Senate Judiciary Committee Continues Slow Progress in Markup of Immigration Reform Legislation

The Senate Judiciary Committee continued its consideration today of draft legislation on comprehensive immigration reform sponsored by Senate Judiciary Committee Chairman Arlen Specter. The Committee officially took up the bill, known as the “Chairman’s Mark,” on March 2 but has made very slow progress to date.

The following is a very brief summary of the amendments that were addressed during today’s session. See our previous update on last week’s markup sessions. We will continue to update you as action on the bill continues.

1. The Committee passed by a voice vote a compromise amendment by Feingold that would preserve some level of judicial review over naturalization applications.

2. A Specter 2nd degree amendment to a Sessions amendment on evading inspection passed.

3. A Leahy amendment on security-related issues passed by voice vote.

4. A Kennedy amendment to ameliorate the Mark’s retroactive provisions was debated and deferred.

5. A Feinstein amendment to modify the provisions of the Mark relating to border security was deferred for future action.

6. A Durbin amendment to strike the Mark’s criminalization of unlawful status was once again deferred for future consideration. Feinstein attempted to offer a 2nd degree amendment that would provide aliens with a 60-day grace period for visa overstays before they are subject to criminal prosecution under INA § 275(a), but Specter would not allow it since Durbin’s underlying amendment was set aside.

7. A Durbin amendment to ameliorate the Mark’s smuggling provision so as not to criminalize humanitarian assistance was once again debated and deferred. Kyl spoke in opposition to the amendment. Cornyn had a second degree that Hatch thought was insufficient. Hatch, Schumer and Biden spoke in opposition to Cornyn’s 2nd degree. Cornyn was not convincing, but Kyl did some damage.

8. A Sessions amendment to affirm the inherent authority of state and local law enforcement personnel to enforce federal civil immigration laws during the normal course of carrying out their duties was discussed. Specter offered a 2nd degree that would limit the inherent authority of states and localities to the enforcement of the criminal provisions of the immigration laws. Sessions would only support the 2nd degree if the provisions of the Mark criminalizing unlawful presence remain intact. Thus, if the Durbin amendment to strike those provisions passes, Sessions wants to revisit the Specter 2nd degree. Specter’s 2nd degree passed by voice vote.

9. A Sessions amendment that would require the Secretary of Homeland Security to provide information to the National Crime Information Center (NCIC) related to aliens who may have violated certain immigration laws passed by a voice vote. The broadly worded amendment would encompass visa overstayers, other civil violators, and even members of vulnerable populations such as asylum-seekers who are improperly documented but seeking relief. Leahy and Kennedy voted against the amendment and Leahy spoke in opposition to overloading the NCIC database with individuals who do not belong in it. A Specter 2nd degree amendment that would provide a procedure for requesting removal from the database and modify the group of individuals included in it passed by voice vote.

10. A Sessions amendment that would require at least one law enforcement agency in each state to enter into a § 287(g) cooperative enforcement agreement to enforce immigration laws against alien smugglers was considered. Sessions accepted a Coburn 2nd degree amendment that would clarify: (1) that such agreements would be purely voluntary, and (2) that the §287(g) enforcement authority would not be limited to alien smuggling. There was no quorum to vote on these, however, and they were set aside.

Part way through the markup, Specter attempted to jump to a debate on the issue of the undocumented population, noting that he has reiterated to Senate Majority Leader Frist that he (Specter) opposes bringing immigration reform to the Senate Floor before the Senate Judiciary Committee had completed its consideration of the Chairman’s Mark. Biden and Kennedy voiced their support of Specter’s desire to complete work in Committee. Kennedy added, “this issue is NOT going away, like some other issues,” and urged deferral of the Title VI discussion until tomorrow (Title VI contains the provisions dealing with the undocumented population). He added that we need to deal with ALL aspects of reform to have real, lasting border security—going forward with any of these components alone will fail.

Durbin said that, to defeat the House bill (H.R. 4437), the Committee needs to pass a strong bipartisan bill with the support of about 12 members. He feels the Committee should do an extra markup session on a day when there is no other Senate business. “We need to watch the House,” noted Durbin, adding: “They have a bill we need to fight at all costs. We need bipartisan support out of this Committee.”

Brownback stated that the Committee has started a process to create broad bipartisan support for good policy, and that this is the most significant legislation of the year. “We have serious problems with immigrant numbers,” he said. “We can’t live with these and need to change them. McCain/Kennedy would deal with this. How do we get the Mark to deal with these numbers? We need a way NOT to end up here again after 10 years. We can’t move too quickly.”

Cornyn described the process as akin to “digging out of a big hole,” noting that with enforcement done first, other issues would get simpler. He believes we need to impose circularity---not permanent immigration.

Coburn said that, like it or not, we have to deal with issue of the undocumented population. He urged the Committee to split the bill in two and do enforcement first, and work to reach consensus on other parts later in the year. “No one in the country trusts us on this issue because we haven’t enforced our existing laws,” he said.

Feinstein stated her concerns about the process, and also spoke out against comprehensive immigration reform and in favor of her more limited agricultural pilot program idea. She said she had met with Senator Craig (the sponsor of AgJobs) yesterday to see if they could work out their differences but there has been no resolution yet. She also expressed much frustration with Frist’s artificial timeline. She indicated her opposition to the House bill, and said that consensus was needed in the Committee (she believes the Committee has come to some consensus on the enforcement pieces but little else). She urged Specter to go back to Frist and ask for more time.

Sessions said we need to focus on enforcement now, and then have a national discussion later on the other elements of immigration reform. He believes Congress needs to focus on enforcement to build credibility with the public. “I’m not prepared to repeat 1986,” he said. “We should slow down.”

Specter repeatedly voiced his concern about “line-jumping,” arguing that the McCain/Kennedy bill would “leap frog” the current undocumented population over individuals who have been waiting in the backlogs. He also said that he’d prefer it if the legislation contained a path to citizenship but, as Chair, was trying to balance both sides.

In other hurdles to the Judiciary Committee’s completion of work on the bill, Senate Finance Committee Chairman Grassley, who is also a member of the Judiciary Committee, argued that the Finance Committee should have jurisdiction over the provisions of the Mark relating to the Social Security Act, adding that the IRS has raised serious concerns about some of these amendments. However, several other senators argued for consideration of these provisions in the Judiciary Committee. It is also possible that Grassley could exercise the Finance Committee’s authority by managing those amendments during floor debate.

The Committee disbanded about noon, due to a number of votes on the Senate Floor and the attendant low probability of maintaining a voting quorum in the Committee.


Cite as AILA Doc. No. 06031540.