Bob Graham

Mr. GRAHAM

Mr. GRAHAM. Mr. President, my colleague, Senator Connie Mack, and I join in a special tribute to one of the great business leaders of this century and a pioneer entrepreneur in food retailing: Mr. George W. Jenkins, Jr. After a full and rewarding life, George Jenkins died peacefully in his sleep in Lakeland, FL, on April 8, 1996. He was 88. Today, we salute the memory of this outstanding person, who personified the economic expansion of Florida in the 20th Century and the commitment to excellence in commerce. On the eve of the Great Depression, George Jenkins invested funds he had been saving to buy a car in the first Publix grocery store. That was 1930. Since then, Publix has evolved into one of the largest supermarket operations in the Nation, with more than 500 stores in Florida, Georgia, and South Carolina, and annual sales exceeding $9 billion. Publix employees affectionately referred to their founder as ``Mr. George.'' Consumer Reports, in 1993, rated Publix tops in America in customer service. In most endeavors, the positive assessment of one's peers is perhaps the highest accolade. To say that George Jenkins' peers respected him would amount to understatement; they revered him as a genius in food retailing. George Jenkins will long be remembered for his business leadership, but also for his generosity and love of family. His philanthropy for United Way, the Boy Scouts of America, and other beneficiaries touched countless lives. Florida is a better place and America is a stronger nation because George Jenkins shared his special talents and his giving spirit through much of this century.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent reading of the amendment be dispensed.

