U.S. Legislative Immigration Update November 23, 2009

Right Side News Reports from the Federation for American Immigration Reform in this November 23, 2009 Legislative Weekly

• Senate Health Care Bill Disappoints True Immigration Reformers
• New Data Show Interior Enforcement in Freefall
• House Judiciary Republicans Hold Immigration Forum on Capitol Hill
• Massachusetts Governor Pushes for Driver’s Licenses and Tuition Breaks for Illegal Aliens
• Illegal Aliens Moving to Texas in Wake of Tough Oklahoma Law

Senate Health Care Bill Disappoints True Immigration Reformers

After working behind closed doors for weeks, Senate Majority Leader Harry Reid (D-NV) Wednesday evening released the text of the Senate health care reform bill – a bill that falls short of true immigration reformers’ expectations.

The bill, entitled the Patient Protection and Affordable Care Act (H.R.3590), provides for the creation of state or nonprofit-based exchanges intended to help individuals and small business owners to purchase health insurance plans (§1311(b)). As in previous bills in the House and Senate, these exchanges must offer certain services, and qualified health plans must meet certain minimum coverage requirements. H.R.3590 also establishes a public option within these exchanges (called the “community health insurance option”) intended to provide “value, choice, competition, and stability of affordable, high quality coverage throughout the United States.” (See §1323(b)) States may opt-out of the public option.

In terms of eligibility, the Senate bill shows some improvement over the House bill. Unlike the final House version (H.R.3962), the Senate version limits exchange eligibility to individuals who are citizens, nationals, or aliens lawfully present in the U.S. who are reasonably expected to be so for the entire period for which enrollment is sought. (§1312(f)(3)).  This language should exclude illegal aliens, but would cover all guest workers and may cover legal permanent residents here less than five years-which would constitute a reversal of current law (Section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996). On this last point, however, further examination of the 2074-page bill is needed. 

In terms of verification, the Senate bill falls far short of expectations. First and foremost, H.R. 3590 requires no documentation at any point in the application process. Applicants are required to provide a name, Social Security number, and date of birth, but there is no requirement that the applicant provide any document evidencing that the individual is who he says he is, and that such information is accurate. (§1411(b))  In addition to this basic information, aliens must submit “identifying information with respect to the enrollee’s immigration status,” however this “identifying information” is defined by Health and Human Services and Homeland Security. (§1411(b)(2)(B))

The verification process itself is also highly problematic. Upon submission, the state exchanges must send the enrollee’s information to the Social Security Administration and the Department of Homeland Security for verification. (§1411(c))  However, if there are any discrepancies, the applicant’s eligibility will be verified under Section 1902(ee) of the Social Security Act-the same program under the House health care bill that does not require documentation and has loopholes inviting identity theft. (§1411(e)(3)) This process is troubling because one would expect that if there were inconsistencies in an applicant’s information, the entire application would be sent back to the applicant for correction or the exchange would simply declare the applicant ineligible. The Senate bill instead decides to run the information through another verification program.

But even if the verification process were satisfactory, the Senate health care bill expressly provides that the Secretary of Health and Human Services may modify the methods used for the verification of information if the Secretary determines such modifications would reduce the administrative costs and burdens on the applicant. (§1411(c)(4)(B), p. 277)  There is no mention on whether such changes would have to help prevent fraud or provide cost-savings to the American people as a whole.

The Senate voted narrowly to limit debate on a motion to proceed to H.R.3590 Saturday evening. (Roll Call Vote #353, November 21, 2009). The Senate is expected to debate the bill into December, but it is uncertain at this point when a vote on final passage may come. Stay tuned to FAIR for more information.

New Data Show Interior Enforcement in Freefall

Data released last week by the Department of Homeland Security’s (DHS) Bureau of Immigration and Customs Enforcement (ICE) have affirmed that the Obama Administration has practically abandoned meaningful worksite enforcement. Compiled by House Judiciary Committee Ranking Member Lamar Smith (R-TX), the statistics show “dramatic reductions in criminal arrests, criminal indictments, criminal convictions and administrative arrests of illegal immigrant workers from [Fiscal Year (FY)] 2008 to FY 2009.” (House Judiciary Committee – Minority Press Release, November 18, 2009).

Specifically, the worksite enforcement data show that between FY 2008 and FY 2009:

• Administrative arrests of illegal aliens dropped 68 percent, (from 5,184 to 1,644).
• Criminal arrests of illegal aliens dropped 60 percent (from 1,103 to 443). This directly contradicts statements made earlier this year by DHS Secretary Janet Napolitano, claiming that two of ICE’s “major…enforcement priorities” were “the identification and removal of criminal aliens.” (See FAIR’s Legislative Update, July 13, 2009; See also DHS Press Release, July 10, 2009).
• Criminal indictments of illegal aliens dropped 58 percent (from 900 to 376).
• Criminal convictions of illegal aliens dropped 63 percent (from 908 to 338).

