Monday, June 04, 2007

Immigration Redux, continued - S.Amdt.1150 to S.1138

Picking up the Senate action on comprehensive immigration reform, exactly where the May 21st post left off ...

S.1348 Summary of Action

Immigration Reform: Text of Amendments

May 21, 2007: S.Amdts. 1146 - 1150
S.Amdt.1150 (printed in May 24 Record)
May 22, 2007: S.Amdts. 1151 - 1165
May 23, 2007: S.Amdts. 1166 - 1189
May 24, 2007: S.Amdts. 1190 - 1254
May 25, 2007: S.Amdt. 1255
June 4, 2007: S.Amdts. 1257 - 1281
June 5, 2007: S.Amdts. 1282 - 1333
June 6, 2007: S.Amdts. 1334 - 1475
June 7, 2007: S.Amdts. 1476 - 1499
June 20, 2007: S.Amdts. 1805 - 1816

July 30, 2007: Specter "no citizenship, no points" proposal

Immigration Reform Debate

May 21, 2007: Part I - Part II - Part III
May 22, 2007: Part I - Part II
May 23, 2007: Part I - Part II - Part III
May 24, 2007: Part I - Part II - Part III
May 25, 2007: Part I
June 4, 2007: Part I - Part II - Part III
June 6, 2007: Part I - Part II - Part III - Part IV
June 7, 2007: Part I - Part II
June 11, 2007: Parts I & II
June 15, 2007: Part I (Reid/SCHEDULE) - Part II (Dorgan)
June 18, 2007: Part I (Reid) - Part II (S.1639)
June 20, 2007: S.1639 Cloture Motion

July 30, 2007: Specter "no citizenship, no points" proposal

Pending (as of the time that Senator Reid set the bill aside):

  • Reid (for Kennedy/Specter) Amendment No. 1150, in the nature of a substitute.
  • Dodd/Menendez Amendment No. 1199 (to Amendment No. 1150), to increase the number of green cards for parents of United States citizens, to extend the duration of the new parent visitor visa, and to make penalties imposed on individuals who overstay such visas applicable only to such individuals.
  • Sessions Amendment No. 1235 (to Amendment No. 1150), to save American taxpayers up to $24 billion in the 10 years after passage of this Act, by preventing the earned income tax credit, which is, according to the Congressional Research Service, the largest anti-poverty entitlement program of the Federal Government, from being claimed by Y temporary workers or illegal aliens given status by this Act until they adjust to legal permanent resident status.
  • Reid Amendment No. 1492 (to Amendment No. 1235), to require the use of objective criteria to determine which undocumented persons have sufficient community ties to be awarded a Z visa and remain in the United States lawfully.
  • Reid Amendment No. 1493 (to Amendment No. 1199), to require employers seeking to hire aliens to certify that they have not, and do not intend to, provide a notice of a mass layoff.

I wondered about the contention that McCain's S.Amdt.1190, the "back taxes" amendment, would cause the bill to be particularly amenable to being blue slipped in the House as being contrary to the Origination Clause of the U.S. Constitution, "All bills for raising Revenue shall originate in the House of Representatives." Does paying back taxes -- taxes already due under existing law, I presume -- constitutes a bill for raising revenue? Do the provisions for fines and payments under the immigration bill also constitute a bill for raising revenue? And what about the (odious) Sanders's S.Amdt.1123, which imposes a completely new additional $8,500 fee on employers sponsoring an H1-B visa applicant (link to 8 U.S.C. 1184, for those who follow the details), with proceeds to be directed to a college scholarship fund?

There is case law and history going to the definition of "bill for raising revenue," and in my opinion McCain's S.Amdt.1190 doesn't meet the definition, because it doesn't create any new obligation, whatsoever. The McCain amendment merely directs the government to apply, rather than waive, existing revenue law.

As for the immigration fines/fees and Sanders's amendment, the controlling case law is in the series of cases that concludes with ...

United States v. Munoz-Flores, 495 U.S. 385 (1990)

In June 1985, German Munoz-Flores was charged with aiding the illegal entry of aliens into the United States. He subsequently pleaded guilty to two misdemeanor counts of aiding and abetting aliens to elude examination and inspection by immigration officers. The Magistrate sentenced respondent to probation and ordered him to pay a special assessment of $25 on each count under the then-applicable version of 18 U.S.C. 3013 (1982 ed., Supp. V). Pet. for Cert. 27a-28a.

Respondent moved to correct his sentence, asserting that the special assessments were unconstitutional because Congress had passed 3013 in violation of the Origination Clause. ...

Both parties agree that "revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897) (citing 1 J. Story, Commentaries on the Constitution 880, pp. 610-611 (3d ed. 1858)). The Court has interpreted this general rule to mean that a statute that creates a particular governmental program and that raises revenue to support that program, as opposed to a statute that raises revenue to support Government generally, is not a "Bil[l] for raising Revenue" within the meaning of the Origination Clause. For example, the Court in Nebeker rejected an Origination Clause challenge to what the statute denominated a "tax" on the circulating notes of banking associations. Despite its label, "[t]he tax was a means for effectually accomplishing the great object of giving to the people a currency . . . . There was no purpose by the act or by any of its provisions to raise revenue to be applied in meeting the expenses or obligations of the Government." Nebeker, supra, at 203. The Court reiterated the point in Millard v. Roberts, 202 U.S. 429 (1906), where it upheld a statute that levied property taxes in the District of Columbia to support railroad projects. The Court rejected an Origination Clause claim, concluding that "[w]hatever taxes are imposed are but means to the purposes provided by the act." Id., at 437. ...

