[Senate Hearing 113-896]
[From the U.S. Government Publishing Office]



 


                                                        S. Hrg. 113-896

                       KEEPING FAMILIES TOGETHER:
                    THE PRESIDENT'S EXECUTIVE ACTION
                      ON IMMIGRATION AND THE NEED
                      TO PASS COMPREHENSIVE REFORM

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           DECEMBER 10, 2014

                               __________

                          Serial No. J-113-78

                               __________

         Printed for the use of the Committee on the Judiciary
         
         	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
         	
         	   U.S. GOVERNMENT PUBLISHING OFFICE
         	   
28-428 PDF		  WASHINGTON : 2018    



                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
        
        
                            C O N T E N T S

                              ----------                              

                      DECEMBER 10, 2014, 2:31 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
    prepared statement...........................................    99

                               WITNESSES

Witness List.....................................................    45
Eastman, John C., Ph.D., Henry Salvatori Professor of Law and 
  Community Service and Director, Center for Constitutional 
  Jurisprudence, Chapman University School of Law, Orange, 
  California.....................................................     9
    prepared statement...........................................    60
Schroeder, Christopher H., Charles S. Murphy Professor of Law and 
  Public Policy Studies and Co-Director, Program in Public Law, 
  Duke Law School, Durham, North Carolina........................     8
    prepared statement...........................................    51
Shuler, Elizabeth H., Secretary-Treasurer, American Federation of 
  Labor and Congress of Industrial Organizations, Washington, DC.     6
    prepared statement...........................................    46
Silva, Astrid, Student, Nevada State College, Las Vegas, Nevada..    14
    prepared statement...........................................    96
Ting, Jan C., Professor of Law, Temple University Beasley School 
  of Law, Philadelphia, Pennsylvania.............................    11
    prepared statement...........................................    76

                               QUESTIONS

Questions submitted to Prof. John C. Eastman, Ph.D., by Senator 
  Grassley.......................................................   103
Questions submitted to Prof. Christopher H. Schroeder by Senator 
  Franken........................................................   101
Questions submitted to Elizabeth H. Shuler by Senator Franken....   102
Questions submitted to Elizabeth H. Shuler by Senator Grassley...   106
Questions submitted to Prof. Jan C. Ting by Senator Grassley.....   107

                                ANSWERS

[Note: At the time of printing, the Committee had not received 
  responses from Prof. John C. Eastman, Ph.D.]
Responses of Prof. Christopher H. Schroeder to questions 
  submitted by
  Senator Franken................................................   109
Responses of Elizabeth H. Shuler to questions submitted by 
  Senator Franken................................................   111
Responses of Elizabeth H. Shuler to questions submitted by 
  Senator Grassley...............................................   113
Responses of Prof. Jan C. Ting to questions submitted by Senator 
  Grassley.......................................................   114

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Advocates for Human Rights, The, Minneapolis, Minnesota, 
  statement......................................................   144
American Civil Liberties Union (ACLU), Washington Legislative 
  Office, Washington, DC, statement..............................   133
American Federation of Teachers (AFT), Washington, DC, statement.   146
American Immigration Council, Washington, DC, statement..........   148
American Immigration Lawyers Association (AILA), Washington, DC, 
  statement......................................................   161
Antle, W. James, III, ``Immigration Doublespeak: More evidence 
  Obama
  appointees talk enforcement in public and administrative 
  amnesty in private,'' The American Spectator, September 21, 
  2010, article..................................................   281
Asian Americans Advancing Justice/AAJC, Washington, DC, statement   140
Beck, Charlie, Chief, Los Angeles Police Department, Los Angeles, 
  California, statement..........................................   240
Bend the Arc: A Jewish Partnership for Justice, New York, New 
  York, statement................................................   165
Biehl, Richard, Chief of Police, Dayton Police Department, 
  Dayton, Ohio, et al., December 9, 2014, letter.................   131
CASA de Maryland, Takoma Park, Maryland, and CASA de Virginia, 
  Falls Church, Virginia, statement..............................   167
Center for Popular Democracy (CPD), The, Brooklyn, New York, and 
  Washington, DC, statement......................................   171
Cities United for Immigration Action (CUIA), Hon. Kathy Sheehan, 
  Mayor of Albany, New York, et al., December 10, 2014, letter...   174
Church World Service, Elkhart, Indiana, statement................   176
Coalition of Black Trade Unionists (CBTU), Washington, DC, 
  statement......................................................   169
Congressional Research Service (CRS), Library of Congress, 
  Washington, DC, memorandum on advance parole...................   249
Fair Immigration Reform Movement (FIRM), Washington, DC, 
  statement......................................................   186
Farmworker Justice, Washington, DC, statement....................   177
First Focus Campaign for Children (FFCC), Washington, DC, 
  statement......................................................   184
Garcetti, Hon. Eric, Mayor, City of Los Angeles, California, 
  statement......................................................   196
Hawkins, James R., Chief of Police, Garden City Police 
  Department, Garden City, Kansas, statement.....................   237
Hernandez, Deisy, Outreach Coordinator, American Civil Liberties 
  Union (ACLU) of Nevada, ``Stepping Out of the Shadows,'' ACLU 
  Blogpost, article..............................................   143
Hispanic Federation, New York, New York, statement...............   188
Junta for Progressive Action, New Haven, Connecticut, statement..   190
Latino Victory Project, Washington, DC, statement................   192
Marek, Stan, President and Chief Executive Officer, Marek Family 
  of Companies, Houston, Texas, statement........................   235
National Asian Pacific American Bar Association (NAPABA), 
  Washington, DC, statement......................................   198
National Center for Lesbian Rights (NCLR), Washington, DC, 
  statement......................................................   201
National Council of Asian Pacific Americans (NCAPA), Washington, 
  DC, statement..................................................   138
National Council of La Raza, Washington, DC, statement...........   207
National Immigrant Justice Center (NIJC), Chicago, Illinois, 
  statement......................................................   217
National Immigration Forum, Washington, DC, statement............   122
National Immigration Law Center (NILC), Los Angeles, California, 
  statement......................................................   223
National Task Force to End Sexual and Domestic Violence (NTF), 
  Seattle, Washington, statement.................................   231
Nebraska Appleseed Center for Law in the Public Interest, 
  Lincoln, Nebraska, statement...................................   213
Nebraska Appleseed Center for Law in the Public Interest, 
  Lincoln, Nebraska, Nebraska-based supporting organizations, 
  list...........................................................   215
Pennsylvania Immigration and Citizenship Coalition (PICC), 
  Philadelphia, Pennsylvania, statement..........................   232
United Farm Workers of America (UFW), Keene, California, 
  statement......................................................   243
United States Citizenship and Immigration Services (USCIS) Form 
  I-131, Application for Travel Document, Department of Homeland 
  Security, application form.....................................   263
United States Citizenship and Immigration Services (USCIS) Form 
  I-131, Application for Travel Document, Department of Homeland 
  Security,
  instructions for application form..............................   268
United States Conference of Catholic Bishops (USCCB), Committee 
  on Migration, Washington, DC, statement........................   245
United States Department of Homeland Security (DHS), Washington, 
  DC, September 22, 2010, draft memorandum.......................   253
Wall Street Journal, ``The Alpha and the Obama: The legal memo 
  backing his immigration order is a political rush job,'' 
  November 24, 2014, editorial...................................   120
We Belong Together (National Domestic Workers Alliance (NDWA) and 
  National Asian Pacific American Women's Forum (NAPAWF)), 
  statement......................................................   246
  


                       KEEPING FAMILIES TOGETHER:
                    THE PRESIDENT'S EXECUTIVE ACTION
                      ON IMMIGRATION AND THE NEED
                      TO PASS COMPREHENSIVE REFORM

                              ----------                              


                      WEDNESDAY, DECEMBER 10, 2014

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:31 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Mazie Hirono, 
presiding.
    Present: Senators Hirono, Durbin, Klobuchar, Franken, 
Coons, Blumenthal, Grassley, Hatch, Sessions, Cornyn, Lee, 
Cruz, and Flake.

