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Where Did We Leave Things In The 108th Congress?

by Maurice Belanger of The National Immigration Forum

Despite some positive movement on key immigration proposals in the second half of the 108th Congress, no major immigration legislation became law in 2004.

Comprehensive Immigration Reform

In January 2004, President Bush announced his "principles" for immigration reform and called on Congress to work out the details. His policy proposal was three-pronged: create a new guestworker program for foreign nationals to work legally in the U.S. and then return home; expand legal immigration numbers to allow a portion of these workers to remain in the U.S. permanently (taking their place at the "back of the line"); and enhance immigration law enforcement. The President proposed to allow current undocumented immigrants access to the temporary worker program, but was clear that their participation should not lead to "automatic citizenship" and should not "give unfair rewards to illegal immigrants in the citizenship process or disadvantage those who came here lawfully." This proposal drew a huge outcry from restrictionist-minded conservatives, who labeled it an "amnesty." It also drew a skeptical reaction from many in the immigrant rights field, who saw it as too focused on temporary guest workers with weakened bargaining power in the workplace, and not responsive to the needs or realities of immigrants who have settled here.

Shortly after the Presidentís announcement, Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) introduced a comprehensive immigration reform bill (the Immigration Reform Act, S. 2010). While this bill contained some important flaws, it did squarely address the three components necessary for real reform of our immigration system: revision and expansion of the employment-based visa system; reduction of the backlogs in family-based immigration; and legalization of the current undocumented immigrant population. It was a step forward compared with the Presidentís proposal and other bills in Congress, but lacked sufficient labor protections and proposed only a temporary fix to the shortage of employment-based visas.

In May 2004, congressional Democrats in both chambers introduced the Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act (S. 2381/H.R. 4262), authored by Senator Ted Kennedy (D-MA) and Representative Luis Gutierrez (D-IL). The SOLVE Act built upon the tracks laid down by Senators Daschle and Hagel, proposing a more generous legalization program, better labor protections for all workers, and lasting reform to the employment-based visa system. Importantly, this bill received the endorsement of organized labor and hundreds of immigrant advocacy groups around the country.

These bills refined the legislative debate begun in the 108th Congress in 2003, with a proposal introduced by Senator John Cornyn (R-TX), which essentially adopted a "neo-bracero" guestworker model (Border Security and Immigration Reform Act, S. 1387), and proposals introduced by Senator John McCain (R-AZ) and Representatives Jim Kolbe (R-AZ) and Jeff Flake (R-AZ), the Land Border Security and Immigration Improvement Act (S. 1461/H.R. 2899), which contained significant legalization and temporary worker programs, although it lacked labor protections, suffered from a long legalization process, and failed to deal with family-based immigration reforms.

In the partisan atmosphere of a presidential election year, none of these proposals gained political momentum, and at the end of the 108th Congress, all introduced legislation expired. In part, this was due to the failure of the candidates at the top of the ticket to embrace immigration reform as a priority. The White House failed to insist on the introduction of a bill that matched the Presidentís principles. For his part, Presidential candidate and senator John Kerry (D-MA) also declined to support any of the immigration reform plans in Congress, including the SOLVE Act.

AgJOBS and the DREAM Act

The Agricultural Jobs, Opportunity, Benefits, and Security (AgJOBS) Act (S. 1645/H.R. 3142) and the Development, Relief, and Education for Alien Minors (DREAM) Act/Student Adjustment Act (S. 1545/H.R. 1684) did see some action in the latter part of the 108th Congress.

Introduced by Senators Larry Craig (R-ID) and Ted Kennedy (D-MA) and Representatives Chris Cannon (R-UT) and Howard Berman (D-CA), AgJOBS was the result of years of negotiation between farmworker advocates and agricultural employers. The bill would put undocumented immigrant farmworkers on a path to permanent legal status, and streamline aspects of the current H-2(a) agriculture guestworker program. With 63 sponsors in the Senate and 126 in the House, this targeted measure appeared ripe for enactment. Ultimately, however, despite having the support of nearly two-thirds of the Senate, Senator Craig was thwarted by his own party leadership, who responded to the White Houseís desire not to have the Senate pass a bill that would anger a portion of the Republican base just before an election.

With 48 sponsors in the Senate and 150 in the House, the DREAM Act/Student Adjustment also had more than usual Congressional support. In November 2003, the Senate Judiciary Committee passed a revised version of this legislation to legalize undocumented students and ease their paths to higher education. However, the bill was never scheduled for floor time by Republican Senate leadership.