Mr. GRAHAM. Mr. President, before I commence my remarks on this specific amendment I will provide some context. I strongly support the efforts that have been made and that are being made in this legislation to stem the tide of illegal alien entry and continued presence in the United States of America. Clearly, it is a national responsibility delegated singularly to the Federal Government under our U.S. Constitution to protect our borders and assure that in all areas, including immigration, that we live by the rule of law and not by the rule of the jungle. What concerns me, from the State which has experienced the adverse effect of illegal aliens to a greater extent that any other State in the Nation has done so, and who feels so passionately about the national responsibility to enforce our laws and protect our borders, what concerns me is that in this legislation which is labeled, which has on its book jacket the phrase ``illegal immigration,'' when you open the book, look at the individual chapters, there are significant provisions that do not relate to illegal immigration. We dealt with one of those provisions earlier this week when we eliminated the provision in the original bill that would have essentially terminated immediately the Cuban Adjustment Act, an act from 1966 to today which only is available to people who are in this country with legal status. That is not the only example in a book which has in its title ``illegal immigration.'' Its chapters have provisions relating to people who are in here, having followed the law, having followed the rules, paying taxes, doing all the things that we expect of law-abiding residents within the United States. Most particularly, Mr. President, those provisions that affect legal aliens come into play in the aspect of the eligibility of those legal aliens for a variety of programs which have some degree of Federal financial involvement. I support, also, the principle that the sponsors of this legislation have articulated on repeated occasions that we should look first to the person who sponsored the alien into the country as being the financially responsible partner, for their needs to avoid the necessity of that individual becoming a public charge. That is a desirable and, frankly, too-long ignored principle. Our courts have ruled as recently as 2 years ago that the current affidavit of sponsorship is not legally enforceable. This legislation will hope to breathe the fire of enforceability into that affidavit. My concern, Mr. President, is not only that we are dealing with legal aliens in a bill described as illegal immigration, and carries with it all of the momentum and all of the emotion and passion that that title brings, but also that we are placing the Federal Government in a position of being the deadbeat dad of immigration. And how is that? The Federal Government determines how many legal aliens can come into this country. The Federal Government determines under what conditions they can come and under what conditions they can stay. None of those decisions can be influenced by the local community, whether it is Dayton, OH, or Dade County, FL. None of those can be influenced by a State. They are totally national judgments, and we made several of those judgments in the past few days here on the Senate floor. We are now saying that we are going to look primarily to the sponsor to pay the cost of that sponsored alien. But what happens if that sponsor is unable, unwilling, or cannot be found to carry on that responsibility? The way the structure of this bill is, you determine the financial condition of the sponsor, and since this bill says nobody can sponsor an alien unless they are at least 125 percent above the poverty level, and since for most of the programs of eligibility you have to have less than 125 percent in order to qualify--for instance, Medicaid--in most States, unless you are in a special category such as a pregnant woman or a child, you have to be substantially less than 100 percent of poverty in order to qualify. So, by definition, almost every one of these legal aliens with a sponsor's income is going to be rendered ineligible for needs-based programs in which the Federal Government is a participant. But what happens when the reality is that the sponsor is unable or unwilling to meet the obligations of the sponsored legal alien? The most likely area in which that is going to occur is going to be health care. Most sponsors will be able to meet their obligations in terms of providing food, or shelter, or other basic necessities of life, but what happens when that alien is diagnosed as having cancer? What happens when that legal alien is seriously injured? That is when that sponsor, at 125 percent of the poverty level, is not going to realistically be able to meet those needs. We have a Federal law that says that any American person--not just a citizen--any person can go to a hospital and get emergency treatment regardless of their financial condition. That is exactly what is going to happen with that legal alien with cancer, or a serious accident, or if they become pregnant and they cannot afford the cost of delivery. They are going to end up at a hospital with their medical condition and unable to pay and the sponsor being unable to pay. Now the Federal Government has washed its hands of that responsibility. We are the ``deadbeat dad'' of obligations of legal aliens. But somebody is going to pay. That somebody is going to be the hospital or, more likely, the local community and the State and their taxpayers in which that hospital is located. So the issue is not should the sponsor be responsible. Yes, the sponsor should be responsible, and we are helping to make that more likely. But the question is, what happens when the sponsor, for a variety of reasons, is not there when the bill comes due? The fact is, what is going to happen is that there will be a new unfunded mandate imposed upon the communities in which the legal alien lives. We also have some unfunded mandates, Mr. President, that you spoke to eloquently yesterday relative to new responsibilities on businesses. We are not willing to pick up all of the cost that it is going to take to implement many of these programs, including the verification programs. So we have said, in addition to asking local governments and States to have to pick up additional costs, we are going to shift some of these costs off to the private sector and let them pay for it. I do not think this is a fair allocation of what is a constitutional Federal responsibility for our immigration laws. So, Mr. President, as I begin my comments on this specific amendment, I want to make it clear: I think we ought to have the strongest laws and commitment to enforce those laws against illegal immigration that are available to us. I think that it is appropriate to ask sponsors to be primarily responsible for legal aliens. I do not think we ought to be doing it in this bill. As a matter of policy, it is a desirable objective, but I do not think that we ought to be setting up a circumstance in which the Federal Government essentially shirks its financial obligation and adds that obligation to the communities in which legal aliens are living and to the business sector which is now going to carry new responsibilities for verification. Mr. President, the first priority of the Senate during this 104th Congress was S. 1, the very first bill filed at the desk, S. 1, and the title of that was the unfunded mandate reform bill of 1995. It was also included as a top priority in the House of Representatives, and it passed both bodies in the first 100 days of the 104th Congress. At the time we considered that legislation, the majority leader of the Senate said, and I quote: Mr. President, the time has come for a little legislative truth-in-advertising. Before Members of Congress vote for a piece of legislation, they need to know how it would impact the States and localities they represent. If Members of Congress want to pass a new law, they should be willing to make the tough choices needed to pay for them. I strongly concur in the statement of our majority leader. What does that statement now have to say about the legislation that is before us this morning? The Congressional Budget Office, in the limited time available to it to review the legislation's broad, sweeping impact on State and local governments, has determined that this bill, S. 1664, does in fact violate the $50 million threshold for tripping into effect the unfunded mandate procedure. That $50 million is found just in two areas: the requirements governing increased expenses for birth certificates, and driver's licenses. Although the bill would impact literally hundreds of programs run by State and local governments, just these two--birth certificates and driver's licenses-- would have an unfunded mandate on State and local governments in excess of $50 million. With respect to all of the encompassing requirements imposed under this legislation, the Congressional Budget Office states: Given the scope and complexity of the affected programs, however, the Congressional Budget Office has not been able to estimate either the likelihood or magnitude of such costs at this time. These costs could be significant, depending on how strictly the deeming requirements are enforced by the Federal Government. Let me repeat. ``These costs could be significant.'' Mr. President, S. 1664 fails the majority leader's truth-in- advertising test. We are prepared to vote on a bill that we truly have not the foggiest idea what its impact will be on State and local governments. We certainly are extremely concerned and strongly supportive of raising the issue of unfunded mandates. As a result, I have offered the amendment which is currently before the Senate that would waive the imposed and mandated bureaucratic requirements if the Federal, State, or local administering agency makes one of these three determinations: a determination that the cost of imposing the requirement exceeds the benefit; second, that Federal funding is not sufficient to cover the cost of the imposed requirement; or, third, that the application of the requirement would delay or deny services to the otherwise eligible legal immigrant in a manner that threatens life, safety, or public health. Mr. President, I have a letter dated April 24 from the National Conference of State Legislatures, the National Association of Counties, and the National League of Cities. This letter strongly supports the pending amendment. In it, these three organizations write: This assures that new deeming mandates are cost effective and not unfunded mandates. This is a critical test of your commitment to preventing cost shifts to, and unfunded administrative burdens on, State and local governments. The U.S. Conference of Mayors also supports this amendment. In short, this bill, once again, creates a large unfunded mandate on State and local governments. Once again, I repeat the quote from the Congressional Budget Office: Given the scope and complexity of the affected programs, CBO was not able to estimate either the likelihood or the magnitude of such costs at this time. These costs could be significant. Mr. President, the only study as to what these costs may be comes from the National Conference of State Legislatures. These are our colleagues, fellow legislators in State capitals across the land. Many of us had the privilege, at a previous time, to have served in a State legislature. We know the difficult choices that they must make in terms of balancing limited resources at the State level, because they do not have the option, as we do, to deficit finance their programs. So they are very concerned about unfunded mandates that distort priorities. The CBO had a limited time, as did the National Conference of State Legislatures, to do its study. But the NCSL developed a report on 10 affected programs. This study, incidentally, did not include Medicaid and did not include 40 other Federal means-tested programs which will be covered by this legislation. But what did it find in the 10 programs that were studied? After contacting more than 10 States of varying sizes, the study concludes that: Regardless of the size of the immigrant population, all States and localities will have to implement these unfunded mandates. In other words, this bill impacts Sioux City, IA, and Billings, MT, just as it does Los Angeles, CA, or Miami, FL. This bill requires all Federal, State, and local means-tested programs to have a new citizenship verification bureaucracy imposed upon them--even those areas which have very few aliens. As a result, what are the estimated costs being imposed on State and local governments, even for just the 10 programs that the NCSL has studied? According to the study, ``The cost of these requirements for 10 selected programs would result in a $744-million unfunded mandate.'' A $744-million unfunded mandate. Mr. President, let me repeat that the NCSL study indicates that the unfunded mandate cost of 10 programs will be $744 million. Once the other multitude of programs are analyzed, the cost on State and local governments could far exceed a billion dollars. It could be several billion dollars. Nobody has the foggiest idea. However, there are no provisions in the pending legislation to reimburse State and local governments for the administrative costs and the cost shifts that will be imposed upon them. As the majority leader said, again, in debating the unfunded mandate bill: We do not have all the answers in Washington, DC. Why should we tell Idaho, or the State of Kansas, or the State of South Dakota, or any State, that we are going to pass this Federal law, and we are going to require that you do certain things, but we are not going to send you any money? So you raise taxes in the local communities or in the State. You tax the people, and when they complain about it, say, ``Well, we cannot help it because the Federal Government passed this mandate.'' So we are going to continue our drive to return power to our States and our people through the 104th Congress. Those words were a ringing declaration of purpose in January 1995, which I think we should now recall in May 1996. All programs in all places, regardless of whether the new bureaucratic costs exceed the benefit, regardless of whether it imposes a very large unfunded mandate on State and local government, are impacted by this bill. Some examples: Foster grandparents in Bismarck, ND, or a van to check the blood pressure of poor, pregnant mothers in Topeka, KS, using alternative child care health funding. These are examples of programs that have Federal funding that would now be subject to the verification requirements of this legislation. The local jurisdictions with few if any aliens would have to verify immigration status and sponsorship information, regardless of that fact. My amendment would allow the State or local administrative agency, or the Federal agency, to certify and waive out of the bill's requirement in such a case where the cost of implementation clearly exceeds the savings that are contemplated. This amendment recognizes that one-size- fits-all policies do not work and are not cost effective--a recognition of a basic tenet of this country's federalism. This amendment would also recognize that this may be virtually no savings--something that the Congressional Budget Office has verified in its scoring of the bill's savings in certain programs. For example, the maternal child health block grant funding is often used to augment services provided by the public health department for preventive health care services aimed at pregnant women. However, since the maternal child care program is capped--that is, there is a maximum expenditure-- there would be no Federal savings by imposing any additional administrative requirements. Again, CBO estimates no cost savings by imposing deeming in the maternal child care program. But administrative costs would certainly increase substantially for public health units across America. In such a case, despite the fact that the Federal funding to the public health department would account for as little as 1 percent of total funding, all of this new bureaucracy would be imposed. The added cost of administering deeming, for example, in such a program could exceed all of the Federal funding that goes into the program. This is neither prudent nor something which I believe our colleagues would think is sufficient government. Moreover, this amendment is entirely consistent with statutory language, which provided that the implementation of the system of alien verification--the SAVE Program--was administered. Under the SAVE Program, States could be waived from the program upon a determination that implementing SAVE would cost more money than the savings that would flow from such implementation. So we already have, in the immigration law itself, an example of recognizing a cost-benefit relationship, and that cost-benefit relationship will differ from one community to another. In addition, the amendment would allow the appropriate Federal, State, or local agency to suspend the application of the bill's administrative requirements upon the determination that the application requirement would significantly delay or deny services to otherwise eligible individuals in a manner that would hinder the protection of life, safety, or public health. For example, the determination could be made that the alien sponsor's deeming requirement should not be applied on a temporary basis with respect to short-term disaster relief, because it could delay essential aid to citizens and aliens alike who are disaster victims. In the case of a major natural disaster, which could occur with little or no prior warning, a person's home can be destroyed in short notice. One's lost possessions could include proof of immigration, citizenship status, or financial information. Without this amendment, emergency food or housing vouchers could not be provided to a disaster victim until the alien's citizenship status and sponsorship information has been verified, which can take weeks. It would also relieve an undue administrative burden on disaster relief agencies that would presently have to verify immigration status and sponsorship information during the course of dealing with the disaster in its aftermath. The ultimate victims of such administrative burdens would be the disaster victims themselves, who would have to wait longer to receive services. Mr. President, we passed the unfunded mandate bill as our first priority. The National Conference of State Legislatures, the National Association of Counties, the National League of Cities, and the United States Conference of Mayors have said, ``This is a critical test of our commitment to the unfunded mandate law we passed.'' To be against this amendment would be to argue that we should impose costs that exceed the benefit, to impose unfunded mandates on State and local governments and to deny or delay services even if they threaten life, safety, and public health. I cannot believe that anyone in this Chamber believes that those would be wise or prudent courses of public policy. I urge the adoption of this amendment. Mr. SIMPSON addressed the Chair.

