The Senate has passed, 64–35, legislation that requires the Department of Homeland Security (DHS) to detain illegal immigrants arrested for theft, burglary, or shoplifting.
The legislation also allows states to sue the federal government if it fails to follow procedures related to immigration, such as properly vetting immigrants seeking to come to the United States.
“Now is the time to return to law and order,” Sen. Katie Britt (R-Ala.) said ahead of the bill’s passage. “We are a proud nation of immigrants. We are also a nation of laws, and the lawlessness ends today.”
It had bipartisan support in the lower chamber, passing with a vote of 264-159, despite opposition from some House Democrats.
Opponents of the bill worry that it is too broad, and could end up affecting illegal immigrants who have been arrested and never actually convicted of a crime.
There are also concerns about the clause allowing states to sue the government.
Rep. Jamie Raskin (D-Md.) said that possibility had already been ruled out by the U.S. Supreme Court’s decision in the U.S. v. Texas case, which found that states have no standing to bring legal actions over federal implementation of public policy.
In response, Rep. Tom McClintock (R-Calif.) cited the High Court’s majority decision—written by Justice Brett Kavanaugh—which said that allowing states to sue would require a change in law.
“That is exactly what this bill does, by the book,” McClintock said.
This same question was raised in the Senate ahead of a procedural vote on Jan. 17. Sen. Chris Coons (D-Del.) offered an amendment striking that clause, saying it “could create uncertainty or even chaos by encouraging conflicting lawsuits brought in different states in different courts.”
The amendment to remove the clause was defeated 46-49.
The bill’s advance in the Senate initially had wide bipartisan support. Sens. John Fetterman (D-Pa.) and Ruben Gallego (D-Ariz.) both co-sponsored the bill, and Minority Leader Chuck Schumer (D-N.Y.) agreed to vote for it to advance to debate and amendments.
Only two of the 92 amendments offered were voted upon, and only one—an amendment by Sen. John Cornyn (R-Texas) adding assault of a police officer to the list of applicable crimes—passed.
Democrat support fell somewhat after this.
Ahead of the vote, Sen. Michael Bennet (D-Colo.) again raised the specter of swaths of illegal immigrant minors being falsely arrested and deported.
“In this bill, every undocumented person accused, not just convicted but accused, of a list of crimes that’s in this bill must be detained,” he said.
“I assume no one here really thinks that mandatorily-incarcerated children accused of non-violent crimes is the best, most strategic way to fix our immigration system.”
He also brought up the issue of the bill’s implementation cost.
Sen. Joni Ernst introduced, at the last minute, one more amendment to require DHS to detain any illegal immigrant responsible for death or bodily injury.