Read in its entirety, the passage clearly evidences Congress' intent that 3013 provide funds primarily to support the Crime Victims Fund. ...

[The Court in Nebeker] nevertheless found that the bill was not a revenue bill, stating that a bill creating a discrete governmental program and providing sources for its financial support is not a revenue bill simply because it creates revenue, a holding that was reaffirmed by Millard. See supra, at 397-398. Thus, the beneficiaries of the bill are not relevant.

Section 3013 is not a "Bil[l] for raising Revenue." We therefore need not consider whether the Origination Clause would require its invalidation if it were a revenue bill.

But if there is merit to the argument that immigration is a bill for raising revenue, recall that the formal, procedural reason that last year's S.2611 never made it to conference was based on the Origination Clause. GOP Senate leadership insisted on reassigning all of the Senate immigration action (S.2611) to a completely unrelated House bill (H.R.4096 - extension of relief on Alternative Minimum Tax), and this move was objected to by the Senate Democrats. See Senate Live - June 6, 2006 for the start of this process, where Senator McConnell objected to sending S.2611 to the house under the House's immigration bill, H.R.4437. I commented at the time,

... so the Senate can take a tax bill, ENTIRELY remove it's contents and substitute an immigration bill, and the issue of which chamber initiated the measure "goes away."

See also Senate Live - June 8, 2006, Senate Live - June 21, 2006, and Senate Live - June 23, 2006, where Senator Frist wrongly blamed the House for failure to get immigration to conference - the Senate could have substituted S.2611 for the House-passed H.R.4437 immigration bill, but for Republican objection.

The Democratically-led House in this, the 110th Congress, insisted that the Senate take up immigration first, knowing that doing so creates an argument (not a good one, in my opinion, but an argument nonetheless, and EXACTLY the same argument from the 109th Congress) that the Senate is originating a bill for raising revenue.

Why would Congress adopt a procedure that repeats an arguable procedural flaw? Why would the Republicans go along with this AGAIN, without objecting up front? The cynic in me says Congress took up the bill, expecting and maybe wanting it to fail under public pressure. In other words, all the Senate action is KNOWN to be nothing but a play-act. At the end of the play, they can pretend to be surprised by an issue under the Origination Clause. At least the play-act is useful for measuring public reaction.

No votes scheduled for Monday, June 4th. The afternoon will be a warm up for whichever senators happen to have returned to Washington, D.C. Senator Sessions is the usual go-to fellow for immigration debate, and he didn't finish the speech he started a week ago Friday (May 25).

I doubt the Senate will get to S.J.Res.14, the no-confidence resolution against AG Gonzales, this week. The Senators will want to have a Sunday talk-show opportunity just before ratcheting up to taking that vote.

This week will be immigration week. I predict Senator Reid will, on Wednesday, file cloture motions to limit debate on S.Amdt.1150 and (another one) on the underlying bill, S.1138. If the Senate fails to invoke cloture, Senator Reid will use that as a reason to stop debate, rather than to continue the amendment and debate process.

UPDATE @ 15:08

William Jefferson indicted

Brett Pfeffer, a former congressional aide, admitted soliciting bribes on Jefferson's behalf and was sentenced to eight years in prison.

Another Jefferson associate, Louisville, Ky., telecommunications executive Vernon Jackson, pleaded guilty to paying between $400,000 and $1 million in bribes to Jefferson in exchange for his assistance securing business deals in Nigeria and other African nations. Jackson was sentenced to more than seven years in prison.

I guess that 90 grand in his freezer was a fraction of his action. And even if the evidence taken from his Congressional Offices is excluded, it appears the prosecutors have independent evidence that will support the trial.

USDOJ Press Release on the Indictment of Representative William Jefferson, Democrat, Louisiana.

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Courtesy of jurist.law.pitt.edu, here's one on detention and Military Commissions.

The military judge presiding over military commission proceedings against Canadian Guantanamo Bay detainee Omar Khadr dismissed all charges against Khadr Monday, citing a lack of jurisdiction. A Guantanamo Combatant Status Review Tribunal found that Khadr was an "enemy combatant," not an "unlawful enemy combatant" as required under the Military Commissions Act of 2006 ...

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And over in the Senate, Senator Reid announced that he has an eye on filing a cloture motion on the immigration bill. Hey, he said so a few weeks ago, so one can't accuse him of changing his mind on this.

UPDATE @ 16:56

Senator's Kyl and Sessions doing a bad-cop, good-cop routine. Senator Kyl supports the bill, more or less as it stands, and cautions against making any significant changes, lest the coalition that supports the bill fall apart.

Senator Sessions isn't buying it, he's read the fine print.

