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Immigration Reform on the Senate Floor – A Procedural Maze and Lots of Border Talk

Michael W. Macleod-Ball,
First Amendment Advisor,
ACLU Washington Legislative Office
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June 17, 2013

The full U. S. Senate took up the potentially historic bill to overhaul the country’s immigration system last week.

At the top of the week, things looked rosy. S. 744 flew through initial procedural hurdles to allowing the chamber to take up the bill, with rare flying colors. This might have led to a surge in optimism about the bill, especially given the heady tone of the markup sessions in the Senate Judiciary Committee just two weeks earlier.

In truth, the same tensions that have long existed over immigration reform bubbled just below the surface and those tensions came out early on in the week’s deliberations. Senator Grassley (R-Iowa) led the way when he offered up an amendment that would have prevented beginning the legalization process for eligible immigrants until the Department of Homeland Security (DHS) certifies it has maintained “effective control” of the border with Mexico for at least six months. The amendment cynically ignores the well-documented progress along the southern border, as well as the billions of dollars more for additional enforcement contained in the underlying bill. Fortunately, the Senate concurred with our recommendation and this poison pill amendment was tabled on a 57-43 vote.

Aside from that one vote, the week was characterized by the inability of Democrats and Republicans to agree on the process for moving forward. As a result, no other amendments (about 100 have been filed) were voted on during the week. While this is not a new form of disagreement between the parties wrangling over bills in the Senate, because of the nature of this bill – its massive size and the large number of amendments anticipated – once the disagreement is resolved, we could be in for a flood of votes on amendments one after the other, going on for days at a time.

One of the biggest threats to the bill has to do with using the border as an excuse to delay creating a path to citizenship. Senators from both parties are seeking to burnish their conservative credentials and appear tough by demanding the federal government spend even more to secure the border. Most of these calls ignore the reality: the federal government is spending far more than it has ever spent before to secure the border and Congress’ focus should be on addressing the accountability gap between massive new border security resources and the frequent use-of-force and racial profiling abuses by Customs and Border Protection (CBP). Additional investment is not needed because the problem, in fact, is far less than it has been in the past. What’s grown is the burden on quality of life in border communities, which have been overrun by what House Appropriations Committee Chairman Hal Rogers (R-Ky.) correctly identified as “a sort of a mini industrial complex syndrome [of border spending] that has set in there…[W]e’re going to have to guard against it every step of the way.”

Senator Cornyn’s RESULTS amendment is the leading example of this form of threat. The amendment would establish unrealistic and wasteful border enforcement goals. Attainment of those goals would then be the trigger for allowing the legalization process to begin. In effect, the citizenship process would be held hostage to manipulable and impractical requirements. It would waste scarce federal resources for programs that aren’t needed for national security. And it would tax our already overburdened justice system by restricting the discretion of judges to mete our fair penalties, requiring the expensive incarceration of tens of thousands of individuals who pose no danger to society. We are urging Senators to reject this amendment and any other amendment that would make our immigration system more unjust, more unfair, and vastly more expensive than it already is.

At this point, it is not clear whether RESULTS will get a vote or when. But Senator Cornyn’s effort received a lot of attention at the beginning of the Senate process, and so it’s conceivable that his amendment could be considered as an early test of how much support exists for such proposals to expand the militarization of our southern border. Of course, it’s challenging to vote against such proposals because in today’s political world, getting labeled as ‘soft’ – on aspiring citizens, on crime, on terrorism – is a common political tactic depending on the fear of the moment. And yet it’s vital that our legislators take a strong stand in favor of the things that truly define our constitutional system: fairness and justice – even when, as is more often than not in immigration policy, the fair and just thing is actually also the smart, efficient, and fiscally prudent solution as well. A call to your own Senators urging them to vote against unfair and wasteful expansions of border security in the immigration reform bill – such as Senator Cornyn’s RESULTS amendment – is one way you can take your own stand for fairness and justice.

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