            OPENING STATEMENT OF HON. MAZIE HIRONO,
            A U.S. SENATOR FROM THE STATE OF HAWAII

    Chairman Hirono. This meeting of the Senate Committee on 
the Judiciary will come to order. Before we begin, I would just 
like to remind our audience of the Committee's rules regarding 
this, and any, hearing.
    Today's hearing deals with a serious issue and I trust that 
members of the public here will act accordingly. I want to note 
at the outset that the rules of the Senate prohibit outbursts, 
clapping, or demonstrations of any kind. This includes blocking 
the view of people around you. Please be mindful of these rules 
as we conduct this hearing. Thank you so much.
    I would like to start with some brief remarks. Just before 
Thanksgiving, President Obama issued an Executive order and 
that order will bring nearly 5 million people in our country 
out of the shadows. It will allow them to work legally and pay 
their taxes. It will also allow them and their families to 
continue to contribute to the vibrancy of their communities.
    Every single President since President Eisenhower has used 
Executive action to provide discretionary relief from 
deportation. Nonetheless, this President's critics have 
relentlessly attacked the legitimacy of his action.
    This is not just some abstract discussion about legal 
theory. It is about real people, real families. It is about 
taking concrete steps toward making our families and our 
economy stronger. It is about who we are as a country.
    Family is the cornerstone of our immigration system and the 
President's commonsense plan helps keep families together. Many 
of these families come to the United States to pursue their 
dreams--dreams like starting their own businesses or working to 
provide for their families in a safe community.
    My mother brought me to this country when I was a young 
girl and while we had very little as immigrants, my mom had a 
dream to provide a better life for herself and her three 
children. My story is like that of so many immigrants and 
others who come to our country. They have a dream.
    The President's action now allows millions of hard-working 
parents and students to keep pursuing their American dream 
today. Take for example, a woman named Bianca, and her family 
in Hawaii. After moving to the United States on a visa over a 
decade ago, Bianca met her husband. They moved to the place 
they had always dreamed of living, Hawaii naturally, and began 
a family.
    Bianca and her husband's work visas were temporary and like 
many immigrant families, they faced the tough decision to 
remain after their visas expired and continue building their 
lives here in America. Bianca and her husband started with 
nothing. Today they have two small businesses on Oahu and four 
American children. There businesses employ American citizens. 
They pay their taxes and they work hard to provide for their 
family and be part of the community.
    The President's order with the new DAPA program will allow 
for Bianca, and her family to no longer live in fear every 
single day, the fear of being torn from the life that they have 
built in Hawaii. Bianca and her family are not alone. Around 
the country countless students and parents can now have some 
peace of mind that they can continue working toward their 
dreams.
    I would like to acknowledge the many DREAMers and families 
in attendance today. If you would like to wave, stand? Do not 
worry, I will not call you out of order for doing that.
    [Laughter.]
    Chairman Hirono. Thank you. We are also joined today by 
American workers who recognize that the President's plan and 
immigration reform will strengthen our economy. We have heard 
from mayors from cities ranging from New York to Dayton, Ohio 
will believe that the Executive action is good for their cities 
and local economies. We are a nation of immigrants, except for 
our native peoples who were here long before the rest of us got 
here.
    Regardless of education or background or financial means, 
however, immigrants do best when we have our families around 
us. I know that from my own experience and I remember last year 
when we were dealing with immigration reform in the Senate, I 
met a young, very highly educated woman who was an immigrant, 
became a naturalized U.S. citizen who only wanted to be able to 
bring her brother to this country and her brother was a sole 
surviving member of her family. Both of her parents had passed 
away. So for immigrants strong families and for the rest of us, 
frankly, equals a strong economy and that is what the 
President's action is all about.
    The President's plan lets us focus our limited resources on 
the border and on deporting felons, not hard-working families. 
This action is smart law enforcement. We have heard from police 
chiefs ranging from Los Angeles to Garden City, Kansas, who 
support the President's plan and believe that the status quo 
undermines trust and cooperation between police and the 
community. But the President's action is only temporary. It 
does not provide a permanent solution to our broken immigration 
system and it does not help all 11 million undocumented people 
living in the shadows in our country.
    We need Congress to pass comprehensive immigration reform 
which the American people overwhelmingly support. It has been 
over a year since this Committee and the full Senate approved 
our comprehensive immigration bill. A bill that has sadly just 
sat over there in the House of Representatives and we must 
continue working to pass commonsense humane reform that keeps 
our families together and continues to strengthen our economy.
    We have heard, as I mentioned, from many people about their 
support for the President's Executive order. I would like to 
ask unanimous consent that their statements and letters be 
entered into the record.
    [The information referred to appears as submissions for the 
record.]
    Chairman Hirono. So just to mention, we have heard from 
families who are impacted by this Executive action. We have 
heard from 27 mayors who support this Executive action. We have 
heard from law enforcement across the country. We have heard 
from faith leaders like the Conference of Catholic Bishops and 
the Lutherans who support this action. And we have heard from 
business leaders like Stan Merrick, CEO of Merrick Family of 
Companies in Houston, Texas who also supports the President's 
action.
    Before I introduce our witnesses, Ranking Member Grassley, 
would you like to say a few words?
    Senator Grassley. Yes, please.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. This is a very important hearing. The 
United States has served as a haven for those seeking refuge 
and a chance to make a better life. The promise of freedom and 
opportunity guides those who dare to dream and work hard. One 
of the reasons why so many seek out a new life in America is 
because our Nation is founded upon the rule of law.
    That rule of law in the United States is being slowly 
eroded as the branch of government charged with faithfully 
executing the law is increasingly abandoning its constitutional 
duty. Today it is estimated that more than 11 million 
undocumented immigrants live in the country. The question of 
how to properly handle people already in the United States is a 
challenging one.
    Instead of trusting in Congress's role and in the 
democratic process, President Obama has chosen to further erode 
the rule of law. He is now doing what he said he lacked 
authority to do, he is unilaterally altering our Nation's 
immigration policies in one fell swoop.
    President Obama's latest action on immigration is a 
culmination of a pattern of abuse of power. His actions on 
immigration are contrary to his oath of office. It is a serious 
blow to our system of checks and balances and shows total 
disregard for the spirit of the Constitution and the rule of 
law.
    The Constitution confers the power to make immigration laws 
to Congress. It charges the President with taking care that 
these laws are faithfully executed. But instead of doing that, 
the President told Federal officials to suspend enforcement and 
ignore the laws on the books in a blanket fashion.
    When announcing this Executive action, President Obama said 
that ``Congress has failed.'' Just because Congress has not 
passed a comprehensive immigration bill to his liking, it does 
not make it right for the President to bypass Congress in the 
legislative process. The President has usurped the legislative 
branch's responsibility to write the laws and undermined the 
principle of separation of powers that is the very foundation 
of our constitutional democracy. In doing so, he has damaged 
relations with Congress and I think polls show, lost some trust 
with the American people.
    Jonathan Turley, a noted liberal law professor, said, 
``When a President claims the inherent power of both 
legislation and enforcement, he becomes a virtual government 
onto himself. He is not simply posing a danger to the 
constitutional system, he becomes the very danger that the 
Constitution was designed to avoid.''
    The bottom line is this, the President's action goes far 
beyond anything that has been done in the past. It is 
unprecedented and it is a threat to the Constitution.
    I do not buy the argument that this Administration's 
actions are similar to those of previous Presidents. In a lame 
excuse that even The Washington Post found fault with--The Post 
said that President Obama's unilateral action on immigration 
``has no precedent.'' The Post said its comparisons to actions 
taken by President George H.W. Bush in 1990 are ``widely 
exaggerated.'' The White House numbers are ``indefensible'' and 
``the scale of Mr. Obama's move goes far beyond anything his 
predecessors attempted.''
    The Post concluded that, ``Unlike Mr. Bush in 1990, whose 
much more modest order was instep with legislation recently and 
subsequently enacted by Congress, Mr. Obama's move flies in the 
face of Congressional intent no matter how indefensible that 
intent looks.''
    The President also claims there is a firm legal basis for 
his actions. It is ironic given his recent claims that--and 
this is quoting the President--``This notion that somehow I can 
just change the laws unilaterally is just not true. The fact of 
the matter is, there are laws on the books that I have to 
enforce. We live in a democracy. You have to pass bills through 
the legislature and then I can sign it.''
    So there is what, in politics, we consider a ``flip-flop.'' 
The President is saying he cannot do something and then he did 
it.
    The Justice Department's Office of Legal Counsel whipped up 
a memo taking the position that this action is permissible 
because of the Executive's ability to exercise prosecutorial 
discretion. While the executive branch has the ability to 
decide when to prosecute and how to prioritize enforcement, 
that ability is not unlimited.
    The Administration is taking a broad, sweeping approach to 
prosecutorial discretion that amounts to an illegitimate 
exercise of enforcement discretion. Lawful prosecutorial 
discretion is exercised on an individual case-by-case basis. It 
is not selecting entire categories of individuals and telling 
them that going forward, the law will not be applied to them.
    I have learned that if you reward illegality, you get more 
of it. The President is rewarding illegal behavior and 
conferring substantive benefits to those who qualify. The 
individuals who entered without inspection or overstayed their 
visas unlawfully now will receive benefits only afforded to 
those who abide by laws.
    Unfortunately, when you have non-enforcement of our 
immigration laws on such a broad scale, you are suspending the 
enforcement of law. That is unconstitutional. The executive 
branch cannot suspend and dispense of laws by non-enforcement 
and it cannot nullify the laws by unilaterally imposing 
contradictory directives.
    Instead, it is the duty of the executive branch to take 
care that the laws are carefully executed. I worry if we let 
the President get away with this, then what will come next? The 
American people are outraged by the President's actions and 
rightly so.
    The fact is that enacting laws takes time. The Judiciary 
Committee engaged in a fulsome process on immigration reform in 
2013. It was unfortunate that the Majority Leader refused to 
have an open amendment process on the floor. I ultimately voted 
against the bill because it failed to first secure the border, 
but at least the Chairman recognized the need to debate and 
consider the issues in the Committee. I have complimented 
Chairman Leahy on that several times.
    This Administration has also failed to enforce the laws in 
the Interior. The Department of Homeland Security has released 
100s of alleged murders, kidnappers, rapists and domestic 
abusers from its custody.
    Now, where is the accountability? Instead of being held 
accountable, the Administration has double downed. With the 
President's actions, individuals here undocumented will know 
that even if they have committed crimes, they will be exempt 
from immigration enforcement and released.
    This is unfair to the people who have complied with the law 
and tried to enter legally. It is unfair to the U.S. workers 
who now must compete with this population for jobs in America. 
Most importantly, it is unfair to the American people and to 
our system of government.
    I yield. Thank you.
    Chairman Hirono. Thank you very much, Senator Grassley.
    Chairman Leahy, unfortunately, could not attend today's 
hearing, but he has submitted written testimony which I would 
like to ask unanimous consent be entered into the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Hirono. I would like to introduce very briefly our 
witnesses today and thank them for appearing before this 
Committee.
    We have Elizabeth Shuler who is the secretary-treasurer of 
the AFL-CIO; Chris Schroeder, Charles S. Murphy professor of 
law and public policy studies and co-director, program in 
public law at Duke Law School; Dr. John Eastman, Henry 
Salvatori professor of law and community service and director, 
Center for Constitutional Jurisprudence, Chapman University 
School of Law; Jan Ting, professor of law, Temple University 
Beasley School of Law; and Astrid Silva, student at Nevada 
State College.
    I would like to administer the oath to our witnesses. If 
you would all stand and raise your right hand. Do you solemnly 
swear that the testimony you are about to give the Committee 
will be the truth, the whole truth and nothing but the truth so 
help you God?
    Ms. Shuler. I do.
    Professor Schroeder. I do.
    Professor Eastman. I do.
    Professor Ting. I do.
    Ms. Silva. I do.
    Chairman Hirono. Thank you. Let the record show that the 
witnesses have answered in the affirmative.
    We will start with you, Ms. Shuler.

