Today a coalition of State Senators for Legal Immigration Reform held a press conference to announce their plans to release legislation that would eventually deny children of immigrants birthright citizenship in the Untied States. The legislative process for this is complex and appears designed to draw federal lawsuits which would eventually lead to a Supreme court re-interpretation of the 14th Amendment.
The coalition released two documents during their press conference, a Bill and a State Compact to be passed along with the proposed legislation. Both the Bill and the Compact are attached below. Passing both of these in tandem in all 40 states is a part of what can only be called a highly circuitous way of reforming our federal immigration system.
The legislation does not actually reform anything, but rather is designed to set off a legal battle which would result in the Supreme Court reinterpreting the 14th Amendment to deny children of immigrants birthright citizenship.
According to Kris Kobach, elected Secretary of State to Kansas, the legislation and the compact are not designed so much to deny citizenship to children of immigrants immediately but to create a legal argument that the entire concept of citizenship should not be looked at solely on the basis of federal sovereignty but rather be viewed on a state by state basis.
The concept of "State Citizenship" is the mechanism by which state legislators intend to invoke state sovereignty on citizenship within the borders of their individual states. The Compact states:
(a) The Signatories to this compact shall make a distinction in the birth certificates, certificates of live birth, or other birth records issued in the signatory states, between persons in the signatory state who are born subject to the jurisdiction of the United States and persons who are not born subject to the jurisdiction of the United States. Persons born subject to the jurisdiction of the United States shall be designated as natural-born United States citizens. (b) Subject to the jurisdiction of the United States has the meaning that it bears in Section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign to any foreign sovereignty or a child without citizenship or nationality in any foreign country. For the purposes of this compact a person who owes no allegiance to any sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.
According to the State Legislators For Legal Immigration, in order for this Compact to have any force of law it must be passed in at least 40 states, at which point it can be introduced in the House, then passed in the Senate, at which point it will become like a federal law.
Where things get tricky is in the actual Bill itself. The legislation of the Bill itself if passed in each state, reinterprets the 14th Amendment to not give children of immigrants automatic citizenship based on being born on American soil.
(a) For the purpose of this statute, subject to the jurisdiction of the United States has the meaning that it bears in Section 1 of the Fourteenth Amendment to the United States constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or as a child without citizenship or nationality in any foreign country. For the purpose of this statute, a person who owes no allegiance to any foreign sovereignty is a United States citizen national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreign country.
Kobach and co were adamant that this would not actually change the federally mandated definition of a citizen, nor change anything in the actual Constitution, nor would there be as of yet any mechanism for actually deporting children of immigrants based on the powers innumerated in this law.
In fact as Arizona state Senator John Kavanagh noted, all this legislation was intended to do is create lawsuits, which would at some point would (in his hopes) reach the Supreme Court and lead to a new interpretation the 14th Amendment, which would deny birthright citizenship to children of immigrants.
Erin Kelly of the Arizona Republic has the full story on this particularly perplexing and paradoxical way of legislating HERE:
"Arizona state Rep. John Kavanagh and Arizona state Sen. Ron Gould, both Republicans, said they plan to introduce legislation in the next few weeks that would define what it means to be an Arizona citizen. That definition would say that an Arizona citizen must be a U.S. citizen, who would be defined as someone who is born in the United States and has at least one parent who owes no allegiance to any foreign sovereignty. Naturalized U.S. citizens also would be considered Arizona citizens."
Kavanagh and Gould both stressed that the bill is more for legal battles then an actual plan on what to do about immigrants born in the United States:
"Kavanagh and Gould both said they expect the Arizona Legislature to pass the bill, most likely in April. If passed, there would be no immediate affect on babies born to illegal immigrants in Arizona or their families, the lawmakers said. Rather, the bill, if it becomes law, is designed to draw a legal challenge from immigrant rights' groups over the definition of a U.S. citizen and force the issue into the federal courts for clarification of the 14th Amendment.
"The bottom line: What we want is our day in court," Kavanagh said. The draft bill specifically states that citizenship of a particular state shall not give the citizen any special rights, benefits, privileges, or immunities under law. Babies born to illegal immigrants in Arizona or other states that pass the legislation would not be stripped of any of the current rights or benefits they receive, the lawmakers said."
2. Immigration Reform Law Institute Executive Director Mike Hethmon: Works in the same Anti-Immigrant organization as one Kris Kobach (more on him below) and according to the website forthe Immigration Reform Law Institute" specializes in the representation of the interests of United States citizens in immigration-related cases. He has published commentary and analysis on a wide range of immigration-related legal issues."
