2010; see also FAIR Morton Memos Summary, Jan. 2012)
The U.S. Senate passed Thursday the Violence Against Women Reauthorization Act (VAWA), S. 1925, a bill that contained provisions that would increase the number of U visas by tens of thousands. (See how Senators voted here) S. 1925, introduced by Senate Judiciary Chair Pat Leahy (D-VT), accomplishes this by increasing the number granted annually from 10,000 (the current ceiling) to 15,000, until all unused U visas since 2006 are recaptured. (S. 1925 at § 805)
Congress created the U nonimmigrant visa in 2000 to allow aliens who have suffered substantial physical or mental abuse as a victim of domestic violence, rape, or certain other crimes to obtain temporary legal status if they help law enforcement prosecute those crimes. (INA § 101(a)(15)(U); see also FAIR Legislative Update, Feb. 6, 2012) An alien can obtain a U visa regardless of legal status, remain in the country for four-years at a time, receive work authorization, and become eligible for a green card after three years. (INA § 214(p); USCIS Website on U visas)
Senators Kay Bailey Hutchison (R-TX) and Charles Grassley (R-IA) introduced a substitute amendment to the bill that would have stricken the U visa provisions, but it did not garner the 60 votes necessary to pass. (See S.Amdt.2095; see also vote on amendment)
Representative Sandy Adams (R-FL) has introduced H.R. 4970 in the House, a VAWA Reauthorization bill mirroring Sen. Hutchison and Grassley's alternative legislation. Rep. Adams reportedly told The Hill that the Judiciary Committee (of which she is a member) is likely to markup that legislation the week of May 7 and the full House may vote on it as soon as the week of May 14. (The Hill, Apr. 25, 2012)
In an attempt to discredit Arizona's immigration enforcement law the day before the U.S. Supreme Court was scheduled to hear oral arguments on it, Senator Chuck Schumer (D-NY) convened a hearing of the Senate Judiciary's Immigration Subcommittee to examine the "constitutionality and prudence" of state and local immigration enforcement laws. (See Sen. Schumer Letter, Feb. 23, 2012)
Sen. Schumer, who chairs the Subcommittee, wasted no time before speaking out against the Arizona legislation, SB 1070. Calling it "counterproductive and unconstitutional," he threatened to introduce a bill that would prohibit state and local police from enforcing immigration laws unless they are doing so pursuant to an explicit agreement with the federal government and are trained and supervised by federal officials. (Bloomberg Government Transcript, Apr. 24, 2012) Current law specifically provides that an agreement is not required for state and local officers to assist in the identification, apprehension, detention, or removal of illegal aliens. (INA § 287(g)(10); 8 U.S.C. 1357(g)(10))
Sen. Dick Durbin (D-IL), the only other Member of the Subcommittee to attend the hearing, echoed Schumer's opposition to the law, and used the hearing as a platform for his failed DREAM Act. As an aide held up enlarged photographs of illegal alien minors that would qualify for amnesty under the DREAM Act, Sen. Durbin declared that it "is wrong and counterproductive to criminalize people because of their [immigration] status." (Bloomberg Government Transcript, Apr. 24, 2012) He then argued that the several illegal alien minors whose photos he showcased would be deported if SB 1070 were allowed to go into effect.
Former President of the Arizona State Senate and author of SB 1070 Russell Pearce was the only witness invited to speak in support of the law. Underscoring the need for his legislation, Pearce told Sens. Schumer and Durbin that illegal immigration costs Arizonans billions annually. That figure, he told them, "is just to educate, medicate, and incarcerate and… don't reflect the cost of crimes committed by those here illegally or jobs lost." He also reminded them that several of the 9/11 hijackers were in the country illegally, emphasizing the connection between enforcement of immigration laws and terrorist threats. "Four of the five leaders of the 9/11 attack were in violation of our immigration laws and had contact with law enforcement and were not arrested. The failure to enforce the immigration laws was instrumental in the deaths of nearly 3,000 people on that tragic day in America," he said.
Republicans on the Subcommittee boycotted the hearing, telling reporters it was merely a political stunt. "I will not participate in today's hearing because it is strictly political theater," said Sen. Jon Kyl (R-AZ), who serves on the Subcommittee. He continued, "The timing of the hearing just one day ahead of the Supreme Court's review of the law suggests that its purpose is either to influence the court's decision or to garner publicity."
On Wednesday, the Senate Judiciary Committee held an oversight hearing on the Department of Homeland Security (DHS), with Secretary Janet Napolitano as its witness. Among the issues discussed by the Committee was the long-awaited biometric exit system to track whether aliens leave the country upon the expiration of their visa.
In March, DHS Principal Deputy Coordinator for Counterterrorism John Cohen testified before Congress that a finalized plan for the implementation of a biometric exit system would be presented within thirty days. (Bloomberg Government Transcript, Mar. 6, 2012) That deadline, however, has come and gone.
Despite missing this deadline, Secretary Napolitano did not reveal an effort to speed up the planning process. To the contrary, the Secretary made it clear that a biometric system wouldn't be ready for at least four more years, and then only if the plan the Department develops is cost-effective. (See Bloomberg Government Transcript, Apr. 25, 2012; see also Sec. Napolitano Written Testimony, Apr. 25, 2012)
Insisting that a biometric system was too costly to immediately implement, Secretary Napolitano instead claimed that the Administration would have an "enhanced biographic" system ready by June and that the Office of Management and Budget was currently reviewing the final plan. (See Bloomberg Government Transcript, Apr. 25, 2012)
Sen. Jon Kyl (R-AZ), however, was unwilling to accept the Administration's explanation that a biometric-exit system could not be implemented because of a lack of resources, pointing out that this is a frequent excuse used by the Secretary. (See FAIR Legislative Update, Mar. 12, 2012) "Every year I say if you need more resources, ask for [them]," he told her. He continued, "[You say] no, we've got everything we need. And then the excuse of not moving forward on something is [you] don't have enough resources. You can't have it both ways." (Bloomberg Government Transcript, April 25, 2012)
Stay tuned to FAIR as details of the Administration's proposed plans emerge...
Today, the Alabama Senate is expected to take up HB 658, legislation that would substantially weaken HB 56, the state's immigration enforcement law adopted just last year. If passed, HB 658 would limit the circumstances under which local law enforcement officers check immigration status, weaken the penalties for knowingly hiring illegal aliens, eliminate the prohibition on renting apartments to an individual a landlord knows is an illegal alien, eliminate the ability of citizens to bring an action against a law enforcement agency's sanctuary policy or practice, and eliminate the requirement that schools collect immigration data on their students for inclusion in state reports. (See HB 658 as engrossed; FAIR Legislative Update, Apr. 9, 2012)
HB 658, authored by Rep. Micky Hammon (also the House author of HB 56), was introduced on April 5th and has quickly traveled through the state legislature. It passed the Alabama House, with amendments, April 19th by a 64-34 vote and has since cleared the Senate Judiciary Committee by a vote of 7-3.
The Senate vote to revise HB 56 is expected despite the fact that the United States Supreme Court is currently reviewing many of the same provisions found in Arizona SB 1070. During the oral arguments on SB 1070 at the Supreme Court last week, many of the Justices indicated they would uphold at least parts, if not all of, of SB 1070. In fact, their comments on the constitutionality of SB 1070 were so direct, Alabama Attorney General Luther Strange has since recommended to the State legislature that it hold off on amending HB 56 until the Supreme Court issues its ruling on SB 1070. (The Birmingham News, April 27, 2012) That ruling is expected in June.