Proposed Amendments to the 2015 Homeland Security Appropriations Bill

By Dan Cadman, January 12, 2015

In an upcoming piece, I will briefly review some highlights to the House of Representatives version of the Homeland Security appropriations bill (H.R. 240) that will be wending its way through the new Republican-dominated Congress. But first I will look at some of the amendments that have already been introduced to that bill, as of this writing.

The Schock Amendment, Introduced by Rep. Aaron Schock (R-Ill.). This amendment expresses the "sense of the Congress" that U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits granting arm of the Department of Homeland Security, is exercising a skewed priority system by prioritizing adjudication of Deferred Action for Childhood Arrivals (DACA) and other "executive action" program applications, which has had the effect of backlogging applications and petitions by those using the legal immigration system. "Sense of the Congress" language such as that introduced by Rep. Schock is excellent for statutory intent and review purposes (e.g., when laws such as the appropriations act are being examined in the course of lawsuits and other court actions), but it doesn't get to the meat of the problem by actually doing anything to stop the extra-constitutional actions of the chief executive.

The Salmon Amendment, Introduced by Reps. Matt Salmon (R-Ariz.) and Glenn Thompson (R-Pa.). Like the Schock Amendment, this is a "sense of the Congress" amendment. This one expresses concern that the Affordable Care Act is skewed in a way that makes it beneficial for U.S. employers to hire illegal aliens who have become beneficiaries of "executive action" (which includes work permits) since they aren't counted for tax and penalty purposes; and that, therefore, the executive branch should refrain from pursuing such lopsided policies at the expense of lawful American workers. Unfortunately, also like the Schock Amendment, this amendment does nothing to actually stop the unfair situation that it describes, nor does it curb the president's overreach into the legislative arena.

The Blackburn Amendment, Introduced by Rep. Marsha Blackburn (R-Tenn.). Unlike the Salmon and Schock "sense of the Congress" amendments described above, this excellent amendment, if adopted, would actually have the force and effect of law by forbidding any agency of the federal government from spending, on or after January 9, 2015, any funding to adjudicate new/denied/renewal DACA applications (or other similar or successive "executive action" programs, which includes the whole panoply announced by the administration on November 20, 2014).

The DeSantis Amendment, Introduced by Reps. Ron DeSantis (R-Fla.) and Martha Roby (R-Ala.). This amendment is also substantive in nature. It would prohibit expenditure of funds for immigration enforcement actions that treat crimes involving domestic violence, sexual abuse, child molestation, or child exploitation as anything less than the highest priority for apprehension and removal. While well-intended, the language of this amendment is less than laudable. By implication it leaves intact the remainder of the enforcement priority policies announced, as a part of the president's series of unconstitutional executive actions, by Department of Homeland Security (DHS) Secretary Jeh Johnson on November 20, 2014. This is an unacceptable state of affairs permitting, as it does, whole categories of illegal aliens — including multiple border crossers, fugitives from immigration court, and repeat criminal offenders — to escape the deportation consequences of their unlawful activities.

The Aderholt Amendment, Introduced by Reps. Robert B. Aderholt (R-Ala.), Mick Mulvaney (R-S.C.), and Lou Barletta (R-Pa.). This is the best of the amendments analyzed.

Like the Blackburn and DeSantis amendments, the Aderholt Amendment, if adopted, would actually have the force and effect of law by inhibiting the runaway executive branch from doing additional damage to the statutory immigration benefits and law enforcement system. Specifically, it would forbid the federal government from spending, on or after January 9, 2015, any funding to adjudicate DACA applications or other similar or successive "executive action" programs, such as those announced by the administration on November 20, 2014. It additionally declares forthrightly that the de-funded policies have absolutely no statutory or constitutional basis and no legal effect.

In a welcome attention to detail, the Aderholt Amendment goes further by precluding use not only of appropriated monies, but also of Immigration Examinations Fee Account funds — which undoubtedly is the cash cow relied upon by USCIS to adjudicate applications submitted by illegal aliens in furtherance of the administration's amnesty-like executive actions.

Finally, it does what the DeSantis Amendment failed to do: it forbids use of funds to further any of the misbegotten series of policy directives that have crippled interior immigration enforcement in recent years, from the abysmal prosecutorial discretion memoranda issued by former ICE director John Morton chronologically forward, including of course the most recent DHS secretary memoranda of November 20.