3. Constitutional Scholar Dr. John Eastman: Chapman Unversity Law, Faculty
3. Donald P. Kennedy: Chair in Law and Former Dean of the Chapman University School of Law
4. Kris Kobach, professor of law at University of Missouri-Kansas City and Secretary of State-elect for the State of Kansas: One of the original intellectual writers of SB1070.
Many of those speaking at the event have been tight lipped about exactly what they plan to unveil tomorrow. NDN will be there and will provide analysis of whatever their plan may be.
In the wake of little federal action on Immigration issues, dozens of state legislators across the country have begun the process of bringing immigration laws similar to Arizona's controversial anti immigrant legislation SB1070.
Immigration Works USA lists at least 24 states which have at least proposed similar laws to SB1070, that list includes, Georgia, Mississippi, Oklahoma, South Carolina, Tennessee, Nebraska, Florida, Pennsylvania, Texas, Arkansas, Indiana, Colorado, Minnesota, Virginia, Idaho, Missouri, Kansas, Maryland, Massachusetts, Michigan, Nevada, North Carolina, Ohio and Rhode Island.
Of those 25 states, at least four seem on the verge of actually passing legislation. Those would be Georgia, Mississippi, Oklahoma and South Carolina. Of those states that are left, there are those that can fall into maybe/maybe not. Those states include Tennessee, Nebraska, Florida, Pennsylvania, Texas, Arkansas, Indiana, Colorado, Minnesota, Virginia, Idaho, Missouri, Kansas. The rest of those states have had outspoken members of their delegations who have said they would like legislation but have little chance of moving forward.
Over the coming weeks NDN will be following the anti-immigrant legislative activity in Georgia, Mississippi, Oklahoma, South Carolina, Florida and Pennsylvania. While Florida and Pennsylvania are not in any immediate risk of passing legislation they are both important swing states which also have fairly sizable Hispanic populations. Julia Preston of the New York Times has a great primer up on all of this HERE. In the article she outlines how states have gotten to the point where they feel the need to legislate on Immigration. While much of this has to do with the failure of the federal government to act a lot of the legislation being introduced can also be attributed to major gains by the GOP in state legislators across the country:
"Still, the chances of passing many of these measures appear better than at any time since 2006, when many states, frustrated with inaction in Washington, began proposing initiatives to curb illegal immigration. Republicans gained more than 690 seats in state legislatures nationwide in the November midterms, winning their strongest representation at the state level in more than 80 years."
In addition to passing legislation similar to Arizona style immigration legislation, there is also a groundswell of calls to deny children of immigrants birthright citizenship:
The newest initiative is a joint effort among lawmakers from states including Arizona, Oklahoma, Missouri and Pennsylvania to pass laws based on a single model that would deny American citizenship to children born in those states to illegal immigrants. The legislators were to announce the campaign in Washington on Wednesday. A leader of that effort is Daryl Metcalfe, a Republican state representative from Pennsylvania. At a recent news conference, Mr. Metcalfe said his goal was to eliminate “an anchor baby status, in which an illegal alien invader comes into our country and has a child on our soil that is granted citizenship automatically.”
2011 is shaping up to be a transitional time for Immigration Reform in the United States. While Congressional movement on immigration related legislation seems remote, debate will shift over to States who try to pass immigration related legislation as well as a renewed discussion on Border Security.
Highlighting all of the stories above shows that there are many moving parts in this debate. This blog in particular will be focusing on the following six issues:
1. Immigration Legislation Coming From State Legislators 2. Court Cases Related To Sb1070 And The Supreme Court Case on The Legal Workers Act 3. GOP Assault on The 14th Amendment 4. GOP Controlled House Subcommittee on Immigration 5. A More Comprehensive Look at What The Administration Has Done To Beef Up Border Security 6. The Flow of American Guns From The United States To Mexico And How That Is Affecting The Drug Wars South Of The Border.
Much of the initial coverage on the Arizona's Legal Workers Act, Supereme Court Case focused on the strange bedfellows created to defend the legislation. Now as the Supreme Court approaches its verdict many are saying that they will uphold the immigration law which requires local prosecutors to investigate complaints about undocumented immigrant workers, then to file suit in state court to suspend employers business licenses
Ashby Jones of The Wall Street Journal has the full story HERE:
....heading out of the argument, the story has shifted to the case’s probable outcome: that the law would survive the constitutional challenge. According to Bravin, several justices on Wednesday rejected claims that the state exceeded the limited powers Congress left it to enforce immigration policies. Click here for Bravin’s story; here for commentary from Scotusblog’s Lyle Denniston.
