Legislative Update: 3/3/2015
Senate Rejects Conference on DHS Funding Bill; Speaker Boehner at Crossroads
Monday afternoon, the Senate rejected going to conference committee with the House of Representatives on the Department of Homeland Security appropriations bill (H.R. 240). All Senate Democrats who voted opposed the motion to go to conference, in a 47-43 vote, which required 60 votes to pass. Ten Senators (7 Republicans and 3 Democrats) did not vote. Then, the Senate voted to table the House's request to conference 58-31 and sent back to the House the Senate version that does not defund the executive amnesty. The failure of the Senate to reach conference came less than 72 hours after Congress extended funding for the Department of Homeland Security (DHS) for one week. The one-week extension capped a day-long battle last Friday as Republicans debated how to address President Obama's executive amnesty and funding for DHS, which was scheduled to run out at midnight.
The extension of funding for DHS did little more than buy House Leaders a few days to strategize after months of debate. In January, the House passed an appropriations bill (H.R. 240) that fully funds the department but defunds the executive amnesty. (FAIR Legislative Update, Jan. 20, 2015) However, that legislation stalled in the Senate when Democrats refused to even debate the bill, arguing that the bill should be stripped of any matters relating to the President's executive amnesty.
As the deadline neared last week, Senate Majority Leader Mitch McConnell (R-KY) and Senate Minority Leader Harry Reid (D-NV) struck a deal. Reid agreed to throw Democratic support behind a motion to begin debate on H.R. 240, and in return McConnell agreed to offer one and only one amendment to strip the defunding language from the bill. The Leaders executed the deal as planned and by mid-day Friday, sent the House of Representatives a DHS funding bill that had been stripped of all defunding language.
House Republicans were reluctant to move on the Senate bill that failed to address the executive amnesty. Some Republicans in the House argued to extend funding for Homeland Security for three weeks (the CR) in an attempt to go to conference committee with the Senate. But some Republicans argued that they did not want to vote for any legislation that funded President Obama's executive amnesty. Other Republicans wanted to fund Homeland Security and not defund the executive amnesty, essentially letting it move forward.
The House first brought up and passed a motion to go to conference committee on H.R. 240 with the Senate. That motion passed by a vote of 228-191, with all Democrats and 12 Republicans opposing. Early evening, the House brought up a continuing resolution (CR) to extend funding for DHS for three weeks. The three-week extension was intended to give the House and Senate enough time to hold a conference committee. However, that legislation failed by a vote of 203-224, with all Democrats and a sizable number of Republicans in opposition.
The failure of the three-week funding extension seemed to surprise House GOP leadership, which immediately recessed to regroup with fellow Republicans. Several hours passed as members met and negotiated. After 8 p.m., it seemed the House and Senate had reached a temporary solution. The Senate took up and unanimously passed a seven-day extension of funding for DHS. The House then promptly took up and passed the Senate resolution by a vote of 357-60, with strong Democratic and Republican support, and President Obama signed it.
Immediately after the vote, inside-the-beltway publications reported that House Speaker John Boehner had struck a deal with Minority Leader Nancy Pelosi (D-CA) for the one-week extension. Politico, CQ News, and National Journal all wrote that Boehner had promised Pelosi a vote this week on a "clean" DHS appropriations bill, i.e. one that allows the Department to proceed with the President's executive amnesty. Indeed, right before the vote, Pelosi –who had been arguing for a funding bill for the rest of the fiscal year — sent a letter to fellow Democrats asking them to vote for the one-week extension because doing so would ensure passage of the longer-term DHS funding bill in the next seven days. (CQ News, posted at 10:57, Feb. 27, 2015) Boehner's spokesman denied that any promise had been made. (Id.)
On Sunday, Speaker Boehner was coy about whether he had promised Nancy Pelosi a vote on a DHS funding bill that lets the executive amnesty proceed. Speaking to reporters on CBS's Face the Nation, Boehner merely said, "The promise I made to Ms. Pelosi is the same promise I made to Republicans, that we follow regular order." (Face the Nation, Mar. 1, 2015) Whether that means the Republican Speaker will have to depend on Democratic votes to pass a DHS appropriations bill in the face of Republican opposition is at this time uncertain.
