General Practice, Solo & Small Firm DivisionTechnology & Practice Guide

American Bar Association
General Practice, Solo, and Small Firm Division

The Compleat Lawyer, Fall 1996, Vol. 13, No. 4

Legislative Update

E. E. Anderson

E. E. Anderson, a retired general in the U.S. Marine Corps, is a Section Council Member and Chair of the Federal Legislation Committee.

Immigration Legislation Is Debated
A recent study by the Inspector General of the Department of Labor indicated that the program allowing annual admissions of up to 65,000 foreign workers with "unique" skills under temporary H-1B visas does not work. However, employers strongly defend this program as well as another category of employment-based permanent immigration that makes available up to 140,000 immigrant visas for foreign workers and their families.

Of the 24,150 foreigners for whom employers in 12 states applied for immigrant status during fiscal 1993, the audit found that 98.7 percent were working for their employers when the application was filed. Of those already employed, 16.4 percent were working illegally.

Another aspect of proposed immigration legislation (H.R. 2202) concerns the education of U.S.-born children of illegal immigrants. A conservative figure of 600,000 illegal alien children are believed to be in our schools each year. Rep. Elton Gallegly (R-CA) cites figures of 500,000 in California schools alone. Rep. Gallegly said that the cost of educating illegal alien children in California last year was $2 billion.

On May 2, 1996, the Senate passed a bill (H.R. 2202, formerly S. 1664) that would strengthen border controls, toughen penalties for document fraud and alien smuggling, and restrict public benefits for legal and illegal immigrants.

The Senate bill differs from the House bill in a few areas. The Senate bill does not contain a House-passed provision that would allow states to keep illegal immigrants out of public schools. The Senate bill does not include provisions in the House bill that would give Immigration and Naturalization Service offices at airports and U.S. borders the final authority to deport individuals from the United States without a hearing. Both bills authorize a three-year pilot program to test a telephone confirmation registry system for verifying work eligibility of job applicants and the stepping up of border patrols.

The Senate bill would streamline the process for foreigners who are in the United States illegally or who arrive without proper documents. It would allow the U.S. Attorney to authorize state and local law enforcement officers to detain illegal aliens. Additionally, the types of documents that could be used to establish work eligibility would be restricted and penalties for document fraud would be increased.

The bill would require a minimum of three pilot verification projects: (1) a telephone verification system, (2) a counterfeit-resistant driver's license with Social Security number, and (3) noncitizens only would be checked with a federal verification system to establish whether new employees are authorized to work.

Proponents suggest that workplace screening is the only way to locate foreigners who enter the country legally but then overstay their visas, but businesspeople, civil liberties groups, and their congressional allies are strongly opposed to verification.

As of this date, the fate of this bill, the first in a decade to tighten restrictions on illegal immigration, hinges on whether states can deny public education to the children of illegal aliens. The Conference Committee is meeting to decide this very volatile issue.

The House bill would allow states to deny public education to children of illegal aliens. The Senate bill does not contain such a provision. In the Senate, 47 senators have appealed to new Senate Majority Leader Trent Lott (R-MS) to kill the provision, which Lott supports. In the House, Rep. Newt Gingrich (R-GA) has vowed to not allow the immigration bill back on the floor unless it contains the provision that states can bar children of illegal aliens from public schools.

Rep. Gallegly (R-CA) wrote this provision into the House bill, which is meant to provide federal approval for California to carry out the court-blocked provisions of California's Proposition 187. Should it be included in the final version sent to the president, he has said that he would veto the bill. If this occurs, Mr. Clinton and Mr. Dole could become locked in a bitter debate over whether Congress should allow state efforts such as Proposition 187 to take effect.

Affirmative Action
H.R. 2128 was introduced by Rep. Charles Canady (R-FL) and early hearings were held in late February and early March 1995. A similar bill, S. 1085, sponsored by Senate Majority Leader Dole (R-KS) was introduced in July 1995. No hearings have been held on the Senate bill as of this date and it is unclear what will happen next.

The Canady bill was approved by the House Judiciary Subcommittee on the Constitution on March 7, 1996. It would prohibit the federal government from granting preferences based on race or gender when hiring employees. It would ban the federal government from requiring or encouraging other entities to grant such preferences as a condition to employment.

Supporters of the bill argue that affirmative action, which provides for preferential treatment in hiring based on gender, race, or ethnic origin, has outlived its usefulness. Many Republicans were eager to change the law in 1995, but were burdened with the difficult task of debate on the "Contract with America."