Mr. GRAHAM. Mr. President, I call up amendment 3759 which has been previously filed.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I see my friend and colleague, the Senator from Ohio, is on the floor, I assume, for purposes of offering his amendment. Before he commences I would like to take a few moments to comment on some statements that have been made about the amendment which I offered earlier and which will be the first amendment that will be voted on at 2:40 this afternoon. This amendment is about unfunded mandates. It is about the reality that the legislation before us represents a staggering transfer of administrative costs and cost shift of programs from the Federal Government to the States and local communities in which legal aliens are resident. The National Conference of State Legislatures, in examining just 10 of the literally scores of programs that will be covered by this act, has found that the cost to the States in those 10 programs is $744 million per year. The total cost could be into the billions. The amendment that I have offered is a modest attempt to deal with that. It basically says, first, that if a Federal agency, State, or local government can make a determination that the cost savings of following the procedures of S. 1664 are less than the costs to administer the program, it would not be necessary to implement the program. We have done exactly this in a very analogous program called the SAVE Program, which is an employer verification program in which there is the capacity to waive out of the SAVE Program if it can be demonstrated that the benefits do not equal the costs of the program. Assume, Madam President, that the issue were reversed. Would we affirmatively vote to say to a State, to a local community, that you must administer this federally mandated program even if the cost of administration can be shown to exceed the savings or the benefits of the program itself? I think not. And so our amendment would create such an opportunity. I might just add one final point. We are requiring exactly the same administrative structure in a community such as Topeka, KS, as we are in Tampa, FL, although the number of legal aliens in Tampa, FL, probably substantially exceeds those in Topeka, KS. There should be some capability to adjust the level of burden to the reality of the circumstance in that particular community. Second is the provision that if the Federal Government thinks this is such a good idea, then the Federal Government ought to pay for it. I thought that was the fundamental premise behind the unfunded mandate program that we passed as S. 1, as one of the first acts of the 104th Congress. I used the phrase ``deadbeat dad'' to describe what the Federal Government is about to do here. The Federal Government is about to say: ``We are going to put all of our reliance on the sponsor, but incidentally, if, in fact, the sponsor does not come through with the health care financing or the other sources of financing that will be necessary to maintain this legal alien, we, the Federal Government, are off the hook. It is now going to be up to the local community to pay those hospital costs for that legal alien or to pay the cost of prenatal care for the pregnant legal alien, poor woman.'' I think the phrase ``deadbeat dad'' properly describes what the Federal Government is trying to do: to shift an obligation to States and communities. If we think this is such a good idea and if we are faithful to our constitutional responsibility as the only level of Government that has jurisdiction over immigration, we ought to pay those costs, not ask the local government to do so. Finally, in this amendment we recognize the fact that there are unusual emergency circumstances. We had one of those in my State in late August 1992 with Hurricane Andrew. I was there. I saw what happened as the emergency and disaster preparedness and response teams attempted to deal with an enormous natural disaster. The very idea of having to subject people who had seen their homes, their documents, their jobs, their lives wrecked by this hurricane, to then have to go through a tedious verification process to determine what their status was and what the income of a sponsor who may well have just been subjected to the same thing that they were, puts the public health at risk. If you cannot vaccinate people against a potential outbreak of typhoid after a natural disaster until you have gone through the bureaucratic steps of verification, just pure common sense tells you there has to be some capability to waive these in an emergency situation. This amendment provides that opportunity. I believe this is a prudent amendment. Members of this Congress, Members of this Senate, who wish to deal effectively with the issue of illegal immigration should not have that tide of passion and emotion erase our basic sense of common sense and fairness and rational justice to preclude a community from making a judgment as to the cost-benefit analysis of implementing these programs to avoid the Federal Government assuming its responsibility to pay as well as it imposes new responsibilities and to be able to respond to unexpected emergency situations. That is the essence of the amendment which is before us, Madam President. I urge my colleagues at 2:40 to support it. Mr. DeWINE addressed the Chair.