Confirmed: Each Amnestied Illegal Alien is Eligible for $35,000 in Tax Credits
A new report from the Congressional Research Service (CRS), the nonpartisan policy research arm for lawmakers, finds that President Obama's November executive amnesty makes illegal aliens eligible for tens of thousands of dollars in tax credits. The CRS report — addressed to the Senate Judiciary Committee — confirmed the testimony last month of a tax expert appearing before the Senate Homeland Security Committee and the testimony of Internal Revenue Service (IRS) Commissioner John Koskinen at a Senate Finance Committee. (See FAIR Legislative Update, Feb. 10, 2015)
The CRS report explained how the normal application of tax laws to illegal aliens with deferred action makes the aliens eligible to claim tens of thousands of dollars from the government. First, the CRS report analyzed the amount of the Earned Income Tax Credit (EITC) and the Additional Child Tax Credit (ACTC) a family with three or four children can claim. (CRS Memo, Feb. 25, 2015) The EITC is a tax credit for lower income tax filers but requires a social security number in order to claim. (See 26 U.S.C. § 32) If the EITC credit is larger than the tax filer's tax liability, the difference is paid out to the filer. Since President Obama's executive amnesty rewards illegal aliens with Social Security numbers they become eligible for the EITC. The ACTC allows low-income earners to receive a credit of $1,000 per child. If filers owe no taxes, they get that $1,000 per child paid to them. (See 26 U.S.C. § 24) However, unlike the EITC, illegal aliens are already able to claim the ACTC because Congress has yet to close the loophole in federal law that allows taxpayers to claim the credit with an Individual Taxpayer Identification Number (ITIN) rather than a Social Security number. (26 U.S.C. § 24(e)) The IRS freely gives out ITINs to illegal aliens so that they can comply with U.S. tax laws (even if they are violating immigration laws).
Once eligible for both the EITC and the ACTC, CRS explained how aliens can use that eligibility to claim these credits for previous years. U.S. tax law allows a person to amend their tax returns from the past three years. Then, CRS calculated the value of the EITC and ACTC for 2011, 2012, 2013, and 2014. (CRS Memo, Feb. 25, 2015) For 2011, a family with three or four children can receive a combined EITC and ACTC credit of $8,567 ($5,751 for EITC, $2,816 for ACTC). (Id.) For 2012, a family with three or four children can receive a combined tax credit of $8,786 ($5,891 for EITC, $2,895 for ACTC). (Id.) For 2013, a family with three or four children can receive a combined tax credit of $9,025 ($6,044 for EITC, $2,981 for ACTC). (Id.) For 2014, a family with three children can receive a combined tax credit of $9,143 ($6,143 for EITC, $3,000 for ACTC) while a family with four children can receive $9,182 ($6,143 for EITC, $3,039 for ACTC). (Id.) Thus, combined, amnestied illegal aliens filing tax returns for 2014 (and amending their 2011-2013 returns) can receive approximately $35,000 in tax credits.
However, the actual cost to taxpayers is likely greater because both programs are already riddled with fraud. During the Senate Homeland Security hearing where it was first discovered that the executive amnesty will reward illegal aliens with taxpayer benefits, Chairman Ron Johnson (R-WI) noted that EITC and ACTC "cost taxpayers $89.6 billion in 2013, [and] were responsible for $21 billion in improper, potentially fraudulent payments that same year." (See FAIR Legislative Update, Feb. 10, 2015)
Obama: DHS Employees Who Don't Follow Orders Will Face "Consequences"
Last Wednesday, President Obama delivered an implied threat to discipline or even fire Department of Homeland Security (DHS) employees who might be inclined to follow the law instead of DHS' unlawful amnesty policies. (Weekly Standard, Feb. 25, 2015) While answering questions before amnesty activists at a town hall event hosted by MSNBC and Telemundo anchor Jose Diaz-Balart, the President explained that any official at Immigration and Customs Enforcement (ICE) who refused to obey his executive actions would face "consequences." (Id.; NBCNews.com, Feb. 24, 2015)
Any ICE officials or Border Patrol agents who ignore the new directives, he said, would be "answerable" to Homeland Security Secretary Jeh Johnson. (Weekly Standard, Feb. 25, 2015) But Mr. Diaz-Balart asked how DHS would "ensure" that illegal aliens would not be deported. The President hastened to assure him that, as in the "U.S. military" or "the government generally," any individual who fails to follow an order has "got a problem." (Id.)
Ironically, it may end up being the President who faces consequences for his command that Secretary Johnson force all ICE officials to follow his directives exactly as ordered. Federal lawyers defending the President's actions have leaned heavily on the idea that DHS officials still have discretion to carry out the President's executive amnesty policies. When the Administration announced the executive actions in November, the Office of Legal Counsel (OLC) argued that DHS has the legal authority to carry out DACA and DAPA precisely because the programs allow "significant room for immigration officials to evaluate the circumstances of individual cases." (Opinion of the OLC, p. 8, Nov. 19, 2014) The federal government also argued only a month ago that DHS officials may exercise "discretion" and make decisions "on a case-by-case basis." (Texas v. U.S.A., Government Sur Reply, p. 34, Jan. 30, 2015) It is this supposed "discretion" that allows the Administration to claim it is neither unconstitutionally rewriting the law nor even adopting new regulations without following proper procedures. However, if employees of DHS must follow the requirements of DACA and DAPA as set out by Secretary Johnson or face disciplinary action, clearly, they do not in fact have this claimed discretion.