UPDATE @ 17:50

On the dismissal of charges against Gitmo detainee Omar Khadr for lack of jurisdiction, Dafydd at BigLizards says the basis is the thinnest of technicalities, Andrew McCarthy thinks it may be substantive, and I'm too lazy to do the research right now.

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In the Senate, Senators Kyl, Domenici, Salazar, and Menendez have been making fairly predictable speeches. Just for perception, I've been watching the speeches with the thought that the Senators figure that the bill (or the specific amendments being debated) won't advance to the point of being signed into law.

Senator Salazar's unanimous consent request passed the following four amendments en bloc:

  • Cantwell S.Amdt.1167, to provide funds to reimburse eligible northern border entities for costs incurred by those entities for handling case dispositions of criminal cases that are federally initiated but federally declined-referred
  • Alexander S.Amdt.1163, to establish a Presidential Award for Business Leadership in Promoting American Citizenship
  • Cornyn S.Amdt.1238, On page 26, line 27, strike "$50,000,000" and insert "$100,000,000" (beats me - this is another Congressional tactic, to create a labyrinth trail for figuring out the effect of legislation)
  • Grassley/DeMint S.Amdt.1166, as modified, to clarify that the revocation of an alien's visa or other documentation is not subject to judicial review (this one was contentious, will need to check the modification on it)

Votes scheduled for Tuesday, following debate until 11:50 a.m.:

  • Allard S.Amdt.1189, In section 203(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(1)(A)), as amended by section 502, in the table in that section, strike the items relating to the Supplemental schedule for Zs. (to eliminate the preference given to people who entered the United States illegally over people seeking to enter the country legally in the merit-based evaluation system for visas)
  • Durbin S.Amdt.1231, appears to remove the need for the Secretary of Labor to determine a shortage of American workers, in order to justify some aspect of the Y-immigrant (temporary worker) program (to ensure that employers make efforts to recruit American workers)

Senator Salazar reiterates the hope to vote on the comprehensive immigration reform package by the end of the week. Senate adjourned for the evening at around 18:10.

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Looking to next week, following immigration and the AG Gonzales no-confidence "action" (on this one, Republicans might take a lesson from how the Democrats handled the motion to proceed to the consideration of funding an investigation into Whitewater), Senators Reid and McConnell are working toward a way to quickly get H.R.2316, Honest Leadership and Open Government Act of 2007, and H.R.2317, Lobbying Transparency Act of 2007, to a House-Senate conference.

Also coming, according to Senator Reid, Energy, Education, and Defense Authorization (the House has passed H.R. 1585) bills.

Senator Reid, this morning, also predicted the Stem Cell Research Funding bill that emerges from House-Senate conference will be veto-proof in the Senate.

UPDATE @ 19:10

Bobby Chesney has the source documents for today's Gitmo dismissal at Khadr charges dismissed for want of jurisdiction, in case anybody wants to dig in a bit deeper. Here's a link to Judge Brownback's ruling (3 pages of text, with link to source), and the legal arguments at "natseclaw" and associated links are at least substantive.

UPDATE @ June 5

Craig Thomas; senator was low-key backer of conservative issues

Prayers for his wife and their children.

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Senator Kyl's arguments in favor of the bill were pretty bad. I'm glad I don't have the hand he was dealt.

Mr. KYL: I was asked by a reporter why I was doing this, especially since I voted against the bill last year. The answer is that last year I didn't have an opportunity to participate in the construction of the legislation the Senate voted on. By the time it came to the Senate floor, the die was essentially cast. We had several amendments we offered; some were accepted and some were defeated. It was not possible at that point to substantially change the legislation. I thought it was a bad bill and I voted against it. ...

... the status quo is amnesty because we are letting them stay here and we are not doing anything about it.

Classic Hegelian approach. Create a problem (or let a problem fester even though one has the ability to "fix it"), and use the problem as a lever to obtain something the people should and would otherwise reject.

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Here is the modification to Grassley/DeMint S.Amdt.1166 ...

(a) In General.--Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by striking ``There shall be no means of judicial review'' and all that follows and inserting the following: ``Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, any other habeas corpus provision, and sections 1361 and 1651 of such title, a revocation under this subsection may not be reviewed by any court, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a revocation, [begin insert]provided that the revocation is executed by the Secretary[end insert].''.

So most visa revocations will remain judicially reviewable, with only those revocations executed (signed) by the Secretary being not-reviewable.

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Jurist adds this to its story relating to Gitmo dismissals ...

... A US military judge Monday dismissed charges against Salim Ahmed Hamdan, a Guantanamo detainee who was accused of acting as Osama bin Laden's chauffeur.

Yes, the same Hamdan whose Hamdan v. Rumsfeld case was the impetus for Congress passing the Military Commissions Act and amending the habeas corpus statute. The Associated Press has a bit more, including the same preliminary stances by defense and government sides of the issue.

Judges at Guantanamo Throw Out 2 Cases - By ANDREW O. SELSKY (AP)

In both of Monday's cases, the judges ruled that the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan previously had been identified by military panels here only as enemy combatants, lacking the critical "unlawful" designation.

"The fundamental problem is that the law was not carefully written," said Madeline Morris, a Duke University law professor. "It was rushed through in a flurry of political pressure from the White House ... and it is quite riddled with internal contradictions and anomalies."