Those challenging the Arizona law cite previous federal immigration laws as establishing domain over this particular area of legislation:
Those challenging the law say the Arizona measure violates the 1986 federal Immigration Reform and Control Act, whereby federal regulations supersede any “state or local law imposing civil or criminal sanctions (other than through licensing and similar laws).” But that argument got little traction. “You read the definition of ‘license’ in the Administrative Procedure Act and this is awfully close,” said Justice Stephen Breyer. Chief Justice John Roberts said Congress provided states additional “wiggle room” by writing “not just ‘licensing laws,’ but ‘licensing and similar laws.”‘
There are two wild cards in all this, the first being Justice Scalia who has suddenly become an immigration expert (read seething sarcasm here):
Furthermore, Justice Antonin Scalia said that whatever Congress had in mind when adopting the 1986 law, current conditions along the border could justify the harsh sanctions Arizona adopted in 2007. Border states are in “serious trouble financially and for other reasons because of unrestrained immigration,” he said, and wouldn’t “have to resort to such massive measures” if federal immigration law “had been vigorously enforced.”
The other issue is Elena Kagen who has removed herself from the process, because she was actively involved in the earlier stages of the Obama administrations case against the law. Absent her vote, the justices could split 4-4 on this legislation which would leave the law intact but would not create a precedent one way or the other over federal domain on immigration issues.
The DREAM Act failed on a motion to proceed on a mostly partisan vote 55 to 41 in the Senate on Saturday. Nearly all of the Senate GOP voted against the DREAM Act. Only 3 crossed over to vote for this bipartisan legislation.
With the White Hosue and Immigration advocates in feverish negotiations right until the hour of the vote, there was some question as too whether or not Senate GOP would vote at all on the legislation.
Senators Bennett of Utah, Lugar of Indiana, and Murkowski of Alaska all crossed party lines and voted on this legislation. These three brave Republicans should receive some measure of thanks for doing so. A full break out of the Senate vote can be seen over at the Washington PostHERE
Julia Preston of the New York Times has a great analysis of what went on Saturday HERE:
The vote by the Senate on Saturday to block a bill to grant legal status to hundreds of thousands of illegal immigrant students was a painful setback to an emerging movement of immigrants...
Preston does a great job of also contextualizing how this vote plays out politically:
The result, although not unexpected, was still a rebuff to President Obama by newly empowered Republicans in Congress on an issue he has called one of his priorities. Supporters believed that the bill — tailored to benefit only immigrants who were brought here illegally when they were children and hoped to attend college or enlist in the military — was the easiest piece to pass out of a larger overhaul of immigration laws that Mr. Obama supports.
The DREAM Act was considered the easiest piece of comprehensive immigration reform because it is legislation that Republicans have long supported. Some long term Republican supporters turned their backs on the legislation this past weekend. Below are some of the biggest offenders:
Senator Orrin Hatch (R-UT): “"With regard to the DREAM Act, a lot of these kids are brought in as infants. They don't even know that they're not citizens until they graduate from high school," Hatch said. "If they've lived good lives, if they've done good things, why would we penalize them and not let them at least go to school?" [KSL Radio, 7/7/10]
Senator Hutchison (R-TX): “This is such an important piece of legislation and I do think this is isolated from the entire immigration issue because there ... are young people who have been brought to this country as minors, not of their own doing, who have gone to American high schools, graduated, and who want to go to American colleges.” [San Antonio Express News, 12/2/10]
Even some GOP talking heads were left shaking their heads on how Senate Republicans could block such common sense legislation. Think Progress did a great round up here:
NEWARK, NJ MAYOR CORY BOOKER: To tell people who’ve been through high school, high school presidents going on to college some of the best brains who have no relation to their home country. This is crazy. It’s hurting America.
GOP STRATEGIST MARK MCKINNON: The Republican Party has got to recognize Hispanics are the huge growing demographic in this country. … We gotta send the right signal to Hispanics in this country in addition to the fact that it’s the right policy.
FOX NEWS’ JUAN WILLIAMS: The one thing that I regret…is the defeat of the DREAM Act for the immigrants and the immigrant kids. I just think, again, Republicans play politics with real lives, real people, real aspirations and they leave the immigration issue on the table when that’s the real business of the American people.
