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Senate Puts Off Consideration of Vehicle for Vitter/Bennett Census and Immigration Status Amendment Until Next Week or Later
By Micheal E. Hill
Thursday, October 15, 2009- 7:35 am EDT
The Senate Democratic Leadership has pulled the Senate Appropriations Committee-reported version of H.R. 2847,  the Fiscal Year 2010 Commerce, Justice, Science, and Related Agencies Appropriations bill (C-J-S Appropriations Bill) from the Senate floor until next week or later. Senate insiders suggest that the bill will remain in limbo until the Democratic Leadership can assemble 60 votes to shut off debate and prevent a vote on a pending amendment that would require the 2010 census enumeration to ask every person living in the United States about his or her immigration status.
The census and immigration status amendment was offered by Senators David Vitter (R-LA) and Robert Bennett (R-UT) on Wednesday, October 7, 2009. The specter of a vote on it has dominated the Senate's consideration of the C-J-S Appropriations bill since then.
The Senate on Tuesday attempted -- but failed-- to cut off debate on the C-J-S Appropriations Bill and bar nongermane amendments from being offered to it, a procedure known as invoking cloture. In that vote, the Senate fell three votes short of the 60 votes necessary to invoke cloture on the measure. Three Democratic senators were absent for the vote, each of whom would be expected to support invoking cloture on the bill should there be a re-vote. Senate Majority Leader Reid (D-NV) has suggested that he will bring the bill back to the Senate floor once he has secured the necessary 60 votes to end debate on it.
Prior to the vote on cloture, the Senate Democratic and Republican leadership had engaged in negotiations that ultimately were unsuccessful to convince senators to voluntarily limit amendments to the bill. Following the breakdown, the Senate voted on whether to bring debate to a close, failing to do so.
The Census and Immigration Status Amendment
The Vitter/Bennett census and immigration status amendment is opposed by the Obama Administration.
The Department of Commerce, which administers the U.S. Census Bureau, has said of the amendment, “[a]dding a new question to the 2010 Census questionnaire less than six months before Census Day (April 1, 2010) would mean the Census Bureau could not complete the enumeration, processing, and deliver of census results by the statutory deadline of December 31, 2010. It is too late to shift gears at this point in the process.”
A bipartisan group of former Census Bureau chiefs also has weighed-in against the amendment, saying that “[a]dding a new census question now would require redesigning and reformatting questionnaires and all related materials, such as language assistance guides and web-based instructions; redesigning instructions and training manuals for more than a million temporary census workers; reconfiguring or rebuilding data capture and processing software, which is designed for the specific questionnaire already in place; and revising a $400 million outreach and promotional campaign, much of it already deployed, which highlights the new short form’s ten questions and often confirms that the census does not ask about immigration status.”
Notwithstanding the opposition of the Obama Administration and former census chiefs, however, Senators Vitter and Bennett have persisted despite the criticism of the amendment. "Illegal immigration is a very real and significant concern for our country," Senator Vitter said in a statement. "In the past, some states have included illegal immigrants during the census, resulting in the allocation of additional congressional seats. We shouldn't let these states be rewarded for skirting our federal laws." And Senator Bennett has explicitly stated his intention that the census data gleaned from the question should be used to ensure that illegal immigrants are not counted for the purposes of representation in the U.S. House of Representatives.
Other Immigration-Related Amendments
Other immigration-related amendments have been filed to the measure include an amendment by Senator Sessions on the E-Verify program, and separate amendments by Senators John Ensign (R-NV) and Kay Bailey Hutchison (R-TX) to increase funding for the State Criminal Alien Assistance Program (SCAAP).
Summary of Immigration-Related Provisions
The Senate Appropriations Committee-reported version of H.R. 2847 would significantly increase funding for the Executive Office for Immigration Review (EOIR), increase funding for alternatives to detention for immigration detainees, and maintain funding for the State Criminal Alien Assistance Program (SCAAP), a program that the Obama Administration has sought to terminate.
As reported to the Senate by the Senate Committee on Appropriations, H.R. 2847 contains the following immigration-related provisions:
- Executive Office for Immigration Review. The Senate Appropriations Committee-reported version of H.R. 2847 would appropriate $300.685 MILLION for the Department of Justice’s Administrative Review and Appeals section. The bulk of those funds are for the Executive Office for Immigration Review (EOIR). This is the same amount requested by the Administration and approximately $30.685 MILLION, or 11.2 percent, above the fiscal year 2009 appropriation.
Of the amount that the Senate bill would appropriate for EOIR, $4 MILLION would be transferred from the Examinations Fee account and the remainder would be directly appropriated.
