Tuesday, October 31, 2006

H.R.6061 - The Secure Fence Act of 2006

H.R.6061 - The Secure Fence Act of 2006

UPDATE @ Nov 9

Just closing the loop. A bill can be reported "cleared for White House" BEFORE being signed by the empowered officers of the respective bodies of Congress, and BEFORE the House has been informed that the Senate has passed it.

On October 10, the online record of bill progress was noted as "9/29 Cleared for White House."

Before the afternoon of October 10, I had asserted that the bill was hung up in and by the Senate, but upon seeing "cleared for White House," I assumed the bill had been passed to the House. See my comments at this Captain's Quarter's note, from 9:10 AM through 5:42 PM.

As it turns out, I was right - the bill was hung up in the Senate, and remained so for another 10 days.

3.COMMUNICATION FROM THE CLERK OF THE HOUSE [Page: H8572]

The SPEAKER laid before the House the following communication from the Clerk of the House of Representatives:

HOUSE OF REPRESENTATIVES,

Washington, DC, October 20, 2006.
Hon. J. DENNIS HASTERT,
Speaker, House of Representatives,
Washington, DC.

DEAR MR. SPEAKER: Pursuant to the permission granted in Clause 2(h) of Rule II of the Rules of the U.S. House of Representatives, the Clerk received the following message from the Secretary of the Senate on October 20, 2006, at 11:59 am:

That the Senate passed without amendment H.R. 6061.

With best wishes, I am,
Sincerely,
Karen L. Haas,
Clerk of the House.

Further, the record shows that the bill wasn't signed (engrossed) until the 23rd.

3.ENROLLED BILL SIGNED [Page: S10826]

Under the authority of the Order of the Senate of January 5, 2005, the Secretary of the Senate, on October 23, 2006, during the adjournment of the Senate, received a message from the House of Representatives, announcing that the Speaker pro tempore (Mr. DAVIS of Virginia) had signed the following enrolled bill:

H.R. 6061. An act to establish operational control over the international land and maritime borders of the United States.

Under the authority of the order of the Senate of January 5, 2005, the enrolled bills were signed on October 23, 2006, during the adjournment of the Senate, by the Vice President.

I'm not sure what lesson to take from this, except that "Cleared for White House" doesn't mean the bill is ready for presentment.

UPDATE @ Oct 26

The Secure Fence Act has been signed into law.

President Bush Signs Secure Fence Act
October 26, 2006

The bill I'm about to sign is an important step in our nation's efforts to secure our border and reform our immigration system. I thank the members of Congress for joining me as I sign the Secure Fence Act of 2006.

(The bill is signed.)
END 9:40 A.M. EDT

9/29: Cleared for White House
10/23: Presented to the President
10/26: Signed into law

H.R.6061 Passed Senate September 29

Amendments 5021-5023 - September 20
Amendments 5026-5032 - September 21
Amendments 5036-5040 - September 25
Amendments 5041-5071 - September 26
Amendments 5075-5089 - September 27
Amendments 5105, 5106 - September 28

Debate of September 20
Debate of September 21
Debate of Sep 25: Part I - Part II - Part III
Debate of September 26
Debate of September 28
Debate of Sep 29: Part I - Part II - Part III - Part IV - Part V

History

The Senate approved border fence construction during consideration of S.2611, the comprehensive immigration bill, with the caveat (courtesy of Senator Dodd) that the Mexican government would be consulted before any construction began. Then it rejected taking money from other homeland security projects in order to fund a fence, then it approved, by an overwhelming margin of 97-3, appropriating money for the fence from the Department of Defense budget.

  • SESSIONS Amendment No. 3979, to build 370+ miles of fence (To increase the amount of fencing and improve vehicle barriers installed along the southwest border of the United States), was
    PASSED on May 17 on a 83 - 16 vote.
    Votes against were: Akaka, Bingaman, Cantwell, Dodd, Durbin, Feingold, Inouye, Jeffords, Kennedy, Lautenberg, Lieberman, Menendez, Murray, Obama, Reed and Sarbanes

The Senate rejected appropriating money for a fence on July 13 in the context of considering H.R.5441 - The Homeland Security Appropriations Bill.

  • SESSIONS Amendment No. 4659, to appropriate an additional $1,829,400,000 to construct double-layered fencing and vehicle barriers along the southwest border (total 831 miles) and to offset such increase by reducing all other discretionary amounts on a prorata basis, was
    REJECTED on July 13 on a 29 - 71 vote.
    GOP Nay Votes: Alexander, Allard, Allen, Bennett, Bond, Chafee, Cochran, Coleman, Collins, Cornyn, Domenici, Frist, Graham, Gregg, Hagel, Hutchison, Kyl, Lugar, Martinez, McCain, McConnell, Murkowski, Smith, Snowe, Specter, Stevens, Sununu, Voinovich, Warner

Completely off the subject of border fencing, Senate Live: July 13 also includes a description of why it's appropriate to have Congress involved in developing rules for handling pirates and terrorists.

Back to the border fence, the Senate approved an appropriation of funds on August 2nd in the context of considering H.R.5631 - The DoD Appropriations Act of 2007.

