Sessions on Leahy Amendment: ‘Where Is the Bill’ to Protect Americans’ Rights?

by NR Staff

On Thursday morning, the Senate Judiciary Committee approved an amendment, offered by Senator Patrick Leahy (D., Vt.), to express the sense of the Senate “that the United States must not bar individuals from entering into the United States based on their religion, as such action would be contrary to the fundamental principles on which this Nation was founded.” Senator Jeff Sessions (R., Ala.), who voted against the amendment, delivered the following remarks:

With regards to immigration, it is the job of Congress to defend the rights and well-being of American citizens. That means we must look at how immigration is impacting Americans in their wages, in their salaries, in their national security.

It was five months ago that Kate Steinle died in her father’s arms on a pier in San Francisco because a repeatedly deported criminal alien was set free. What about the American workers at Disney forced to train their guest worker replacements? They claim they were discriminated against because they were Americans. Where is the bill for them?

We have these fights over and over, but we never seem to advance a bill or proposal that actually results in more protections for American citizens. 

So that is the context today in which we consider this unprecedented effort to extend Americans’ constitutional rights and protections to foreign citizens living in foreign countries.

The adoption of the Leahy Amendment would constitute a transformation of our immigration system. In effect, it is a move toward the ratification of the idea that global migration is a “human right” and a civil right, and that these so-called “immigrants’ rights” must be supreme to the rights of sovereign nations to determine who can and cannot enter their borders.

Fundamentally, foreign nationals living in foreign countries have no constitutional right to enter the United States. If they did, any alien denied entry could file suit to demand entry and claim damages for lost employment, lost welfare benefits, lost income. 

Our immigration system derives exclusively from Article I, section 8, clause 4 of the United States Constitution, which vests the exclusive power in the Congress to establish a uniform system of immigration. Through acts of Congress, the United States can — and does – exclude aliens from entry into the United States for any reason provided by Congress.

The rules governing the selection of immigrants are, by definition, opposite the rules governing the treatment of citizens living or naturalized in the United States. There are 7 billion people in the world. Choosing who can immigrate into the United States is, by definition, an exclusionary process. The goal is to select immigrants for admission based on the benefits they provide to society based on skills, ages, values, philosophy, incomes, etc. Our goal is to choose for admission those likeliest to succeed and flourish and, crucially, to support our Constitutional system of government and our values of pluralism and republican governance.

So whereas we consider it improper to deny employment to a U.S. citizen based on, say, their age, we consider it necessary and important to consider immigrants according to their age and whether they will be able to contribute productive years of work to American society.

As stated by the United States Supreme Court: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

What this amendment would do would be to turn this fundamental principle on its head and to apply some of our core domestic legal and constitutional protections to foreign nationals with no tie to the United States. The natural extension of this concept would fundamentally undermine entire provisions of immigration law, and the results quickly would become radical.

In the United States, we have protections against discrimination by religion, age, disability, country of origin, etc. We have freedom of association. Rights of due process.

Now imagine extending these as part of our immigration system. The logical extension of this concept results in a legal regime in which the United States cannot deny an alien admission to the United States based upon age, health, skill, family criminal history, country of origin, and so forth. If an elderly alien needing 24-hour medical care applied for entry and was denied, under this scheme of immigrant rights, they could file a lawsuit, and demand entry and taxpayer funding.

But let’s consider the question of religion more carefully. If we say it is improper to consider religion, then that means it is improper for a consular official to even ask about a candidate’s religious beliefs when trying to screen an applicant for entry.

It would mean that even asking questions of a fiancé seeking a visa about his or her views on any religious matter – say on the idea of pluralism vs. religious supremacy – would be improper, because if it is improper to favor or disfavor a religion, it is improper to favor or disfavor any interpretation of a religion. Even if it is a perversion of a religion, it is still a religion to that person.

Are we really prepared to disallow, in the consideration of tens of millions of applications for entry to the United States, any questions about religious views and attitudes?

This amendment would mean, for instance, that the United States could not favor for entry the moderate Muslim cleric over the radical Muslim cleric. We have huge unrest in the Middle East. An argument has been made by some that we should prioritize resettling Muslim immigrants in the region and prioritize the entry of persecuted Christians; this measure would forbid such considerations. Keep in mind, current refugee law requires us to consider persecution on account of an individual’s religion; this would ask us to discard, or undermine, that longstanding practice.

A U.S.-born citizen who subscribes to theocratic Islam has a freedom of speech that allows them to give a sermon denouncing the U.S. Constitution or demanding it be changed. But, under this amendment, a foreign religious leader living overseas could demand a tourist visa to deliver that same sermon, and claim religious discrimination if it is not approved. I think it is a dangerous step.

The next step, of course, if we say religion cannot be considered in any way, is to say we cannot consider history, or geography, or culture.

We need to make a holistic decision about applicants.

We cannot labor under the illusion that these are simple binary decisions. It is not as though every applicant is either clearly tied to terrorists on the one hand, or is absolutely safe on the other. Many people are radicalized after they enter. How do we screen for that possibility, if we cannot even ask about an applicant’s views on religion? Would we forbid questions about politics? Or theology?

Furthermore, some of the same supporters of this very amendment supported the ‘Lautenberg Amendment’ that gave special preferences for admission under our refugee program to Jews, Evangelical Christians, Orthodox Christians, Baha’is, and religious minorities – all to the exclusion of others. The import of this is that hundreds of thousands of individuals have been admitted to the United States based exclusively on their religion.

The rights that have been neglected by this Congress are the rights of the American people. The rhetoric today would have you believe we have been operating under some kind of closed-door immigration policy. The opposite is true. No nation on earth has ever let in more people over a shorter period of time. We have admitted 59 million immigrants since 1965. We have admitted 1.5 million immigrants from Muslim countries since 9/11. We have the largest foreign-born population in our history as a raw number, and soon we will have the largest percentage of non-native-born in the history of the Republic. As a share of population, it will soon eclipse every historical record. Meanwhile, large companies are exploiting programs to replace American workers and undermine their wages. Poor screening has resulted in thousands of crimes against Americans. Our entitlement programs are stretched. Wages have been flat for decades. Every year, we admit another 1 million permanent immigrants, nearly 100,000 refugees and asylees, and 700,000 foreign guest workers.

Though it appears that day will not be today, perhaps we should have a conversation soon about how to help the tens of millions of Americans who are only just barely scraping by.

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