WASHINGTON — The Senate on Thursday advanced a bill that would require the detention of undocumented immigrants who commit certain crimes, a priority for the new Republican majority following GOP victories in last year’s election.
Unlike last year, when Democrats objected to its quick passage on the Senate floor, this week the vast majority of Democratic senators joined the GOP in support of opening debate on the bill, named the Laken Riley Act. The vote was 84-9, more than enough to break a filibuster.
The bipartisan vote in the Senate, which follows a similar one in the House earlier this week, represents a major change in strategy for a party still reeling the loss of both chambers of Congress and the presidency. Immigration was a top issue in the November election, one Republicans effectively used as a cudgel against Democrats to win support across the country.
“If we can’t get at least seven [votes] out of 47 … then that’s a reason why we lost,” Sen. John Fetterman (D-Pa.), who voted for the bill, told Fox News on Wednesday. “That’s one of why we lost, in part.”
The bill is named for a nursing school student from Georgia who was murdered while jogging by a migrant from Venezuela on parole. In addition to requiring federal detention of undocumented immigrants charged with crimes, the measure would grant power to state attorneys general to sue the federal government if they can show their states are being harmed over a failure to implement national immigration policies.
Some Democrats who voted to advance the bill on Thursday said they wanted to amend it in hopes of addressing several concerns. They hope to safeguard constitutional due process rights for undocumented immigrants, including those brought to the U.S. as children who have DACA protections, as well as the consequences of allowing states to sue the federal government over implementation of immigration policies.
“The underlying bill looks like a not-well-constructed piece of legislation, but we could potentially make it better,” Sen. Chris Murphy (D-Conn.) told reporters this week. “I think it’s going to make the immigration system much more complicated, byzantine and confusing.”
The bill would put undocumented immigrants at risk of deportation if they are accused of certain crimes, even before they have been convicted. Those who are wrongly accused would have no recourse. The due process clause of the U.S. Constitution applies to “all persons” in the United States, regardless of legal status, and critics of the bill worry this provision will prove unconstitutional.
“This bill will allow things like detaining 10-year-olds who steal gum. That’s not comprehensive immigration reform,” said Sen. Mazie Hirono (D-Hawaii), one of only nine members of the Senate Democratic caucus that voted no on Thursday.
“Suppose, for example that you came to the US on a student visa and had a child with a US national who you then had a falling out with,” Rep. Sean Casten (D-Ill.) wrote in a post online after voting against the bill in the House. “If you overstay your visa should you be deportable simply because your ex accused you of a crime?”
But other Democrats expressed support for the legislation on the condition of having a chance to amend it.
“When you have somebody who’s here, who’s undocumented, [and] is arrested for a crime, I think it’s appropriate to detain that individual,” Sen. Mark Kelly (D-Ariz.) said.
“I think it would be upheld in the courts,” he added when asked about due process concerns.
It’s not clear if Senate Republicans will allow any amendments on the bill, however. Setting up votes on amendments would likely require burning valuable floor time. The GOP is under pressure to deliver quick wins for President-elect Donald Trump’s incoming administration, including confirming as many of his Cabinet nominees as possible. Republicans could also just want to squeeze Democrats by forcing them to take a tough vote at the end of the day.
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Democrats’ openness to the Laken Riley Act is only the latest sign of the party’s shift on immigration. Early last year, the party helped write a bipartisan immigration deal that would have significantly strengthened enforcement at the U.S.-Mexico border over the objections of immigration advocates and some border-state Democrats. Republicans, prodded by Trump, ultimately reneged on the deal and turned around to blame Democrats for the country’s immigration woes, leading to Trump’s November win.
“We acknowledged the importance of border security in the bipartisan deal. So this is just being consistent with our commitment to that,” Sen. Peter Welch (D-Vt.) said.