The defense says this represents the collapse of the CSRTs and shows them to be unworkable, and the government says there is no issue other than the judges being hypertechnical on a formality.

Howard Bashman at howappealing.law.com has a collection of links to news articles on the subject, including a link to

Charges Against Guantanamo Detainee Set for Trial Dropped Over Limit in Law
By Josh White - Washington Post - Page A18

Sen. Lindsey O. Graham (R-S.C.), a sponsor of the MCA, said in an interview yesterday that he thinks the law applies to Guantanamo Bay detainees, but added that he is pleased that judges are scrutinizing it.

"This is a good example of where, in a rule of law context, words matter," Graham said. "I readily understand that in the terrorist world, words don't matter. This is one of our strengths, not a weakness."

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Statement of Senator Dodd on Dismissal of Khadr Case

"This decision demonstrates the egregious flaws of the Military Commissions Act, and makes the point once again that Congress must act immediately to change this law. The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America's moral standing in the world and corroding the foundation of freedom upon which our nation was built. There is too much at stake - our nation's security and standing in the world - for us to wait for another one of these poorly executed cases to make the necessary changes to this system. I hope my colleagues in Congress will join me now in the fight to restore America's moral authority in developing a tough but fair system of bringing terrorists to justice."

That's a critique void of substance, and I don't recall Senator Dodd being a prominent voice during the debate that occurred over creating the Military Commissions. Could be my memory at fault there, however. [I just checked the debate of Sept 27 and Sept 28, 2006, and there is not a single word from Senator Dodd. There might be more debate other than in S.3930 - Military Commissions Act of 2006]

I covered debate on the bill in this post, which is only a fair refresher, but it's better than nothing. The statutory language came right out of the White House.

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Scooter Libby will be sentenced today.

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This Washington Times article, Illegals bill stems traffic only 25% - By Stephen Dinan, heralds more ammunition for Senator Sessions. The Congressional Budget Office (CBO) has weighed in, and its predictions don't agree with several important contentions of bill proponents.

The CBO report: Cost Estimate for Senate Amendment 1150 to S. 1348 (a small pdf file, convertible to plain text)

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The votes that were scheduled for 11:50 have been moved out to 3:30 this afternoon, with the intervening time in memory of Senator Thomas.

UPDATE @ 10:25

Marty Lederman and Jack Balkin have easily-read summaries of the Gitmo dismissals at Odds and Ends on Khadr [and Hamdan] and Why The Dismissal of the Khadr Trial is Important.

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The liberal blog "firedoglake," is live at Libby's sentencing.
Libby Sentencing One
Libby Sentencing Two
Libby Sentencing Three
Libby Sentencing Four: Libby Speaks
Libby Sentencing Five
Libby Sentencing Six
Libby Sentencing Seven
Libby Sentencing Eight

The District Court has released 373 pages of letters [Doc 359] (an 18 Mb pdf file here, hosted by FAS), thesmokingun.com has some of them online at Scooter Libby Love Letters, and talkleft has all of them in four pdf files at Scooter Libby Sentencing Letters. Fun reading! I'm glad there is no reason to OCR these for posting at noeasyanswer.blogspot.com.

I figure Vice President Cheney didn't send a testimonial letter because doing so could be construed as directly in contradiction to the administration stated position of "not interfering" with the legal process.

UPDATE @ 11:50

Scooter Libby sentenced to 30 months and given a $250,000 fine. That's much higher than I would have given, and I think he's guilty as charged, and should have been charged, and that being convicted was a proper carrying out of justice.

Next question - will he be free on bail, pending the outcome of his appeal? Judge Walton will decide that in about a week. Marcy Wheeler's summary of rulings is a clear and easy read.

Vice President's Statement on Libby Sentencing

Scooter has dedicated much of his life to public service at the State Department, the Department of Defense and the White House. In each of these assignments he has served the nation tirelessly and with great distinction. I relied on him heavily in my capacity as Secretary of Defense and as Vice President. I have always considered him to be a man of the highest intellect, judgment and personal integrity-a man fully committed to protecting the vital security interests of the United States and its citizens. Scooter is also a friend, and on a personal level Lynne and I remain deeply saddened by this tragedy and its effect on his wife, Harriet, and their young children. The defense has indicated it plans to appeal the conviction in the case. Speaking as friends, we hope that our system will return a final result consistent with what we know of this fine man.

All the questions during today's press gaggle with Dana Perino were about Libby sentencing and the prospect of a presidential pardon.

UPDATE @ 15:40

Jurist reports the dismissal of Hamdan by Military Judge, US Navy Capt. Keith J. Allred. (Link to the judge's decision)

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Debate on amendments to the immigration bill has been somewhat muted; understandable given the sudden loss of Senator Thomas. Voting on Allard's amendment started on schedule at 3:30.

