Legislative Update: 12/16/2014
Congress Passes Funding Bill without Defunding Executive Amnesty
There was high drama on Capitol Hill last week before Congressional leaders were able to ram through a $1.1 trillion government funding bill. The bill, H.R. 83, funds the Department of Homeland Security (DHS) through February — without defunding President Obama's executive amnesty — and funds the rest of the government for the remainder of Fiscal Year 2015. (See FAIR Legislative Update, Dec. 9, 2014)
House leaders scheduled a vote on H.R. 83 for Thursday afternoon, less than 48 hours after releasing the 1,600-page bill. But just minutes before the House was set to vote, GOP leaders unexpectedly pulled the bill from the floor. This decision came after a vote on a procedural rule for the bill barely passed 214-212 and leadership realized the bill had insufficient support to pass. (Roll Call Vote 561) Finally, after hours of backroom negotiations House leadership was able to pass the bill 219-206. (Roll Call Vote 563) Then, in order to give the Senate time to take up the massive funding bill, both chambers passed a two day continuing resolution that extended current funding levels through Saturday. (The Hill, Dec. 12, 2014)
The fireworks continued on the Senate floor as true immigration reformers fought to defund President Obama's executive amnesty. First, Sen. Jeff Sessions demanded a vote on an amendment to defund the executive amnesty. (Video of floor speech available here) After Senate Majority Leader Harry Reid (D-NV) refused to accept any amendments, Sen. Ted Cruz (R-TX) demanded a separate vote (called a point of order) on the constitutionality of Obama's actions. "If you believe President Obama's executive order was unconstitutional vote yes," Cruz said. (The Hill, Dec. 13, 2014) Disappointingly, that vote failed 22-74. (Roll Call Vote 353) Then on Saturday night, the Senate passed H.R. 83 56-40, avoiding a government shutdown but failing to defund the executive amnesty. (Roll Call Vote 354)
While H.R. 83 merely extends DHS funding at current levels without alteration (See P.L. 113-76, Jan. 17, 2014; P.L. 113-164, Sept. 17, 2014), the bill allocates money for immigration programs in other departments. Specifically, H.R. 83 appropriates money for immigration-related programs in the Departments of Health and Human Services (HHS), Education, Justice, and State.
Within Health and Human Services, H.R. 83 appropriates new funds to address the unaccompanied alien minors (UAC). In particular, it allocates $948 million for the Refugee and Entrant Assistance program within HHS, which provides housing and care for UACs. (Division G Committee Report at p. 142) This amount represents an $80 million increase from FY14 ($858 million) and $70 million more than the President's FY15 request ($868 million). (Id.) A House GOP aide says this funding level is sufficient to care for the same number of UACs that arrived last year without having to use emergency beds or housing in military bases. (CQ Today, Dec. 9, 2014) Additionally, H.R. 83 appropriates $14 million to the Department of Education to fund English Language Acquisition grants for States in which at least one county received 50 or more UACs since January 1, 2014. (H.R. 83, at p. 909-10)
Notably, H.R. 83 does not include language the House passed this summer to make it easier to return UACs to their home countries. Earlier this year, as tens of thousands of illegal alien minors crossed the border into Texas, the Obama administration insisted it could not promptly remove the illegal alien minors because of an obscure provision (Section 235) in the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. (See FAIR Legislative Update, July 8, 2014) Just before the August recess, the House passed language drafted by Reps. John Carter (R-TX), Robert Aderholt (R-AL), and Jack Kingston (R-GA) — and endorsed by FAIR — that amended the TVPRA so all UACs have the same removal process, regardless of country of origin. (FAIR Legislative Update, Aug. 5, 2014) While the new funding bill allocates $1.56 billion to "carry out" Section 235 of the TVPRA (along with other trafficking statutes), it does not incorporate the Carter-Aderholt-Kingston language. (See H.R. 83, at p. 862-63)