The only enforcement category that saw an increase from FY 2008 to FY 2009 was paper audits of I-9 forms. (House Judiciary Committee – Minority Press Release). While these I-9 audits could lead to employers firing illegal aliens, recent cases show that DHS is simply allowing these illegal aliens to remain in the United States and find jobs with other employers. (See FAIR’s Legislative Update, September 8, 2009; See also MPRNews, November 9, 2009).  I-9 audits may result in nominal fines for employers who are found to have hired illegal aliens, but “most companies consider [these fines] a cost of doing business.” (House Judiciary Committee – Minority Press Release).

Upon examination of the newly released ICE data, Rep. Smith last week commented: “It is hard to conceive of a worse time to cut worksite enforcement efforts by more than half. There are 16 million Americans out of work. And yet, the administration has chosen to ignore the fact that there are nearly eight million illegal immigrants in the workforce. Those stolen jobs should be returned to out-of-work citizens and legal immigrants. The Obama administration should put citizens and legal immigrants first, especially when it comes to jobs.” (Id.).

House Judiciary Republicans Hold Immigration Forum on Capitol Hill

On Thursday, November 19, Republican Members of the House Judiciary Committee held a forum entitled “American Jobs in Peril: The Impact of Uncontrolled Immigration.” The forum allowed several experts to offer testimony regarding the negative consequences that unrestricted mass immigration – both legal and illegal – has had on American workers.

House Judiciary Committee Ranking Member Lamar Smith (R-TX) opened the hearing by discussing data that the Department of Homeland Security’s (DHS) Bureau of Immigration and Customs Enforcement (ICE) had released earlier in the week. Smith pointed out that, while the nationwide unemployment rate has increased more than 60 percent from Fiscal Year (FY) 2008 to FY 2009, the number of criminal arrests, criminal indictments, criminal convictions, and administrative arrests of illegal alien workers as a result of ICE worksite enforcement operations had all decreased by at least 58% during that same time period. (House Judiciary Committee – Minority Press Release, November 18, 2009). Smith argued that with 16 million Americans out of work, the Obama administration should be increasing worksite enforcement to free up jobs held by the estimated eight million illegal aliens currently working in the United States.

Four expert witnesses testified at the hearing. The first was Dr. Carol Swain, a professor of Political Science and Law at Vanderbilt University. Dr. Swain’s testimony focused on the unemployment rates of African Americans and native-born Hispanics – two groups she said were particularly hard-hit by the current recession. Dr. Swain noted that “[r]acial and ethnic minorities are overrepresented among Americans suffering from high levels of unemployment,” and added that “[i]t is this group of native-born workers who are most adversely impacted by competition from unauthorized workers.” Dr. Swain then called on “Democrats and Republicans, members of the Congressional Black and Congressional Hispanic Caucuses to join forces in pressing for the enforcement of existing immigration laws and regulations already on the books.” The professor recommended that E-Verify – the online, electronically operated system that allows employers to quickly and easily confirm the work authorization status of their new hires – “should be made mandatory and expanded across the nation.”

Steven A. Camarota, the Director of Research at the Center for Immigration Studies, was the next witness to testify. Camarota noted that, over the past four decades, the United States has “witnessed a dramatic increase in the number of immigrants (both legal and illegal) arriving.” Camarota pointed out that “almost all economists agree that less-educated workers have done very poorly in the labor market over the last four decades as immigration has increased.” Echoing Dr. Swain’s testimony, Camarota then highlighted “significant research showing that immigration has reduced employment and wages for less-educated natives.” Camarota also dismissed the claims of special interest groups that have advocated for amnesty and large-scale increases in legal immigration, pointing out that “[t]here is no evidence of a labor shortage at the bottom end of the labor market.”

Roy Beck, President of NumbersUSA, testified next and highlighted three “key numbers.” The first number was eight million, the Pew Hispanic Center’s estimate as to the number of illegal foreign workers holding American jobs. (Pew Hispanic Center, April 14, 2009). Beck’s second number was 75,000, the estimated number of permanent work permits issued to working-age immigrants in the month of October. (DHS – Office of Immigration Statistics, March 2009).  The third number was 190,000, the number of American jobs eliminated in the month of October. (Bureau of Labor Statistics, November 6, 2009). Accordingly, Beck argued, the federal “government added 75,000 more permanent workers to compete with 16 million unemployed Americans for 190,000 FEWER U.S. jobs.” (Testimony, November 19, 2009).