STATEMENT OF ELIZABETH H. SHULER, SECRETARY-TREASURER, AMERICAN 
 FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, 
                         WASHINGTON, DC

    Ms. Shuler. Good afternoon, Chairwoman Hirono, Ranking 
Member Grassley, Members of the Committee. Thank you for the 
opportunity to testify and be here with you today.
    My name is Liz Shuler. I am Secretary-Treasurer of the AFL-
CIO. It is a federation of 56 unions. We represent 12.5 million 
working men and women across the country. The AFL-CIO--our very 
mission: We believe that every person who works in the country 
should receive decent pay, good benefits, safe working 
conditions and fair treatment on the job.
    I travel a lot around the country, like all of you, and I 
talk to a lot of working people when I am visiting job sites 
all across the Nation. I have seen firsthand how our broken 
immigration system drives down wages, undercuts employers who 
play by the rules, and chips away at gains made at the 
bargaining table. We have been calling on the Administration to 
take action on immigration for a very long time because we know 
that the status quo is an invitation for employer manipulation 
and abuse and our entire work force ends up paying the price.
    Now although this fix is temporary, the AFL-CIO supports 
the President's decision to provide deferred action to nearly 5 
million people. Deferred action will keep families together and 
allow millions of people to live and work without fear.
    I want to state clearly for the record that deferred action 
is not amnesty. The new programs simply allow parents and 
immigrant youth who have been in the country for 5 years to 
come forward and apply for work authorization and temporary 
relief from deportation.
    The individuals who will benefit are longstanding members 
of our communities and our unions and like all workers in this 
country they deserve the opportunity to work without being 
exploited. It is important to note that 8 million of the 11 
million undocumented immigrants in the U.S. are already 
working.
    Allowing 5 percent of the work force to struggle to support 
their families without full rights and protections is wrong and 
it creates a dangerous environment in which wage theft, sexual 
harassment, death and injury on the job are all too common. 
When employers can hire undocumented workers with a wink and a 
nod, then fire them when they try to organize a union or object 
to unpaid wages or unsafe working conditions, it is not just 
undocumented workers that suffer, but their U.S. citizen 
coworkers as well.
    So let me bring this down to the ground with a couple of 
examples. Somewhere today there may be a meatpacking worker who 
is reluctant to complain about consumer safety concerns in a 
plant, a hotel worker who suffers through an injury on the job 
rather than risk seeing workers compensation, and a 
construction worker who is still trying to muster the courage 
to report to authorities that his paycheck does not include the 
overtime that he worked that week.
    The cumulative effect of these abuses all put together harm 
our economy. Again, let me be clear on this point, the current 
broken system harms all workers.
    Take wage theft for example, the National Employment Law 
Project estimates that 68 percent of low-wage workers, many of 
them undocumented, experienced pay violations, 68 percent. We 
are not talking small violations here. They accumulate annually 
to a loss of 15 percent of their income. That means employers 
steal $2600 per year from workers who only earn about $17,000 a 
year. Shockingly, wage theft, the estimates are at around 56 
million per week if you take them all combined together from 
workers pockets--in New York City, Chicago and Los Angeles 
alone.
    So in terms of tax dollars, the President's announcement 
will increase payroll taxes by $3 billion in the first year and 
nearly $23 billion over 5 years and increase wages for U.S. 
workers over time as well. Workers need status to fight back. 
They need status to fight back against injustice on this scale 
and we will all benefit when they finally have it.
    So for these reasons and many others--I see my time is 
running short--I urge the Committee to support deferred action. 
Looking forward we will continue to urge Congress to work on 
comprehensive commonsense immigration reform that ensures that 
all workers, immigrant and native-born, have access to labor, 
health and safety protections and our immigration policies 
really should be a part of a shared prosperity agenda that 
unites communities and keeps families together and creates a 
roadmap to citizenship for those who aspire to be Americans.
    We worked together with the Chamber of Commerce, I know in 
the original bill, the labor movement together, and we know 
that it can be done, this comprehensive approach, if we all put 
our heads together and work to solve the problems. So in 
conclusion, we call on you to reject failed temporary worker 
models that undermine wages and working conditions and instead 
enact the type of meaningful immigration reform that will help 
build a stronger economic future for our Nation and support the 
basic civil and human rights and dignity of all workers.
    Thank you again and I look forward to any questions.
    [The prepared statement of Ms. Shuler appears as a 
submission for the record.]
    Chairman Hirono. Thank you, Ms. Shuler.
    Professor Schroeder.