Mr. GRAHAM. Madam President, I ask for the yeas and nays.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, reserving the right to object, it is my intention to offer a point of order prior to the vote on the Dole- Simpson amendment. Is that provided for?

Mr. GRAHAM. Mr. President, I wish to slightly, again, correct the Record. I know the Senator from Wyoming feels passionately about his position. His position just happens to be at variance with the facts. I will cite and read this and ask if the Senator would disagree that these are the words in the United States Code 42, section 1382(j). This happens to be one of the three areas in which this Congress, at its election, has decided to specifically require that the income of the sponsor be added to that of the income of the legal alien for the purposes of determining eligibility for benefits. This happens to be the program of Supplemental Security Income. Here is what the law says: For the purposes of determining eligibility for and the amount of benefits under this subchapter for an individual who is an alien, the income and resources of any person who, as a sponsor of such individual's entry into the United States, executed an affidavit of support, or similar agreement, with respect to such individual, and the income and resources of the sponsor spouse shall be deemed to be the income and resources of the individual for a period of 3 years after the individual's entry into the United States. That is quite clear. That is what the obligation of the sponsor was. There is similar clarity of language to be found under the provisions relating to Aid to Families with Dependent Children and food stamps. So if a person wanted to know, what is my legal obligation when I sign a sponsorship affidavit, they could go to the law books of the United States and read, with clarity, what those programs happen to be. My friend from Wyoming, the reality is that this Congress, until tonight, has not chosen to place Medicaid as one of those programs for which such deeming is required. By failing to do so, and by doing so for these three distinct programs, I think a very clear implication has been created that we did not intend, that there be deeming of the sponsor's income for the purposes of eligibility for Medicaid. I believe that the kinds of arguments that are made by responsible organizations, such as the Association of Public Hospitals, is why this Congress, up until tonight, has not deemed it appropriate to deem the income of the sponsor to the legal alien for the purposes of Medicaid. If that argument was so persuasive in the past, why have we not added Medicaid to the list of responsibilities in the past? Mr. President, I believe--the rhetoric aside--that the facts are that there is clarity as to what the sponsor's obligation is today. No. 2, that we are about to change that responsibility and make those changes retroactive, applying to literally hundreds of thousands of people. And, in the case of Medicaid, in my judgment, we are about to adopt legislation that would have a range of negative effects, from increasing the threat to the public health of communicable diseases, to endangering the already fragile financial status of some of our most important American hospitals, to increasing the likelihood that a poor, pregnant woman would choose abortion rather than deliver a full-term child. And so, Mr. President, I believe that both the amendment offered by the Senator from Illinois and, immodestly, the amendment I have presented to the Senate represent the kind of public policy that is consistent with the reality of our history of the treatment of legal aliens--again, I underscore legal aliens--and should be continued by the adoption of the amendments that will be before the Senate shortly. Thank you.