  • KYL/SESSIONS Amendment No. 4775, to provide $1,829,100,000 for the Army National Guard for the construction of 370 miles of triple-layered fencing, and 461 miles of vehicle barrier, was
    PASSED on August 2 on a 94 - 03 vote.
    Nay votes: Feingold, Hagel and Jeffords

Now that is a huge turnaround, from 29-71 (71 against) to 94-3, only 3 against, and indicates that at least as of August 2nd, building a fence was barely contentious, if contentious at all. And to be fair, some of the grounds for rejection on July 13 had to do with diminishing funding for other Homeland Security projects and efforts.

H.R.5631 legislative status: passed the House 407-19 on June 20; passed the Senate 98-0 on September 7. The bill is slated for conference, with Senate conferees having been named. The conferees will be Stevens; Cochran; Specter; Domenici; Bond; McConnell; Shelby; Gregg; Hutchison; Burns; Inouye; Byrd; Leahy; Harkin; Dorgan; Durbin; Reid; Feinstein; and Mikulski.

Therefore, any Senate objections to H.R.6061 - The Secure Fence Act of 2006 should be based on something other than a project to build fencing on our border with Mexico.

I believe that the administration is opposed to Section 5 of H.R.6061, which is a poke-in-the-eye to the federal criminal prosecution of border agents Ramos and Compean who pursued a fleeing suspect, and shot him when (they say) they thought the fleeing suspect pulled a gun. The criminal prosecution is based in part on an assertion by the Customs and Border Protection Agency that pursuit of fleeing suspects is against policy.

I am not endorsing or advocating contributing to a defense fund. I don't know the facts sufficiently well. The links by Ramos and Compean are apt to be biased - but they are also VERY informative. The US Attorney General's Office takes an opposite point of view, obviously, as it mounted the criminal prosecution.

Ramos Compean Legal Defense Fund
DailyBulletin.com - Convicted border agent tells his story
US DOJ Description of the case [must read]

(a) Evaluation- Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall--
(1) evaluate the authority of personnel of United States Customs and Border Protection to stop vehicles that enter the United States illegally and refuse to stop when ordered to do so by such personnel, compare such Customs authority with the authority of the Coast Guard to stop vessels under section 637 of title 14, United States Code, and make an assessment as to whether such Customs authority should be expanded; ...

Action on Wednesday - Sep. 20

1.--Ordered, That on Wednesday, September 20, 2006, upon the conclusion of Morning Business, the Senate resume consideration of the motion to proceed to H.R. 6061, an act to establish operational control over the international land and maritime borders of the United States; provided, that there be 1 hour for debate, equally divided between the two Leaders, or their designees; and that following the debate, the Senate proceed to a vote on the motion to invoke cloture on the motion to proceed to the bill.

UPDATE @ 10:38

Senator Sessions recapitulated the votes indicated above, that the Senate has already approved this project. Senator Reid is speaking, and I'm waiting to hear what objection, if any, will be raised against this bill. He referred to a report relating to immigration that will be published later today, I think as a matter of bolstering his assertion of the importance of comprehensive immigration reform.

He notes that there won't be a conference between the House and Senate on S.2611/H.R.4437. I say that's because the Democrats have objected to every vehicle the Republicans have offered.

Reid's objections to this bill:

  • The fence will cost as much as 7 billion dollars
  • The bill has no immigration law revisions
  • The 12 million undocumented aliens become subjected to deportation
But Reid will vote for cloture with the objective of amending the bill. Ahh, there's the approach. Amend the bill so that it resembles S.2611. So the interesting reading on this subject will be the contents of offered amendments. This bill could easily use the rest of the week in the Senate. Cloture (to take up the bill) will pass easily. The fireworks start after that.

UPDATE @ 11:16

The cloture vote is underway. I predict unanimous passage, but nothing closer than 92-05.

UPDATE @ 11:43

The cloture motion on the motion to take up H.R.6061 - The Secure Fence Act of 2006 was
PASSED on a 94 - 00 vote

Let the amending process begin.

UPDATE @ 11:52

Senator Stabenow requests an hour, to speak as in morning business. The subject of her speech is job growth and the economy. I detect an ever so slight "change the subject."

UPDATE @ 12:32

Keeping with the spirit of "change the subject," here are a few items of interest to me.

H.R.4844, the Federal Election Integrity Act

  • evidence of citizenship required to register to vote
  • photo identification required to vote

Senator Leahy statement regarding Reporters' Privilege Legislation

PRAYER IN THE ARMED FORCES (Senate - September 19, 2006)

That last one is a bit dense, but Warner is asking the US armed forces to "stay--that means hold in abeyance--enforcement of these newly promulgated regulations" relating to the leading of prayer by military chaplains. This is a deep (heady) subject, as prayer in the military is a focused friction point on the question of the depth and source of Western Civilization's belief in its own ultimate superiority.

UPDATE @ 13:50

Senator Baucus rises to yet again (he did this on the 13th and 14th, while the Senate was working on the seaport security bill) request UC to take up and pass the Alternative Minimum Tax extender, separate from minimum wage and estate tax changes.

UPDATE @ 15:40

If you enjoy heated exchanges, the Leahy - Sessions - Boxer match was pretty good.

UPDATE @ 16:05

Stabenow - job growth has been weak under this administration
Nelson/Boxer - the pool of available labor isn't big enough

UPDATE @ 16:30

Senator Specter pokes a different hole in the proposed military tribunal bills, both the administration's version (S.3886) and the Warner/McCain version (S.3901). This "new hole" relates to habeas corpus. Some discussion at this article at balkin.blogspot.