   STATEMENT OF CHRISTOPHER H. SCHROEDER, CHARLES S. MURPHY 
  PROFESSOR OF LAW AND PUBLIC POLICY STUDIES AND CO-DIRECTOR, 
 PROGRAM IN PUBLIC LAW, DUKE LAW SCHOOL, DURHAM, NORTH CAROLINA

    Professor Schroeder. Senator Hirono, Senator Grassley, 
Members of the Committee, thank you very much. I appreciate the 
opportunity to be here today to discuss the legal basis of the 
President's decisions and the Department of Homeland Security's 
policy memo of November 20.
    I do so, of course, with the benefit of a 33-page Office of 
Legal Counsel opinion, which I consider to be competent and 
thorough. It reaches the conclusion that the policies announced 
on November 20 are legal within the President's discretionary 
authority, although, it did reject one proposal that the 
Department of Homeland Security had asked the Office of Legal 
Counsel to investigate which I think demonstrates on its face 
that OLC does not consider the President's authority unlimited 
in this regard.
    Now OLC's view is shared by a wide number of scholars and 
immigration lawyers around the country. Of course, there are 
dissenting views which I think will be ably defended today by 
my two distinguished colleagues. My opinion is that on balance 
the conclusion of the Office of Legal Counsel has the better of 
the argument.
    Now it is 33 pages long. It is very detailed. I am not 
going to get into the weeds of it in my opening remarks. I will 
be happy to wade at least a little bit into them if you would 
care to do so in questions.
    I want to make three basic points. One is that the approach 
of the Office of Legal Counsel is exclusively, in my judgment, 
to analyze the sources and limits of DHS' enforcement 
discretion under the immigration laws. That is language from 
the opinion. There is no assertion of unilateral Presidential 
authority in this memorandum. There is no reliance upon the 
ability of the President to act outside of the authorities that 
the statutes have granted him.
    The opinion, then, as the second point also establishes, I 
think, to the satisfaction of a great many people and I will be 
surprised if my colleagues disagree with this. That enforcement 
discretion is a common feature of many statutes and, in fact, 
is considered to be particularly wide in the area of the 
immigration laws. This includes the ability to provide deferred 
action even though that particular measure is not explicitly 
mentioned in the statute. It has been endorsed by acts of 
Congress and is a longstanding administrative practice going 
back at least until the 1970s.
    The third point I will make in these opening remarks is 
that having established the general background, the Office of 
Legal Counsel then, of course, has to turn to the statute 
itself because under its own brief it has to find that the 
authorities that are being exercised are within the 
discretionary bounds established by the statute. At first it 
finds nothing in the statute that expressly prohibits granting 
deferred action under these circumstances.
    In fact, it finds that the deferred action elements of the 
policy guidance produced on November 20 are in fact consonant 
with a longstanding Congressional policy interest which it 
states in the following way--the policy that it thinks 
underlies these actions is the particularized humanitarian 
interest in promoting family unity by enabling those parents of 
U.S. citizens and legal permanent residents who are not 
otherwise enforcement priorities and who have demonstrated 
community and family ties in the United States as evidenced by 
the length of time they have remained in the country to remain 
united with their children in the United States.
    Now obviously, there are other policies that are reflected 
in the immigration laws, numerous of them and on particular 
matters, these policies can come into tension with one another. 
But when discretion has been advanced and allocated to the 
executive branch, it falls on the executive branch to make the 
appropriate balancing decisions.
    In one of the seminal separation of powers cases decided by 
the Supreme Court, the Chevron decision, the Court put it this 
way: ``An Agency to which Congress has delegated policymaking 
responsibilities may within the limits of that discretion 
properly rely upon the incumbent Administration's view of wise 
policy to inform its judgments. When a challenge to an agency 
construction of a statutory provision fairly conceptualized 
really centers on the wisdom of the agency's policy rather than 
whether it is a reasonable choice within the gap left open by 
the Congress, the challenge must fail.''
    So I believe what the memorandum shows is that there is a 
gap speaking to the specific issue. Of course, it could have 
been satisfied in a number of different ways. The status 
maintained in the status quo would have been a perfectly legal 
approach for the President to take, but I believe that the 
actions that the President did take are also within the 
statutory bounds and it was the judgment of this Administration 
to take those steps and under Chevron, I think is justified for 
that reason.
    Thank you very much.
    [The prepared statement of Professor Schroeder appears as a 
submission for the record.]
    Chairman Hirono. Thank you, Professor Schroeder.
    Dr. Eastman.

STATEMENT OF JOHN C. EASTMAN, Ph.D., HENRY SALVATORI PROFESSOR 
     OF LAW AND COMMUNITY SERVICE AND DIRECTOR, CENTER FOR 
CONSTITUTIONAL JURISPRUDENCE, CHAPMAN UNIVERSITY SCHOOL OF LAW, 
                            ORANGE, CALIFORNIA