Mr. GRAHAM. Mr. President, I close by saying that I regret we have had to consider so many amendments that related specifically to the provisions in this bill that will apply retroactively and prospectively the income of a sponsor to the income of a legal alien--I emphasize legal alien--for purposes determining eligibility for means-tested programs. Mr. President, if you represent the concerns of the millions of Americans who are represented by these organizations, if you understand the pragmatic reality of what we are about to do both to individuals and to the communities in which they live, and to the taxpayers in the communities and States in which you live, you would understand why there have been so many amendments offered on this subject. I believe that the amendment which I have offered is a reasoned middle ground. By setting a 2-year deeming provision it would give us assurance that no one would come to this country with a specific condition--whether that be pregnancy or a known medical infirmity--in order to receive U.S. taxpayer-financed medical service. Very few people are prophetic enough to know what their condition is going to be 24 months from now. By providing that this will be prospective, all persons who come into this country from this point forward, from the enactment of this bill forward, will know under what conditions they will be entering this country. By exempting those programs that affect the public health and relate to emergency care, we will be recognizing the fact that those steps are not just for the benefit of the individual but they are for the benefit of the broad public with its interest in continuing to have access to emergency facilities and to be saved from having unintended access to communicable diseases. Mr. President, I believe this is a constructive amendment which deals with serious issues within this legislation. I urge its adoption. Exhibit 1 National Conference of State Legislatures, National Association of Counties, National League of Cities April 24, 1996. Dear Senator: The National Conference of State Legislatures (NCSL), the National Association of Counties, (NCAo), and the National League of Cities (NLC) are very concerned about unfunded mandates in S. 1664, the Immigration Control and Financial Responsibility Act of 1996 that would be an administrative burden on all states and localities. We urge you to support a number of amendments that will be offered on the Senate floor to mitigate the impact of these mandates on, and cost shifts to, states and localities. S. 1664 would extend ``deeming'' from three programs (AFDC, SSI and Food Stamps) to all federal means-tested programs, including foster care, adoption assistance, school lunch, WIC and approximately fifty others. As you know, ``deeming'' is attributing a sponsor's income to the immigrant when determining program eligibility. It is unclear what ``all federal means-tested programs'' means. Various definitions of the phrase ``federal means-tested programs'' would include a range of between 50-80 programs. Furthermore, regardless of the size of their immigrant populations, this mandate will require all states to verify citizenships status, immigration status, sponsorship status, sponsor's income and length of time in the U.S. in each eligibility determination for ``all federal means-tested programs.'' NCSL estimates that implementing deeming restrictions for just ten of these programs will cost states approximately $744 million. Extending deeming mandates to over 50 programs garners little federal savings and should be eliminated as part of the Congressional commitment to eliminating cost shifts to state and local budgets and taxpayers. Therefore, we urge you to support Senator Bob Graham's effort to raise a point of order against S. 1664 based on its violation of P.L. 104-4, the Unfunded Mandates Act of 1995. This is a critical test of your commitment to preventing cost-shifts to, and unfunded administrative burdens on, states and localities. We also urge you to support subsequent amendments that will reduce the scope of the deeming provisions and limit the administrative burden on states and localities. These include: Senator Graham's amendment giving deeming mandate exemption to: 1) programs where deeming costs more to implement than it saves in state or local spending; or 2) programs that the federal government does not pay for the administrative cost of implementing deeming. This ensures that new deeming mandates are cost effective and are not unfunded mandates. Senator Graham's amendment substituting a clear and concrete list of programs to be deemed for the vague language in S. 1664 requiring deeming for ``all federal means-tested programs.'' This amendment ensures that Congress, and not the courts, will decide which programs are deemed. Senator Kennedy's amendment conforming Senate deeming exemptions to those accepted by the House in H.R. 2202. In addition, we urge you to support other amendments that would temper the unfunded mandates in S. 1664 and relieve the administrative burden on states and localities. We are especially concerned about the impact of extending the deeming requirements to the Medicaid program. Without Medicaid eligibility, many legal immigrants will not have access to health care. Legal immigrants will be forced to turn to state indigent health care programs, public hospitals, and emergency rooms for assistance or avoid treatment altogether. This will in turn endanger the public health and increase the cost of providing health care to everyone. Furthermore, without Medicaid reimbursement, public hospitals and clinics and states and localities would incur increased unreimbursed costs for treating legal immigrants. We support the following compromise amendment to preserve some Medicaid eligibility for legal sponsored immigrants. Senator Graham's amendment to limit Medicaid deeming to two years. We strongly support amendments to exempt the most vulnerable legal immigrant populations from deeming requirements. We urge you to support the following amendments that will preserve a minimal amount of federal program eligibility for the neediest legal immigrants and protect states and localities from bearing the cost of these services. Senator Kennedy's amendment exempting children and pre- natal and post-partum care from Medicaid deeming restrictions. Senator Simon's amendment exempting immigrants disabled after arrival from deeming restrictions. Senator Leahy's amendment exempting immigrant children from nutrition program deeming. Finally, we firmly believe that deeming restrictions are incompatible with our responsibility to protect abused and neglected children. Courts will decide to remove children from unsafe homes regardless of their sponsorship status and state and local officials must protect them. Deeming for foster care and adoption services will shift massive administrative costs to states and localities and force them to fund 100% of thee benefits. We urge you to support the following amendments to protect states and localities from this cost shift. Senator Murray's amendment exempting immigrant children from foster care and adoption deeming restrictions. Senator Wellstone's amendment exempting battered spouses and children from deeming restrictions. We appreciate your consideration of our concerns and urge you to protect states and localities from the unfunded mandates in S. 1664. Sincerely, James J. Lack, New York Senate, President, NCSL. Douglas R. Bovin, Commissioner, Delta County, MI, President, NACo. Gregory S. Lashutka, Mayor, Columbus, OH, President, NLC.

Mr. GRAHAM. Yes. I have one other amendment that relates to the impact on State and local communities of unfunded mandates. I understand that there may be a desire to withhold further votes after the three that are currently stacked. If that is the case, I would be pleased to offer my next amendment tomorrow morning.

Mr. GRAHAM. I anticipate it will require more than 15 minutes.

Mr. GRAHAM. May I make an inquiry? Is this the amendment that says, in effect, that if Border Patrol personnel are relocated from the interior assignment to the assignment in a border position, that there has to be some coordination with the law enforcement agencies in the communities from which the personnel are being relocated?

Mr. GRAHAM. That will be next, the Hutchison amendment?

Mr. GRAHAM. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. GRAHAM. Mr. President, I wish to speak in support of the amendment of the Senator from Illinois.

