You wouldn’t know it from that amount of press coverage it receives, but Congress is still doing a little bit of legislating here and there. Last Wednesday, the House of Representatives passed the Community Safety and Security Act of 2018 on a largely partisan vote of 247-152. If you didn’t notice, it’s at least partly due to the fact that there wasn’t a single hearing held to consider the merits of the bill. There was, therefore, no markup or amendments offered or adopted, and no input from any members of the relevant committees. It was introduced a mere week before the vote was held on the House floor. It’s a stretch to call this legislating at all.
The bill does address a somewhat pressing need. The best background I found on the bill was written by Eliot Kim at Lawfare. As Kim explains, the primary motivation for passing the Community Safety and Security Act last week was to fix a problem created by a ruling the Supreme Court issued in the Sessions v. Dimaya case on April 17, 2018. I’m not going to go into the legal controversy involved here in great detail. The simple version is that the SCOTUS found a provision of the Immigration and Nationality Act to be impermissibly vague. It involved the definition of an “aggravated felony” and what constitutes “a crime of violence.” Would a lawful permanent resident be subject to deportation if they committed a couple of residential burglaries when no one was home?
James Dimaya is a native of the Philippines who was admitted into the United States in 1992 as a lawful permanent resident. In 2007 and again in 2009, Dimaya was convicted of first-degree residential burglary under California law. For each conviction, Dimaya was sentenced to two years in prison. Based on these two convictions, the Department of Homeland Security said Dimaya was removable because Dimaya had committed a “crime of violence … for which the term of imprisonment [was] at least one year,” which would be an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F).
After examining the language of the law, a 5-4 majority (including Neil Gorsuch) concluded that there was too much left to subjective judgment in determining whether an act constituted a legitimate risk of violence. The Court basically ruled that Congress, if it wants to deport people for burglaries, needs to tighten up the language so the application of the law isn’t overly capricious.
President Trump predictably reacted with anger when the ruling came down and called on Congress to fix the law:
Some seven and a half hours after the ruling came down, Trump offered his reaction on Twitter, overlooking — for the moment— his appointee’s role in the decision. Instead, the president, who was at his Mar-a-Lago resort in Florida for meetings with the Japanese prime minister, called for fast action by Congress to tighten the rules.
“Today’s Court decision means that Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons,” wrote Trump. “This is a public safety crisis that can only be fixed by…Congress – House and Senate must quickly pass a legislative fix to ensure violent criminal aliens can be removed from our society. Keep America Safe!”
The Community Safety and Security Act of 2018 is the response of the House of Representatives. Although only four Republicans voted against it, it had critics on both the right and left. They opposed both the substance and the rushed process. As the Families Against Mandatory Minimums (FAMM) advocacy group noted, when the House passed the prison reform FIRST STEP Act earlier this year, it was “the product of years of thought, deliberation, and bipartisan collaboration.”
A bill that would drastically reshape our definition of a violent crime should not receive a floor vote less than a week after introduction. Passing criminal justice legislation without due diligence was the preferred practice of the 1980s, and we are still cleaning up those messes today. We should not create more of them now.
The right-wing House Liberty Caucus and FreedomWorks also voiced their concerns:
— House Liberty Caucus (@libertycaucus) September 7, 2018
In my view, this is bill is mostly politics. I agree that Dimaya requires a fix, but this bill has flaws that could have, and should have, been worked out in committee markup. It's shameful that this bill was handled this way.
— Jason Pye (@pye) September 7, 2018
Its primary sponsor, freshman Karen Handel of Georgia, argued during the brief debate in the House that the bill’s detractors are misguided:
“We don’t have the privilege to squabble over hypotheticals that have no bearing on the application of this law,” Handel said on the House floor. “I can assure my colleagues this bill is not overly broad. It’s not a dangerous overexpansion. Instead, it’s a carefully crafted response to the Supreme Court’s recommendations.”
Yet, looking at the actual text of the bill, it’s easy to see why people on both sides of the political divide are concerned. To give one example, they have defined “fleeing” as a violent crime.
“(13) The term ‘fleeing’ means knowingly operating a motor vehicle and, following a law enforcement officer’s signal to bring the motor vehicle to a stop—
“(A) failing or refusing to comply; or
“(B) fleeing or attempting to elude a law enforcement officer.
I’ll acknowledge that inviting the police to pursue you in a car chase can result in injury or death, but this seems like a very odd definition of violence. As for the subject that brought all this forth, the House now considers burglary to be a necessarily violent act.
“SEC. 16. CRIME OF VIOLENCE DEFINED.
“(a) The term ‘crime of violence’ means an offense—
“(1) (A) that—
“(i) is murder, voluntary manslaughter, assault, sexual abuse or aggravated sexual abuse, abusive sexual contact, child abuse, kidnapping, robbery, carjacking, firearms use, burglary, arson, extortion, communication of threats, coercion, fleeing, interference with flight crew members and attendants, domestic violence, hostage taking, stalking, human trafficking, piracy, or a terrorism offense as described in chapter 113B (other than in section 2332d); or
“(5) The term ‘burglary’ means an unlawful or unprivileged entry into, or remaining in, a building or structure, including any nonpermanent or mobile structure that is adapted or used for overnight accommodation or for the ordinary carrying on of business, and, either before or after entering, the person—
“(A) forms the intent to commit a crime; or
“(B) commits or attempts to commit a crime.
Of course, no politician wants to be arguing the fine point that some burglaries are less serious than others and that non-citizens who break into homes should be protected against deportation. That’s why twenty-nine Democrats voted for this bill, including the Democratic Party’s nominees for Senate in Arizona (Kyrsten Sinema), Nevada (Jacky Rosen) and their nominee (Jared Polis) for governor of Colorado. They obviously didn’t want to create easy fodder for political ads that could be run against them.
The entire debate over this bill was deplorable on every level. It begins with a basic hostility to non-citizens and both legal and illegal immigration. It involves the worst kind of xenophobia, bigotry, fear-mongering, intolerance and demagoguery. It then proceeds to completely irresponsible legislating wherein everything is rushed, no experts are consulted, the committees of jurisdiction are bypassed, and the public has no opportunity to participate. The purpose is largely political–basically an effort to jam up Democrats by making them cast a hard to defend vote against over-criminalization just eight weeks before an election. Then, of course, you have a bunch of Democrats who are either savvy enough or spineless enough to vote for the thing despite knowing that it’s a despicable piece of work from start to finish.