    Professor Eastman. Thank you Chairman Hirono, Senator 
Grassley, and other Members of the Committee. Thank you for 
inviting me to be here today.
    The issue for us is not what proper immigration policy 
ought to be. The issue is who under a constitutional system 
makes it. I cannot disagree with my colleague, Professor 
Schroeder, more on the OLC opinion. I found it both 
uncharacteristically weak and even self-contradictory in its 
analysis.
    There are three basic steps in the President's recent 
actions here that need to be addressed. Only one of the three 
is even a close call, in my view. That is, can the President 
use his discretion, which everybody concedes he has, not to 
prosecute every single instance of violations of our law, that 
traditional prosecutorial discretion--can he use it on a 
categorical basis to effectively rewrite the law which I 
believe he has done with these actions.
    The Supreme Court has never addressed that question 
directly as a holding, but has intimated on several different 
occasions that such a categorical use of prosecutorial 
discretion would be a violation of the President's ``take care 
that the laws be faithfully executed'' obligation. 
Prosecutorial discretion cannot be stretched so far as to give 
a categorical exemption or suspension of the law.
    But even if you assume that this broad categorical use of 
prosecutorial discretion can be permissible, there are two 
other steps that the Secretary of Homeland Security, both 
Secretary Napolitano in the DACA program and the current 
program announced by Secretary Johnson on November 20. They 
first take those decisions not to prosecute, not to institute 
removal proceedings and not to deport as creating somehow a 
lawful presence in the United States while simultaneously 
speaking out of the other side of their mouth that this does 
not convey a lawful status.
    Now lawful presence and lawful status is a bit too 
Orwellian of a fine distinction for most of us and I think it 
is here as well. The fact that you use prosecutorial discretion 
not to prosecute an instance of a violation of the law does not 
mean that you have the lawful authority to authorize a 
continuing violation of that law.
    Think of the comparison here, a group of protesters 
occupies a military base in violation of trespass laws and 
through the use of prosecutorial discretion the base commander 
says I am not going to prosecute or forcibly remove them. That 
does not give them a right to be lawfully present on a 
continuing basis on that military base and yet Secretary 
Johnson's claim and the President's own statement on November 
20 have repeatedly used phrases like ``lawful presence'' and 
``make you right with the law.'' That exceeds the scope of 
prosecutorial discretion under any definition.
    And then the third piece of this is whether the President 
then has the authority to take the next step, not just treat 
them as lawfully present in the United States, but to give them 
a lawful status, a lawful work authorization, Social Security 
cards, drivers licenses and all of the benefits that flow from 
that which Secretary Napolitano announced in June 2012 that she 
was going to do, and Secretary Johnson has now confirmed that 
as well--that notion that they can take the decision not to 
prosecute or not to remove and deport individuals who are here 
unlawfully and convert that into a lawful presence that gives 
entitlement to work authorization is beyond anything that this 
Congress has authorized in the statute.
    There are four words in one provision of the statute that 
the Office of Legal Counsel has relied on to find statutory 
authority for this. That statute says that it is illegal to 
hire somebody who is an unauthorized alien in the United 
States, defined as anybody who does not have lawful permanent 
residence or fall under an exemption under this chapter or 
given a waiver by the Attorney General. ``By the Attorney 
General,'' those four words the Office of Legal Counsel treats 
as essentially giving unfettered discretion to the Attorney 
General to issue work authorizations whenever he or she sees 
fit.
    The notion that those four words implies a delegation of 
such unfettered authority from this Congress when, as we know, 
every single exemption from the law that has been pushed by 
Congress over the last three decades has been minutely detailed 
on what the criteria are--the notion that all of that is 
meaningless, that the President through his Attorney General 
could just issue work authorizations whenever he or she wants, 
is beyond the pale of what those words can mean.
    More significantly, if, in fact, that is what those words 
mean, then I think there is a complete unfettered and unlawful 
delegation of this body's lawmaking power to the President. 
Article I, Section 1, of the Constitution is very clear, the 
lawmaking power that we the people delegated to the Federal 
Government is vested in this body, in the Congress of the 
United States, not in the Executive. The Supreme Court has 
routinely allowed you to delegate regulatory, fill-in-the-blank 
authority. But every time it has recognized that, the Court has 
said you have to convey an intelligible principle by which the 
exercise of that rulemaking authority discretion is exercised.
    If these four words creates the unfettered discretion that 
the President and his Office of Legal Counsel claim, there is 
no intelligible principle whatsoever, no channeling of the 
discretion given to the Executive. You have handed over, 
without any restrictions whatsoever, complete unfettered 
discretion to the President. That violates the Nondelegation 
Doctrine and a core provision of the Constitution of the United 
States.
    Thank you, Madam Senator.
    [The prepared statement of Professor Eastman appears as a 
submission for the record.]
    Chairman Hirono. Thank you, Dr. Eastman.
    Professor Ting.

 STATEMENT OF JAN C. TING, PROFESSOR OF LAW, TEMPLE UNIVERSITY 
       BEASLEY SCHOOL OF LAW, PHILADELPHIA, PENNSYLVANIA

    Professor Ting. I want to thank Chairman Leahy and Ranking 
Member Grassley and all of the Members of the Committee for the 
privilege of joining this panel this afternoon.
    It was my privilege to serve as the Assistant Commissioner 
of the Immigration and Naturalization Service at the U.S. 
Department of Justice from 1990 to 1993. And it is my view that 
the immigration system is not broken as it has become 
fashionable to say. What is broken, I think, is our willingness 
to choose between two mutually exclusive choices, either we are 
going to have no limits on the number of immigrants that we 
accept into the United States given the fact that we all admire 
and respect immigrants, or alternatively, we are going to 
enforce some sort of numerical limitation on how many 
immigrations we accept into the United States.
    That is a binary choice. But people do not want to do it 
because trying to enforce any limit means turning away people 
who are not criminals or national security threats, who just 
want a shot at the American dream and who, frankly, remind us 
of our own ancestors.
    Some people find it hard to do. And they are asking for a 
third choice and I think that is what President Obama has 
launched us on, a third choice which I characterize as let us 
pretend. Let us pretend that we have a limit on immigration, 
let us keep it in the books, but let us not enforce it. Let us 
have no enforcement within the borders of the United States and 
if we accumulate a large number of illegal immigrants, we will 
just give them some sort of amnesty here. If you do not want to 
call it that, call it legalization or something. We are going 
to find a way to let them stay.
    I just want to say that if we do nothing, if we do no 
reform at all, we are left with the most generous legal 
immigration system in the world, bar none. We admit every year 
into the United States more legal, permanent residents with a 
clear path to full citizenship than all the rest of the nations 
of the world combined. We give out more green cards every year, 
year after year, after year than all the rest of the nations of 
the world combined.
    In part two of my written testimony--I think I get the 
prize for submitting the longest written testimony. There is a 
prize is there not? So I am going to summarize.
    In part two, I explained why I think the deferred action 
plan of President Obama is both unwise and bad policy. It hurts 
unemployed and underemployed U.S. workers who are now forced to 
compete with 5 million additional illegal immigrants who are 
going to have work authorization. It encourages more aliens to 
enter the United States illegally in the expectation that they 
too will receive benefits further down the line. And it 
discourages legal immigrants who are going to have to compete 
with these 5 million illegal immigrants for jobs in the United 
States and it also discourages them because most legal 
immigrants given our numerical limitation have to wait in line 
for the privilege of coming to the United States.
    Some legal immigrants have been waiting today for more than 
20 years for their privilege to come to the United States. What 
message does this deferred action send to them? I think it 
tells them that they are fools for respecting American law and 
that we are going to reward instead people that have come 
illegally to the United States as recently as 5 years ago, they 
will get work authorization. The legal immigrant still waiting 
in line will not. I think that sends a bad message.
    In part three of my written testimony, I want to ask 
Congress to consider the impact on the U.S. Treasury of the 
refundable earned income tax credit on this question of whether 
the deferred 5 million will actually pay taxes as claimed or 
instead will they be claiming payments from the U.S. Treasury? 
I am a volunteer income tax preparer. I have prepared returns 
for poor people in Philadelphia and I have obtained enormous 
earned income tax credits for my clients which is I think 
pursuant to a statute enacted by the Congress. Do we really 
mean to extend that privilege to 5 million illegal aliens most 
of whom are parents of children and so in position to claim the 
earned income tax credit? We need to look at that.
    In my written testimony I have cited an IRS ruling which is 
still up on the website which allows the deferred 5 million to 
claim the refundable earned income tax credit for prior years 
worked when they did not have Social Security numbers. They are 
going to be able to claim this credit retroactively according 
to an IRS ruling that is in my written testimony. Congress, I 
hope, will look into this.
    In part four, I explain why I think the deferred action for 
5 million is unconstitutional and illegal. The President's 
referring on this 33-page OLC opinion and it was just released 
less than a month ago on November 19, at opinion, relies on the 
Supreme Court decision in Heckler v. Chaney for the proposition 
that an agency's decision--I think in that case it was the Food 
and Drug Administration--not to take enforcement action should 
be presumed immuned from judicial review, but the Supreme Court 
in Heckler also said this, ``In so stating, we emphasize that 
the decision is only presumptively unreviewable. The 
presumption may be rebutted where the substantive statute has 
provided guidelines for the agency to follow in exercising its 
enforcement powers. Thus in establishing this presumption in 
the APA, Congress did not set agencies free to disregard 
legislative direction in the statutory scheme that the agency 
administers. Congress may limit an agencies exercise of 
enforcement power if it wishes either by setting substantive 
priorities or by otherwise circumscribing an agency's powers to 
discriminate among issues or cases it will pursue.''
    I believe that each component of the immigration Executive 
order announced on November 19 violates substantive priorities 
of Congress as expressed by the statute. My time is short.
    I just want to talk about the advance parole issue, which 
is one that has been largely avoided by the President. They do 
not mention on this deferred action although advance parole is 
part of the DACA program previously announced. I believe 
advance parole is going to serve as an illegal backdoor pathway 
to citizenship for most of the 9 million people that we are 
talking about here. It is clearly a violation of the narrow 
interpretation of parole under Section 212(d)(5) of the 
immigration law.
    Here is why. Most of these 5 million will become immediate 
relatives of U.S. citizens. When those children reach age 21, 
they cannot claim the visa overseas at a consulate because they 
are barred under 212(a)(9)(B), barred for overstaying in the 
United States by more than a year. They are barred from coming 
back into the United States----
    Chairman Hirono. Professor Ting, I am sure you are coming 
to your conclusion----
    Professor Ting. I am coming to a conclusion. There is 
adjustment status under 245 only for aliens admitted or 
paroled. Advance parole solves all of these problems. It says 
that the departure is not considered a departure and it says 
that they are paroled backed in. Section 245 is only available 
to people who are admitted or paroled. These people--most of 
them have not been admitted, but they will be paroled.
    They are going to qualify for a green card. They are going 
to get a pathway to citizenship.
    I thank the Committee for its attention to these matters. I 
hope you will read my written testimony. Thank you.
    [The prepared statement of Professor Ting appears as a 
submission for the record.]
    Chairman Hirono. Thank you, Professor Ting.
    Ms. Silva.