Mr. GRAHAM. Mr. President, we had a lot of rhetoric, expressions of what we might have fantasized reality was, what we thought it might be; words like ``we expect you to live up to your promise.'' All of those are patriotic, soaring statements, which have little to do with the reality of the amendment that the Senator from Illinois has offered. What is the reality today, of the requirement of sponsors to their legal alien sponsoree, who is in the United States? As the Senator from Illinois has pointed out, we Members of Congress have looked at all the programs that we might wish to require deeming to apply to, that is to require the sponsor's income to be added to the alien's income in determining the alien's eligibility for programs. What have we decided? We have decided we will require deeming for SSI, supplemental Social Security income, which primarily affects older aliens; we will require deeming for food stamps; and we will require deeming for aid to families with dependent children. We could have passed deeming for Medicaid, we could have passed deeming for college Pell grants and guaranteed Federal loans, we could have passed deeming for weatherization and heating for low-income people, we could have passed deeming for any one of the hundreds of programs the Federal Government has that requires some form of means testing in order to be eligible. But we decided thus far not to do so, but to limit it to those three programs. As the Senator from Illinois has pointed out, in two of those three programs the deeming period is 3 years, not the 5 years that is being suggested here today. But I think even more powerful is the fact that this Congress has known for a long, long time that the courts have held the current application, the affidavit signed by the sponsor, to be legally unenforceable. Let me read a paragraph from a letter from the office of the Commissioner of INS on the issue of what is the enforceability of these affidavits that sponsors sign. To quote from the letter: In at least three States, however, courts have held that an affidavit of support does not impose on the person who signs it a legally enforceable obligation to reimburse public agencies and provide public assistance to an alien. The letter then cites a case, San Diego County versus Viarea, from the California court, a 1969 opinion; the Attorney General versus Binder, an opinion from the State of our Presiding Officer, from 1959; California Department of Mental Hygiene versus Reynault, a case from 1958; another case from New York dated 1959. The letter goes on to state, The Michigan Supreme Court has also held that Michigan public assistance agencies may not consider the income of a person who executed an affidavit of support to be an alien's income in determining the alien's eligibility for State public assistance programs. That is a 1987 Michigan case, despite the fact that this income deeming is permitted in determining eligibility for food stamps. Finally, the Missouri Court of Appeals has held that an affidavit of support does not create an express or implied contract for the payment of child support on behalf of a child adopted by a former spouse. That is a 1992 opinion. Mr. President, I cite these cases, not with the spirit of support but of the cold reality that this is the state of the law. So a person who has sponsored an alien to come into the United States today has had the legal expectation of the unenforceability of that affidavit and this Congress has, at least since 1958, been aware that courts were ruling thus and has not, until the action of the Senator from Wyoming, taken steps to make these affidavits enforceable. So the consequence of applying this new standard retroactively is going to be to substantially change the expectation of both the legal alien and the legal alien's sponsor, because now we are about to say that an affidavit which the courts have consistently ruled to be unenforceable, we are going to breathe life into that affidavit and we are going to expand that affidavit to cover an indeterminate number of programs for which there is some Federal financial involvement. Mr. President, I do not disagree with the thrust of the idea that we ought to be making these affidavits financially responsible, that we ought to make them documents which have some legal enforceability. I am concerned about the reach that we are about to apply to the number of programs, but that is for another debate. But I think it is patently unfair to now say we are going to retroactively go back and make affidavits that have been unenforceable, enforceable, and expand them to an indeterminate number of programs. The argument for doing so, for reaching back retroactively, is that, ``We have two people who can pay. We have one person who can pay who is the sponsor. We have the other person who can pay who is the Federal taxpayer. It is better to force the sponsor to pay even if we do it in derogation of the understandings when the sponsor signed the affidavit, than it is to continue to ask the Federal taxpayer to pay.'' I suggest that is a false analysis of what is really going to happen. What is really going to happen is not that the sponsor is going to pay retroactively, because I do not think we can legally breathe life into a currently unenforceable affidavit. And I do not think the Federal taxpayer is the party that is at final risk. I suggest what is really going to happen is what the National Conference of State Legislators has said. What really is going to happen is what the National Association of Counties has said. What is really going to happen is what the National League of Cities has said. What is really going to happen is what the National Association of Public Hospitals and Health Systems has said. What is really going to happen is what Catholic Charities USA has said. And that is that there is going to be a massive transfer of responsibility to the communities and States, and they will be asked to pick up these costs. The most dramatic example of that is going to be in the area of health care. In the field of health care, we have the anomaly that, by Federal law, public hospitals are required to treat anybody with an emergency condition. By laws that we passed, they are prohibited from asking a person seeking emergency assistance, what is your income? What is your financial capability? So we are going to be encouraging people to get sick enough to come in and use the emergency rooms at the local hospital and then, with no one to pay and with the Federal Government no longer picking up part of the cost through Medicaid, they will become a massive burden on those hospitals and on the communities which support those hospitals. The further irony of this is, this is going to be occurring in communities which are already paying a substantial burden because of the Federal Government's failure to enforce its immigration laws and to have provided adequately for the impact of these large populations. I know it well in my own State, which is one of the States that is particularly at risk under this proposal. Dade County, FL, Miami, has had one of the fastest if not the fastest growing urban school systems in America in the last 10 years, primarily because of the massive numbers of nonnative students who have entered that school system. It has stretched the system to the breaking point. Now we are about to say in this bill that the Federal Government will provide less support to the education system of that and other stressed counties, and that the Federal Government will restrict the funding for individuals who would otherwise be eligible for these programs, retroactively, so that those costs will now become an additional burden of those already overburdened communities. I think, Mr. President, in the fundamental spirit of fairness to all concerned, and specifically to those communities that have already paid a heavy price, that it is only fair and proper that we make this change of rules be prospective. Let us apply it to those people who come from the enactment of this bill forward, who come with the understanding that they are signing an affidavit, if they are a sponsor, that will be legally enforceable; that they will know if they are coming as a legal alien what they are going to be able to expect once they arrive here. I think it is patently unfair to change the rule for thousands of people who are already here and then to have us, essentially, transfer this financial responsibility to the communities in which they happen to have chosen to live. So, Mr. President, I urge in the strongest terms the support of the amendment of the Senator from Illinois, because without his amendment, I think this legislation carries with it the fatal flaw of fundamental unfairness. Mr. SIMPSON addressed the Chair.

Mr. GRAHAM. Mr. President, in response to the question of the Senator from Wyoming, the time to present this amendment, which is amendment No. 3764, will be approximately 15 to 20 minutes.

Mr. GRAHAM. Mr. President, I ask unanimous consent that the pending amendment of the Senator from Illinois be set aside.

Mr. GRAHAM. Mr. President, I call up amendment No. 3764.

