Friday, May 19, 2006

Language of the Country: Inhofe vs. Salazar

On May 18, 2006, the Senate passed two apparently contradictory amendments that involve "making English the national/official language" of the United States. Those two amendments were Inhofe's and Salazar's.

As is typically the case, the action lies in the details of the language, or in statements made in support and opposition - after all, the Courts deign to uphold legislative intent, assuming legislative intent doesn't run afoul of the Constitution.

The somewhat hidden contention (those interested know well, but the public does not) is President Clinton's EO 13166. Senator Inhofe directly aimed to undermine that order. During debate on his amendment, he said,

There is no support in the legislative history or judicial interpretations of title VI for the right or entitlement to Federal Government services or materials in languages other than English. Executive Order 13166 purported to interpret title VI, but it was written before the United States Supreme Court's decision in Sandoval.

This amendment now clarifies in Federal statute the line of cases culminating in the United States Supreme Court decision in the Sandoval case. Here we are making clear that there is no legal basis for Executive Order 13166 that purported to direct services and materials in languages other than English. I state it again clearly: There shall be no right or entitlement to services or materials in languages other than English.

The object of his amendment is quite clear, and it is to assert, on the part of Congress, that EO 13166 does NOT represent legislative intent. The matter was further probed in an exchange between Senators Durbin and Inhofe.

Mr. DURBIN. ... But I want to ask you directly: Do you want to diminish any of the rights currently available to those living in our country under title VI of the Civil Rights Act of 1964, which prohibits discrimination based on national origin?

Mr. INHOFE. Do I personally want that? No, I don't. This amendment doesn't do that because it makes those exceptions because what you are referring to is the law.

Mr. DURBIN. Let me ask you expressly and specifically, because you did refer to this. This was Executive Order 13166, issued by President Clinton, which implemented the same title of the Civil Rights Act that I referred to. The Executive Order said that agencies of our Government had to make efforts to provide their services and materials to people with limited English proficiency.

Is it your intention with your amendment to, in any way, diminish the responsibilities and rights created by Executive Order 13166?

Mr. INHOFE. It is my understanding, I say to the Senator from Illinois, that the courts already have had some interpretations of that which perhaps are not the same as you are stating right now. What the courts have interpreted I stand behind because that means it is law. That is according to my amendment.

Senator Inhofe again indicates that the intent of his amendment is to undermine the legal basis for EO 13166. He doesn't say so directly, but minutes earlier he had referred to these several cases for the proposition that the government has no affirmative duty to provide translations, except as specified by legislation or court order - e.g., ballots and translations for defendants in court proceedings.

Mr. INHOFE. ... In 1983 the Second Circuit Court of Appeals determined in Soberal-Perez v. Heckler, which the Supreme Court let stand, that there is no right to government forms in languages other than English.

In 1994 the Second Circuit Court of Appeals determined in Toure v. U.S. that there is no right to government deportation notices in languages other than English.

The most recent United States Supreme Court case in this area is Sandoval v. Alexander, the Alabama driver's license case. Justice Scalia wrote the decision in Sandoval in 2001.

The Supreme Court in Sandoval rejected the equation of language and national origin.

Indeed, the Federal courts have repeatedly considered and rejected just this equation of the failure to provide foreign language services and materials with a violation of the prohibition against national origin discrimination.

On the other hand, Senator Alexander is not in tune with the intent of Senator Inhofe. In fact, I bet very few Senators were "clued in." But that's a topic from a bottomless well, that of clueless Senators!

Mr. SALAZAR. Mr. President, through the Chair, I say to my friend from Tennessee, there was an Executive order issued on limited English proficiency and the importance of reaching out to people who are limited English proficient so they could recognize and understand the language of the Government, an Executive order dated August 11, 2000.

Is the Senator's reading of the Inhofe amendment that it would essentially eviscerate the Executive order issued by then-President Clinton concerning limited English proficiency?

Mr. ALEXANDER. The answer to my friend from Colorado is no. The election of a new President might change an Executive order if the new President modified or changed the Executive order. My understanding of Senator Inhofe's amendment, and he can speak for himself, is he does not seek to change any right now granted to anyone.

Well, clearly, the Senators who back Inhofe do not understand the intent of Senator Inhofe, and Senator Alexander has a clear record that at least HIS intent is not to eviscerate EO 13166. I'm not sure that Senator Inhofe intends to eviscerate it either, but he certainly wants to cause parts of it to be rescinded. Keep that "rescission" thought in mind, it will come in handy later.

Senator Inhofe's amendment passed on a vote of 63 - 34. Democrats in favor of the Inhofe amendment were Baucus, Byrd, Carper, Conrad, Dorgan, Johnson, Landrieu, Lincoln, Nelson (FL), Nelson (NE), and Pryor. The sole Republican against the Inhofe amendment was Domenici.

Senator Landrieu changed her vote under a unanimous consent request in the afternoon of May 25, 2006

The relevant statutory language of Inhofe's S.Amdt.4064 includes the phrase "applicable law" as it might pertain to an individual other than the government. Does a person have the right to sue the government for failing to provide materials in a language other than English?