Last night Senate Majority Leader Harry Reid announced that there would be a vote on the DREAM Act this Saturday. This is not a vote on final passage of the legislation, this is a vote on the motion to proceed to a final vote on the legislation. The full press release can be seen here:
Senator Reid proceeded to file cloture on the DREAM Act and a repeal of “Don’t Ask, Don’t Tell.” The first vote on cloture on the DREAM act will occur Saturday morning.
“In addition, I filed cloture on two important bills tonight. We will soon vote on a bill that provides young people brought here by their parents with a path to citizenship through academic achievement or military service. After that, we will vote to determine whether we follow the advice of our military leadership and repeal ‘Don’t Ask, Don’t Tell.’
So, just to break down what all of this means for a vote, below is a step by step guide to what the process going forward will look like:
1. Last night Senator Reid filed a cloture motion on the DREAM Act, which starts a 30 hour timer before an actual vote can occur.
2. The 30 hours behind the cloture motion ends Saturday, which means that the Senate can vote on the motion to proceed to the DREAM Act.
3. On Cloture votes, the Senate needs 3/5ths of the vote to proceed forward. That means in order to move on to a vote on the actual 60 Senators need to vote to move forward. An absent Senator, or a Senator who does not vote one way or the other, counts as NO vote.
4. If the DREAM Act fails to gain 60 votes then the motion to proceed to an actual vote on DREAM will fail. That will be it.
If there are 60 votes, the Senate will then have to burn 30 hours will before they can have a final vote on DREAM.
5. On the vote for final passage only 51 votes are needed. If DREAM gets 51 Votes, then it is passed in both chambers of Congress and will move to the President for his signature and will then be law.
The committee was created By Presidents Barack Obama and Felipe Calderon in May. Mexico has expressed concern about the deaths of migrants during recent incidents involving U.S. Border Patrol officers, and the two countries agreed on the need to "minimize the need for United States and Mexican federal law enforcement officers to resort to lethal force."
A commission between America and Mexico, indicates that despite the rhetorical hyperventilation of Republican Lamar Smith, the border is not an out of control war zone. This is a straw man argument, in which the GOP is able to continually move the goal post on progress on the border and legislative movement in Congress. As it turns out the increase in enforcement has begun to affect the number of migrants coming from Mexico
The issue of migrants and how they are treated remains a sensitive subject in Mexico, even as their overall number of migrants moving across the border drops. The number of Mexicans deported or repatriated by the United States dropped 23.2 percent in the first 10 months of 2010 as compared to the same period of the previous year, Mexico's Interior department reported Wednesday. A total of 410,442 people were returned to Mexico.Of those, 23,359 agreed to be flown to Mexico City and transported to their hometowns, rather than simply being expelled over the border. That annual program was in effect from June 1 to Sept. 28.
Much of what was discussed over the course of the meeting was a way to increase co-operation on both sides of the border to mitigate sporadic cases of violence:
They also agreed on "patrolling on either side of the border ... to prevent and adequately respond to crime and violence, including incidents of rock-throwing, incursions, port runners, (and) assaults on law enforcement personnel." U.S. authorities say they sometimes are assaulted by migrant and drug traffickers and must defend themselves.
As it turns out the Mexican government is concerned with the United States increased security measures and lack of due process when dealing with Migrants from Latin America:
Mexico was angered in June, when a Border Patrol agent fatally shot a 15-year-old Mexican youth as officers came under a barrage of big stones while trying to detain illegal immigrants on the U.S. side of the Rio Grande.In May, Mexican migrant Anastasio Hernandez, 32, died after a Customs and Border Protection officer shocked him with a stun gun at the San Ysidro border crossing that separates San Diego and Tijuana, Mexico. The San Diego medical examiner's office ruled that death a homicide.
The United States also aired grievances relating to the recent death of Border Patrol agent in Arizona. However all of this has led to a renewed sense of commitment between the two countries. While the border was discussed there was movement on other issues. In fact, during the meeting the U.S. and Mexico actually talked about things other than border violence, focusing on trade, and labor movement between the two countries.
The statement also pledged support for various projects aimed at improving ports-of-entry and border crossings in several states, and "expand trusted traveler and shipment programs by facilitating enrollment and making them more advantageous and easy to use." It also supported the establishment of pilot projects for cargo pre-clearance in both countries.
These meetings are incredibly important, as Congress makes no forward movement on actual reform, country to country negotiations on trade will become increasingly necessary to deal with issues of migration, trade issues, and labor. If anyone is interested, a read out of exactly what was discussed in the meeting can be seen here, and a joint statment on the meetings can be read here as well.