UPDATE @ 15:53

Allard amendment S.Amdt.1189, to eliminate the preference given to people who entered the United States illegally over people seeking to enter the country legally in the merit-based evaluation system for visas, was
REJECTED on a 31-62 vote.
GOP Nay votes: Bennett, Chambliss, Cochran, Coleman, Collins, Craig, Crapo, Domenici, Graham, Hagel, Hatch, Isakson, Kyl, Lott, Lugar, Martinez, Murkowski, Smith, Snowe, Specter, Stevens, Voinovich, and Warner

Voting on the Durbin amendment started at about 15:57.

UPDATE @ 16:14

Durbin amendment S.Amdt.1231, to ensure that employers make efforts to recruit American workers, was
PASSED on a 71-22 vote.

Senator Reid is ready to propose a series of unanimous consent requests, one of them recites voting on as many as 20 amendments. Part of the proposed agreement is to vote on Kennedy's alternative to Cornyn's 1184, and Cornyn's 1184, starting at 5:45 p.m. today.

Senator McConnell is in favor of voting on the amendments, but wants further amendments to be allowed to be submitted. Apparently, Reid's unanimous consent request culminated in a cloture motion, and Senator McConnell objects. But there is no way for a Senator to prevent a cloture motion from being filed - once 16 Senators sign on to a cloture motion, it can be filed, that is, it is not within Senate rule to object to the filing of a cloture motion.

Senator Reid is determined to file the cloture motion, and he notes that germane amendments can be adopted after cloture is invoked. He goes on to propose a unanimous consent agreement to proceed to voting on the following amendments tomorrow.

  • Sessions 1235
  • Feingold 1176
  • Inhofe 1151
  • Cornyn 1250
  • Menendez 1194
  • Clinton 1183
  • Sessions 1234
  • Dodd 1199
  • McConnell 1170
  • Lieberman 1191
  • Alternative to each of the above may also be introduced, debated, and voted on
Senator McConnell notes that the issue is getting an amendment to be pending, and that obtaining "pending" status must be done before cloture is invoked. Senator McConnell objects to this, which I don't understand, because the proposed agreement didn't include a cloture vote or other limitation on offering amendments and debate. [Although later on, Senator Reid came back and noted that he hadn't recited the full proposed agreement, and that part of it included an agreement to vote on the substitute amendment (S.Amdt.1150) and the bill]

Senator Reid makes yet another unanimous consent proposal, that if cloture is filed today on the substitute amendment, that it not be voted on until 6 p.m. Thursday. Senator McConnell objects to that.

Senator Reid announces that a cloture motion will be filed on this bill, later today. He's one day quicker on the trigger than I thought he would be. Senator McConnell is unhappy with this, says the Democratic Congress is being labeled "do nothing," and is unpopular. Senator Reid rebuts that by asserting Republican senators are less popular than Democratic senators. Hahahahaha. And then he goes into his well-rehearsed litany of Democratic successes in the 110th Congress.

Senator Hutchison rises to tell her tale about being unable to offer her amendment (Social Security for Z visa holders), and asks to set a time for voting on her amendment, No. 1302 (and 1301). She asks that it at least be offered at this time so it becomes pending. A contest between Senator Kennedy and Hutchison on this, and he gets her to withdraw her request.

The details aren't all that important, what is happening here is realization of Republican amendments being closed out of the debate, just as Democratic amendments were closed out in the 109th Congress. Promises are made, and broken.

Senator Reid proposes that the bill managers come up with a list of germane amendments, but in practice this is an empty gesture. The filing of the cloture motion starts a clock, and while cloture motions are sometimes withdrawn, it's unlikely that this one would be. List or no list, only a certain number of amendments can possibly be made "pending" before cloture is voted on, and the Democrats can slow-march that process.

Senator Specter tries to get DeMint amendment 1197 pending (the same thing Hutchison tried). Senator Cornyn says his amendment 1184, filed 13 days ago hasn't been voted on, and he will object to any amendment being introduced until a vote is scheduled on his amendment. Senator Kennedy suggests taking up the Cornyn amendment right now, says he has no issue with the DeMint amendment, and none with the Hutchison amendment.

Senator Cornyn will accept an agreement to vote on his amendment tomorrow, and if that agreement is reached, then Specter and Kennedy can negotiate making the DeMint amendment pending. Senator Cornyn wants to see the proposed alternative (side by side to 1184) from the Democrats before starting the debate on 1184. Based on Kennedy's assurance (but no agreement) Senator Cornyn withdraws his objection.

Senator Thune jumps in with a request to make his amendment 1174 pending, Senator Kennedy objects on the grounds that Senator Reid wants the currently pending amendments disposed of before additional amendments are made pending. I'm wondering why DeMint's 1197 amendment appears to be exempt from this restriction.

UPDATE @ 17:07

Add Senator DeMint's S.Amdt.1197 to the list of pending amendments.

Add Senator Bingaman/Obama S.Amdt.1267 to the list of pending amendments.

UPDATE @ 18:05

More on the Hamdan/Khadr dismissals:

Marty Lederman - Hamdan on the Heels of Khadr
Bobby Chesney - More detailed ruling in Hamdan helps clarify matters
Lyle Denniston - A hitch in the war crimes tribunals

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Over in the Senate, Senator Blanche Lincoln is talking about hunger in America. The immigration debate has temporarily moved into the back rooms.