He also expresses that he sides with the Warner, McCain and Graham position regarding the administration's initial proposed clarification of Geneva Convention common Article 3.

The administration's plan for having military tribunal legislation completed before October has just been shot down, hard. Specter can be the fall guy for the delay, I'm sure he doesn't mind. He's asserting (correctly) that the Judiciary Committee has jurisdiction over at least some of the substantial law contained in the proposed legislation, and to this date, the Judiciary Committee has not handled the legislation. Senator Specter has asked Frist to submit the legislation to the Judiciary Committee.

Could be a version of good-cop, bad-cop, where Arlen is willing to be the bad-cop who caused a delay in completing legislation.

UPDATE @ 18:00

Feinstein asked to have AgJobs added to the fence bill. There is a Republican amendment, by Craig, and a DEM amendment by Feinstein. "This is harvest season." She and Craig indicated that there is broad support for AgJobs on the part of the Senate. Their touchstone for a finding of support can be seen in Senate Live : May 17, 2006. Look for Vitter Amendment No. 3963, to strike Sections 601-614 (AgJobs), which was REJECTED on a 33 - 66 vote. That is, an amendment to get rid of AgJobs was rejected, but in the context of comprehensive immigration reform.

UPDATE @ 18:15

According to Senator Reid, reading a news report, Senator Craig said he would not offer his AgJobs amendment because it would hold up consideration of holding up H.R. 6061. Good for Senator Craig, and pretty funny that Senator Reid is calling him out for asking about AgJobs, but deciding not to bring up the amendment.

UPDATE @ Sept. 21

As divulged by Senator Frist answering questions on Fox and Fiends Friends on Thursday morning, a vote on the secure fence bill will probably happen next Monday. Senator Frist said he is confident it will pass.

On the same morning chat program, Senator Dorgan says the Democrats are waiting to see if Frist "fills the tree" and cuts off the ability to amend it. He is coy about whether the outcome of this bill is determined by the ability to amend it, but the Democrats would be expected to prefer to add amendments that tend toward the "comprehensive" position they advocate. In their shoes, I would be trying to determine the nature of the political fall out (votes) if they are tagged with responsibility for taking the "success" of passing a fence-only bill away from the GOP.


30 minutes of morning business, equally divided
5:45 PM vote on motion to proceed, unless earlier by agreement.

Senator Frist says he is constantly asked about the terrorist tribunals and terrorist surveillance, and reports that there is lots of action and negotiation in committee. He hopes to have a more specific report later this afternoon.

Senator Frist says the Senate will have votes on Monday and likely on Friday next week. The Senate may be in on Saturday next week.

Reid: When will we vote Monday? (On the fence-only bill) 5:00 - 6:30 PM timeframe.

What about "going home?" Is there any reason that the Senate will be in after the end of next week? Frist says "Only in the event of an unforeseen emergency." What about return after the election in November? Frist says either Monday or Tuesday of the week following the election.

UPDATE @ 10:40

Nothing brought up so far deals with the fence. Stabenow and a Medicare project, Nelson and drought relief, Thune with E-85 (alternative fuel) gas station pumps, etc.

Senator Reid referred to a report yesterday. The report, "Immigration and America's Future" was published by the so-called "Independent" Task Force on Immigration and America's Future. The co-chairs are Spencer Abraham and Lee Hamilton. Senators Kennedy and McCain are also members, but are not asked to endorse the findings of any issued reports. The Independent Task Force has this list of publications.

UPDATE @ 14:00

Just a note pointing out the obvious. The Democrats could, at any time, agree to proceed to the motion to take up H.R.6061 without requiring the 30 hours of post-cloture time to run. See, for example, the interval between the cloture vote and voting on the seaport security bill. The cloture vote was finished at about 12:05 in the afternoon, and the vote on the bill was completed less than 5 hours later.

Ostensibly, the issue presently before the Senate is whether or not to take up the fence-only bill. The Democrats are ready to vote on that motion, they sure aren't debating it. But they are sticking to the "30 hours of debate unless otherwise agreed" specified in Rule XXII instead of agreeing otherwise.

UPDATE @ 18:50

I believe Senator Frist has "filled the tree" with amendments, specifically first degree amendment Nos. 5031 (roll call vote requested) and 5032. Pure procedure, the amendments contain no substance.

Timing for taking a vote on the bill has not been set. It won't happen on Friday or Monday, although some debate is sure to occur just based on the "filling of the tree." Especially after Durbin said he wanted to reintroduce the DREAM Act, and Feinstein wanted to add AgJobs, etc.

The interesting action has moved over to the interrogation, detention, tribunal and NSA measures.

UPDATE @ Sept 22

Prayer, pledge, adjourn.
That's the order of business agreed to for today.

The fence-only bill is the pending legislative business of the Senate, the motion to proceed to it having been agreed to. The "amendment tree" has been filled. There will be no further amendment to the bill.

There will be no votes on the bill today, probably none on Monday either, and possibly no vote next week except a vote on a cloture motion for the bill itself. I expect Senator Frist to file a cloture motion for the fence-only bill on Monday, then move to debate whatever bills represent the interrogation, tribunal and surveillance matters.

