Immigration Reform: Week Three Is History (And Earlier Than Expected!)

We were prepared for trench warfare in the third week of deliberations over the landmark immigration reform bill offered up by a bipartisan group of eight U. S. Senators. We had been forewarned. There was one week left until the Senate broke for its Memorial Day recess, when all members look forward to getting back home and touching base with their constituents. This would be the final chance for Committee members to put their mark on the bill. And yet more than half of the 300 amendments that had originally been filed had yet to be disposed of after the first two weeks of markup in the Senate Judiciary Committee. Chairman Leahy (D-Vt.) promised that the Committee would definitely complete markup before the recess, and he assured us all that the Committee would work late into the night, every night if it had to.

Well – they worked late into the night on Monday, but fortunately for all concerned, the amendment process came to a close early Tuesday evening, and, with a solidly bipartisan vote of 13 to 5, the Committee favorably recommended a comprehensive immigration reform package. The bill will move to the full Senate now – to be considered on the floor once members return in early June.

The original bill crafted by the ‘Gang of Eight' was tweaked and scraped and molded and supplemented – but emerged largely in the same form as before. Some of the changes were good from a civil liberties perspective, some were bad. But the broad framework – a path to citizenship for many of the 11+ million aspiring Americans – combined with unprecedented and overly harsh border and interior enforcement measures - remains intact.

The Final Two Days of Markup

Interior Enforcement

Completing the interior enforcement provisions of the bill comprised step one of the final week of markup. Here are the ACLU vote recommendations for the amendments offered in this section of the bill.

The Committee looked at the mandatory E-Verify program last week, and this week considered all of the other enforcement amendments, including adopting two critical amendments offered by Sen. Blumenthal (D-Conn.) on solitary confinement and immigration enforcement in sensitive locations, such as school, hospitals, and churches. The Committee also adopted progressive changes offered by Sen. Coons (D-Del.) providing those in detention with prompt access to copies of their immigration records and adding new standards for detention data tracking by federal agencies. Most importantly, a bad amendment offered by Sen. Grassley (R-Iowa) was rejected: it would have stripped a compelling due process section that provides for prompt bond hearings for individuals detained by immigration authorities.

On the other hand, we were disappointed that the Committee adopted an amendment from Sen. Grassley adding a new aggravated felony based on a third DUI conviction after the bill's enactment date, regardless of the state in which the convictions occurred or whether the offenses are classified as misdemeanors or felonies under federal or state law. Thankfully, many other even more egregious amendments failed, often due to the commitment of the Republican coalition members on the Committee – Sens. Flake (R-Ariz.) and Graham (R-S.C.) – to refuse to vote for anything that struck at the core of the bill. As noble as that sounds, it's the same deal that would come back to bite progressive forces at the very close of the markup.

Eligibility for Citizenship

The remainder of the week focused on the single foundational aspect of the bill – the eligibility provisions. Here are our vote recommendations on Title II.

The bill is nothing without the provisions that make the widest possible path for the more than 11 million aspiring Americans who seek to attain citizenship in order to continue their contributions to communities across the nation. Some of the amendments offered during this time created the greatest risk for gutting the bill and the defeat of such amendments was the key to preserving the essential frame for the bill.

And the Committee easily did so. Amendments like one offered by Sen. Cruz (R-Tex.) that would have barred from naturalization any person who has ever been willfully present in the country without lawful status failed.

Sen. Cornyn (R-Texas) offered an amendment that would require the government to identify and consult with crime victims before a waiver for certain aspiring Americans seeking legalization could be granted to someone with a criminal conviction. The amendment was modified somewhat by language acknowledging some of the practical difficulties with such a blanket notification process, but the amendment was adopted nonetheless.

We were disappointed that Sen. Graham offered an amendment that envisions special security screenings prior to legalization for individuals from certain countries or regions designated by the Secretary of Homeland Security. Such national origin profiling is discriminatory, overbroad, wasteful of scarce government resources, and ultimately less efficient than using other mechanisms to detect national security risks. Yet this amendment was also adopted by the Committee on a voice vote, with Senators Durbin (D-Ill.) and Leahy objecting.

The single most dramatic moment came at the end of the session early Tuesday evening when Chairman Leahy – under great pressure from colleagues of both parties – withdrew his amendment that would have provided equal protection to lawfully married same-sex bi-national couples, allowing them to be treated in the same fashion as opposite-sex married couples under immigration law. The choice was stark and heart-rending for those who favor both marriage equality and immigration reform. If the amendment were to be adopted, it was very clear that conservative support for immigration reform would melt away and the bill would die. And so Chairman Leahy did not force that vote on his colleagues. He withdrew his amendment and spoke in moving terms about the rank unfairness of the result.

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