Senators Hatch (R-UT) and Richard Durbin (D-IL), lead sponsors of the DREAM Act, looked for ways to force legislative action in the Senate by attaching it to other bills, but ultimately their actions were unsuccessful. No action was taken on the Student Adjustment Act in the House, despite the best intentions of lead sponsors Chris Cannon (R-UT), Howard Berman (D-CA), and Lucille Roybal-Allard (D-CA), owing to the restrictionist orientations of House Judiciary Committee leadership and other Republican leaders.


After quickly gaining steam in the summer of 2003, the legislation to make state and local police into immigration cops lost significant ground in 2004. Co-sponsorship for the House bill, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act (H.R. 2671), increased at a steady clip until a pivotal House Immigration Subcommittee hearing in October 2003 showed strong opposition to the legislation from state and local governments, law enforcement, and domestic violence prevention advocates, as well as insufficient support within the subcommittee.

In the Senate, the Homeland Security Enhancement Act was introduced in November 2003 and never gained more than a handful of cosponsors. In the end, neither Immigration Subcommittee nor Judiciary Committee in either chamber was able to bring this measure up for a vote in the 108th Congress, despite some vocal and powerful proponents on each committee and in the Congress. Members in each chamber then moved to try to attach pieces of this legislation to other bills. They were thwarted at each turn, thanks to the incredible organizing and alliance-building of advocates across the country.

Civil Liberties Restoration Act

In June 2004, the Civil Liberties Restoration Act (CLRA) was introduced by Senators Jon Corzine (D-NJ), Richard Durbin (D-IL), Russ Feingold (D-WI), Edward Kennedy (D-MA), and Patrick Leahy (D-VT), and Representatives Howard Berman (D-CA) and William Delahunt (D-MA). The CLRA would restore some civil liberties and due process safeguards taken from immigrants in the wake of September 11th, addressing the blanket closure of immigration hearings, automatic stays on bond determinations, evisceration of the immigration court system, the flawed and biased "Special Registration" program, and other administrative actions taken "in response to" 9/11 that have been less about security and more about tarring broad communities with a terrorist brush. The bill received the endorsement of a large number of immigrant rights, civil rights, civil liberties and human rights groups. It served as a great organizing tool for rights groups and communities across the country.

While the CLRA was not brought up for formal consideration in either chamber, two provisions of the legislation were offered as amendments to the House 9/11 recommendations bill (H.R. 10) by a lead CLRA sponsor, Representative William Delahunt (D-MA). One, requiring an examination of data-miningís impact on civil liberties and privacy rights, was accepted by the Judiciary Committee and made it into the final House proposal. A second, prohibiting the blanket closure of immigration hearings, was turned back.

Homeland Security Civil Rights and Civil Liberties Protection Act

Also in June 2004, Senators Susan Collins (R-ME) and Ron Wyden (D-OR) introduced the Homeland Security Civil Rights and Civil Liberties Protection Act of 2004 (HSCRCLPA, S. 2536). This bill amends the Homeland Security Act to strengthen the position of the already-existent DHS Officer for Civil Rights and Civil Liberties. It also creates a focus within the DHS Inspector General's office on investigating the abuse of civil rights and civil liberties by officers of the Department of Homeland Security. An identical bill was introduced in the House (H.R. 5182) by Representative Bennie Thompson (D-MS) and others in September 2004.

HSCRCLPA passed unanimously in the Senate Governmental Affairs Committee in July 2004. Senator Collins was able to get the billís language into the Senate intelligence reform bill (S. 2845) via managerís amendment. This proposal became law when the intelligence reform bill passed Congress in the last days of the lame duck session.

Restrictionist Proposals

Throughout the year, Representative Tom Tancredo (R-CO) and other members of his anti-immigrant House "Immigration Reform" Caucus proposed numerous bills and amendments to other bills that would have further limited immigrantsí rights and mobility in the U.S. Their proposals ran the gamut from eliminating the diversity visa program, to ending the recognition of consular ID cards by U.S. financial institutions, to stationing U.S. military troops along our border with Mexico. Most of these proposals were defeated, although someósuch as Representative Virgil Goodeís (R-VA) "military on the border" amendment to the Department of Defense Appropriations billódid pass in committee or on the House floor. Still, no significant anti-immigrant proposals actually became law this year.

In one of the more significant upsets, Representative Dana Rohrabacherís (R-CA) bill to make hospitals report undocumented immigrants who seek medical care (H.R. 3722, the Undocumented Alien Emergency Medical Assistance Amendments) was defeated 88 to 331 in May 2004. Defeating this bill was an example of stellar advocacy by immigration groups, medical associations, and hospitalsóall of whom were horrified about the affect this bill would have on immigrantsí decisions to seek medical attention from themselves or their children.