The final witness to testify at the forum was Jerry Kammer, a Senior Research Fellow at the Center for Immigration Studies. Kammer highlighted two separate reports discussing how local labor markets were affected by immigration enforcement. (See reports from July 2009 and March 2009). Kammer discussed how worksite enforcement operations conducted at seven meat packing plants in seven states had resulted in the arrests of thousands of illegal alien workers, providing “an opportunity to test the claim, often heard in the immigration debate, that many American businesses have to hire illegal immigrants because Americans are unwilling to do the work.” Kammer pointed out that the meat packing plants filled the jobs formerly held by illegal aliens with American citizens and legal immigrants, and that immigration enforcement had led to increased wages and improved working conditions at the plants in question. (Testimony, November 19, 2009).

Massachusetts Governor Pushes for Driver’s Licenses and Tuition Breaks for Illegal Aliens

Last week Governor Deval Patrick unveiled a state-commissioned report that recommends driver’s licenses and in-state tuition for illegal aliens in Massachusetts.  (The Boston Globe, November 17, 2009).  The 56-page report, known as the New Americans Agenda, includes 131 recommendations for integrating immigrants into economic and civic life in Massachusetts.  (See New Americans Agenda).  However, the Agenda is not limited to helping immigrants who cross our borders legally, but specifically advocates for measures that will benefit illegal aliens and undermine our immigration laws.

The Agenda was created by the Governor’s Advisory Council for Refugees and Immigrants, and makes no effort to distinguish between legal and illegal immigrants, who are seemingly all “New Americans.”  (See New Americans Agenda).  The 131 recommendations include providing more English classes for immigrants and training public school teachers to teach immigration lessons.  Daily News Tribune, November 19, 2009).  The Agenda also suggests expanding financial aid and in-state tuition at state colleges and universities to all immigrants, regardless of legal status.  (See New Americans Agenda).  As to the recommendation that illegal aliens should be allowed to obtain driver’s licenses, the authors acknowledge that the federal REAL ID Act is a barrier and advocate for efforts to repeal the statute.  (The Boston Globe, November 17, 2009; New Americans Agenda).  Despite the hurdle of repealing a federal law, the Agenda adamantly argues that licenses should be given to illegal aliens.  There is no suggestion that existing immigration laws be enforced. 

The Advisory Council’s proposals have already faced criticism from lawmakers and activists in Massachusetts.  Senate Minority Leader Richard Tisei called the report outrageous, and Senator Scott Brown, who is running for U.S. Senate, responded that “Government should strictly enforce the law, not ignore it with a wink and a nod, or even worse, pass laws that condone illegal behavior.”  (Boston Herald, November 18, 2009; Daily News Tribune, November 19, 2009).  Other opponents to the proposals argue that illegal aliens should not receive the same benefits as legal residents, and many Massachusetts residents remain resistant to granting in-state tuition or driver’s licenses to undocumented residents.  (The Boston Globe, November 15, 2009). Although a bill to provide lower tuition rates to illegal aliens failed in 2006, last week Governor Patrick publicly renewed his support for legislation extending in-state tuition rates to illegal aliens. This prompted the state Republican Party to issue a statement criticizing the administration’s position. (Boston Herald, November 17, 2009).

Clearly an advocacy document, the New Americans Agenda urges the state to push for comprehensive immigration reform at the federal level with suggestions more akin to finger-pointing than legislative proposals.  The authors allege, “These anti-immigrant voices have created a poisonous atmosphere around the immigration debate and unfortunately have often overwhelmed legitimate public discussion on flow, status and the best way to incorporate newcomers.”  (See New Americans Agenda). 

Patrick called the report a “values statement” and has not specifically endorsed any of the recommendations.  (O Journal, November 20, 2009).  Instead, he has given his cabinet 90 days to draft a plan to improve the lives of all immigrants in Massachusetts, who will benefit whether they are lawfully present in this country or not.  (The Boston Globe, November 17, 2009). 

Illegal Aliens Moving to Texas in Wake of Tough Oklahoma Law

A Texas-based television station reported last week that experts believe that as many as one million illegal aliens have moved to Texas from neighboring states as those states “toughen up on immigration.” (NBCDFW, November 17, 2009).

The report highlighted  the neighboring state of Oklahoma, which in 2007 began implementing enforcement-oriented legislation. This legislation:

• Made it a felony for any person to transport, harbor, or shelter an alien in reckless disregard for their illegal immigration status;
• Required the state to deny any public benefits to illegal aliens in the country – including driver’s licenses – that the state is not required by federal law to provide;
• Gave state police the power to check the immigration status of anyone arrested for driving under the influence or for commission of a felony;
• Required state police to detain illegal aliens and transfer them to the custody of Immigration and Customs Enforcement (ICE); and
• Required public employers in Oklahoma to use the E-Verify system to electronically determine the work authorization status of their employees. (HB 1804 Summary; CNN, November 5, 2007; See also FAIR’s Legislative Update, November 5, 2007).

The fact that illegal aliens are leaving Oklahoma for states with more lax approaches to immigration enforcement reaffirms the enforcement strategy that FAIR has advocated on the national level for years: attrition through enforcement. (See FAIR’s Attrition through Enforcement page for more analysis).