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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Monday, July 21, 2014

Obama's Foes on Border Crisis: Democrats

Politico
By Seung Min Kim and Manu Raju
July 18, 2014

President Barack Obama’s response to the southern border crisis is under fire from an unlikely source: fellow Democrats.

Republicans have seized on the ballooning number of unaccompanied children crossing into Texas as proof of Obama’s failed immigration policies. But Democrats are also frustrated and are increasingly blaming the White House for bungling the response to the situation on the border.

As Congress struggles to agree on emergency funding in response to the crisis, Democrats are taking the White House to task any chance they get.

They are giving floor speeches, arguing the administration doesn’t understand the root cause of the crisis. They are sparring with administration officials in closed-door discussions. And they say Obama should have better consulted lawmakers before backing a policy change deeply opposed by their party.

“They sure didn’t check with me,” said Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee. “I don’t know who they checked with, but I just think it was kind of a quick reaction without really thinking about the humanitarian aspects of this.”

Tension between the administration and congressional Democrats is becoming more common. Many Democrats are still fuming about last year’s troubled rollout of Obamacare. The party has been on the defensive over the Bowe Bergdahl prisoner trade swap. The recent veterans health care scandal left many angry. And with Obama’s poll numbers tanking, many plainly fear that all the bad news will make it harder to maintain control of the Senate in the fall elections.

When it comes to the border, the intraparty dispute centers on a law signed in the final days of George W. Bush’s presidency that is meant to shield immigrant children from trafficking. But it’s led to an unintended effect: Because of backlogs in the immigration court system, unaccompanied children from countries other than Mexico or Canada – who are guaranteed their day in court under that law – can end up staying in the U.S. for years as they wait for a hearing.

Republicans are pushing for a change in the 2008 law and say that will be a key condition of any emergency funding to to respond to the border crisis. Leading congressional Democrats are opposed to revising the law, diminishing the prospects of an aid package emerging from Capitol Hill soon.

But Democrats argue the administration has complicated the issue.

White House officials are open to changing the 2008 law and initially signaled that it would ask Congress for revisions so Obama could have “additional authority to exercise discretion” in deportation cases. But immigration advocates were furious over the plan. And Obama did not send along any suggested policy changes when he submitted a $3.7 billion emergency spending request earlier this month, though officials stills say they are considering revisions.

Congressional Democrats are left perplexed.

There was no need, they argue, to create an unnecessary division on a highly emotional issue amid a high-stakes election year — particularly when a large bulk of the party believes that the 2008 law doesn’t need to be touched. And some Democrats privately gripe the administration tends to suggest Congress deal with sticky situations in order to give itself political cover — similar to how it handled the crisis with Syria last summer — rather than rely on executive authority as the president has done for much of his second term.

Top Senate Democrats, including Senate Majority Leader Harry Reid (D-Nev.), believe Obama already has some existing discretion under the current law under its “exceptional circumstances” provisions to accelerate some cases. That makes changing the 2008 law unnecessary, Democrats believe.

The issue came to a head at a closed-door briefing for senators Wednesday evening with Homeland Security Secretary Jeh Johnson, Health and Human Services Secretary Sylvia Mathews Burwell and other senior administration officials. At the meeting, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) pressed Johnson on the matter, saying that the administration did not need change the law to deal with children from countries other than Mexico, sources said.

Johnson, however, stood his ground and said the law needed a modification, something that prompted Senate Foreign Relations Committee Chairman Bob Menendez (D-N.J.) to side with Leahy, attendees said.

“I don’t think necessarily the president knew all the prerogatives he has under existing” law, Menendez said.

At the briefing, members from both parties expressed cost concerns as well. When the senior administration officials said the costs would increase from $250 per child a day to $1,000 when care was transferred to the Department of Health and Human Services, several senators from both parties gasped, attendees said.

Sen. Kirsten Gillibrand (D-N.Y.) told someone next to her that the HHS costs are greater than a night at the Four Seasons hotel, according to a person with knowledge of the meeting. A spokeswoman said Gillibrand supports the administration’s proposed supplemental spending package.

