The Judicial Conference of the United States, the policy-making body for the federal judiciary, has come out with a scathing letter on the costs that the Schumer-Rubio amnesty bill would create for our court system. Sent to Sen. Chuck Grassley (R-Iowa), Sen. Patrick Leahy (D-Vt.), and other members of the Senate Judiciary Committee, the letter outlines the many ways in which the immigration bill would put strains on the nation's court system, noting that "without increased resources, the federal courts cannot sustain the increased workload this legislation would create." The Conference is calling for the immigration bill to be amended, a move that will necessarily make the 1,000-page bill even larger and more costly.
The letter is significant in that it highlights serious costs not taken into account by Congress or the organizations that have estimated the cost of the bill. It is also significant in that the letter calls for the appointment of more judges to cover the increased demands the bill would create; President Obama would, in effect, acquire more power over the judiciary because he would be appointing federal jurists who would ultimately be deciding many cases unrelated to immigration.
The Judicial Conference explains that the amnesty will increase the workload on the federal courts in three ways: "(1) by dramatically increasing personnel, resources, and funding for the Department of Homeland Security (DHS) and the Department of Justice (DOJ); (2) through the judicial review provisions; and (3) by adding several new federal crimes and heightening the penalties for the most frequently charged immigration offenses." All of this amounts to more cases and the Conference says that it will require the hiring of additional judges, court staff, interpreters, probation and pretrial services officers, federal public defenders, and court security, plus larger facilities.
The letter analyzes four different elements of the immigration bill: the enforcement provisions, legalization provisions, funding for Executive Branch immigration courts, and E-Verify.
The Judicial Conference notes that the immigration bill requires DHS to increase border-crossing prosecutions in the Tucson Sector of the southwest border and that funding in the bill would cover the costs for increases in court staff such as interpreters and pretrial services officers. The letter notes that the bill would also authorize the chief judge of the U.S. District Court for the District of Arizona to appoint full-time judges. But according to the Judicial Conference, the bill fails to address three different things relevant to this provision in the bill. First, it does not address costs related to facilities and court security. Second, it does not address costs related to public defenders. Third, it does not provide funding for the probation office in Tucson and related costs. The Judicial Conference estimates that "a conservative estimate" for the costs of probation and pretrial services staffing needed to handle this new workload in Tucson "would include an increase in 367 new staff, costing over $37 million."
The letter also points out that the bill will result in "a substantial increase in litigation" nationwide and will "extend the duration of cases in the system as more defendants will have a right to a jury trial and to have their cases heard before a district court judge."
Clearly the immigration attorney groups pushing this amnesty are well aware that the bill would provide them job security.
The immigration bill includes provisions allowing judicial review for illegal aliens who have had their amnesty application denied, or who have had their status revoked after receiving amnesty. The Judicial Conference notes that generally such decisions can be appealed further to the Courts of Appeals.
The Judicial Conference notes that while it is unknown how many illegal immigrants will apply for the amnesty, "even if the … process results in a 90-percent approval rate … the number of individuals seeking review [for a rejected application] in the federal courts would be significant." The Conference estimates that the impact "will be substantial and will affect courts throughout the country over a period of years."
As a comparison, the Conference notes that in fiscal year 2012, the total number of civil filings in federal district courts was 278,442 and that an increase "of even 100,000 new cases would have a significant impact."
The immigration bill would double the current number of immigration judges in three years, adding 75 immigration judges each year between 2014 and 2016. The bill also provides at least one law clerk and one legal assistant for each immigration judge while increasing the number of staff attorneys and support staff in the Board of Immigration Appeals (BIA) by at least 30 people over the same three-year period.
The Judicial Conference notes that as the cases move through the Executive Branch immigration courts and find their way into the Judicial Branch courts the immigration caseload could more than double if appeals rates remain the same. The Conference points out that in 2005, during a "major surge in administrative processing of removal proceedings, the rate of appeal from the BIA to the courts of appeals was 30 percent" and it that it was equivalent to 13,000 cases. Based on a similar appeal rate, the Conference estimates that the amnesty will result in an impact "far-exceeding" the 2005 surge.
Yet the bill does not provide any additional resources to the federal courts to deal with the larger caseload. Likely, the bill will eventually be amended as the impacts become more apparent and the cost and length of the immigration bill will grow.
The Senate immigration bill expands the scope of workplace verification requirements, but provides for the creation of an alternative verification system that would eventually replace E-Verify.
The Judicial Conference points out that the bill provides avenues for federal court review of administrative decisions relating to employees being denied employment authorization and employers who are charged with violating the law. However, the bill provides no funding to cover increased demands on the judicial the review process will likely create.