Within the Department of Justice (DOJ), H.R. 83 appropriates $351 million for administrative review and appeals, a $36 million increase from FY 2014. This increase is intended to address a skyrocketing backlog in the immigration courts, which are overseen by immigration judges within the Department of Justice. During the Obama Administration, the backlog has doubled from over 200,000 cases to over 400,000 cases. (See, e.g., Transactional Records Access Clearinghouse (TRAC))
While H.R. 83 adds money for immigration judges, it inadequately funds the Justice Department's State Criminal Alien Assistance Program (SCAAP). This program is important to state and local governments, especially those with high illegal alien populations, because it reimburses jails, at least partly, for the cost of incarcerating criminal aliens. While H.R. 83 provides $185 million for SCAAP –– a $5 million increase compared to FY 2014 – the funding is far less the $238 million than Congress appropriated in FY 2013. (H.R. 83, p. 151; see FAIR Legislative Update, Jan. 22, 2014) Notably, Congress has repeatedly cut funding for SCAAP since appropriating $565 million in 2002. (See FAIR Legislative Update, Jan. 22, 2014)
Regarding immigration policy, H.R. 83 permanently enshrines a provision of the FY 2014 omnibus appropriations bill that makes it easier for the seafood industry to import unskilled guest workers. This provision exempts the seafood industry from labor regulations governing the H-2B unskilled guest worker program by allowing seafood employers to bring H-2B workers into the U.S. at any time during a 120-day period rather than on a date specified by the employer in advance. (See enrolled version of H.R. 3547, p. 358-359; Rules Committee Print 113-59, p. 827-829; Department of Labor Website FAQ)
Senate Appropriations Committee Chairwoman Barbara Mikulski (D-MD) has been the main advocate of this provision for the convenience of Maryland's seafood industry. (See Mikulski Press Release, Jan. 14, 2014) Indeed, Senator Mikulski has long fought the application of H-2B regulations to the seafood industry because they prevent seafood employers from "staggering" seasonal H-2B workers by bringing them in at different times during the season to match peak harvest times. (See, e.g. The Dispatch, Jan. 23, 2014) DHS and Department of Labor regulations prevent employers from petitioning for large numbers of workers to start work at different times in one application because the employer must indicate a specific start date for all of the workers in each petition. (See 8 CFR § 214.2(h)(6)(iv)(D) and 20 CFR §655.20(d)).
The 2014 fiscal year omnibus appropriations bill included a provision that exempted employers in the Seafood industry from these rules, though only temporarily. It allows the seafood employers to stagger their workers as long as they are brought in "any time during the 120-day period" which they name on their application — that is, any time during the harvest season. (Rules Committee Print 113-59, p. 827-829). They may file a petition for multiple workers on one petition even if the workers do not work at the same time. (Id.) Lifting these rules means that the seafood industry in Maryland will continue to be able to bring in foreign temporary workers at any time for their whole harvest season, making the use of the program possible even for workers which need to be staggered, rather than raising wages enough to attract American workers to gather the Maryland shellfish harvest. (See Department of Labor Website FAQ)
While the provision was temporary in the FY 2014 appropriations bill, H.R. 83 makes it permanent in Senator Mikulski's final month as Chairwoman of the Senate Appropriations Committee.