Restrictionist amendments to restrict the use of consular IDs were defeated twice. In June, an amendment to the Department of Homeland Security Appropriations bill was voted down 148 to 259, and in September the House voted 222 to 177 to remove a provision from the Transportation and Treasury Department Appropriations bill that would have derailed federal regulations permitting the acceptance of consular ID cards by financial institutions.

While not brought up for consideration in the same kind of relentless barrage as in the House, similar measures were occasionally introduced in the Senate.

Legislation to Implement the Recommendations of the 9/11 Commission

In July 2004, the National Commission on Terrorist Attacks Upon the United States, commonly known as "the 9/11 Commission," issued its definitive report on the September 11th, 2001 terrorist attacks. In its report, the Commission made specific recommendations about how to restructure the governmentís intelligence gathering, sharing, and analysis.

In August 2004, Senator Susan Collins (R-ME) and Senator Joe Lieberman (D-CT), Chair and Ranking Member of the Senate Governmental Affairs Committee, began holding hearings on the reportís findings and drafting legislation. In September, they quickly moved a bipartisan bill through the Senate (S. 2845, the National Intelligence Reform Act) that stuck faithfully to the 9/11 Commissionís actual recommendations on intelligence reform and other matters.

In contrast, House Republican leadership drafted a bill (H.R. 10, the 9/11 Recommendations Implementation Act) that included dozens of sections related to "PATRIOT 2" provisions and immigration restrictions not recommended by the 9/11 Commission.

Despite intense lobbying from anti-immigrant restrictionists and their allies in the House, the final compromise between the House and Senate versions dropped the most egregious anti-immigrant measures.

New Dynamics In Congress, White House

With the 2004 elections behind us, new dynamics in Congress and in the White House will impact our work in 2005 and beyond. Below is the Forumís initial analysis of some of these factors, including election result highlights, committee assignments, and possible legislative scenarios.

House of Representatives

Republicans increased their majority in the House of Representatives, picking up four seats for a new House breakdown of 232 Republicans, 202 Democrats, and one Independent. Representative Dennis Hastert (R-IL) will remain Speaker of the House, just as Representative Tom DeLay (R-TX) will remain Majority Leader. Representative Nancy Pelosi (D-CA) will retain her post as Minority Leader and Representative Steny Hoyer (D-MD) will remain Minority Whip.

The committee with jurisdiction over immigration is still the Judiciary Committee, with the Select Committee on Homeland Security clawing for some turf (particularly in relation to how the Department of Homeland Security carries out its security imperatives).

Representative James Sensenbrenner (R-WI) will continue as Chair of the Judiciary Committee and Representative John Hostettler (R-IN) will remain Chair of the Immigration Subcommittee. Representative John Conyers (D-MI) and Representative Sheila Jackson-Lee (D-TX) will most likely remain Ranking Members of the Judiciary Committee and Immigration Subcommittee, respectively, unless there are other committee assignment changes that would shuffle things around.

While the balance of power only shifted by six seats, the House will see dozens of new faces in 2005. Because immigration was not a major campaign issue for many of these newcomers, we cannot accurately predict where they will line up on the immigration issue, but can point out a few items of interest. Five members of Tom Tancredoís restrictionist caucus were replaced, although two merely "traded up" for the Senate (Johnny Isakson (R-GA) and David Vitter (R-LA)). John Salazar (D-CO), brother of new Colorado senator Ken Salazar (D), is expected to be an immigration ally. Russ Carnahan (D-MO), son of late Missouri governor Mel Carnahan and former Senator Jean Carnahan, has replaced retiring Representative Dick Gephardt (D-MO) and is hoped to pick up where his predecessor left off. Bobby Jindal (R-LA), the son of immigrants and a former Bush advisor, will be yet another newcomer to watch in the 109th Congress.

Two long-time House allies from Texas will be missing in the 109th. Representative Martin Frost (D-TX) lost to Representative Pete Sessions (R-TX), a current member of the House, in a district redrawn to favor Republicans. And in an earlier loss, outgoing Congressional Hispanic Caucus Chair Ciro Rodriguez (D-TX) lost in the primary to former Texas Secretary of State Henry Cuellar (D-TX), who easily won the general election.

Given that the leadership of the committees of jurisdiction have not changed, we do not expect the dynamic in the House to change for the better. The anti-immigrant caucus led by Representative Tom Tancredo (R-CO) can be expected to continue its barrage of restrictionist proposals in the 109th Congress.