Mr. FRIST. Mr. President, I ask unanimous consent that ... following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and further that notwithstanding the adjournment of the Senate it be in order for Senators to introduce bills on Friday until 11 a.m.; provided further that a bill to be introduced by Senator Frist or his designee be considered as read a first time and that there be an objection to its second reading. I further ask consent that following the pledge, the Senate then stand in adjournment until the hour of 2 p.m. on Monday, September 25.

Senator McConnell slightly modified the "Prayer, pledge, adjourn" schedule, into "Prayer, pledge, housekeeping, adjourn." The housekeeping consisted of the following items:

  • Pass S.3850 - Credit Rating Agency Reform Act of 2006
  • Instead of consenting to 1 bill being offered by 11 AM, the Senate has consented to up to 3 bills being read and objected to second reading by 11 AM, and further, the record will remain open until 11 AM for submitted statements (in addition to submission of bills).
The objection to second reading serves to get the bills on the legislative calendar. Other bills could be submitted, in theory, but they'd not be read the first time, let alone being subjected to an objection for a second reading for the purpose of being placed on the calendar.

UPDATE @ Sept 23

Just thinking out loud about a possible schedule for completing action on this bill. There needs to be some action, because the fence-only bill is the currently pending legislative business of the Senate. The Senate needs to pass it, reject it, or put it in limbo.

A cloture motion could be filed Monday evening, to establish a time to vote on the can't-be-further-amended fence-only bill. Assuming the DEMs work the rules to maximize the time delay, the cloture vote could happen no earlier than Wednesday morning. Meanwhile, the Senate will be busy with interrogation, trials for suspected terrorist, and NSA surveillance issues and the people won't notice an absence of action on the fence bill.

If cloture passes on Wednesday, Rule XXII provides for 30 hours of debate unless unanimous consent is reached otherwise. Another important factor is that ...

Rule XXII

... if [the cloture motion passes] then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

This aspect of the rule is amenable to modification by unanimous agreement, and it is not unusual for Senators to talk about all sorts of subjects in the interval between passing a cloture motion and voting on the underlying bill. But what doesn't happen post-cloture is the formal introduction of other bills, or the taking up and voting on amendments to other bills.

So if cloture passes, the fence-only bill will suck time that the GOP might prefer to use to handle interrogation, terrorist-suspect trials, and NSA surveillance. The Senate could debate those matters in a fence-only post-cloture environment, but those extra-curricular debates could begin anew after the interrogation, terrorist-suspect trials, and NSA surveillance bill(s) are made the business of the Senate.

Thirty hours from a hypothetical 11 AM Wednesday passage of cloture is 5 PM Thursday - they can run the clock even when not actually in session (this was done on the cloture motion on the motion to proceed to the fence-only bill) - which would leave only Friday to formally handle the interrogation, trials and surveillance matters.

The above represents a "worst case" time expenditure where a cloture motion is filed. There are plenty of procedural options in the cloture context, and there is also a possibility that no cloture motion be filed.

In the no-cloture scenario, Senator Frist would ask, sometime Monday, for unanimous consent to vote on H.R.6061 at a time certain, say Wednesday at noon. Having a DEM objection (which is a certainty, as far as I'm concerned), he would say that the DEMs killed the bill, and move (on Monday) to take up the interrogation, trials and surveillance matters.

UPDATE @ Sept 24

Senator Frist muttered something about this bill, but its meaning isn't clear from this article. My take is "don't expect H.R.6061 to come up for a vote, ever."

Frist Wants Vote on Immigration Bill

WASHINGTON (AP) -- Senate Majority Leader Bill Frist on Sunday said he wants a Senate vote soon on an immigration bill focusing primarily on border security, but acknowledged that quick passage is doubtful.

Frist, R-Tenn., said he's willing to push ahead with the bill favored by House Republicans, which is narrower than the version he and other senators favor. Even so, action may not be possible before the November elections, he said. ...

[later editions of the same article say ...]

"Right now I got a feeling the Democrats may obstruct it," said Frist, R-Tenn. ...

"The Senate spent almost a month debating and then passing tough and smart immigration reform that included border security, but Republican obstructionism has prevented us from completing that bill," [spokesman for Senate Democratic leader Harry Reid] Manley said in a statement.

The old "You're the obstructer -- NO, you are" argument. The Senate DEMs objected to sending S.2611 to conference, and I think it'll be (mostly) the Senate DEMs who will object to taking a vote on the fence-only bill.

UPDATE @ Sept 25

Senator Sessions spoke on the bill, and noted a drawn-out timeline similar to the "with cloture" version outlined above (except he said that he thought there would be a cloture vote today - huh? tomorrow - huh?) - and concludes that given the broad support in the past, the bill should pass. It depends on what one means by "should." As a matter of propriety, I agree, the Senate ought to vote on the bill and pass it. But as a prediction of what will happen to the bill this week, I still think the bill will die on the vine.

Senator Inhofe spoke for an hour on the subject of global warming. There was no rush to offer amendments to the fence-only bill, or even pet bills such as Drought David Relief Act, Medicare D Relief, or the AMT (tax) Extender Package.

UPDATE @ 16:44

Senator Salazar expressing disappointment that his Amendment No. 5028 (basically, the entirety of S.2611 as passed earlier this year) is not being considered, and a hope that it will considered in the weeks ahead. Other players who advanced this amendment are Mr. KENNEDY, Mr. LIEBERMAN, Mr. OBAMA, Mr. REID, Mr. LEAHY, Mr. DURBIN, and Mr. CARPER - just a heads up as to who else might speak against the majority "filling the amendment tree." He closes by saying that if the approach is not comprehensive, it will not work, and that President Bush advocates a comprehensive approach.