Finally, H.R. 83 extends and funds the Travel Promotion Act of 2009 through FY 2020. (Rules Committee Print 113-59, p. 217-223) Congress first passed the Travel Promotion Act in 2009 to establish the creation of non-profit corporation to promote tourism to the United States. (22 U.S.C. 2131) Originally, Congress authorized $10 million in funding for start-up costs for the non-profit corporation, to be taken from fees charged to travelers in the Visa Waiver Program who must apply to the Electronic System for Travel Authorization (ESTA). (See 22 U.S.C. 2131(d)) Beyond this start-up funding, Congress authorized the corporation to receive up to $100 million for each year in additional funds during the fiscal years 2012 to 2015, also to be taken from ESTA fees. (Id.) These federal funds were to be matching funds, meaning that the amount the corporation would receive from the federal government would depend on how much it could raise from non-federal sources each year. (Id.) The federal government provided matching funds at a 2-to-1 ratio in FY 2012, meaning the corporation would only have to raise $50 million that year to receive the full $100 million. In the subsequent fiscal years, the federal government matched at 1-to-1 ratio, meaning that for each dollar raised by the industry, up to $100 million, the federal government would provide an additional dollar. (Id.) After the passage of the bill, the corporation "Brand USA" was established in fulfillment of the statute. (SeeUstravel.org) Its stated goal was to encourage increased tourism to the United States in order to help promote the economy. (Brand USA website)
Funding for the program originally would have sunset in fiscal year 2015, but the FY 2015 appropriations bill provides that matching funding will continue until FY 2020 at the same level as fiscal years 2013 to 2015: with industry receiving matching federal funding for the money it raises at a 1 to 1 ratio, up to $100 million a year. (Rules Committee Print 113-59, p. 217-223)
Local Officials Explain Burden of Illegal Alien Minors to Congress
Last Wednesday at a hearing before the House Judiciary Committee, local officials and experts testified to the strain that tens of thousands illegal alien minors have put on American communities. (Hearing, Dec. 10, 2014)
Sheriff of Bristol County, Massachusetts, Thomas Hodgson testified that the influx of illegal alien minors to Bristol County from the crisis over the summer had overtaxed the county's resources and infrastructure. (Hodgson Testimony) "Drug cartels," he stated, have accelerated their efforts to increase drug and human trafficking into the U.S. (Id.) He also testified that many of the "minors" entering the country are themselves members of gangs such as MS-13, and that it is essential for local law enforcement to identify them quickly, and that the Secure Communities program (which the Administration is now dismantling) has been crucial. (Hearing, Dec. 10, 2014) Leonard Scarcella, the Mayor of the City of Strafford, Texas, explained that sending minors to communities without notice would be particularly burdensome on local agencies. (Scarcella Testimony) He emphasized the importance of allowing local communities to have an influence in the discussion, particularly because of the requirements that federal law places on localities to provide public education. (Id.)
Three House members, Rep. Lou Barletta (R-PA), Rep. Pete Olson (R-TX), and Rep. Adrian Smith (R-NE), told the Committee about legislation they had introduced to force the federal government to be more transparent in resettling the minors. (Id.) All three complained about the lack of communication and notice from the federal government when resettling minors. (Id.) Both Rep. Olson's bill, H.R. 5138, and Rep. Smith's bill, H.R. 5129, required HHS to give advanced notice when HHS placed minors in a state, and Rep. Barletta's bill, H.R. 5409, would also allow state and local officials to refuse to accept minors if the cost would be too burdensome. (See FAIR Legislative Update, Sept. 16, 2014; Smith Testimony, Olson Testimony, Barletta Testimony) Representative Barletta explained that the Department of Health and Human Services (HHS) had secretly been working with organizations across the country to place UACs in various communities without telling anyone in the state or locality. (Barletta Testimony) He found out only because one of these non-profit groups had called city officials in Hazleton, Pennsylvania about its plans, and those officials had alerted the Congressman. (Id.)
On Wednesday, December 10, sheriffs from around the country organized in Washington, D.C. and demanded that Congress support enforcement of immigration law and defund President Obama's executive action to legalize millions of illegal aliens. With the support of the National Sheriffs' Association, the sheriffs warned Congress of the vast public safety consequences of the President's executive amnesty.
Sheriff Thomas M. Hodgson of Bristol County, Massachusetts and Plymouth County, Massachusetts Sheriff Joseph D. McDonald, Jr. organized the trip this fall after a twice-deported criminal alien shot and killed two California sheriffs. (Breitbart, Dec. 10, 2014) "Sheriffs across this country are tired of being marginalized. We need to make it clear that we're the ones with the boots on the ground at the border and we are saying loud and clear that the situation there is getting worse and worse." (Id.) Sheriffs Hodgson and McDonald persuaded close to 50 sheriffs to come to Washington to share this message with Members of Congress and the press.