The committee report accompanying the Senate Appropriations Committee-reported version of H.R. 2847 contains a number of directives with regard to EOIR. They include the following—
Personnel and Infrastructure Increases. The Committee recommendation includes $24.253 MILLION for personnel and infrastructure investments needed to efficiently process an increasing immigration adjudication caseload. Of this total, $10.250 MILLION is for the eWorld document management system to improve EOIR’s ability to store, distribute and archive its files.
Legal Orientation Program (LOP). The bill includes $6.5 MILLION, an increase of $2.5 MILLION, for the continued implementation and expansion of the LOP. The Committee report notes that the amount in the bill includes $2 MILLION "for Legal Orientation Programs for custodians of unaccompanied alien children to address the custodian's responsibility for the child's appearance at all immigration proceedings, and to protect the child from mistreatment, exploitation, and trafficking.
- State Criminal Alien Assistance Program. The committee report accompanying the Senate Appropriations Committee-reported version of H.R. 2847 notes that the measure includes $228 MILLION for the State Criminal Alien Assistance Program (SCAAP), a program for which the Obama Administration proposed zero funding. This would be a cut of $172 MILLION in the amount appropriated for SCAAP in fiscal year 2009.
- U.S. Marshall’s Service. The committee report accompanying the Senate Appropriations Committee-reported version of H.R. 2847 notes that the Committee "strongly supports the U.S. Marshal Service increase in funding for immigration enforcement." In justifying the increase in funding, the committee report stated that "[i]n the past, the U.S. Marshals Service was forced to divert resources from fugitive apprehension to address this growing, problem."
Upcoming Floor Debate and Amendments
Depending on the parliamentary situation that the Senate faces when it resumes consideration of the C-J-S Appropriations bill, the Senate could take up as many as four immigration-related amendments:
- VITTER/BENNETT CENSUS & IMMIGRATION STATUS AMENDMENT. Senators David Vitter (R-LA) and Robert F. Bennett (R-UT) have offered an amendment (Senate Amendment Number 2847) to H.R. 2847 providing that no funds may be used for the collection of census data that does not include questions regarding United States citizenship and immigration status.
Click Here to see the text of the Vitter/Bennett Census and Immigration Status Amendment
- ENSIGN INCREASED FUNDING FOR SCAAP AMENDMENT. Senator John Ensign (R-NV) is planning to offer an amendment (Senate Amendment Number 2648) that would increase funding in the bill for the State Criminal Alien Assistance Program (SCAAP).
Click Here to see the text of the Ensign SCAAP Amendment
- HUTCHISON INCREASED FUNDING FOR SCAAP AMENDMENT. Senator Kay Bailey Hutchison (R-TX) is planning to offer an amendment (Senate Amendment Number 2666) that would appropriate an additional $172 MILLION for the State Criminal Alien Assistance Program (SCAAP), which would bring the fiscal year 2010 appropriation up to the amount appropriated for the program in fiscal year 2009.
Click Here to see the text of the Hutchison SCAAP Amendment
- SESSIONS PERMANENT EXTENSION OF AND MANDATORY CONTRACTOR USE OF E-VERIFY AMENDMENT. Senate Judiciary Committee Ranking Republican Jeff Sessions (R-AL) is planning to offer an amendment (Senate Amendment Number 2665) that would permanently extend the E-Verify program and make its use mandatory for federal contractors.
Click Here to see the text of the Sessions E-Verify Amendment
Senate Floor Consideration Thus Far
The Senate took up H.R. 2847 beginning on Monday, October 5, 2009. It had it under consideration off-and-on throughout the week. In Senate action that occurred last week, the Senate rejected an amendment that was offered by Senator Vitter to bar Community Oriented Policing Services (COPS) funding to jurisdictions that have a "sanctuary" policy barring local law enforcement personnel from communicating with Department of Homeland Security enforcement personnel.
The following summarizes the immigration-related amendments to H.R. 2847 that the Senate took action on last week:
- VITTER SANCTUARY AMENDMENT. On Wednesday, October 7, 2009, Senator David Vitter (D-LA) offered Senate Amendment Number 2630 to H.R. 2847, the Fiscal Year 2010 Commerce, Justice, Science, and Related Agencies Appropriations Bill. The amendment would have to barred Community Oriented Policing Services (COPS) funding to jurisdictions that have a "sanctuary" policy barring local law enforcement personnel from communicating with Department of Homeland Security enforcement personnel.
The Senate tabled (killed) the Vitter Sanctuary Amendment by a vote of 61-38.
Click Here to see the text of the Vitter Sanctuary Amendment
Click Here to see information on the vote by which the Senate rejected the Vitter Sanctuary Amendment
Outlook
The Senate Democratic Leadership had hoped to complete its consideration of H.R. 2847 this week. However, the failure of the Senate to invoke cloture and the Senate Democratic Leadership's seeming determination to avoid a vote on the Vitter/Bennett census amendment could mean that the bill will ultimately be folded into an omnibus appropriations measure.
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