In short, Salazar is invoking the image that President Bush would be against the fence-only bill, because it is not comprehensive, and asks the White House to provide guidance again.

Clear signal that the Democrats will oppose taking the vote on the fence-only bill. Will Senator Frist file a cloture motion? or not? How will the fence-only bill be relegated to limbo?

Senator Kennedy spoke about the subject of the recently-leaked NIE, where the reports assert that the war on Iraq has aggravated and increased terrorism. Yawn.

UPDATE @ 18:10

Senator Frist withdrew amendment 5031, and called up Frist Amendment No. 5036 and Frist Amendment No. 5037. This amounts to adding the Military Commissions Act of 2006 to the pending fence legislation.

Senator Frist filed a cloture motions to proceed to the vote on the military commissions amendment, then on the underlying measure.

The parliamentary procedure involves voting on the cloture motion to vote on S.Amdt. No 5036 (so-called "Hamdan language" or Military Commissions bill), where, if cloture passes, there could be 30 hours of debate. Then there would be a cloture vote on H.R.6061 as amended, again followed by debate.

Basically, the "with cloture" timeline described above would apply to the "fence-only plus military commissions" bill, with an additional layer of cloture voting to accommodate debate on the military commissions amendment.

UPDATE @ Sept 26

See debate, but basically there was no action on the fence-only bill today.

30 amendments were filed, contents are a mixed bag of border security, comprehensive immigration, and military tribunals.

UPDATE @ Sept 27

Senators Frist and Reid are working on a time agreement that includes separating the military tribunals activity from the fence activity, with resolution of that, one way or the other, expected before the cloture vote which nominally is scheduled to begin at 11:30.

The parliamentary procedure involves voting on a cloture motion to vote on S.Amdt. No 5036 (so-called "Hamdan language" or Military Commissions bill), where, if cloture passes, there could be 30 hours of debate. Then there could be a cloture vote on H.R.6061 as amended, again followed by debate.

UPDATE @ 13:15

H.R.6061 was set aside by unanimous consent so that the Senate could take up S.3930, the administration's military tribunals bill.

UPDATE @ Sept 28

Business on S.3930 being concluded as of (estimated 19:10 actual 19:04), the Senate will resume consideration of the fence bill by taking a cloture vote on the underlying bill, probably the last vote today after passing the military tribunals bill.

[PREDICTION: Cloture will not pass on 59-39 vote, various reasons]
The vote to invoke cloture for final consideration of
H.R.6061 - The Secure Fence Act of 2006 was
PASSED (at 19:35) on a 71 - 28 vote.
GOP NAY Vote: Chafee
DEM AYE Votes: Byrd, Landrieu, Nelson (FL), Nelson (NE), Rockefeller [more to come]

I sure blew that prediction. ;-)

The Senate has set aside the provision of Rule XXII that say the matter under passed cloture will be the sole business of the Senate.

Stevens introduces the conference report for H.R.5631 - DoD Appropriations Act, 2007, which will be passed after 2 hours of debate, where that time does not count against the 30 hours allowed to debate the fence bill, H.R.6061. 32 hours from now is 4 AM Saturday.

UPDATE @ Sept 29

Opening the Senate, Frist said that he hoped to conclude the vote on this bill today. Senator Reid inquired of the parliamentarian as to when the vote is scheduled. Answer, 3 AM Saturday. Senator Reid is apparently not anticipating unanimous consent to vote earlier than Rule XXII provides.

The fence bill is, in form, the pending business of the Senate. But it will be set aside to take up voting on DoD conference report, taking a cloture vote to vote on S.403 as amended by the house (the child across state lines for abortion bill), the conference report for DHS appropriations, the conference report for the seaport security bill, and nominations.

Senator Frist says that a Saturday session is a possibility.

UPDATE @ 21:15

Well well well - no Saturday. Closing business is lined up, and voting on the fence bill is part of the deal.

Time agreement provides for about 20 minutes of closing debate, then a vote on the bill.

Vote start 21:30
[PREDICTION: 55-45 Passage on nominally party line vote]
H.R.6061 - The Secure Fence Act of 2006 was
PASSED (at 21:59) on a 80 - 19 vote.
GOP NAY Vote: Chafee
DEM AYE Votes: Baucus, Bayh, Biden, Boxer, Byrd, Carper, Clinton, Conrad, Dayton, Dodd, Dorgan, Feinstein, Harkin, Johnson, Kohl, Landrieu, Lincoln, Mikulski, Nelson (FL), Nelson (NE), Obama, Pryor, Rockefeller, Schumer, Stabenow, and Wyden

Some new "crossovers" in the immigration/border-first debate.

UPDATE October 6

Based on news reports that "the President has signed the fence bill," most people mistake the President's October 4 signing of H.R.5441 - The Homeland Security Appropriations Bill for signing of H.R.6061 - The Secure Fence Act of 2006.

The President has NOT signed H.R.6061, the fence bill that has recently been in the news. He signed H.R.5441 - the Homeland Security appropriations bill.