UPDATE @ 19:42

McConnell amendment S.Amdt.1170, to amend the Help America Vote Act of 2002 to require individuals voting in person to present photo identification, was
REJECTED on a 41-52 vote.

In addition (not that it mattered in this case), there was an agreement that the amendment needed to obtain 60 votes in order to pass. Next up, Feingold's amendment. Senator Byrd told the Senators "in the well" to get out - Senator Feinstein is unhappy with being ordered around.

UPDATE @ 20:01

Feingold amendment S.Amdt.1176, to establish commissions to review the facts and circumstances surrounding injustices suffered by European Americans, European Latin Americans, and Jewish refugees during World War II, was
PASSED on a 67-26 vote.
GOP Aye votes: Burr, Coburn, Collins, Graham, Grassley, Gregg, Hagel, Hutchison, Isakson, Lugar, Murkowski, Roberts, Shelby, Smith, Snowe, Specter, Sununu, Thune, Voinovich

Same agreement as to needing 60 votes to pass, and this one crossed that threshold.

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Senator Reid files a cloture motion to limit debate on S.Amdt.1150, and a second cloture motion, to limit debate on S.1348. The Senate then moves into morning business for the remainder of the day. Senator Sessions will speak, first describing the procedural ramifications of cloture on the bill amendment process.

Senator Sessions is listing some of the measures that the White House asked for, that the Senate "Masters of the Universe" Committee stripped out.

Adjourned at 20:52, until 9:30 tomorrow.

UPDATE @ June 6

Howard Bashman has a collection of articles on the Gitmo dismissals.

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Waiting for the June 5 Record for confirmation, I read a report that implied the "Follow the Iraq Study Group" bill of Senators Alexander and Salazar was formally offered yesterday. Useful, if it has been offered, for reading their initial cut at the proposed legislation. Previous Senate "debate" is at May 24, page S6579. Ahhh ... the bill was introduced on June 5, but no remarks were made on the occasion of its introduction, and as a result, the text of the proposed bill doesn't yet appear in the Congressional Record

By Mr. SALAZAR (for himself, Mr. ALEXANDER, Mr. PRYOR, Mr. BENNETT, Mr. CASEY, Mr. GREGG, Mrs. LINCOLN, Mr. SUNUNU, and Ms. COLLINS):

S. 1545. A bill to implement the recommendations of the Iraq Study Group; to the Committee on Foreign Relations.

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Senator Reid reinforced my Monday prediction on a possible fate of the immigration bill, "If the Senate fails to invoke cloture, Senator Reid will use that as a reason to stop debate, rather than to continue the amendment and debate process." That being repeated, it isn't unusual for a promise or threat to go by the wayside, "due to changed circumstances." Still, I stand by the prediction, should the cloture motion fail to obtain the requisite 60 votes, Reid will blame the Republicans and move on to other subjects.

Two hours of debate this morning, followed by votes on side-by-side amendments. A Kennedy amendment for which we don't have the text [yes we do, S.Amdt.1333 (misnumbered 1303 in the Record), at June 5, page S7093], and Cornyn's Modified Amendment No. 1184, to establish a permanent bar for gang members, terrorists, and other criminals.

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I'm not going to be watching the Senate for the rest of the week. I'll backfill links to the debate and "text of amendments" later, and meanwhile, highly recommend the "S.1348 Summary of Action" and "Senate Votes" links as a means to keep up to speed, albeit with a 2-24 hour delay.

UPDATE @ 13:30

Kennedy amendment S.Amdt.1333, to increase the immigration-related penalties associated with various criminal activities, was
PASSED on a 66-32 vote.
GOP Aye votes: Coleman, Collins, Craig, Domenici, Graham, Hagel, Kyl, Lugar, Martinez, McCain, Murkowski, Snowe, Specter, Stevens and Warner

Cornyn amendment S.Amdt.1184, to establish a permanent bar for gang members, terrorists, and other criminals, was
REJECTED on a 46-51 vote.
GOP Nay votes: Craig, Domenici, Graham, Hagel, Kyl, Lugar, Martinez, McCain, Specter and Voinovich

UPDATE @ June 7, wee hours

Quite the vote-a-thon I managed to miss. I wonder if 15 roll call votes in one day is some sort of Senate record.

So the Dorgan amendment was voted on again, and Senators had a change of heart and passed it this time? Do you really believe that? They passed a Dorgan amendment alright, but compare the rejected Dorgan S.Amdt.1181 with the passed Dorgan S.Amdt.1316 ...

SA 1181 SA1316. Mr. DORGAN (for himself and Mrs. BOXER Mr. Durbin) submitted an amendment intended to be proposed by him to the bill S. 1348, to provide for comprehensive immigration reform and for other purposes; which was ordered to lie on the table; as follows:

At the end of section 401, add the following:

(d) Sunset of Y-1 Visa Program.--

(1) SUNSET.--Notwithstanding any other provision of this Act, or any amendment made by this Act, no alien may be issued a new visa as a Y-1 nonimmigrant (as defined in section 218B of the Immigration and Nationality Act, as added by section 403) after on the date that is 5 years after the date that the first such visa is issued.

