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Statements On Introduced Bills And Joint Resolutions

Floor Speech

Location: Washington, DC



S. 3593. A bill to require the Federal Government to pay the costs incurred by a State or local government in defending a State or local immigration law that survives a constitutional challenge by the Federal Government in Federal court; to the Committee on the Judiciary.

Mr. JOHANNS. Mr. President, I rise to discuss a bill I have introduced because I see a very unfair battle unfolding right in front of us. The battle I foresee is this: In one corner we have the enormous resources of the Federal Government; in the other corner, cities and States with very limited resources, especially in these economic times, but with a good-faith desire to protect their communities.

What I am speaking of today and what my legislation goes to is the Federal Government's use of litigation to insert itself into State and potentially local immigration laws.

I rise with a great deal of knowledge about this. As a former mayor and county commissioner, city council member and Governor, I know what it is like when the Federal Government swoops in and brings its power to bear on an issue. I have seen it from both sides, having also served as a member of the President's Cabinet. I know that when the resources of the Federal Government are used to weigh in with litigation, it is crushing. The administration can send in a team of lawyers and overwhelm the resources of a community or a State. Litigation brings with it a huge financial burden for cities and States. In fact, litigation can and does have a chilling effect on the local decisionmaking process, even if local leaders believe their action in good faith is appropriate and necessary.

I believe that is the exact reaction this administration is hoping to cause among communities and States across the Nation that are considering action on immigration issues.

In this case, I believe litigation is being used to send a warning to other communities, other States that might be considering taking action in this arena.

The administration's claim that the Federal Government has sole authority to enforce immigration laws because of the supremacy clause of the Constitution is, in fact, inconsistent with the President's own internal policies. Just last year, President Obama authored a memo, sent it out to all Federal departments and agencies, requiring serious and careful consideration when using Federal preemption of State laws.

In this memo, dated May 20, 2009, with the subject ``Preemption,'' the President stated:

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be taken only with full consideration of legitimate prerogatives of the States and with sufficient legal basis for preemption.

That seems clear. But the memo went on further to say:

Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect those circumstances and values.

Then, finally, the President goes on to say:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social experimental experiments without risk to the rest of the country.

Mr. President, I ask unanimous consent that a copy of this memo be printed in the Record.

There being no objection, the material was ordered to be printed in the Record


Mr. JOHANNS. So if the use of Federal power to preempt a State requires such an extremely high threshold, how can one reconcile that with the administration's decision to file a lawsuit?

My bill sends a message to the administration that it cannot use the crushing force and threat and reality of litigation to intimidate local officials or to scare them into inaction.

It would allow a State or a municipal government the ability, the right, to recover attorney's fees and other court costs associated with defending a Federal challenge of their immigration laws. In other words, this straightforward legislation just simply levels the playing field between the huge power of the Federal Government in one corner, as I said, and the right of local communities in States to pass laws to protect their citizens.

It carries this simple message to any administration: If you file a lawsuit and lose, cities and States will not face depleted resources as a result.

My bill ensures that when the Federal Government takes on communities in court, the reasons are pure and based in law or else the impact on our communities will be neutralized.

The administration should focus time and resources on what is the crux of this issue; that is, securing our borders and doing the job and enforcing existing immigration laws and not using litigation as a tool to send a message.

I encourage my colleagues to sign on and cosponsor this commonsense measure and level the playing field for communities when they are forced to defend themselves against the enormous, nearly unlimited power of the Federal Government.


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