The American Bar Association has written to House members expressing concern over the provisions of H.R. 2128, because it prohibits all federal affirmative action problems that take into account race, national origin, or gender in order to prevent or eliminate discrimination. Among many of the arguments mentioned by the American Bar Association in the letter to the House were:

  • H. R. 2128 would tend to overturn two decades of U.S. Supreme Court decisions regarding affirmative action.
  • Under Adarand v. Pena, 115 S.Ct. 2097 (1995), federal affirmative action programs involving race-conscious measures are subject to that same high standard of review under the Constitution's Equal Protection Clause as programs at other governmental levels. Such programs, however, will continue to be appropriate and legal if they serve a compelling governmental interest and are narrowly tailored.
  • H.R. 2128 would overturn the Adarand decision since it would abolish even those federal programs that met the "strict scrutiny" test. The legislation would eliminate affirmative action programs for both racial minorities and women.
  • The legislation prohibits use of quotas, which are already illegal. However, the bill also prohibits the use by the federal government of numerical goals and timetables. The American Bar Association consistently has supported the use of goals and timetables as management tools to help measure progress in eliminating discriminatory practices.
  • H. R. 2128 would tend to overturn two decades of U.S. Supreme Court decisions regarding affirmative action.
  • Under Adarand v. Pena, 115 S.Ct. 2097 (1995), federal affirmative action programs involving race-conscious measures are subject to that same high standard of review under the Constitution's Equal Protection Clause as programs at other governmental levels. Such programs, however, will continue to be appropriate and legal if they serve a compelling governmental interest and are narrowly tailored.
  • H.R. 2128 would overturn the Adarand decision since it would abolish even those federal programs that met the "strict scrutiny" test. The legislation would eliminate affirmative action programs for both racial minorities and women.
  • The legislation prohibits use of quotas, which are already illegal. However, the bill also prohibits the use by the federal government of numerical goals and timetables. The American Bar Association consistently has supported the use of goals and timetables as management tools to help measure progress in eliminating discriminatory practices.

Until H.R. 2128 is scheduled for markup by the full committee and the Senate takes action on S. 1085, the fate of the legislation hangs in the balance.

Welfare and Medicaid
H.R. 3507 and S. 1795 are the present bills in Congress concerning welfare. In the House bill, welfare was linked to a contentious plan to revamp Medicaid. The Republicans intend to give the states broad new authority over both programs, and President Clinton generally favors that approach for welfare but not for Medicaid. In spite of the president's position, most governors support the inclusion of Medicaid as those programs are more costly for the states than welfare.

Republicans have said that their welfare provisions would save $53 million through fiscal year 2002 and Medicaid savings would total $72 million. Clinton has twice vetoed Republican welfare bills during his first three and a half years in office. There is some strong Republican political support for passing and sending another welfare bill to the president that he will veto.

H.R. 3507 would require welfare recipients to work within two years of receiving benefits and would cut off their aid after five years. The new legislation would also give states the option to deny cash assistance to children born to welfare recipients.

The bill also provides most of the additional child care and contingency funding the governors requested. Dropped from this bill was the requirement that would have provided less money for less seriously disabled children who receive Supplementary Security Income. The bill continues to include sharp reductions in social services for legal immigrants and contains stricter requirements for states in moving welfare recipients into the workforce.

The bill would create a block grant to replace Aid to Families with Dependent Children (AFDC)--the nation's main cash welfare program--and several related programs. People who meet the eligibility criteria for AFDC would no longer automatically be entitled to cash benefits. Instead, the states would have the final say as to eligibility for their programs.

Gas Tax Repeal
On May 21, 1996, the House passed H.R. 3415, a bill temporarily repealing the 1993 gasoline tax of 4.3 cents per gallon. The vote in the House was 301-108. The president said that he would sign the bill provided it included an increase on the minimum wage. Democrats were split down the middle on this bill, with approximately one-half of their members voting for the bill.

Considerable discussion has taken place over the method to be used to replace the lost revenue cost of $2.9 billion for the seven-month period the repeal would be in effect. In H.R. 3415, this lost amount in revenue would be offset by auctioning 35 megahertz of the non-television portion of the broadcast spectrum and by cutting $578 million from the Energy Department over the next six years.

The latest plan on the Senate side was to offset the loss by auctioning 25 megahertz of the non-television portion of the broadcast spectrum and a measure to capitalize the Savings Association Insurance Fund (SAIF), the deposit insurance fund that protects thrift deposits. The latter is opposed by the banking industry in a behind-the-scenes battle to prevent the so-called merger of the Bank Insurance Fund (BIF) with SAIF.

Copyright (c) 1996 American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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