Let's start this post by acknowledging the life and service of recently deceased Border Patrol Agent Brian Terry, his recent death in the line of duty is a tragedy.
However having read some of the early reporting done on this has proven to be frustrating as some commentators have tried to conflate agent Terry's death with the current debate on the DREAM Act in congress.
It is necessary to highlight this particular disconnect because opponents of immigration reform have become so skilled at putting border security and pretty much any other legislation that tries to address immigration reform at odds.
It can not be said enough, border security is a component, an important one for reform, there are others, including figuring out what to do with the current 11 million people currently here. It is not impossible to do more then one at a time.
A Border Patrol agent was shot and killed Tuesday night near Rio Rico after encountering several suspects, federal authorities said Wednesday. Agent Brian Terry was killed just 10 miles north of the U.S.-Mexico border, north of Nogales. Four suspects are in custody and one is being pursued, according to a press release from Customs and Border Protection. The Federal Bureau of Investigation and the Santa Cruz County Sheriff’s Office are investigating.
The above quote accurately presents all of the current information provided by Department of Homeland Security regarding the circumstances of Agent Terry's death. It is her next sentence that is egregious:
Meanwhile, Senate Democrats continue to push the pro-amnesty DREAM Act and security-undermining environmental land grabs. Priorities…
As someone who follows Immigration issues, and the DREAM Act in particular on a daily basis, the connection between the current legislation before the Senate and the death of a border patrol agent is baffling. These two issues have nothing to do with each other. For one thing the citizenship of the four suspects is not currently known. A fact corroborated by Fox News article on the shooting:
Agent Brian A. Terry, 40, was killed late Tuesday near Rio Rico, Ariz., according to a statement released by U.S. Customs and Border Protection (CBP) officials. At least four suspects are in custody and another is still being pursued.
The leader of a union representing Border Patrol agents said Terry was trying to catch bandits who target illegal immigrants for robbery.
In the Fox News reporting of the events that led to Agent Terry's death, it would seem that what most likely happened was that he was killed trying to protect immigrants from "bandits" who target undocumented immigrants crossing the desert.
In case Malkin neglected to read anything written about the DREAM Act, it only affects children born to undocumented immigrants in the United States who want to serve in the military or go to college. In no place within this legislation is there a provision to award "bandits" citizenship....
It is unfortunate what happened in Arizona, but it is irresponsible for anyone to conflate this act of violence with the current debate over the DREAM Act. It is entirely possible to secure the border and pass the DREAM Act. As they are both components of broad reform of our immigration system. Border security is a part of that and so is dealing with the current 11 million undocumented immigrants currently in America.
Linda Chavez, a long time conservative commentator has released a great editorial on the DREAM Act today. Her piece The DREAM and The Nightmare is critical of Democrats for bringing up what she calls a purely political vote but she saves her most withering tongue lashing for the GOP:
Republicans may, nonetheless, be walking right into their trap. For all the loose talk of "amnesty" in the immigration debate, proposals to grant a path to legalization for adult immigrants who entered or remained in the United State illegally were never true amnesty. The Bush plan included hefty fines for all transgressors -- which, by definition, is not amnesty -- as well as requiring them to pay back taxes, undergo criminal checks, learn English, and go to the back of the citizenship line. As conservative blogger Jennifer Rubin notes, the definition of amnesty is to "exempt from punishment."
Chavez is especially critical of GOP Senators who would deny undocumented students the ability to contribute to society, tying the success of these young DREAMers to the future of Republican party:
Do Republicans really want to tell young people who've lived here most of their lives, who may speak no other language but English, and who are even willing to sacrifice themselves on the battlefield for the protection of all Americans: "We don't want you"? What are the alternatives -- let them continue to live in the shadows or deport them? Not even the most aggressively anti-immigration groups are calling for the latter. A number of Republicans who previously supported the legislation -- including one of its chief authors, Sen. Orrin Hatch -- have decided it is too risky to vote for it now. But the real risk is to the future of the Republican Party.
She also ties the rise of hard line anti-immigration stances of the GOP to their electoral losses in Senate races in 2010, as well as how it may affect them in 2012:
The refusal of all but a tiny handful of Republicans to vote for the Dream Act will become a future nightmare. Hard-line anti-illegal immigrant rhetoric has already cost Republicans at least two U.S. Senate seats, Nevada and Colorado, even in a GOP landslide election. It could well cost Republicans the White House in 2012 -- the Democrats are betting on it.