Senate Judiciary Committee Begins Debate on the 12 Million

Members of the Senate Judiciary Committee finally broached the controversial subject of the undocumented population on day five of the Committee's markup of draft legislation on comprehensive immigration reform, but deferred any votes on the subject until after next week's congressional recess.

Chairman Specter began the day's proceedings by reiterating that it would be a "colossal mistake" for Senate Majority Leader Frist to bring an immigration bill to the Senate floor that had not been completely vetted by the Senate Judiciary Committee. As background, Senator Frist has threatened to bring his enforcement-only legislation directly to the Senate floor unless the Judiciary Committee produces a bill by March 27. Senator Frist could do this using the seldom employed "Rule 14" procedure that permits him to introduce a bill and bypass the committee process so that it goes directly to the Senate calendar. According to Senate sources, Senator Frist's bill would simply take Chairman Specter's proposal and strip out the guestworker plan and the provisions dealing with the estimated 12 million undocumented aliens present in the U.S.

Because Senator Frist apparently will not back off of his deadline, Chairman Specter proposed this morning to continue the Committee's work beyond what was to have been the final day of the markup (today). Unfortunately, the Senate is out on recess next week, leaving tomorrow or Monday, March 27, as the only available options for continued work. Most of the Senators present agreed that meeting on March 27 would make sense, with the exception of Senator Cornyn, who disagreed that bringing the Committee's incomplete bill to the floor would be problematic (clearly an attempt on his part to stave off debate in the Committee on what to do with the undocumented population). However, in a clear rebuke to Senator Cornyn, Chairman Specter responded that the Committee would proceed immediately to debate on the controversial issue of a path to citizenship for the undocumented!

Chairman Specter said that he and Senator Kennedy talked at length yesterday about the issue of the undocumented. He reiterated his concerns about the undocumented workers jumping the line in front of those who have followed the legal channels. He's concerned about 25-year backlogs for 4th preference beneficiaries and other long backlogs. However, he noted his willingness to find a way to put the undocumented on a path to citizenship at the end of the line. Chairman Specter also reiterated that he wants a bill to come out of Committee that can pass the floor and be reconciled with the House bill.

Senator Kennedy argued that the McCain/Kennedy bill will not lead to line-jumping, explaining that the bill's formula would clear backlogs and deal with the lines themselves. In addition, he noted his willingness to accept a 2nd degree amendment to ensure that legal permanent residence would not be granted to the undocumented population until both the current employment-based and family-based backlogs had been cleared. "What really is the alternative," he asked? "Mass deportations? Criminalization and a permanent subclass?"

Senator Kennedy continued by talking eloquently about the pure motives of immigrants who have come to this country, both historically and currently, to make a better life for themselves and their families. He said that we should admire the drive of these people. We should not treat them as criminals but should give them an opportunity. We should bring them out of shadows, have them pay a fine, work, and wait their turn. Senator Kennedy also noted that some 60,000 legal permanent residents currently serve in the U.S. Armed Forces.

Senator Kyl noted that no one on the Committee supports enforcement only, adding that his and Senator Cornyn's proposal would provide a "work opportunity," not a punishment. He said that the Specter "gold card" would be just like a green card but without the right to citizenship. He also opined that people waiting in the family-based backlog don't have the right to be in the U.S. now, so letting undocumented aliens get in line would harm those individuals who have been waiting patiently. At one point, he allowed that it might be OK to give a path to citizenship to high skilled workers but not to low skilled workers.

Senator Cornyn associated himself with Senator Kyl's remarks. "We can't accept everyone in the world who wants to come here," he said. And while he professed agreement with Senator Kennedy about the beneficial contributions and benevolent motivations of the undocumented population, he couldn't seem to get past the "law breaking" issue. "The American people won't accept a program to deal with the undocumented if we haven't finished the bill's enforcement titles," he argued. He also defended the Cornyn/Kyl "report to deport" proposal, noting that it is neither a ruse nor impractical. He added that the intention of the proposal is not to strand people outside of the country as some have accused.

Senator Durbin weighed in by stating that the immigration system has been broken for a long while. He recounted stories about important individuals he knows whose parents were undocumented aliens. He stood in support of the McCain/Kennedy proposal, calling it "tough but fair," and reiterated that we should not be criminalizing undocumented status, as both the Chairman's Mark and H.R. 4437 would do.

Senator Graham noted that many people, including many on the Republican side of the aisle, don't even want to debate this complex issue. For them, rounding these immigrants up and deporting them is the only answer. "Such a proposal is simply not feasible," Senator Graham added. He also noted that half of his family likely would not be able to meet the requirements of the McCain/Kennedy legislation, thereby buttressing the argument that it is no easy give away. "While there are lots of people on talk radio complaining about the undocumented, these folks are out there working," he said. "This is not a 'get out of jail free' card." In addition to those who would deport the undocumented population, there are others who would put them all in jail, he continued, adding that this also would not work. He warned Chairman Specter and others that they shouldn't be trying to avoid criticism on this issue, because they're all going to get it. He agreed that the undocumented population should be put in line behind all those currently waiting in the backlogs but does not believe it is appropriate to force them to leave the country in order to take part in the program, as this would break up families.

Senator Feinstein argued that the DHS would be incapable of handling such a massive program. She was also concerned with what would happen to those who apply for the program if they are unable to pass the requisite background checks. "Could people with minor misdemeanors get status,?" she asked. She requested a letter from Senator Kennedy's staff on the issue. Senator Feinstein also returned to the issue of DHS's processing capabilities, asking for additional information on the subject before the issue is brought to a vote.

Senator Specter indicated that he intends to work through the undocumented issue by beginning with the McCain/Kennedy bill and the 2nd degree amendment mentioned above by Senator Kennedy. He also indicated that there is a deal on the table between Senators Cornyn and Kennedy on the temporary worker (future flows) program.

Senator Feinstein brought up the subject of agricultural workers and wanted to know why they weren't included as part of the guestworker program. Senator Kennedy responded that the reason is because Senator Craig, the chief sponsor of AgJobs, would offer it as an amendment on the floor. Senator Brownback opined that they needed to have staff work out the details of any agricultural program.

Chairman Specter then noted that staff would be working out various details during next week's recess, confirmed continuation of the markup on March 27th, and gaveled the meeting to a close.

Cite as AILA Doc. No. 06031669.