           STATEMENT OF ASTRID SILVA, STUDENT, NEVADA
                STATE COLLEGE, LAS VEGAS, NEVADA

    Ms. Silva. Madam Chairwoman and distinguished Members of 
the Committee, good afternoon and thank you for the invitation 
to appear before you today to discuss an issue that is of great 
importance to me and to many families in the United States.
    My personal story is not unique and is typical of millions 
of immigrants here today. That is why I also want to thank this 
Committee for working so hard on the comprehensive immigration 
reform bill last year. I watched from the gallery as the Senate 
called that historic vote and I believed that we were one step 
closer to real change.
    Like many before them, my parents--one of whom is here with 
me today--came to this country and chose to leave everything 
behind in search of a better life for their children. When I 
was 4 years old, my parents brought me across the Rio Grande in 
a homemade tire raft.
    I still have a vague memory of that day. I was holding onto 
my doll very tightly because I was so afraid of what was 
happening. I remember looking down and knowing that I was going 
to be in trouble because I had gotten mud on my brand-new 
patent leather shoes.
    Moving to the United States provided us with many wonderful 
things including my little brother who was born in 1993. But 
for me everything I have ever known is in Las Vegas. I grew up 
believing that I was just like everybody else. That the only 
difference was that when I was little I did not speak English. 
The kids used to make fun of me, but then I learned English 3 
months after getting here, after getting into school because of 
the dedication of my parents and their desire for me to do 
better.
    When I was in middle school, I received many prestigious 
honors at my school. But still my parents were afraid to let me 
sign up for a magnetic program that I had my heart set on. They 
believed that the school might ask me for my Social Security 
number and that immigration officials would know that I was 
here without documentation. A teacher who believed in me 
encouraged me to apply and with her help I did and I was 
accepted to A-TECH.
    I excelled and I thought that I was just like my classmates 
until the time came to apply for colleges. I knew that my 
status meant that I could not drive because I could not get a 
license without a Social Security card, but I did not actually 
understand that being undocumented would hurt my future. My 
guidance counselors then told me that it was the end of the 
road for my academic career.
    I had worked very hard. I had the good grades. I had all of 
the extracurricular activities, but when I was at my high 
school graduation when all my friends were called on stage and 
the school that they were going to was announced along with 
every scholarship that they had received, I was devastated. I 
knew that I could not have any of that because I did not have a 
Social Security number.
    But in 2013 when I received DACA, my life changed 
completely. But my fear continues to exist. I am still afraid 
that my mom and dad will be deported. I am afraid that one day 
I will come home and they will not be there. Our lives will be 
completely turned upside down and that we will be torn apart 
and separated.
    No matter how many degrees I am able to get, what is going 
to happen to me if I walk across the stage and nobody is there? 
My parents are hard-working. They are good people and they want 
nothing more than the opportunity to work hard and watch my 
brother and I grow up. My dad works very long hours in the Las 
Vegas heat where as we know it can get up to 120 degrees. He 
never complains. In his free time, he collects can tops to 
raise money for Ronald McDonald house. My mother, who has 
become a community mom and volunteers at a lot of local 
nonprofit organizations--she is here with me today
    My family knows firsthand the value of the President's new 
Executive action. Several years ago, my dad was detained by 
immigration enforcement officers. It was the most traumatic 
experience of my life. In an effort to get right with the law, 
my dad had paid a notario, a notary, someone who he thought was 
a lawyer, to file an immigration application. Unfortunately 
like a lot of other people, we were taken advantage of.
    She took advantage of my dad's lack of immigration 
knowledge and never told us that his application had been 
denied. She dragged us along telling us that immigration just 
takes a very long time in the United States. While she was 
doing this, she was draining our life savings.
    As a result of that experience, my dad was issued a 
deportation order and picked up for detention. He is just one 
of thousands of parents who have been separated from their 
children. My family spent 1 week without my dad, but it was the 
longest week of my life. We did not know what would happen to 
him or to us.
    When we were told that he was going to be deported, they 
told me that I could give him a 10-pound bag with toiletries. I 
wondered to myself how could the country that we love so much 
be brought down in a 10-pound bag.
    My brother, he is United States citizen, he felt like his 
country had betrayed him. He said, Astrid, how can they do this 
to our dad? I understand I may not have rights here because I 
am undocumented, but my brother was born here. He has lived 
here his entire life. He is as American as any of the Senators 
in this room. He could not believe that day that our data had 
been taken.
    The latest efforts by President Obama will keep my family 
together. It will keep millions of other families together. Of 
course, there are many families that will not benefit from 
this. I have many friends whose parents will not qualify. I 
have many friends who do not have children and will also not 
qualified. I feel tremendously lucky that I first received 
DACA, but now my parents will fall into a category of people 
that can be legally protected because they meet the 
qualifications.
    But there are so many countless others who are not as 
lucky, but they are just like us. They are people that like my 
family are only making our country a better place. They 
volunteer in our communities, they go to church with us, they 
go to school with us, they have jobs and take their 
responsibility seriously. We must continue to work with 
Congress to pass a permanent legislative fix to our country's 
broken immigration system so all mothers and fathers can be 
home with their children.
    The bipartisan comprehensive immigration reform package 
that passed the Senate in 2013 was certainly not perfect, but 
it was fair and permanent. It was a fix to the problem. I and 
so many of my friends will continue the fight to pass a bill. 
But in the meantime, we will also fight to protect and defend 
the President's action.
    When people attack the President for the action or 
challenge his legal authority, the same authority that has been 
used before, they are attacking me, they are attacking my mom, 
they are attacking the hundreds of thousands of children who 
need their parents to take care of them. They need their 
parents to tell them that there are no monsters under the bed. 
They are attacking the workers who are contributing to our 
economy and they are attacking me with every single word that 
they say.
    You are not attacking a stranger. You are attacking the 
girl who sits next to your grandson in chemistry class. You are 
attacking the man who spends his day making sure that your 
roses are beautiful every single spring and more importantly, 
attacking America and everything that has made our country this 
strong.
    I hope that you will continue to see that this action not 
only helps make our country stronger, it makes it a more 
diverse nation, but it also demonstrates what we stand for as 
the United States, the American dream and the belief that if 
you work hard, you will be able to provide for your family and 
live without fear of persecution.
    Thank you.
    [The prepared statement of Ms. Silva appears as a 
submission for the record.]