(2) CONSTRUCTION.--Nothing in paragraph (1) may be construed to affect issuance of visas to Y-2B nonimmigrants (as defined in such section 218B), under the AgJOBS Act of 2007, as added by subtitle C, [begin insert] under the H-2A visa program, [end insert] or any visa program other than the Y-1 visa program.

This is just too rich. A one day sunset, no visa on the date! Okay, maybe that was corrected on the floor today, before the Senate voted on S.Amdt.1316. [June 9 note: there was no modification to the amendment before voting, what was passed is exactly what is recited in the above blockquote] But even if it wasn't, there is another issue. H-2A visas are the seasonal temporary jobs, the existing guestworker program for agricultural jobs. See this for example. There would be multiple parallel guestworker programs, AgJOBS, Y-2B, Y-1, and H-2A -- I'm sure numbers can be adjusted somewhere in there, to create the same number and quality (ag vs. non-ag vs. skilled) of temporary work visas even if the Y-1 program was created then sunsetted.

I'm a little suspicious that the Dorgan amendment amends S.1348, and not the substitute amendment, but after cloture fails later today, that detail won't matter anyway.

UPDATE @ June 9

I did housekeeping on the links to debate, links to text of proposed amendments, and the pending amendments for the comprehensive immigration reform bill.

As for the bill being dead, that is a wrong-headed belief. Senator Reid has unilaterally decided to close debate, rather than keep it open, but keeping debate open is the natural and intended result of a failure to obtain cloture. Failure to obtain cloture is a failure to obtain agreement to a 30 hour LIMIT on debate. At some point, failure to agree to limit debate does become tantamount to killing a bill - but that point wasn't reached on this bill, as many of the senators against cloture were willing to continue debate for a reasonable time (but more than 30 hours), and then vote on the bill.

I think the immigration bill will come up again before the summer recess, probably either in the week of June 18 or the week of June 25.

President Bush has never complained that the proposed bill, reviewed and contributed to by Secretary's Chertoff and Gutierrez, deviated from an acceptable compromise. There will be a question about whether or not this is "President Bush's Bill." His contribution of Chertoff and Gutierrez to the drafting makes it partly his - his pressure on the Senate to take it up and pass it makes it more his - and his approval and signature will further the meme that the bill is "his."

But President Bush, like the senators, wants to have it both ways, and confusion will assist in obtaining the objective of making this "the Senate's bill." To the extent the bill deviates from the administration's list of principles (the PowerPoint presentation), he will disclaim responsibility. But unless he makes a specific criticism of a measure in the bill, well, to that extent he can reasonably be seen as agreeable with that measure, even if it appears to be a radical deviation from his original plan.

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Not that it matters, but this is an interesting procedural event. This is the first time I have seen an absent Senator being able to retroactively cast a vote. It's common for them to change from Yea to Nay, or Nay to Yea, but not from "absent" to "present and voted."

[June 7] A unanimous-consent agreement request was granted permitting Senator Chambliss, who was listed as absent, to vote nay on Vote No. 194, changing the outcome of the vote to 51 yeas to 46 nays relative to Reid (for Kyl/Specter) Amendment No. 1460 adopted on Wednesday, June 6, 2007.

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Senator Brownback announced how he would have voted on the amendments that he was absent for ("VOTE EXPLANATIONS" - this is typical too), and he remains in the loose immigration camp, or whatever label you want to put on the Kennedy/McCain/Bush wing of the immigration issue.

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Another redux, this one on "English as the official language" as amendments by Senators Salazar and Inhofe were again passed, side by side. I reviewed this issue last year, in Language of the Country: Inhofe vs. Salazar, and have reviewed the issue again.

Salazar's S.Amdt.1384 of this year is substantively identical to Salazar's S.Amdt.4037 of last year; and Inhofe's S.Amdt.1151 of this year is substantively identical to Inhofe's S.Amdt.4064 of last year.

So, it looks like a complete do-over, except to review Senator Inhofe's assertion that language to codify EO 13166 lies in S.Amdt.1150, the substitute amendment. That assertion is overblown. The language at Sec. 702 of the substitute amendment is basically the same as Salazar's amendment, differing only in the details of definition of "laws of the United States"

Sec. 702 of S.Amdt.1150 (c) DEFINITION.--For the purposes of this section, law is defined as including provisions of the United States Constitution, the United States Code, controlling judicial decisions, regulations, and Presidential Executive Orders.

v.

Salazar S.Amdt.1384 (c) Definition of Law.--For purposes of this section, the term ``laws of the United States'' includes the Constitution of the United States, any provision of Federal statute, or any rule or regulation issued under such statute, any judicial decisions interpreting such statute, or any Executive Order of the President.

That being said, the substitute amendment does require the use of languages other than English at SEC. 403. GENERAL Y NONIMMIGRANT EMPLOYER OBLIGATIONS. 8 U.S.C. 1201 would obtain a new subsection, 218B. The specific requirement for languages other than English is at proposed new subsection 218B(h)(3), and pertains to a small set of specified written communication provided by employers and labor recruiters.

I found another section pertaining to the requirement to learn English, that being that the Secretary of Labor is obliged to prepare a free web-based "learning English" course. Dollars to donuts, the English proficiency exam would EXACTLY follow the on-line course.