Ironically, the recently signed Homeland Security appropriations bill contained SESSIONS Amendment No. 4659, to appropriate an additional $1,829,400,000 to construct double-layered fencing and vehicle barriers along the southwest border, which was REJECTED by the Senate on July 13, 2006, on a 29 - 71 vote. But later, $1,187,565,000 was ADDED in conference, for "fencing, infrastructure, and technology."

The details of the fence provision of the Homeland Security appropriations bill (H.R.5441) can be read in the Conference Report 109-699 to H.R.5441 (Sept 28, 2006), taken in combination with H.R.5441 Presidential Signing Statement.

The executive branch shall construe as calling solely for notification the provisions of the Act that purport to require congressional committee approval for the execution of a law. ...These provisions include those under the headings ... "Border Security Fencing, Infrastructure, and Technology, Customs and Border Protection ..."
In a related irony, KYL/SESSIONS Amendment No. 4775 to H.R.5631, the DoD appropriations bill, to provide $1,829,100,000 for the Army National Guard for the construction of 370 miles of triple-layered fencing, and 461 miles of vehicle barriers, which was PASSED by the Senate on Aug 2, 2006, on a 94 - 03 vote, was later STRIPPED OUT in conference. The President signed H.R.5631 into Public Law 109-289 on September 29, 2006. Obviously and for good reason, the signing wasn't accompanied by fence fanfare.

Compare the progress of H.R.6061 - The Secure Fence Act, which passed the Senate without amendment (but went no further), with the progress of H.R.5631 - The DoD Appropriations Bill and the progress of H.R.5441 - The Homeland Security Appropriations Bill - both of which were passed, cleared for the White House and presented to President Bush on Friday, Sept 29. The Homeland Security Appropriations bill was passed after 11:25 PM and made it to the President's desk before midnight. "Time crunch" does not explain the fact that the earlier-passed Secure Fence Bill did not make it to the President's desk. There may be a "must pass" nature to appropriation bills that doesn't attach to authorization bills, and this difference could justify what appears to be a delay in getting the Secure Fence Bill to the President's desk.

On the other hand, the "substitution" may be a deliberate obfuscation orchestrated by Congress and the White House, to fool the people into thinking the Secure Fence Act had been signed into law. I'm watching to see if it is moved out for signing, or if it "dies an administrative death" by being left to sit until the end of the 109th Congress, or if it is quietly moved out and dies via pocket veto.

Even if/when it is signed into law, H.R.6061 is an authorization - not an appropriation.

UPDATE @ Oct 10

18:30 EDT -- Okay ... some of you think I'm plain nuts or stupid. I looked at lots of bills today, but I'm certain that H.R.6061 didn't have "Cleared for White House" on it when I e-mailed Malkin and Captain Ed.

H.R.6061 wasn't "cleared" on the 4th, 5th or 6th either - I checked (it's a habit, news reports are usually wrong) based on reports that the President had "signed the fence bill." And I wouldn't have researched the "engross, enroll, presentment" process today if H.R.6061 had been marked "Cleared for White House."

I'll just do the <del> thing to the paragraphs below rather than consign them to the memory hole.

H.R.6061 - Secure Fence Act 9/29: Cleared for White House.


Don't fall for the trap of equating "Will President Bush sign it?" with "Will President Bush sign it before the election?"

Color me a doubting Thomas on the assertion that H.R.6061 will move out of Congress before the election. There is no urgency to do so. The bill can be moved out and signed in regular order AFTER recess. I think the GOP was attempting a ruse by advertising the DHS appropriations bill as "the fence bill." Most people fell for the ruse.

Now, having been asked about the status of H.R.6061, there is a bit of phony-acting as though delay of signing it "just before the election" was the plan all along.

H.R.4954 - [Sea]port Security 9/30: Cleared for White House
S.3930 - Military Commissions Act 9/29: Cleared for White House
H.R.5122 - DoD Authorization 9/30: Cleared for White House
H.R.5631 - DoD Appropriations 9/29: Cleared for White House
H.R.6198 - Iran Freedom Support Act 9/30: Cleared for White House
H.R.5441 - DHS Appropriations 9/29: Cleared for White House
H.R.6061 - Secure Fence Act 9/29: Cleared for White House.

A collection of blog entries and correspondence that speculate and/or reassure on the subject of passing H.R.6061 before the election ...

Oct 8: Will Bush Veto the Fence Bill? (Micky Kaus)
Oct 8: A Pocket Veto On Border Fence? (Captain Ed)
Oct 9: RNC's Patrick Ruffini - Bush will sign, see CNN interview
Oct 9: Secure Fence Act Has Secure Support (Captain Ed)

Observe that H.R.6061, The Secure Fence Act, has yet to get out of the Senate.

Latest Major Action: 9/29/2006 Passed/agreed to in Senate.

It has not been "Cleared for the White House" yet. The last action is "Passed by the Senate." "Passed by the Senate" is not synonymous with "getting out of the Senate." There are no entries that indicate the clerk of the House (who attends to the formalities preceding presentment to the President) has been informed of the Senate vote or has been tasked to Engross and Enroll the bill and to certify that the bill as cleared for presentment.

Compare progress of H.R.6061 with progress of S.3930 - Military Commissions Act of 2006 ...

Latest Major Action: 9/29/2006 Cleared for White House.

The Military Commissions Bill is cleared for the White House, but hasn't yet been "presented" to the White House for the President's signature.

Compare those with progress of H.R.5122 - DoD appropriations ...