On the other hand, if President Bush and his political advisors see his 2004 re-election as a victory for his more inclusive rhetoric, it is possible that they could strongly encourage members of the House to adopt a similar tone.

Pro-immigrant Republican leaders in the House, including Representatives Chris Cannon (R-UT), Jim Kolbe (R-AZ), and Jeff Flake (R-AZ), faced primary challenges from anti-immigrant candidates, but they bested the opposition and coasted to victory in the general elections. They remain as committed as ever to immigration reform.

Still, there are several members of the House Republican caucus who will never favor immigration reform that legalizes immigrants, even on a temporary basis and even with strict controls on their rights and mobility. Republicans in the Congress and White House who want to pass immigration reform will need their Democratic allies to get it done. This bodes well for us from a policy standpoint (assuming reasonable voices on both sides prevail), because bi-partisan legislation is the only way immigration reform can happen and will likely result in legislation with better worker protections and more generous treatment of immigrants across the board.


The Republican majority in the Senate also increased ranks this election cycle, picking up four seats for a Senate make-up of 55 Republicans, 44 Democrats, and one Independent (who caucuses with the Democrats). While Senator Bill Frist (R-TX) is slated to remain Majority Leader, Minority Leader Senator Tom Daschle (D-SD) lost his re-election campaign to Republican John Thune (SD). Senator Harry Reid (D-NV), the current Minority Whip, will move up to Minority Leader and Senator Richard Durbin (D-IL) will take his place as Whip. We are losing a formidable ally in Senator Daschle, who has always been a champion of fair and generous immigration policies. However, the ascension of Senator Durbin to this leadership post is very welcome, as he is an ally on many of our priority immigration bills (including the DREAM Act and Civil Liberties Restoration Act).

The Senate welcomes at least three new members who are hoped to be allies on the immigration reform agenda. One is a Republican, former Housing and Urban Development director and now Senator Mel Martinez (FL), a Cuban-born American who is also a close Bush ally. Two new Democrats are also expected to be players in this debate: Senator Barack Obama (D-IL), the U.S.-born son of a Kenyan immigrant, and Senator Ken Salazar (D-CO), a U.S.-born Latino with a family history in this country that dates back centuries, but with a constituency that reflects both the long-time and recently-arriving Latino communities. We will also be contending with two former House members who participated in the Tancredo anti-immigrant caucus: Johnny Isakson (R-GA) and David Vitter (R-LA).

The Republican increase in the Senate will most likely lead to a wider gap between Republicans and Democrats on the committees, but this is still being worked out. The committee with jurisdiction over immigration remains the Judiciary Committee, although the chairmanship is slated to be passed from Senator Orrin Hatch (R-UT) to Senator Arlen Specter (R-PA). Specter is a moderate Republican on many issues, and his steerage of this committee will be vital to keeping the more strident anti-immigrant members from taking it over.

The Immigration Subcommittee will likely not be led again by Senator Saxby Chambliss (R-GA), and as of this writing, we do not know who will assume leadership of the subcommittee. All signs indicate that Senator Ted Kennedy (D-MA), the most tireless and long-standing champion for immigrantsí rights in the Congress, will remain Ranking Member of this subcommittee.

We often look to the Senate to take the first, most reasonable step on immigration reform. Generally, though not always, Senators are more moderate in their views because they must appeal to a broader constituency than members of the House. Senate procedures require 60 Senators to vote to end debate on a bill. Therefore, the minority party retains some leverage over whether bills pass on the floor. Both sides must work across the aisle to get anything done. House rules are much more favorable to the majority party. There are no filibusters to contend with and the majority party can often ram initiatives through without the cooperation of the minority party. We expect that this will continue to be the case in the 109th Congress.

White House

Winning re-election to the presidency with a greater share of the Latino and immigrant vote may encourage President George W. Bush (R) to make good on his promise to reform the broken immigration system. Already there are signs that the White House is turning its attention back to immigration reform. On a visit to Mexico just after the elections in November 2004, Secretary of State Colin Powell renewed the Administrationís commitment to reforming the immigration system, and the President and his spokespersons have raised the issue of immigration reform several times since that visit.

Both President Bush and President Vicente Fox of Mexico, without the pressure of re-election, are free to work on immigration reform that will have a lasting impactóand leave a lasting legacy on their presidenciesóif done right. This analysis was echoed by chief Bush political strategist Karl Rove also following the elections.

About The Author

Maurice Belanger is the Director of Public Information at the National Immigration Forum. The National Immigration Forum is one of the leading immigrant advocacy policy groups in the nation.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.