    Chairman Hirono. Thank you, Ms. Silva.
    Members will have 5 minutes each to ask questions of the 
witnesses.
    I have a question for Professor Schroeder. We have heard 
testimony that one of the major problems with the President's 
Executive order is that this is a categorical--it applies to a 
category of people. Would you agree with that characterization 
of the Executive order that somehow people who apply through 
the Executive order do not have to go through a whole range of 
other questions, so would you consider that a categorical 
designation of people who will automatically get the status?
    Professor Schroeder. No, Senator. I would not. The Johnson 
memorandum is quite clear that every applicant for the program 
has to be reviewed on a case-by-case basis. It sets up some 
initial qualifications that make you prima facie eligible for 
consideration, but then it instructs the line officers and 
inspection officers to do a case-by-case evaluation of each 
application.
    Chairman Hirono. And is that pretty much a process that was 
followed with the other Executive orders in this area by other 
Presidents, Eisenhower, Reagan?
    Professor Schroeder. Senator, I assume that to be the case. 
I have not gone back and read the text of each of those INS or 
Department of Homeland Security guidance documents, but I 
believe that the department in this instance was following 
deferred action practices that have been established over a 
course of 40 years.
    Chairman Hirono. Ms. Shuler, we have here testimony that 
this is going to result in 5 million people taking away jobs 
from American citizens. Do you have a response to that?
    Ms. Shuler. Sure. As I said in my prepared remarks, we 
believe 8 million out of the 11 million are already working in 
the United States. But I think the larger point is that when we 
have workers that are working in a shadow economy, that are 
working for low wages because they are afraid to speak out, 
they are afraid to make waves, it actually lowers standards and 
wages for everyone. So we believe that having workers come out 
of the shadows and have a legal way of actually having those 
protections, we think that is going to benefit all workers.
    Chairman Hirono. Ms. Silva, I know that you fully recognize 
that the President's Executive order is temporary and so there 
are people who may be afraid to come out of the shadows to 
register to be identified in that way. What would you say to 
them?
    Ms. Silva. Senator, when deferred action was announced in 
2012, there were many people who told me to not apply because I 
would be put on a list to be deported even faster. But it has 
been 2 years and what deferred action did was change my life. I 
have been able to get a job to save up enough money so that I 
can finish my education now. I have been able to learn how to 
drive, something that I had never done in my life before. I am 
able to now drive to school. So to me people that are doing 
this are obviously trying to instill fear in people, but I 
think that this is going to be at least a temporary solution to 
a problem that is much bigger. But I will continue to fight in 
Congress because I know that we need a law.
    Chairman Hirono. So are you saying that you are willing to 
take the risk to come out of the shadows even if this is a 
temporary kind of a stay on potential deportation?
    Ms. Silva. There is the risk at any moment that if you do 
not have any type of protection that you can be deported. 
People are being deported every single day. People are afraid 
sometimes to call 911 because they think that they are going to 
get deported. So this would just give them that protection to 
at least know that they can contribute and not be afraid.
    Chairman Hirono. Ms. Shuler, I think you mentioned that the 
positive impact on our economy if all of these people who are 
impacted by this Executive order can come out of the shadows, 
pay their taxes--could you tell me again what that figure was?
    Ms. Shuler. Well, in the testimony, basically we think that 
the President's announcement is going to increase payroll taxes 
by $3 billion in the first year and nearly $23 billion over 5 
years. That also applies to overtime as well.
    Chairman Hirono. Thank you. We met with a number of people 
who wanted to make sure that we focus on family unity as a 
guiding principle of immigration reform. Ms. Silva, can you 
just tell us how important keeping the family together is for 
people in your situation, for immigrants.
    Ms. Silva. To me it is the most important thing. My parents 
left everything that they knew. They left behind their own 
parents so that they could give me a better life. And now to be 
here with them is the most important thing to me. Just to have 
my dad in a detention center for 1 week was devastating. I am 
26 years old and to me it was scary. I cannot imagine a five- 
or 6-year old coming home and not knowing where their mom and 
dad are. Knowing now that we are going to be able to plan our 
holidays, we did not have that 3 weeks ago. We did not know if 
my mom or dad would be deported. My dad has an order of 
deportation because of the scam that he was under. We did not 
know if this was going to be the last Christmas where we were 
together.
    Chairman Hirono. Thank you, my time is up.
    Senator Grassley.
    Senator Grassley. I probably will only have a chance for 
three questions. My first question will be to Professors Ting 
and Eastman. The second one also. The third one I would like to 
ask Ms. Shuler.
    Professors Ting and Eastman, how is the President able to 
stay within the boundaries of the prosecutorial discretion 
which requires a case-by-case analysis and still grant deferred 
action to millions of people? Let me ask a second related 
question, what are the outer limits of doctrine of 
prosecutorial discretion? Do the President's recent actions 
exceed those boundaries? And I would like to have both of you 
give me your opinion, but not repeat each other so we can move 
fast.
    Professor Eastman. I think the OLC Memo recognizes what the 
line is. It says it has to be on a case-by-case basis and it 
repeats that phrase over and over again. But the conclusion it 
draws utterly ignores the language. And I do not think you need 
to take my word for it. You can take one of the other witnesses 
at this panel, Ms. Silva, who just announced that her parents 
now qualify to be here legally ``because they meet the 
qualifications.''
    That means that everybody else in the country, despite what 
OLC says in its memo and despite what Professor Schroeder said, 
are ignoring that case-by-case language in the memo because it 
is clear that the memo itself, the directive from Secretary 
Johnson, ignores that case-by-case requirement as well.
    Here is what the memo says, ``With respect to individuals 
who meet the above criteria and are not yet in removal 
proceedings, ICE and CBP should immediately exercise their 
discretion on an individual basis and here is how they shall 
exercise that discretion in order to prevent low-priority 
individuals from being placed into removal.'' And it goes on, 
it uses that, ``You should do it this way.'' I mean, woe to the 
line officers in the immigration services who do not take that 
language on what they should do seriously.
    This is not a case-by-case adjudication. If you meet those 
criteria, you are given the status that these memos set out. 
That is what runs afoul of what the Supreme Court has 
repeatedly said moves from prosecutorial discretion to an utter 
suspension of the law.
    Professor Ting. I would just add to that, summarizing what 
Professor Eastman has said, that this case-by-case reference in 
the OLC memo strikes me as window dressing. They know they have 
to do it case-by-case, so they say we are going to do a case-
by-case, end of story. What more do you want?
    I think we demand more than that. The most important thing 
I think is our constitutional system of government which is the 
notion that the American people govern themselves through our 
elected representatives, through a deliberative process of 