Latest Major Action: 10/5/2006 Presented to President.

And with progress of H.R.5441 - DHS Appropriations ...

Latest Major Action: Became Public Law No: 109-295

See the sequence? Pass, then Message on Senate action sent to the House, then Cleared for White House (the "Message-Cleared" sequence is sometimes reversed), then Presented to President, then Signed by President. The fence bill is sitting at the "Message on Senate Action" point in the process, and lacks being "Cleared for White House."

Regarding H.R.6061, the fence bill, Captain Ed says ...

Expect to see this get signed somewhere between October 24th and November 1st. The White House considers this bill a front-and-center accomplishment and wants the boost to last all the way through Election Day. Bush and the Republican leadership in Congress (especially Bill Frist, I'm told) want this to get as much coverage as possible. After the signing ceremony, expect to see this bill get trumpeted in the final advertising push for all Republican incumbents running for re-election.

I hope he's right. I think he's wrong.

If he's right, the Senate will undertake a clerical action of sending paperwork reflecting H.R.6061 as passed, to the Clerk of the House. The Clerk would then perform Engrossment, followed by the affixing of signatures of the designated presiding officer of the Senate and the designated Speaker pro tempore of the House (see Engrossment, Enrollment and Presentation and the House Rules Manual, especially sec. xlviii--assent and NOTE: Sec. 648).

I don't know of an example of a bill advancing through "Message on Senate action" and "Cleared for White House" during a recess of Congress - but that doesn't mean such advancement can't possibly occur. The formal posture of the Senate is to return for a "Pledge, prayer, adjourn" session on November 9 - after the election.

Does anybody know of a time that the Senate has sent a message to the House, regarding a vote taken in the Senate (passing a bill) while both the Senate and House were in recess? It just seems odd on its face.

Progress on H.R.5122 - DoD Appropriations contains an example of "Message on Senate Action" occurring during adjournment ...

9/30/2006: Cleared for White House.
10/2/2006: Message on Senate action sent to the House.

Odd sequence there. Perhaps not terribly odd seeing as how the floor action was on a conference report and not on a bill. At any rate, it appears unusual, but not unheard of, for nominally clerical activity to occur between the House and Senate while both are in recess.

I'd like to see an example of "Cleared for the White House" occurring during Congressional recess. None of the 2 dozen or so bills I've reviewed, that passed at or near a recess of a month in duration, were cleared during the recess. I found two examples where messages from Senate weren't reported as received by the House, until after the House returned ...

S.3534 - YouthBuild Transfer Act
8/3/2006: Passed Senate with an amendment by Unanimous Consent.
8/4/2006: Message on Senate action sent to the House.
9/6/2006 2:04pm: Received in the House.

H.R.3858 - Pets Evacuation and Transportation Standards Act of 2006
8/4/2006: Message on Senate action sent to the House.
9/20/2006 5:50pm: Mr. Shuster moved that the House suspend the rules ...

---===---

More detail. Both H.R.4 and S.3534 were reported to the House in the same message from the Secretary of the Senate (sent and received on August 4, when neither the House nor Senate was in session), but the message wasn't noted as received in the House until Sept 6 - COMMUNICATION FROM THE CLERK OF THE HOUSE. The comparison is useful because H.R.4 was signed into law during the August recess but S.3534 was not.

If the Senate undertakes sending a message on its action to the House, the Clerk is able to receive it even though the House in in recess. That is, a delay in reporting "Received in the House" is not, on it's own, indicative of inability to present a bill to the President.

Clause 2(h) of House Rule II

(h) <<NOTE: Sec. 652. Authority to receive messages.>> The Clerk may receive messages from the President and from the Senate at any time when the House is not in session.

Senate action on both S.3534 and H.R.4 was communicated to the Clerk on August 4, but H.R.4, which was signed into law during the recess, has an August 3 "Cleared for White House" notation immediately following the Senate vote.

H.R.4 - Pension Protection Act of 2006
8/3/2006: Passed Senate without amendment by Yea-Nay Vote. 93 - 5.
8/3/2006: Cleared for White House.
8/4/2006: Message on Senate action sent to the House. [Mystery sequence]
8/14/2006: Presented to President.

Absent being "Cleared for White House," H.R.6061 isn't going to be presented to the President. I'm still digging to see if House rules or other material teaches what it takes to "Clear for the White House," with the goal of figuring out if that status can be obtained while both the House and Senate are in recess, on a House-originated bill passed without amendment by the Senate, where the Senate neglected to send a message informing the House of its action.

---===---

The RNC's Patrick Ruffini is blowing smoke. He says the CNN interview with President Bush is definitive word that the President will sign H.R.6061. That is false. The CNN interview is ambiguous at best, and inclines to a promise by President Bush to sign an appropriations bill. Yes, Blitzer was asking about H.R.6061, but Blitzer is putting words in the President's mouth if he says something that amounts to "the President said he would sign H.R.6061." The President did not say that.

You know, yes, I'll sign it into law. They're appropriating money -- I believe that's what you're talking about -- and it's part of the appropriations process, if I'm not mistaken.
President Bush did sign the appropriations bill.

UPDATE @ Oct 18

News reports, House Representatives and assorted other hotshots are looking for H.R.6061, a clear indication that something "relatively public" will happen to dispose of the bill. "Relatively public" being something other than letting the passed bill languish in Congress through the entirety of the re-election recess.

