Thread: Immigration Bill Hits Constitutional Wall

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Immigration bill hits constitutional wall
A tax clause will complicate efforts to forge a compromise in Congress.

DENA BUNIS
Washington Bureau Chief
The Orange County Register
dbunis@ocregister.com


Sometimes there are just too many rules.

As if the overhaul of the nation's immigration system isn't a monumental enough task.

Now it looks as if the Senate bill may have run afoul of the United States Constitution.

No kidding.

In their wisdom, the Founding Fathers gave certain powers to the Senate and the Senate only - like ratifying treaties and confirming Supreme Court nominees. They had to give the House something to do, so they put it in charge of the money. That means all proposed laws that would reach into our pockets for tax money have to originate in the House.

Well, it seems the Senate's 700-plus-page immigration bill raises taxes. That would be the clause that says illegal immigrants have to pay back taxes as one of the requirements for getting on the citizenship track.

This all matters because, as anyone who has been following the immigration debate knows, there's no way the House would have passed the kind of immigration bill the Senate did.

Everyone here assumed that the Senate would pass its bill, send it over to the House, and then House and Senate negotiators would meet to talk about the differences.

You'll remember that the Senate bill includes a guest-worker program, a way to legalize many of the 12 million illegal immigrants, as well as border and workplace enforcement. The House bill deals solely with enforcement.

Getting these two chambers to agree is going to be tough enough.

Sen. Arlen Specter, the Pennsylvania Republican who would run any conference on this issue, favors the Senate-passed bill. Probably so will the majority of his conferees, even though we haven't seen the full list of senators who will be at the table.

Rep. James Sensenbrenner, the Wisconsin Republican who will lead the House side, hates the Senate bill. Ditto for many of his GOP House colleagues.

Sensenbrenner and many House Republicans believe that first the border must be controlled. And only after that should a temporary guest-worker program be considered, they say.

But before such substantive matters can be addressed, the powers that be on Capitol Hill have to figure out how to get around the Constitution.

Senate Majority Leader Bill Frist of Tennessee believes he has an answer.

Frist wants to take the Senate-passed immigration bill and attach it to a completely unrelated bill that the House passed and sent over to the Senate.

The reason?

It's a tax bill, something to do with the alternative minimum tax (an explanation of that issue is for another time).

If the immigration bill were attached, the new merged document would have a House number. Numbers here are important. House bills start with HR and Senate bills with S. The letters refer to where the bill started. Remember, tax-related bills have to start in the House.

That would make the immigration bill constitutional - procedurally, that is.

The House would get this immigration-tax bill. House lawmakers would then add their immigration enforcement bill.

This thing is getting pretty big, no?

So what you would have is a huge bill, but one that could legally be discussed by a conference. And presumably, the first order of business for the conference would be to jettison the alternative minimum tax piece.

So far so good for supporters of the Senate bill.

Enter Senate Minority Leader Harry Reid.

The Nevada Democrat objects to Frist's solution. It's not entirely clear why.

The most I could get out of Reid's communications director, Jim Manley, was that Reid doesn't believe a constitutional problem exists.

"If congressional Republicans are serious about enacting comprehensive immigration legislation," Manley told me the other day, "all they have to do about this is nothing. Let the bill go into conference."

That's all well and good.

But before House members can participate in a conference, the House has to vote to send the bill there.

And those who oppose the Senate bill as well as those - particularly Ways and Means Committee Chairman Bill Thomas of Bakersfield - who worry about such things as potential constitutional violations, are likely to block the House from voting to send this new big bill to conference.

Reid has been accused before of wanting to be able to tell voters going into the November election that Republicans have stood in the way of immigration reform.

It happened a couple of months ago when he refused to allow amendments on the immigration bill to come to the floor. That tussle was eventually worked out, and the Senate passed a bill right before Memorial Day.

At that time, even some immigration advocates who usually side with the Democrats were critical of Reid. This time, my sources from that quarter do not believe Reid is trying to kill the bill.

And Manley insisted this week that Reid was not trying to kill the immigration bill.

Regardless of how anyone feels about the substance, it would seem to be a shame if this nationwide debate about what to do about millions of illegal immigrants and the future of immigration policy ended because of what some see as a technicality.

The Senate never meant to initiate a tax bill. Senators were not trying to take over the prerogative of the House to raise and spend money.

Nonetheless, at the moment there doesn't seem to be an agreed-upon solution.

Manley told me the other day he believes lawmakers can work something out next week.

We'll be watching.
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Bunis is the Register's Washington bureau chief. CONTACT US: 202-628-6381 or dbunis@ocregister.com

Between the Patriot Act and the Immigration Reform Bill and our membership in the U.N. / WTO and all the rest of it our Constitution will not be in exile it will be dead.