Once in D.C., Sens. Jeff Sessions (R-AL) and David Vitter (R-LA), and Rep. Marsha Blackburn (R-TN) held a joint press conference with the sheriffs. (National Review, Dec. 10, 2014) Introducing the sheriffs to the media, Sen. Sessions explained, "These officers confront these issues on a daily basis and their voices have not been heard. There have been twenty-some odd meetings in the White House this summer... and they have primarily been with business and special interests groups. But not once has the Sheriff's Association been invited, not once have federal law officers been invited, to detail on the problems that have been created by the lack of enforcement." Sen. David Vitter also criticized the President's executive amnesty and explained it is "exactly the wrong policy because it is rewarding illegal crossings... and number two it is flat out unconstitutional."
In the press conference, the sheriffs emphasized the devastating effect illegal immigration has had on their communities. Frederick County, Maryland Sheriff Chuck Jenkins, who represented the Maryland Sheriff's Association stated, "You ask, why am I here? Because what we see in Frederick County, Maryland, are the same problems that the border county sheriffs see. We see human trafficking, we see an insurgence of heroin, we see transnational criminal gang members coming into our communities, committing crimes, harming our citizens, and breaking the law by every means possible." (MRCTV, Dec. 11, 2014)
Jackson County, Texas Sheriff Louderback, president of the Texas Sheriff's Association, emphasized that every community in the United States is affected by the cartel violence. "What we're facing in Texas and in this nation is a large 'Welcome' sign and a saloon-door mentality on our border... We do not support this amnesty. We cannot support this amnesty. The sheriffs in this country stand united and unified against this type of illegal situation that's going on. And we would ask for everyone to unite behind us as we give everything we can to try to get this country back the way it should be." (Id.)
Sheriff Paul Babeu from Pinal County, Arizona, president of the Arizona Sheriffs' Association, said illegal border crossings are directly related to increased drug cartel activity in his county. "For you and I as American citizens, when it comes to law enforcement, the law applies to you and I, yet when it comes to immigration, there is no law, because there are no consequences." (Id.) Sheriff Babeu demanded Congress to protect Americans' safety. "Put our security first. And that should be driving this debate that nobody should disagree with." (Id.)
The sheriffs and Members of Congress also expressed concerns that the executive amnesty will make it harder for unemployed citizens and legal immigrants in their communities to find jobs. (Montgomery Advertiser, Dec. 10, 2014) Sen. Sessions said the president's action "is taking jobs and benefits directly from struggling American lawful immigrants and our native-born," Sessions said. (Id.) Congresswoman Blackburn believed the executive amnesty is unfair to unemployed Tennesseans and legal immigrants who have been waiting to enter the country lawfully. (Id.)Rockingham County, North Carolina Sheriff Sam Page commented, "I'm also concerned about people who are unemployed and homeless in our communities that are getting placed second in this country, and they should be a first consideration."
Sheriff Sam Page also criticized the President's decision to end Secure Communities. "A year ago, Secretary Napolitano, DHS, said Secure Communities is a good program. Now it's not a good program?" Sheriff Page explained that Secure Communities "helps us identify criminal offenders who have been arrested and gone through our jails and allows us to work with ICE to deport them from our country." Without the program, Sheriff Page said "basically we are going to have 'catch and release,' and criminal offenders will be released back into our communities."
Last week, Congress passed a spending bill that did not include any language specifically defunding the President's executive amnesty. (CBS, Dec. 13, 2014)
Last Friday evening, the Senate passed Fiscal Year 2015 National Defense Authorization Act (NDAA), which the House had passed on December 4, by a vote of 89 to 11. (Senate Roll Call) As detailed in FAIR's previous legislative update, the NDAA contains provisions which will make it easier for Afghans and Kurds to emigrate to the United States. (See FAIR Legislative Update, Dec. 9, 2014)