On Thursday, Sen. Bill Nelson (D-Fla.) said that the briefing showed that the Obama administration was “getting their arms around” the response to the unaccompanied children.

“However, it is the opinion of this senator that they do not recognize the root cause of the problem,” Nelson said. “And if the administration would listen to their four-star general, the head of the United States Southern Command, General Kelly, and the testimony that he has already given to the Armed Services Committee of what is the problem, then we could get to the root cause of the problem and stop these future humanitarian crises.”

The White House is downplaying notions of any rift with Hill Democrats.

“I think that there is widespread recognition among members of both parties that we’re dealing with a serious situation at the southwest border, that these are thorny policy problems,” White House press secretary Josh Earnest said Wednesday. “And the administration is working through in a very constructive way that’s in line with our core values to deal with it.”

Still, the disagreements with the White House extend to House Democrats, too.

Rep. Luis Gutierrez (D-Ill.) indicated that the White House should not have initially signaled it was willing to accept changes to the 2008 trafficking law.

“I try never to negotiate against myself,” Gutierrez said. “That’s all I can tell you. I try never to begin the negotiation. I think when you do that, you begin negotiating with a Republican Party by already making concessions to them.”

The Congressional Hispanic Caucus has been working overtime to persuade fellow Democrats against changes to the trafficking statute – even as one of their own, moderate Rep. Henry Cuellar (D-Texas), introduced legislation with Sen. John Cornyn (R-Texas) to revise the 2008 law.

House Minority Leader Nancy Pelosi (D-Calif.) assembled a meeting last week with immigration advocates — such as representatives from the AFL-CIO, National Council of La Raza and America’s Voice — and a handful of key House Democrats to discuss the issue.

There, Gutierrez made it clear that changing the 2008 law was “bad public policy,” he said. This week, Pelosi announced her opposition to the Cornyn-Cuellar bill.

Rep. Raul Grijalva (D-Ariz.), who attended a meeting between Obama and the Congressional Hispanic Caucus at the White House on Wednesday, said Democrats “had to scramble” to lobby against changes to the 2008 law once they were publicly floated.

“I think there was an underestimation of the resistance that you were going to get from outside groups and members of Congress in undoing that law,” he said. “Hopefully when those critical decisions that affect many of us on the border and other groups, it’d be nice if the White House staff would talk to us before they jump the gun.”

Part of the frustration among Democrats, too, is that the White House was slow in proposing additional funding for the crisis when the problem at the border has been occurring for months. After proposing nearly $4 billion last week, the measure is now locked in the heat of election-year politics.

Still, some Democrats are content with how the White House has handled the crisis so far. Sen. Dianne Feinstein (D-Calif.), who wrote the 2008 law, said she was not upset with the White House, saying: “Our country has never before faced these kinds of circumstances.”

And she seemed open to changes in the statute to ensure that kids from other countries — such as Guatemala, El Salvador and Honduras — are treated the same as Mexicans.

“Do we want to? No,” Feinstein said when asked if Congress would have to change the law. “But we may need to because this isn’t something that’s just going to be with us for the next month.”

But Harkin feared that changing the 2008 law would “take away the humanitarian aspects and the right of these people to seek asylum.”

“As I said before, these children that are coming up – first, make sure they’re safe,” he said. “Second, make sure they are fed and clothed. Third, make sure they are housed. Fourth, make every reasonable opportunity for them to apply for asylum. That’s what the 2008 law provides. “

Still, with their party divided over a growing crisis, some see an opportunity to unite.

Conservative Republicans, led by Texas Sen. Ted Cruz, are beginning to demand that any bill also kill an expansion of a 2012 Obama administration program that defers deportation for at least two years for certain undocumented immigrants who came to the United States as children.

Democrats believe that if Republicans zero in on this issue, it will be a political loser for the GOP come November, given the popularity of that program — particularly with Hispanics.

“We are going to make him our emissary to the Hispanic community,” said Sen. Chuck Schumer (D-N.Y.) when asked about the Cruz effort.

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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