Legislative Update: 3/12/2014
President's Budget Assumes Amnesty, Cuts Immigration Enforcement
President Obama's recently released budget request for fiscal year 2015 (FY2015) claims to reduce the deficit by assuming Congress passes amnesty this year. Despite Speaker John Boehner (R-OH) pledging that the House will never take up the mass guest worker amnesty bill the Senate passed last June, the President attributes $158 billion in deficit reduction over the next decade, and $1 trillion over 20 years to "immigration reform." (See White House Budget FY2015 at p. 30, 164) Additionally, the President's budget assumes that amnesty would increase revenue by $456 billion over 10 years, presumably through the government collecting taxes from amnestied illegal aliens, but fails to account for the future government entitlements (like Social Security) these amnestied illegal aliens would receive. (Id. at p. 170; see alsoWashington Examiner, Mar. 5, 2014)
The President also uses his budget to continue his effort to undermine immigration enforcement by cutting overall funding for U.S. Immigration and Customs Enforcement (ICE), the nation's chief immigration enforcement agency. In fact, President Obama proposes cutting ICE by four and half percent — a major portion of the $1 billion in total DHS cuts the President is seeking. (See DHS Budget in Brief FY2015 at p. 1, 7) In addition to reducing ICE funding, the budget seeks to limit the detention of illegal aliens by promoting the Alternatives to Detention (ATD) program. The request seeks to reduce the number of detention beds ICE is required to maintain for detained illegal aliens from 34,000 to 30,539. (Id. at p. 13) Instead, it allocates $94.1 million for ATD, which releases detained illegal aliens back into the community with electronic monitoring devices or "supervised" release. (Id.) The Administration claims that ATD is "more cost-effective" and only available to those illegal aliens "who are not considered a threat to our communities." (Id.) However, former ICE Director John Morton testified in 2011 that ATD actually costs more than detaining an illegal alien, telling Congress "it actually ends up being cheaper when people are in detention because they move much more quickly." (See House Appropriations Homeland Security Subcommittee Transcript at p. 23, Mar. 11, 2011)
The Obama budget contains several other provisions related to immigration. First, it requests $124.8 million to fund E-Verify but does not seek to require all employers use it to verify their workforce. (See DHS Budget in Brief FY2015 at p. 13) Second, it adds thousands of Customs and Border Protection officers (many of whom do only customs works and are stationed at official ports of entry), while failing to increase the number of Border Patrol agents (who patrol the vast territory between ports of entry). (Id. at p. 12) Finally, President Obama's budget would eliminate the State Criminal Alien Assistance Program (SCAAP) that provides federal money to states and local municipalities for the costs they incur from the incarceration of criminal aliens. (See White House Budget FY2015 at p. 156; for more information on SCAAP, seeBureau of Justice Assistance SCAAP Guidelines; INA § 241(i)
This week, various Committees in both the Senate and House of Representatives began holding hearings on the Obama Administration's FY2015 budget. Over the next few months, Members will decide which portions of the Administration's recommendations to adopt or reject through the passage of spending (appropriations) bills.
Poll Shows Amnesty Support Hurts Candidates
According to a recent national poll of 1002 adults by ABC News/Washington Post, a plurality of adults say they are less likely to vote for a candidate for U.S. Congress who supports a "path to citizenship for undocumented immigrants." (ABC News/Washington Post Poll p. 17, March 4, 2014). The poll found that thirty-eight percent of adults said that they would be less likely to vote for such a candidate, and thirty percent said they would be more likely. (Id.) Twenty-nine percent said it wouldn't make much difference, and three percent had no opinion. (Id.) Thus, according to this poll, among adults, support for amnesty, even described as "a path to citizenship," results in a net loss in support rather than gain. It should be noted that a random sample of 1002 adults, which may include illegal aliens, permanent residents, and non-voting citizens, may find different results than a sample of likely voters.
This poll undermines arguments made by amnesty proponents that Republicans must embrace amnesty to win national elections, particularly during presidential election years with larger turnout. For instance, Senate Minority Whip John Cornyn (R-TX) argued in January that "we can win in 2014 without resolving it [immigration], we can't win in 2016 without resolving it." (National Journal, Jan. 14, 2014) To the contrary, this poll suggests that rejecting amnesty would actually improve Republicans' electoral position, even among a wider electorate. Similar analyses by FAIR and Eagle Forum draw the same conclusion. (See FAIR's Analysis: "Republicans Have an Immigration Problem — And Amnesty Won't Solve It," Oct. 2013; see also Eagle Forum's "How Mass (Legal) Immigration Dooms a Conservative Republican Party, Feb. 2014)
On Wednesday, March 5, the House Judiciary Committee marked up and approved the Immigration Compliance Enforcement Act (H.R. 3732), authored by true immigration reformer Rep. Diane Black (R-TN). The purpose of H.R. 3732 is to stop the Obama Administration's skirting of the law that defunded the government's illegal alien lobbyist position. (Press Release of the House Judiciary Committee, Mar. 5, 2014) This position, created by the Administration within U.S. Immigration and Customs Enforcement (ICE) in February 2012, was eliminated by the appropriations bill that funded the government through fiscal year 2013, thanks to the efforts of Rep. Black. (See FAIR Legislative Update, Dec. 18, 2013) However, the Administration simply changed the title of the position and kept the same employee on at ICE with the same job description. (Id.)