In fact, U.S. District Judge Andrew Hanen has already found that the very lack of discretion the President has boasted of means that the program is illegal. (Memorandum Opinion, Texas v. USA, p. 108-110) Judge Hanen found that DAPA and extended DACA had a "binding effect" on agency officials that severely restricted and "virtually extinguished" any room for a case-by-case analysis on the part of USCIS officials. (Id.; see also IRLI.org, Feb. 20, 2015) The only "discretion" the judge found was on the part of the Secretary of Homeland Security himself, and the Department of Justice's labeling of DAPA and extended DACA as merely "guidance" was "disingenuous." (Id.)
The Administration has been secretive regarding the way its amnesty policies will be actually be carried out, perhaps with the intention of making them harder to challenge legally or politically. However, now the public does know that punishing those officials who do not follow Secretary Johnson's directives to the letter will be one of those policies' features.
Administration May Launch Executive Amnesty in Some States Despite Injunction
According to amnesty advocate Rep. Luis Gutierrez (D-IL), the Administration may partially implement President Obama's DAPA and expanded DACA programs in some states, despite the federal injunction blocking them nationwide. (The Hill, Feb. 25, 2015; see FAIR Legislative Update, Feb. 24, 2015; see Texas v. USA Memorandum Opinion and Order of Temporary Injunction) According to Gutierrez, the Administration is weighing whether it has the authority to ignore the judge's order in the 24 states that did not choose to sue the federal government. (Id.) He also claimed that the White House was "absolutely" considering whether the ruling only should apply in Texas itself. (Id.)
Indeed, Rep. Gutierrez goes so far to suggest that the Administration may be preparing to violate the federal injunction if U.S. District Judge Andrew Hanen rejects the Administration's request for a stay and rules that the injunction should remain in effect as it is. (See Defendant's Motion to Stay; The Hill, Feb. 25, 2015) The idea of this partial implementation has caught on with amnesty "advocates," he said to reporters after a private meeting between President Obama and pro-amnesty activists, and "President Barack Obama" is "thinking about it" as well, with the White House "trying to figure out" if it's an option. (Id.)
In its filing with the court on February 23, the Department of Justice (DOJ) made two major arguments: (1) that Judge Hanen should stay his order blocking DAPA and the expanded DACA program until an appeals court rules whether the injunction is proper, and (2) in the alternative, that Judge Hanen should allow the Administration to implement DAPA and the expanded DACA program in states other than Texas. (Id.) The DOJ argued that it was not necessary to block the Department of Homeland Security (DHS) from implementing the executive amnesty programs to prevent the harm the Judge originally cited in issuing its injunction, namely requiring Texas to grant driver's licenses to DAPA and extended DAPA recipients. (Id. at 18)
However, the DOJ's argument is suspect. First, the Administration's argument apparently relies on the idea at the Judge found that only Texas would be harmed by DAPA and extended DACA. (Id.) However, the judge's ruling in no way ruled that harms were limited to Texas, it merely ruled that if even one plaintiff, as "at least Texas" did in this case, showed direct damage from their implementation, the constitutional requirements of standing were satisfied. (Texas v. USA Memorandum Opinion, at p. 67) As long as one of the plaintiffs shows standing, it's appropriate for the Court to hear the case in the first place. Thus the judge does not have to reach the issue of whether harms and costs to other states are in fact occurring. Second, it is not even true that enjoining DAPA and expanded DACA in Texas, but allowing them to be implemented in other states, would prevent the harm to Texas that the judge did find, that Texas would have to issue driver's licenses to those DACA and DAPA beneficiaries. This harm would still occur because nothing would stop aliens in other states who received DACA/DAPA status from moving to Texas. Indeed presumably nothing would stop illegal aliens in Texas from simply using a non-Texas domicile to apply to get their status, and immediately reverting to a Texas residence once they obtained it. Thus, enjoining the program nationwide is indeed the only way to prevent Texas from potentially having a population of DAPA recipients.
