Winter 2005

Legislative Update:
Congress Drops Controversial Immigration Language From Intelligence Bill

Congress convened on Jan. 3, for its 109th session, with Republicans having slightly increased their majorities in both the House and Senate in the November 2004 general election. In the waning days of the 108th Congress, an intelligence overhaul bill was passed, enacting many of the changes proposed by the independent commission that investigated the terrorist attacks of September 11, 2001.

On Dec. 17, 2004, the President signed “The Intelligence Reform and Terrorism Prevention Act of 2004,” which creates the new position of Director of National Intelligence and consolidates intelligence functions throughout the federal government. Under the new law, the director will have no control over day-to-day military intelligence, and the President is required to write regulations to protect the military chain of command in dealing with intelligence-gathering aircraft and satellites.

Passage of the bill followed months of negotiations in Congress concerning disagreements over border security and immigration provisions proposed by House Judiciary Committee Chair F. James Sensenbrenner (R-WI). These provisions, which were eventually dropped from the bill, would have subjected all individuals entering the U.S. without inspection to expedited removal unless they had been physically present in the U.S. for more than five years. Currently, the time requirement to avoid expedited removal is two years. Additionally, the dropped provisions would have eliminated habeas corpus review for a variety of final immigration decisions and would have allowed low-level immigration officers to determine the admissibility of individuals and to issue removal orders without providing access to counsel, an interpreter or an impartial adjudicator. The original proposed legislation also would have prohibited states from issuing drivers’ licenses to illegal aliens. Rep. Sensenbrenner agreed to drop the proposal after House Speaker Dennis Hastert (R-IL) promised the Chair’s proposal would be considered in separate legislation during the 109th Congress. (In a letter to the conferees in October, ABA Governmental Affairs Director Robert D. Evans emphasized that only impartial adjudicators, preferably immigration judges, should have the authority to enter removal orders following a formal hearing and that those orders should be subject to administrative and judicial review).

Other Congressional action towards the end of the 108th Congress included bills on DNA testing, national security, medical privacy, HIV/AIDS, and other civil rights-related issues.

Criminal Justice

On Oct. 30, President Bush signed HR 5107, “The Justice for All Act of 2004,” which protects crime victims’ rights, eliminates the backlog of DNA samples, improves and expands the DNA testing capacity of federal, state and local crime laboratories, and improves the performance of counsel in state capital cases. The ABA has worked for the passage of such legislation since it adopted of its moratorium policy in 1997.

National Security

In an effort to clarify the mission and responsibilities of the U.S. Department of Homeland Security with respect to civil rights and civil liberties as set forth in the Homeland Security Act of 2002, Rep. Thompson (D-MS) introduced HR 5182, the “Homeland Security Civil Rights and Civil Liberties Protection Act of 2004,” on Sept. 29th, 2004. The bill was referred to the House Judiciary and Select Homeland Security Committees.

Privacy

On Sept. 22, Sen. Clinton (D-NY) introduced S 2827, the “Patients’ Privacy Protection Act of 2004,” in an effort to create an explicit privilege to preserve medical privacy. The bill was referred to the Senate Judiciary Committee. A similar bill was introduced in the House. (In February 1999, the ABA adopted Section-sponsored policy supporting federal legislation that acknowledges an individuals’ right to privacy regarding their health care information and protects the confidentiality of personally identifiable health information from any source, including medical records, electronic data, and genetic material.)

On Sept. 29, Rep. Petri (R-WI) introduced HR 5181, the “Employee Freedom from Invasion of Privacy Act,” which prohibits certain audio and video monitoring of employees by their employers. The bill was referred to the House Committees on Education and the Workforce, and Government Reform.

AIDS/HIV

On Oct. 5, Senator Dodd (D-CT) introduced S 2892, the “Children and Family HIV/AIDS Research and Care Act of 2004.” The proposed legislation is intended to amend the Public Health Service Act and reauthorize and extend certain programs to provide coordinated services and research with respect to children and families with HIV/AIDS. The bill was referred to the Senate Committees on Health, Education, Labor and Pensions.

Children/Families

On Nov. 18, Rep. Slaughter (D-NY) introduced HR 5391, the “Prevention of and Response to Sexual Assault and Domestic Violence in the Military Act,” to reduce sexual assault and domestic violence involving members of the Armed Forces and their family members and partners. The legislation seeks to enhance programs aimed at prevention and deterrence, improve victims’ services, and strengthen provisions for prosecution of assailants. The bill was referred to the House Committees on Armed Services, Judiciary, and Veterans Affairs.

