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The Senate voted yesterday to grant amnesty to hundreds of thousands of illegal aliens who have already been caught and ordered deported but are defying a court order, preserving their path to citizenship as part of the immigration bill.
Another showdown is scheduled for this morning on Democrats' effort to cut off the debate and force a final vote on the bill. Republicans have vowed to block that through a filibuster unless they are given assurances they can offer enough amendments before the final vote.
The small bipartisan group of senators that had crafted the bill behind closed doors and fended off any major changes suffered a big loss early this morning when the Senate passed an amendment to end part of the temporary worker program after five years — an amendment those who wrote the agreement said "kills the bill."
Yesterday's major fight was over part of the bill that wipes out the immigration charges against illegal aliens who have already faced a judge and been ordered deported, known as alien absconders, and over part of the bill that applies to aliens who have already been deported but sneaked back into the country again.
Sen John Cornyn offered an amendment to prevent those aliens from gaining legal status, arguing they have already shown disrespect for the law and should be sent home.
"We are going to continue to be viewed as non-serious about workability, about enforcement, about restoring respect for the rule of law, unless we vote to exclude those who show nothing but defiance for our laws," the Texas Republican said.
But Sen. Edward M. Kennedy, Massachusetts Democrat, said they were only guilty of "common, garden-variety immigration offenses" that should not disqualify them.
"Our employers beg them to come back and our broken borders make that possible," he said.
Other Democrats, including Sen. Sheldon Whitehouse, Rhode Island Democrat, said Mr. Cornyn's amendment would remove due process rights for illegal aliens. But Republicans said those being affected are illegal aliens who are already in the country without authorization, and in the case of absconders have even had their day in court.
"Nobody has a constitutional legal right to demand entry into the United States," said Sen. Jeff Sessions, Alabama Republican. "It amazes me the lack of understanding and comprehension of what it's all about."
Mr. Cornyn's amendment was defeated 51-46, with 10 Republicans joining most Democrats and the chamber's two independents in voting to preserve the path to citizenship for absconders.
The Senate did pass another amendment sponsored by Mr. Kennedy that tightened rules on excluding gang members and terrorist supporters, but Mr. Cornyn said it would still allow sex offenders and repeat drunken drivers to remain in the country and get legal status.
Under the bill, the estimated 12 million to 20 million illegal aliens would have a chance for legal status and could eventually apply for a green card and citizenship. The bill also creates a new temporary-worker program for hundreds of thousands of new foreign workers per year, and rewrites the rules on immigration to favor those with needed skills and high education attainment.
But the potential fatal blow came with an amendment that ends the temporary worker program after five years. It was sponsored by Sen. Byron L. Dorgan and passed 49-48. It was a major a reversal from two weeks ago when a similar amendment from the North Dakota Democrat was defeated after Mr. Kennedy talked a Democrat into switching his vote.
Yesterday, before the vote, Mr. McCain said passing it would break apart the "grand bargain" behind the bill.
"If we pass this, it kills the bill," he said, complaining that Democrats who run the chamber allowed a second vote on the amendment.
If Republicans filibuster the bill — and they said yesterday they have the votes to do it — Majority Leader Harry Reid, Nevada Democrat, has said he will drop the bill from the schedule and doubted he would bring it up again this year.
Minority Leader Mitch McConnell, Kentucky Republican, said he would withdraw the filibuster threat if Democrats would allow votes on a number of Republican amendments.
But Democrats are holding firm, having blocked Republicans from offering at least six different amendments yesterday, and another four Tuesday.
"We know what the game is. It's not a free and open debate," Mr. Sessions said after Democrats blocked an amendment by Sen. Elizabeth Dole, North Carolina Republican, that would have affected aliens convicted of drunken driving.
Mr. Reid said he has already relented in adding an extra week's worth of work on the bill. He compared the floor situation to the mess created by the cat in the Dr. Seuss classic "The Cat in the Hat."
Still, Mr. Reid said he sees reasons for hope.
"If you go back and read Dr. Seuss, the cat manages to clean up the mess," the Nevada Democrat said.
Republicans said they would judge the process by how closely it matched last year's debate, which saw 42 total votes — 33 by roll call and nine by voice vote. By the end of last night, the Senate was expected to have completed 27 roll-call votes and 12 voice votes, for a total of 39 votes.
Among yesterday's votes, the Senate defeated an effort to require illegal aliens who get legal status to maintain a minimum level of health insurance and also beat an amendment that would have allowed guest workers to work the maximum six years without ever having to return home, as the bill requires.
During the action some senators cast votes that may come back to haunt them.
Sen. Claire McCaskill, the Missouri Democrat who ran in last year's election on getting tough on illegal immigration, voted to preserve citizenship rights for alien absconders. So did Sen. Jon Kyl, Arizona Republican, who during last year's debate co-sponsored the same amendment with Mr. Cornyn.
Mr. Kyl is the key senator in the "grand bargain" underlying the immigration bill, and he could be overheard by spectators in the gallery marveling to other senators at the sacrifices he's made to keep his compromise alive: "I voted against my best friend — an amendment we wrote together."
On the health care vote, Republican Sens. Lindsey Graham of South Carolina and John McCain of Arizona both went to check with Mr. Kennedy before casting their votes to match his. Soon after, Mr. Kyl also switched his vote to match Mr. Kennedy's.
Republicans did score some victories late yesterday, passing Mr. Sessions' amendment to deny the Earned Income Tax Credit to illegal aliens who gain legal status under the bill. They would gain access once they obtained green cards, which would be probably be at least a decade away.
After losing his absconders vote, Mr. Cornyn outmaneuvered Mr. Kennedy on another issue, getting the Senate to pass an amendment waiving confidentiality for illegal aliens who apply for but are denied legalization. With Mr. Cornyn's amendment, which passed 57-39, the Department of Homeland Security could now use that information to track down rejected aliens and deport them.
Mr. Kennedy strenuously opposed the amendment, his face turning red as he thundered against it on the Senate floor.
"If the Cornyn amendment is adopted, there are no individuals that are going to register for any of these programs, none," he said. "This is a report-to-deport amendment."
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