The DOJ's argument is also inconsistent with positions it has taken in the past. In 2010, when the federal government sued Arizona for trying to enforce immigration law, Attorney General Eric Holder claimed that "[s]eeking to address the issue [of immigration] through a patchwork of state laws will only create more problems than it solves." (The Wall Street Journal, Jul 7, 2010) Now, the Administration wants to create a patchwork of state laws. In fact, the DOJ has taken this inconsistent position even more recently regarding the very issue of driver's licenses! As Judge Hanen pointed out, when the Arizona Dream Act Coalition sued Arizona when that state tried to refuse to issue driver's licenses to DACA recipients, the DOJ filed an amicus brief suggesting that Arizona's policy of refusing to issue driver's licenses to DACA recipients was preempted by the federal government's actions in this area. (Texas v. USA Memorandum Opinion, at p. 25; see USA Amicus Curiae Brief)
The question at issue, however, may be not whether DOJ can convince Judge Hanen to reverse his injunction, but whether the Administration will recognize the authority of the court if the judge lets the injunction stand. Although the Administration initially said it would abide by the court's injunction, Rep. Gutierrez's comments suggest that it may not have the intention to stick with that stance. (Cnn.com, Feb. 17, 2015; The Hill, Feb. 25, 2015) At this point, it seems possible that the Administration that decided it can ignore Congress may also decide that it can ignore the courts.
Amnesty Supporting AG Nominee Advances
Last week, the Senate Judiciary Committee approved the nomination of Loretta Lynch to become the next Attorney General.
True immigration reformers have opposed Lynch's nomination because of her support of President Obama's executive amnesty. During her confirmation hearing, Ms. Lynch claimed executive amnesty is constitutional and went so far as to claim that illegal aliens have a "right" to work in the country. (See FAIR Legislative Update, Feb. 3, 2015) Chairman Chuck Grassley (R-IA), who voted against Lynch's nomination, said he is "unconvinced that she will lead the department in a different direction" compared to current Attorney General Eric Holder. (Washington Times, Feb. 26, 2015) Similarly, Sen. Jeff Sessions (R-AL) declared, "The senate cannot confirm someone to this post who's going to support and advance a scheme that violates our Constitution." (Id.)
Unfortunately, Ms. Lynch's nomination was approved by a 12-8 vote, with pro amnesty GOP Sens. Lindsey Graham (R-SC), Orrin Hatch (R-UT), and Jeff Flake (R-AZ) voting with all nine committee Democrats. (Id.) Ms. Lynch's nomination will now go before the full Senate where she can be confirmed with a simple majority vote.
Connecticut Considers Granting Financial Aid to Illegal Aliens Despite Education Budget Cuts
On Thursday, Connecticut Senate Committee on Higher Education and Employment Opportunities held a public hearing on Senate Bill ("S.B.") 398, which would grant financial aid, grants, and student employment opportunities to illegal aliens with deferred action under President Obama's deferred action for childhood arrivals ("DACA") program.
The Committee is considering recommending the bill despite massive, looming cuts to the state's higher education budget. Connecticut Governor Dannel Malloy's proposed budget for fiscal year 2016, delivered on Wednesday, outlines over $590 million in cuts statewide. (NBC, Feb. 18, 2015; Hartford Courant, Feb. 18, 2015) Over $78 million of the cuts will be taken out of the state's higher education system's budget. (Hartford Courant, Feb. 18, 2015)
The Governor's proposed budget is likely to force schools to raise tuition and deprive many low-income citizens of financial assistance. (NBC, Feb. 24, 2015) "Eighteen-hundred new low-income students would not receive state financial aid next year, and about 5,000 students per year," said Judy Greiman, president of the Connecticut Conference of Independent Colleges. (Id.)Gregory Gray, president of the Connecticut State Colleges & Universities system, said, "We are getting very close to that line where we simply cannot operate in the way that we need to operate." (EAB, Feb. 23, 2015) Tuition was already set to increase at the University of Connecticut by 6.75% in the fall. (Id.) It is unclear what the University's tuition will be under the new budget. (Id.)
S.B. 398 will strain the budget further by increasing the subsidies given to illegal aliens in the state with deferred action. (S.B. 398) Connecticut's taxpayers already subsidize illegal alien college students by allowing them to pay in-state tuition rates. For K-12 education, Connecticut taxpayers already pay $547.8 million annually to educate illegal aliens. (Conn. Gen. Stat. § 10a-29; see also FAIR Illegal Immigration Cost Study, July 2010). Thus in addition to discounted tuition, the adoption of S.B. 398 would make illegal aliens with deferred action eligible for state funded financial aid in Connecticut.
S.B. 398 must be recommended for passage by the Senate Committee on Higher Education and Employment Opportunities before it can be voted on by the full Senate and House of Representatives. Currently, five states (California, Minnesota, New Mexico, Texas, and Washington) allow undocumented students to receive state financial aid.