Mr. GRAHAM. Mr. President, the underlying bill, S. 1664, for the first time would deny to legal immigrants--legal immigrants--access to Medicaid through newly federally imposed or mandated deeming requirements. This prohibition, as the discussion of the amendment of the Senator from Illinois has indicated, will apply both prospectively, to persons who arrive after this bill is enacted, and retroactively, to legal aliens who are already in the country. My amendment changes the deeming period for Medicaid to 2 years. It eliminates the retrospective nature of this provision, and it would apply these provisions to future immigrants and provide for an exemption for emergency care and public health. So to restate what the amendment does, the amendment changes the deeming period for Medicaid to 2 years. Second, it eliminates the retroactive nature of the legislation in the same way that the amendment of the Senator from Illinois would do to all of the deemed programs. It would apply these provisions prospectively to future legal aliens, and it would provide an exemption for emergency care and for public health. This amendment is supported by the National Conference of State Legislators. It is supported by the National Association of Counties. It is supported by the National League of Cities. It is supported by the United States Conference of Mayors. It is supported by the National Association of Public Hospitals. It is supported by the American Public Health Association. It is supported by the National Association of Community Health Centers. It is supported by Interfaith, by the Catholic Charities USA and the U.S. Catholic Conference. It is supported by the Council of Jewish Federations, the Lutheran Immigration and Refugee Services and the Evangelical Lutheran Church of America. Mr. President, I offer this amendment today which I consider to be a substantial improvement of this bill. It is a substantial improvement by recognizing the fact that health services are different from other benefits that a legal alien might seek. While I strongly support the idea that sponsors should be required to provide housing, transportation, food, cash assistance to legal aliens who they have sponsored, legal aliens and the sponsor would be unable to provide for themselves, for whatever reason, reasonable access to the health care which unpredictable illness and debilitating disease or injury might impose. Unlike cash assistance, housing or food, health care must be provided by a qualified professional, tailored to the specific diagnostic and treatment needs. Ultimately, no amount of hard work and personal responsibility can protect an immigrant or anyone else from illness or injury. My proposal would be to deem Medicaid for 2 years. That is, for the first 2 years that the legal alien is in the United States, the income of the sponsor will be deemed to be that of the alien. This is a reasonable compromise with what I hope will have bipartisan support. It would not exempt Medicaid from deeming altogether. Instead, it would create a 2-year deeming period for the Medicaid Program alone. As a result, this amendment eliminates the magnet, the draw or incentive to come to the United States in order to receive medical care, especially since an immigrant cannot plan to get sick 2 years in advance. However, it does recognize that in the long run, health care is different from other benefits. This amendment also recognizes and attempts to alleviate the tremendous other burdens, cost shifts, unfunded mandates and public health problems which potentially could be caused by S. 1664. What are some of these potential problems? First, cost shifting. The Medicaid provisions in S. 1664 are currently nothing more than a cost shift to States, local governmental units and our Nation's hospital system. Simply put, if people are sick and cannot afford to pay for coverage for some of the most disabling conditions, someone will absorb the cost. The question is whether the Federal Government will pay a portion of that cost, or will such costs be shifted entirely to those States and local governments and hospitals where legal aliens will seek those services? As the National Conference of State Legislatures, the National Association of Counties and National League of Cities wrote in an April 24, 1996, letter: Without Medicaid eligibility, many legal immigrants will have no access to health care. Legal immigrants will be forced to turn to state indigent health care programs, public hospitals, and emergency rooms for assistance or avoid treatment altogether. This will in turn endanger the public health and increase the cost of providing health care to everyone. Furthermore, without Medicaid reimbursement, public hospitals and clinics in States and localities would incur increased unreimbursed costs for treating legal immigrants. The National Association of Public Hospitals, in their April 12, 1996, letter added: The [National Association of Public Hospitals] opposes a deeming requirement for Medicaid. It will lead to an increase in the number of uninsured patients and exacerbate an already tremendous burden of uncompensated care on public hospitals. * * * The Congressional Budget Office estimates that the effect of this bill's current provision will be to reduce Federal reimbursement for such Medicaid costs by $2.7 billion. This is nothing more than a massive cost shifting to the States and local governments in which these legal aliens reside. The bill's deeming provisions, in addition to being nothing more than a huge cost-shift to State and local governments, will also impose an administrative burden and a huge unfunded mandate on State Medicaid programs. In light of a series of calls throughout the year by the Nation's Governors, the administration and this Congress have been asked to provide States with greater flexibility to more efficiently administer their Medicaid programs. This provision is incredibly ironic and in sharp contrast to everything that we have been discussing in Medicaid policy over the last 2 years. For a Medicaid case worker, who already has to learn the complex requirements of the Medicaid program, he or she now must also learn immigration law. As a study by the National Conference of State Legislatures notes, this would require an extensive citizenship verification made for all applicants to the Medicaid Program. According to the Conference of State Legislatures: These [deeming] mandates will require States to verify citizenship status, immigration status, sponsoring status, and length of time in the U.S. in each eligibility determination for a deemed Federal program. They will also require State and local governments to implement and maintain costly data information systems. In addition to all these costs, States will have infrastructure training and ongoing implementation costs associated with the staff time needed to make these complicated deeming calculations. The result will be a tremendously costly and bureaucratic unfunded mandate on State Medicaid programs. This bill also threatens our Nation's public health. Residents of communities where legal aliens live would face an increased health risk from communicable diseases under this provision of the bill because immigrants would be ineligible for Medicaid and other public health programs designated to provide early treatment to prevent communicable disease outbreaks. Such policies have historically and consistently had horrendous results. For example, in 1977, Orange County, TX, instituted a policy that required people to prove legal status or be reported to the Immigration and Naturalization Service when requesting service at any county health facility. As noted by El Paso County Judge Pat O'Rourke, in a letter dated September 24, 1986: . . . within eighteen months, the county experienced a 57 percent increase in extrapulmonary tuberculosis, a 47 percent increase in salmonella, a 14 percent increase in infectious hepatitis, a 53 percent increase in rubella and a 153 percent increase in syphilis. The judge cites a 1978 report by the Task Force on Public General Hospitals of the American Public Health Association in saying: Hence, what was a simple condition requiring a relatively small expense became a large matter adversely affecting all taxpayers. In an analysis of the potential health impacts of S. 1664, the bill before us this evening, conducted by Dr. Richard Brown, the president of the American Public Health Association and director of the University of California at Los Angeles Center for Health Policy Research, Dr. Brown states: In a study of tuberculosis patients in Los Angeles, more than 80 percent learned of their disease when they sought treatment for a symptom or other health condition, not because they sought a TB screening. Yet [S. 1664] would make it more difficult for immigrants to seek diagnosis and treatment because their access to health care would be sharply reduced, permitting this debilitating and often deadly disease to spread throughout the community. When an infected person becomes seriously ill with tuberculosis, the costs of treating these true emergencies will be borne by everyone, especially taxpayers. Dr. Brown concludes: Tuberculosis and other communicable diseases do not respect distinctions between citizens and non-citizens, legal residents and people who are not here lawfully. The key to controlling an outbreak of tuberculosis, hepatitis, sexually transmitted diseases, or other communicable diseases is early identification of the source of the infection and immediate intervention to treat all infected persons. Because these bills will discourage immigrants from seeking treatment, they will endanger the health of everyone in the community. In the interest of our Nation's public health, why, Mr. President, why would we wish to take such an unnecessary risk? In addition, the Medicaid deeming provisions, by creating a obstacle to preventive health services, will result in certain cases of immigrants resorting to emergency room care. Health care costs will thus be more expensive. This would further strain the already overburdened and underfunded emergency and trauma care facilities across the country, particularly in our Nation's urban centers. Without reimbursements, such hospitals will be forced to consider shutting their emergency room doors for all residents of the county, affecting all residents, immigrants or otherwise. For example, Jackson Memorial Hospital in Miami estimates that its uncompensated care costs for fiscal year 1995 for undocumented immigrants was $45.8 million. To repeat, for 1995, in that one public hospital, Jackson Memorial in Miami, the cost in uncompensated care for undocumented aliens was $45.8 million. An additional $60 million in uncompensated care costs was attributed by Jackson Memorial Hospital to legal aliens in the community. However, they currently do receive some reimbursement for care to legal aliens through private health care plans and Medicaid. Without the Medicaid payments, total uncompensated costs will grow and require the local community to either raise its taxes or consider reducing hospital services. In addition, by reducing access of pregnant immigrant women to prenatal care and nutrition support programs, the health of the U.S.- citizen infants will be threatened. The National Academy of Sciences' Institute of Medicine estimates that for every $1 spent on prenatal care, there is a $3 savings in future medical care for low birthweight babies. Denying prenatal and well-baby care to an immigrant only threatens the life of her U.S.-citizen child. Mr. President, that makes absolutely no sense. In fact, it is neither cost effective nor in the interest of public health. Another concern raised by Catholic Charities USA is the potential for increased abortions as a result of S. 1664. To quote from the Catholic Charities U.S.A., The most immediate threat of the Medicaid deeming provision is the pressure on poor pregnant women to end their pregnancies inexpensively through abortion rather than to carry them to term. A legal immigrant who becomes pregnant and does not have the means to obtain health care will be able to finance a $250 abortion at a local clinic much more easily than either she or her sponsor can pay for prenatal care or put down a $1,000 deposit at a hospital for labor and delivery. In summary, as currently drafted, S. 1664 would have the following negative consequences: It shifts costs to States, local governments, and hospitals. It imposes an administrative unfunded mandate on State medicaid programs. It threatens the Nation's or the public's health. It is not cost effective and it may lead to an increase in abortions. My amendment would help address these problems. Therefore, it is supported by the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, U.S. Conference of Mayors, the National Association of Public Hospitals, the American Public Health Association, the National Association of Community Health Centers, InterHealth, Catholic Charities U.S.A., and the U.S. Catholic Conference, the Council of Jewish Federations, Lutheran Immigration and Refugee Services, and Evangelical Lutheran Church of America. Mr. President, I ask unanimous consent to have printed in the Record immediately after my remarks statements by several of these organizations in support of this amendment.