S.Amdt.4064 - Inhofe

``The Government of the United States shall preserve and enhance the role of English as the national language of the United States of America. Unless specifically stated in applicable law, no person has a right, entitlement, or claim to have the Government of the United States or any of its officials or representatives act, communicate, perform or provide services, or provide materials in any language other than English. If exceptions are made, that does not create a legal entitlement to additional services in that language or any language other than English. If any forms are issued by the Federal Government in a language other than English (or such forms are completed in a language other than English), the English language version of the form is the sole authority for all legal purposes.''

And then came a vote on the Salazar amendment. Note the underlined portions.

S.Amdt.4037 - Salazar

SEC. 161. DECLARATION OF ENGLISH.

English is the common and unifying language of the United States that helps provide unity for the people of the United States.

SEC. 162. PRESERVING AND ENHANCING THE ROLE OF THE ENGLISH LANGUAGE.

The Government of the United States shall preserve and enhance the role of English as the common and unifying language of America. Nothing herein shall diminish or expand any existing rights under the law of the United States relative to services or materials provided by the government of the United States in any language other than English.

For the purposes of this section, law is defined as including provisions of the U.S. Code, the U.S. Constitution, controlling judicial decisions, regulations, and Presidential Executive Orders.

(b) CONFORMING AMENDMENT.--The table of chapters for title 4, United States Code, is amended by adding at the Language of Government of the United States.

Senator Salazar's amendment PASSED on a vote of 58 - 39. Republicans who voted for both positions, Inhofe and then for Salazar, were Brownback, Chafee, Coleman, Collins, DeWine, Graham, Hagel, McCain, Murkowski, Snowe, Specter, Voinovich and Warner.

Democrats who voted for both positions, Inhofe and then Salazar, are the same ones who voted in favor of Inhofe in the first place: Baucus, Byrd, Carper, Conrad, Dorgan, Johnson, Landrieu, Lincoln, Nelson (FL), Nelson (NE), and Pryor.


One might see the result of both amendments passing as posing a quandary. Under Inhofe, the Senate ostensibly aimed to disavow EO 13166 as having the force of law, yet under Salazar, the Senate expressly aimed to give EO 13166 the force of law.

But viewing the quandary as a conflict that lies within the Senate (or even between the Republican Senators) misses the boat. The Congress and the President are ducking this issue. President Bush and Congress are pointing at each other, and the Senate is saying "don't look at us, we're for it while we're against it." The Republican Senators named above are responsible for sending a conflicting signal. But are they responsible for the end result?

It's a bit of a knot, but I believe the knot can be resolved by considering who makes the law, and who enforces it. Executive Orders set policy for the operation of executive agencies. If the President rescinds EO 13166, which he certainly has the right and power to do, then the federal agencies are relieved of the duty to perform the (translation and multi-lingual) functions so ordered.

The continued existence of EO 13166 is President Bush's baby. If he wants to keep it, he will. And I think he does, and will. In this political game of smoke and mirrors, the power to rescind the translation burden imposed by EO 13166 lands squarely and firmly on President Bush's desk. So, Senator Inhofe, LUMP IT. Some of your Republican peers clearly prefer punting issues over taking a clear position. No surprise there, none at all.

On the unlikely circumstance that Congress decides to take a position ...

To the Republicans, if you want to stop the practices required by EO 13166, you will have to pass laws that specifically attack the terms in EO 13166. Congress, with the purse strings, can de-fund the activities that it does not approve of.

And to the Democrats, if you want to make sure the multi-lingual activity now mandated by EO 13166 isn't undone by a rescission of an Executive Order, you must pass statutes that say what EO 13166 says now. Pointing to EO's "as law in general" does nothing to protect a particular EO.


And what is the position of the White House?

Press Gaggle by Tony Snow - May 19, 2006

Q I know you said the administration wouldn't take a position on every amendment related to the Senate's dealing with the immigration legislation, but do you have a view on its treatment of the English language amendment?

MR. SNOW: As you know, there were actually a couple of amendments that came up yesterday, an Inhofe amendment and also a Salazar amendment. And what has come out of that is a description of English as the national language. And I think -- and we have supported both of these. So the answer is the administration -- as the President has said, one of the things that you want to make sure is that when at the end of a path, people who wish to become American citizens are ready for that, that they have a command of the English language. And I think both of these amendments are consistent with that stated presidential desire. ...

Q Is the President concerned that the amendment about English as a national language might send a message to Latinos about concern about encroachment of the Spanish language?

MR. SNOW: Boy, that's about a three bumper shot. Let me just be real clear here. What the President has said all along is that he wants to make sure that people who become American citizens have a command of the English language. It's as simple as that. It's very straightforward.

Ha. Non-responsive to the question ...
Q: "What does President Bush think about EO 13166?"
A: "He wants to make sure that people who become American citizens have a command of the English language."

Clearly, EO 13166 will remain the rule of the administration. The President is with the Democrats on this issue. He wants people to have a command of the English language, but they won't be required to in order to obtain government handouts and benefits, because the government will cater to those who prefer to communicate in languages other than English.

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