Representative Black therefore drafted H.R. 3732 with broader language than the original law in order to prevent this circumvention by ICE. As introduced, H.R. 3732 would prohibit federal funds from being used to fund any position at the agency that performs the exact or "substantially the same" functions as the position the Obama Administration created. (See H.R. 3732 § 3) During the markup, where the committee of jurisdiction makes any changes it would like to see to the bill before sending it to the full chamber, House Judiciary Chairman Bob Goodlatte (R-VA) offered an amendment that made three key changes: (1) to replace the words "substantially the same," with "substantially similar to;" (2) to remove references to specific dates; and (3) to strike the "findings" section. (See House Judiciary Committee Markup of H.R. 3732, Amendment #1, Mar. 5, 2014) By a 16-14 party line vote, the committee adopted the amendment. (See Roll Call #1) The committee also rejected five amendments proposed by Democrats. (See House Judiciary Committee Markup of H.R. 3732, Mar. 5, 2014) Finally, by a 17-14 party line vote, the committee passed H.R. 3732 as amended. (See Roll Call #9)
Along with H.R. 3732, the House Judiciary Committee passed two other bills on "executive overreach," including the Faithful Execution of the Law Act (H.R. 3973) and the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act (H.R. 4138). (Press Release of the House Judiciary Committee, Mar. 5, 2014) Chairman Goodlatte released a statement that he "look[s] forward to the House of Representatives taking action on these bills soon." (Id.) At this time, however, only the other two bills on executive overreach have been put on the House Calendar. (See Leader's Weekly Schedule, Mar. 10, 2014). Stay tuned to FAIR for more details about when HR 3732 will reach the chamber floor...
On Friday, Chief of the U.S. Border Patrol, Michael Fisher, issued a policy memorandum further limiting the ability of Border Patrol agents to use force to protect themselves at the border. (See CBP directive, "Use of Safe Tactics and Techniques," Mar. 7, 2014) The directive comes in response to complaints by open border groups that Border Patrol agents have used excessive force when patrolling the border, despite reports of increased danger for agents, including projectiles being hurled across the border in an effort to harm them. (LA Times, Feb. 28, 2014)
Complaints from groups such as the American Civil Liberties Union (ACLU) stem from a yet to be made public audit by the pro-amnesty Police Executive Research Forum that allegedly found 19 deaths had occurred in the 67 cases it examined. (Id.; NPR, Feb. 27, 2014; see also AZ Central, Jul. 23, 2009 and DHS Press Release, Feb. 6, 2013) In the audit, the Forum accuses the U.S. Border Patrol of a "lack of diligence" in investigations, and argues that agents should be limited in their ability to defend themselves against those attempting to enter the country unlawfully. (Id.)
On the heels of this unpublished audit, Chief Fisher attempts to calm the open borders lobby by clarifying existing use of force policy and expressly prohibiting U.S. Border Patrol agents from using their firearms under certain circumstances. The memorandum in pertinent part reads:
- [A]gents shall not discharge their firearms at a moving vehicle unless the agent has a reasonable belief, based on the totality of the circumstances that deadly force is being used against an agent or another person present; such deadly force may include a moving vehicle aimed at agents or others present, but would not include a moving vehicle merely fleeing from agents.
- Agents shall not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief, based on the totality of the circumstances, to include the size and nature of the projectiles, that the subject of such force poses an imminent danger of death or serious injury. Agents should obtain a tactical advantage in these situations, such as seeking cover or distancing themselves from the immediate area of danger. (See Policy Directive, pp. 2-3)
Fisher’s directive clearly puts the demands of the open borders lobby ahead of the safety of Border Patrol agents, who are injured while trying to prevent drug cartels and illegal aliens from unlawfully crossing the border. (The San Diego Union-Tribune, Jan. 16, 2014) Indeed, since 2007, there have been over 6,000 assaults against Border Patrol agents, resulting in countless injuries and three deaths. (See Policy Directive, p.1) Moreover, the number of incidents in which agents have been assaulted with rocks is over 1,700, with 400 of such assaults on Border Patrol agents just in the San Diego area. (Id.; The San Diego Union-Tribune, Jan. 16, 2014)
Nonetheless, those seeking the policy shift say it doesn’t go far enough. (Associated Press, Mar. 8, 2014) Policy Counsel for the ACLU in Washington, Chris Rickerd, said the directive "leaves much to be desired." (Id.) "It is largely a restatement of existing policy, which is a shame because clearly existing policy isn't working." (Id.)