Based on the below news report, the White House is making sure that it isn't fingered as causing any delay if the bill isn't signed. If the spokesman is taken at his word, any and all delay in presentment has been and is at the hand of Congress, not at the request of the White House.

Border-fence bill awaits signing
By Stephen Dinan - THE WASHINGTON TIMES
October 18, 2006

The White House is pleading with Congress to send over the bill authorizing 700 miles of fence on the U.S.-Mexico border so the president can sign it immediately, but Republican leaders on Capitol Hill want to wait until closer to the election and to have a public signing ceremony. ...

"It's a timing issue: We want it signed closer to the election when folks are paying attention and those who want to take advantage of the messaging opportunity can do so, and the White House is aware of this," said an aide to Senate Majority Leader Bill Frist, Tennessee Republican. House Republican leadership aides confirmed that strategy. ...

Many blogs from across the political spectrum have speculated he is trying to scuttle the bill with a pocket veto, but Mr. Bush has said he will sign it, though in private, without a signing ceremony. ...

The bill's actual status is somewhat murky. Calls to the House clerk's office were referred to the House Administration Committee, and a spokeswoman was not able to say where the bill was.

[Rep. Steve King, Iowa Republican] said he has assigned his staff to track down the bill because he, too, wants to know where it stands. ...

Mr. King said that if Mr. Bush doesn't have a public ceremony for the bill, "there's something substituting at the White House for good political judgment." ...

But at a press conference last week, Mr. Bush said he is committed to building the 700 miles of fencing, though he said the Department of Homeland Security will decide where and that he wants sensors and cameras to watch the border.

The article by Mr. Dinan illuminates two separate issues. The more mundane issue is whether or not there will be a signing ceremony when H.R.6061 - The Secure Fence Act, is signed into law. The White House spokesman says "no - we don't want to raise expectations." On the other side, a number of Congressmen are angling, fairly urgently it seems, to pressure the White House into having a prominent signing ceremony.

This October 9 article at Captain's Quarters said the White House wanted a prominent ceremony too ... "Bush and the Republican leadership in Congress (especially Bill Frist, I'm told) want this to get as much coverage as possible."

The question over signing contains "whether or not," "when," and "how ceremonious" aspects. As far as I am concerned, all of those aspects are still up in the air.

The other issue is substantive, and Dinan's report asserts a point that contains a contradiction, without illuminating the contradiction. H.R.6061 tells the administration where to build the fence, but President Bush says the DHS will decide where to put the fence. If he signs the bill, then DHS won't be deciding where to build the fence (-if- [big IF] this authorization bill is later funded via a suitable appropriation).

I also think the conclusion that "at a press conference last week, Mr. Bush said he is committed to building the 700 miles of fencing" is a simplification that leads to an erroneous conclusion. In reading the October 11 press conference by the President, one sees the following -- note the agreement to build what Congress has funded ...

Q Thank you. On a different topic. You've said you will sign the border fence bill to build 700 miles of fence along the U.S. border, but DHS has said it prefers a virtual fence of sensors and cameras rather than an actual wall. Are you committed to building the 700 miles of fence, actual fencing?

THE PRESIDENT: Yes, we're going to do both, Joe. We're just going to make sure that we build it in a spot where it works. I don't -- DHS said they want a virtual wall. I don't believe that's the only thing they've said. I think you might have truncated their statement, because we're actually building fence, and we're building double fence in particular -- in areas where there is a high vulnerability for people being able to sneak in.

You can't fence the entire border, but what you can do is you can use a combination of fencing and technology to make it easier for the Border Patrol to enforce our border. I happen to believe, however, that in order to make sure the border is fully secure, we need a guest worker program, so people aren't sneaking in in the first place.

And so I look forward to not only implementing that which Congress has funded, in a way that says to folks, the American people, we'll enforce our border, but I'm going to continue to campaign and work for a comprehensive bill ...

President Bush seems to have unambiguously answered the question, "Are you committed to building the 700 miles of fence, actual fencing?" with his "Yes, we're going to do both, Joe." But I think his further comments countermand or override (at least in part) the brief opening "yes."

Plenty of other details are revealed on a careful reading of H.R.6061 (e.g., only two sections of fence have date-certain deadlines), and it's reasonable to suppose that the President and Congress will continue negotiating details of border protection and immigration reform.

UPDATE @ Oct 24

Ceremony to accompany border fence bill signing
By Stephen Dinan and Charles Hurt - THE WASHINGTON TIMES
October 24, 2006

Congress yesterday sent the bill to build 700 miles of fencing on the U.S.-Mexico border to President Bush, who will sign it in a ceremony Thursday morning in the White House Roosevelt Room.

UPDATE @ Oct 26

The Secure Fence Act has been signed into law.

President Bush Signs Secure Fence Act
October 26, 2006

The bill I'm about to sign is an important step in our nation's efforts to secure our border and reform our immigration system. I thank the members of Congress for joining me as I sign the Secure Fence Act of 2006.

(The bill is signed.)
END 9:40 A.M. EDT

9/29: Cleared for White House
10/23: Presented to the President
10/26: Signed into law

6 Comments:

Blogger cboldt said...

Thanks Captain Ed, for letting me know that you too noticed absence of "Cleared for White House" on H.R.6061.

10/10/2006 7:25 PM  
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