Civil Rights

On Jan. 4, Rep. Emerson (R-MO) introduced H J Res 4, proposing an amendment to the Constitution of the United States with respect to the right to life. The bill was referred to the House Committee on the Judiciary.

On Jan. 4, Rep. Towns (D-NY) introduced HR 288, to amend the Civil Rights Act of 1964 and the Fair Housing Act to prohibit discrimination on the basis of affectional or sexual orientation, and for other purposes. The bill was referred to the House Committees on the Judiciary and Education and the Workforce.

Definition of Marriage

On Jan. 4, Rep. Davis (R-VA) introduced HR 72, to define marriage for all legal purposes in the District of Columbia to consist of the union of one man and one woman. The bill was referred to the House Committee on Government Reform.

Elder Law

On Oct. 7, Sen. Gregg (R-NH) introduced S 2940, to amend the Older Americans Act of 1965, to assist states in preventing, detecting, treating, intervening in, and responding to elder abuse, neglect and exploitation. The bill was referred to the Senate Committee on Health, Education, Labor and Pensions.

Election Law

On Sept. 22, Rep. Watson (D-CA) introduced H Res 793, condemning all efforts to suppress and intimidate voters in the U.S. and reaffirming that the right to vote is a fundamental right of all eligible U.S. citizens. The bill was referred to the House Judiciary Committee.

Flag Desecration

On Jan. 4, Rep. Emerson (R-MO) introduced H J Res 5, proposing an amendment to the Constitution of the United States authorizing the Congress and the States to prohibit the act of desecration of the flag of the United States and to set criminal penalties for that act. The bill was referred to the House Committee on the Judiciary. (In 1989, the ABA adopted policy that opposes the adoption of an amendment to the Constitution concerning the desecration of the American flag.)

Health Care

On Jan. 4, Rep. Millender-McDonald (D-CA) introduced HR 162, to authorize the use of Federal funds for research on human embryonic stem cells irrespective of the date on which such stem cells were derived, and for other purposes. The bill was referred to the House Committee on Energy and Commerce. (In 2002, the ABA adopted Section-sponsored policy that supports the freedom to pursue scientific knowledge for the improvement of human health and opposes governmental actions that would prohibit scientific research conducted for therapeutic purposes or penalize individuals or research entities that participate in such research.)

Homelessness/Housing

On Oct. 5, Rep. Renzi (R-AZ) introduced HR 5221, the “Native American Housing Enhancement Act of 2004,” to amend the Native American Housing Assistance and Self-Determination Act of 1996 and other acts to improve housing programs for Native Americans. The bill was referred to the House Committee on Financial Services.

Immigration Law

On September 21, Sen. Craig (R-ID) introduced S 2823, the “Agricultural Job Opportunity, Benefits, and Security Act of 2004,” to provide adjustments in the status of certain foreign agricultural workers, to amend the Immigration and Nationality Act to reform the H-2A worker program under that Act, to provide a stable, legal agricultural workforce, and to extend basic legal protections and better working conditions to more workers.

On Sept. 21, Rep. Dreier (R-CA) introduced HR 5111, the “Illegal Immigration Enforcement and Social Security Protection Act of 2004,” to enforce restrictions on employment in the U.S. of unauthorized aliens through the use of improved Social Security cards and an Employment Eligibility Database. The bill was referred to the House Committee on Ways and Means.

On Jan. 4, Rep. Dreier (R-CA) introduced HR 100, to amend the Immigration and Nationality Act to modify provisions relating to judicial review of orders of removal. The bill was referred to the House Committee on the Judiciary.

Human Trafficking

On Nov. 20, Sen. Cornyn (R-TX) introduced S 3025, the “STOP Act,” to strengthen efforts to combat slavery and trafficking in persons, within the United States and around the world. The bill was referred to the Senate Foreign Relations Committee.

Mental/Physical Disability Law

On Sept. 29, Rep. Capuano (D-MA) introduced HR 5174, to amend Title 5 of the U.S. Code to increase the amount of additional compensation payable to an employee who is disabled and requires the services of an attendant. This bill was referred to the House Committee on Education and the Workforce.

Native Americans

On Jan. 4, Rep. Hayworth (R-AZ) introduced HR 16, to clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act. The bill was referred to the House Committee on Education and the Workforce.

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