Mr. GRAHAM. Mr. President, I am not going to object to either of these amendments, but I would like to raise the concern that currently there is a great deal of apprehension by interior law enforcement, that is, law enforcement that is not directly on the Nation's border, at the level of support being provided by INS and the Border Patrol. I might state that I recently met with a group of law enforcement leaders from the central part of my State who stated that the common practice was that for the first 6 to 9 months of the year, if they had an illegal alien in detention, the Border Patrol or appropriate other INS officials would come and take custody of that individual. During the last 3 to 6 months of the fiscal year depending on the status of the budget of the INS, nobody would show up, and therefore the law enforcement officials were in the position of either making a judgment to release the individual or to continue them in detention at their expense and oftentimes on a questionable legal basis for continued detention. I raise this phenomenon to say I hope that as the INS and the Border Patrol look at the redeployment of resources that this legislation is going to call for it is more than just a coordination with local law enforcement but, rather, that there is an affirmative effort made to assure that the capability to assume responsibility for and detain illegal aliens wherever they are determined in the United States is a high priority of the agencies. I thank the Chair.

Mr. GRAHAM. I might have more than one amendment tomorrow.

Mr. GRAHAM. Mr. President, the amendment, which will next be voted on, would do three things: One, it will say that the application of deeming to Medicaid will be only for a period of 2 years. Second, it will exempt emergency care and public health services. Third, it will apply prospectively. Mr. President, this amendment is supported by groups, which range from the Catholic Conference to the League of Cities. They support it for a set of common reasons. They understand that the public health will be at risk if we deny Medicaid to this population of legal aliens, and that there will be a massive cost shift to the communities in which hospitals, which are obligated to provide medical services that will now no longer be reimbursed in part by Medicaid, are located. Catholic Charities is concerned about an increase in abortion, as poor pregnant women would find it economically necessary to seek an abortion rather than pay the cost of a delivery. For all of those reasons, I urge adoption of this amendment. Mr. SIMPSON addressed the Chair.

Mr. GRAHAM. All right.