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Looking ahead to next week ...

At 3:30 p.m. on Monday, June 11, 2007, the Senate will resume consideration of the motion to proceed to H.R. 6, an act to reduce our Nation's dependency on foreign oil ...

I counted the number of instance of "Cloture Motion on a Motion to Proceed" for some recent sessions of the Senate. Here are the results.

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At 4:30 p.m. on Monday, June 11, 2007, the Senate will resume consideration of the motion to proceed to S.J.Res.14, a joint resolution expressing the sense of the Senate that Attorney General Alberto Gonzales no longer holds the confidence of the Senate and of the American people.

At 5:30 p.m. without intervening action or debate, the Senate will proceed to a vote on the motion to invoke cloture on the motion to proceed to S.J.Res.14.

There are interesting historical precedents in this area too, meaning the general area of taking up a politically-motivated hot potato. From April to May, 1996, the Senate had a series of eight cloture motions and six failed cloture votes on a motion proceed to S.Res.227 - an original resolution to authorize the use of additional funds for salaries and expenses of the Special Committee to Investigate Whitewater Development Corporation and Related Matters.

A substantial number of contentious judicial nominees were stiffed by the Senate's refusal to take them up for consideration, some of them with multiple cloture motions.

The no-confidence proposal against AG Gonzales will suffer a similar fate (it won't be brought up for consideration, even under multiple cloture motions to proceed to consider), but all the while, the Senate can be "debating" the underlying action, and be grousing about the impropriety of abusing cloture.

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A few timely links from Howard Bashman of howappealing.law.com:

GOP eyes 'shutdown' of Senate over judges
Senate begins push for trials at Gitmo
Hamdan seeks new court review

UPDATE @ June 12

The comprehensive immigration reform bill make be picked up sooner than I thought.

Senator REID: Today [June 11], in an hour or so, I am going to send a letter to President Bush to lay out my hope that we can still move forward on this legislation, but I want him to know that further progress will require active support from more Republicans, which is something he has to make sure his Republicans understand.

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Sentor McCONNELL: I am pleased to hear the majority leader say there is a possibility that we could get back to this measure and wrap it up. That certainly is my hope, and I will look forward to working with him toward that end.

UPDATE @ June 15

The president spoke at the National Hispanic Prayer Breakfast this morning, "I'm pleased that two Senators who have got corazones grandes -- (laughter) -- on the immigration bill are with us today -- Senator Ted Kennedy and Senator Mel Martinez. Thank you all for coming." Big hearts indeed.

And that 4.4 billion dollar enforcement bill proposed by the White House ... some Senators characterize it as authorization (no money appropriated, see last year's fence act for this smoke and mirrors trick). There's no way to tell until the legislation is reduced to writing and is the business of Congress.

Preliminary White House characterization, talks on June 14, are at President Bush Discusses Comprehensive Immigration Reform with Associated Builders and Contractors and Press Briefing by Tony Snow, "What we're talking about is an immediate appropriation out of the general fund of $4.4 billion." Sounds like the White House is proposing appropriation.

UPDATE @ June 16

[Mr. REID] I would also note, as indicated in the [June 15] morning press, that Senator McConnell and I met last evening with a bipartisan group of Senators regarding immigration, and we now have a pathway forward on that. When we finish the energy legislation, we will move to that legislation. I think we have now an agreed-upon number of amendments that will be offered by Republicans and Democrats and we should get to that sometime next week. ...

... If we are going to finish these two bills, which both the Republican leader and I think is absolutely mandatory and essential, Senators should be advised that next Saturday and Sunday, which means the preceding Friday, which is a week from today, and a week from Monday, we will be in session.

UPDATE @ June 20

The Heritage foundation is hosting the text of the proposed immigration bill, S.1639. That page has a link to the proposed language, which is a 20 Mb pdf file. I grabbed it, and see at the very top it includes the 4.4 billion dollar appropriation, and creates a federal "Immigration Security Account" to house that appropriation and for accounting purposes.

I'm curious about the form of the "twice handled" Dorgan amendment in the new bill - does the new bill have the rejected amendment that sunsets the temporary Y-1 visa program after five years (S.Amdt.1181), or the one that passed that has a "one-day hold" (S.Amdt.1316), or nothing as to sunsetting the program? Found it at page 169 of the pdf file, the new bill has the S.Amdt.1316 "this has to be a joke" version.

The new bill is on the Senate's legislative calendar as of June 19.

  208    S. 1639         A bill to provide for      June 19, 2007.-- Read the
         Messrs.         comprehensive              second time and placed
         Kennedy and     immigration reform and     on the calendar.
         Specter         for other purposes.

UPDATE @ June 21

On Wednesday, Senator Reid filed a cloture motion on a motion to proceed to the consideration of the new immigration bill, S.1639. This cloture vote would be Friday morning if held according to the timeframe spelled out in Rule XXII, although the timeframe is often modified by unanimous consent. Reid can hold the Senate to the Rule if he wants.

Senator Sessions filed twelve amendments against the proposed immigration bill, Amendments numbered 1805-1816 (Text starts at page S8150).

posted by cboldt at 6/04/2007 08:43:00 AM

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