Boehner and Obama Agree On Immigration Reform, Disagree On Who Acts First
House Speaker John Boehner (R-OH) and President Barack Obama have said that they have consensus that an immigration bill should be pursued, although they disagree on who should take the next action to move it forward. Boehner told an Ohio newspaper that he concluded from a conversation with the President in the Oval Office about immigration that "He wants to get it done. I want to get it done." (Cincinnati Enquirer, Mar. 4, 2014) The newspaper further reported that "[Boehner] told The Enquirer immigration was a key area of agreement." (Id.) White House Press Secretary Jay Carney also said the Boehner-Obama meeting demonstrated "broad agreement that [immigration] is an issue that needs to be addressed." (White House Transcript, Feb. 27, 2014)
Speaker Boehner took credit for trying to move immigration policy forward as a priority, but tried to place Obama as responsible for the slow progress. Boehner said, "for the last 15 months I've been trying to move the ball down the field," but added that Obama is "going to have to help us in this process." (Daily Call, Mar. 2, 2014; Cincinnati Enquirer, Mar. 4, 2014) Although Boehner was asked how specifically Obama could help to establish trust in the executive branch's enforcement of immigration laws, Boehner refused to give examples, instead saying that he would "leave that to" Obama. (Id.)
President Obama, in separate comments at a Spanish town hall program sponsored by Telemundo, Univision and La Opinion-impreMedia last Thursday, countered that the ball was actually in Congress's court. Obama said, "Until Congress passes a new law I am constrained in what I can do." (Weekly Standard, Mar. 6, 2014) In the town hall, Obama also called himself the "champion-in-chief of comprehensive immigration reform," in an effort to distance himself from the "deporter-in-chief" label that the National Council of La Raza President Janet Murguia gave him. (Politico, Mar. 6, 2014; Fox News, Mar. 7, 2014) Obama also admitted that he had "already stretched [his] administrative capacity very far" by administrative amnesty measures, such as issuing Deferred Action for Childhood Arrivals (DACA), delaying the removals of illegal aliens who meet certain criteria. (Weekly Standard, Mar. 6, 2014)
Alaska: Legislature Passes Bill that Ties Driver's License Expiration Date to Period of Authorized Stay
Last week, the Alaska Legislature passed House Bill (H.B.) 1 which ties the validity of a foreign national's driver's license to his or her authorized period of stay in the United States. The bill passed the Senate by primarily a party-line vote of 13-4, with only one Republican voting against it. (Washington Times, Feb. 28, 2014) It passed the House in April of 2013 by a vote of 29 to 7. (H.B. 1 Bill History)
H.B. 1 specifically requires driver's licenses to expire concurrently upon the expiration of a foreign national's authorized period of stay if his or her stay is authorized for five years or less. (H.B. 1) If the applicant's authorized period of stay is indefinite, the Alaska Department of Motor Vehicles may only issue a license valid for one year. (Id.) H.B. 1 also provides that a person may renew a license valid for less than five years free of charge within the first five years of issuance. (Id.)
The purpose of H.B. 1 is to prevent illegal aliens from using an Alaskan driver's license as a shield from enforcement of immigration law. (Alaska Public Media, Feb. 28, 2014) "Today, a foreign national can walk into the DMV with a visa that expires in two weeks, and get a driver's license issued for five years," said Representative Bob Lynn, who sponsored the bill. (Alaska House Majority Press Release, Feb. 28, 2014) "This bill does one thing, and one thing only; it makes a common sense change and permits the DMV to issue a license for less than five years." (Id.) Senator Fred Dyson, who voted in favor of H.B. 1 commented, "We have a responsibility to see that our major means of identification is not used inappropriately." (Alaska Public Media, Feb. 28, 2014)
Legislators who opposed the bill argued that it will increase the workload required of the Department of Motor Vehicles. (Alaska Public Media, Feb. 28, 2014) "This bill requires DMV to become expert in more than 80 different types of immigration and other statuses," said Senator Bill Wielechowski. (Id.) However, Alaska driver's license regulations already require applicants for a driver's license to provide proof of immigration status through acceptable documentation. (Alaska Administrative Code) The federal REAL ID Act requires the same. In fact, the REAL ID Act goes further and requires the changes mandated in H.B. 1 if a state wishes its driver's licenses to be recognized for federal purposes. (The REAL ID Act of 2005)
H.B. 1 must be approved by the Governor before it can become law. If the Governor signs the bill, Alaska will join a number of states that already have similar laws on the books, including: Alabama, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, and Maryland.