checks and balances, that is the most important thing that we 
ought to be concerned about here. If the President is making up 
the rules as he goes along in defiance of the statute, we are 
getting away from the most important constitutional principle 
of all.
    Senator Grassley. Without reading a long introduction, I 
want to refer to the fact that the President's OLC opinion 
cited things that Presidents Reagan and George H.W. Bush did. 
The question is to you two again. We all know that this is a 
grossly mischaracterized comparison. Would you explain how the 
actions of Presidents Reagan and Bush do not provide support 
for President Obama's actions? Are there other factors 
distinguishing their actions from those of the President?
    Professor Ting. I will take this one. In my written 
testimony, I state that all of the alleged precedence cited are 
in fact distinguishable. The defenders of the President's 
actions say, while numbers do not matter, case-by-case or 5 
million, the same principle. It seems to me that is on its face 
questionable, if not obviously false. Numbers do matter and the 
small groups that have been deferred in the past, while their 
constitutionality has not been judged by the courts so they do 
not really set a constitutional precedent at all, but they are 
clearly distinguishable because of the numbers concern.
    Now there have been examples of larger groups incorporated 
by category, but I think those are distinguishable to the 
extent that the President, when invoking them, cites the 
President's foreign-policy power. I think the Congress has 
acknowledged the President has significant powers in the area 
of foreign policy and foreign affairs.
    If the President says I am exercising my foreign affairs 
power, which he did not on November 19, I think that does 
create a different situation. The numbers are different. There 
is no citation of foreign powers of authority. Now I know 
people point to the 1990 Family Fairness example, but I think 
that is clearly distinguishable because in 1990, as some 
Members of this Committee know, the Bush administration was 
engaged in active negotiations with the Congress leading to the 
1990 immigration act which solved this problem by statute.
    So I quote Justice Jackson in Youngstown who said that the 
President is at the peak of his authority when he is acting 
with the concurrence of Congress, either explicitly or 
implicitly. And his power is at the lowest ebb when he is 
acting without the explicit or implicit consent of Congress. 
That is what I think distinguishes the 1990 Family Fairness 
initiative from the November 19 deferred action initiative.
    Professor Eastman. And Senator Grassley, there is one other 
piece and that is that, at the time, the Immigration and 
Naturalization Act, Section 242(b), specifically gave 
discretion to the Attorney General to issue extended delayed 
voluntary departure. We have no statutory authority comparable 
to that now. That statute has subsequently been repealed. It 
was first limited in time and then repealed altogether. But 
there was specific statutory authority for that. The notion 
that that action then serves as a basis for the President to 
take actions without any statutory authority is not correct.
    Senator Grassley. I am done.
    Chairman Hirono. Thank you.
    Senator Franken.
    Senator Franken. Well, I might as well follow up with this. 
It seems to me what Ms. Silva was sort of saying was that her 
father now fits within a certain set of criteria and it seems 
to me that what the Office of Legal Counsel was doing was 
defining a set of criteria under which people on a case-by-case 
basis--it could be determined whether they qualify for this. Do 
I understand that wrong, Mr. Schroeder?
    Professor Schroeder [off microphone]. No. I think, Senator, 
you have it exactly right.
    Senator Franken. Say the first part, ``Mr. Senator, you 
have it right.''
    [Laughter.]
    Professor Schroeder. Yes, Senator Franken, I think you have 
it exactly right.
    Senator Franken. Thank you. Now it is on the record.
    [Laughter.]
    Professor Schroeder. And in fact, if you look at the last 
of the criteria that are listed in the memorandum, it is that 
the applicant present no other factors in the exercise of 
discretion that makes the grant of deferred action 
inappropriate. So I am not going to put words in the mouth of 
Ms. Silva, but I think what she was anticipating is that her 
parents are not going to trip up on that last criteria. But, of 
course, they will have to go through the process of somebody 
determining that on a case-by-case basis.
    Senator Franken. Right. That is sort of how I understood it 
and, for example, in DACA there are a lot of people who were 
denied, like 30-some thousand; right?
    Professor Schroeder. Yes. I think the latest number on the 
website is 32,000 denials.
    Senator Franken. Okay. And that was done on a case-by-case 
basis, those 32,000?
    Professor Schroeder. Yes, Senator.
    Senator Franken. I see. Okay. Thank you. We have clarified, 
for me, something.
    Ms. Silva, thank you for coming here today and having the 
courage to tell your very powerful story. President Obama's 
recent Executive action stands to help a lot of people in 
Minnesota and a lot of people in this country including you and 
your family.
    In your testimony you mentioned the constant fear of living 
in the shadows knowing that your father could be deported any 
day. I think we need to do everything possible to prevent 
families from being torn apart and children being abandoned. 
This was a focus of mine during the debate on the Senate 
immigration bill last year and that was partly because of an 
ICE raid on a meatpacking plant in Worthington, Minnesota which 
resulted in many children, many of them very young, many of 
them U.S. citizens, being abandoned at home without their 
parents, without legal guardians. We are talking like a 2-year-
old being left at home and having her 6-year-old brother come 
home and not knowing where his parents were and having to take 
care of his sister for a while until his grandma came.
    This kind of stuff is repeated over and over again. Can you 
talk a little bit more about what it was like just to grow up 
in the fear that your parents would be separated?
    Ms. Silva. Thank you, Senator. Also to follow up on that--
children, I know as a question--children are not allowed to be 
given to another person who is undocumented which leads to a 
lot of people--that is why the children are being left alone.
    I cannot even fully express what it would mean for my 
parents to be deported at this time. Again, to follow up on the 
actual deportation of them and how this is going to actually 
make it so that our families are at least remaining together. 
The action is not everything that is necessary right now, but 
our families cannot continue waiting for a step to be taken by 
Congress because we need it now.
    Senator Franken. Thank you. I would like to thank my 
Republican colleagues. When we marked this up in Committee, I 
had an amendment to the bill that was unanimously agreed to--on 
kids in deportation proceedings, how they are cared for. I want 
to thank every one of you for voting for that.
    I have run out of time, so I will not ask Mr. Schroeder to 
repeat how he started his testimony. Thank you.
    Chairman Hirono. We heard him. Thank you.
    Senator Lee.
    Senator Lee. Thank you, Madam Chair. Thanks to each of you 
for joining us today for this important hearing.
    The President of the United States has told us repeatedly 
that his recent Executive actions do not clear the pathway for 
citizenship and we have heard a repetition of some of those 
themes today. And yet, notwithstanding those denials, it is 
clear that the President and his Administration are removing 
certain statutory obstacles to citizenship, obstacles that were 
put in place by law, by acts of Congress. It is clear that the 
President and his Administration know what they are doing and 
it is also clear that this is illegal, that it violates the 
law.
    Professor Ting, you used to be the Assistant Commissioner 
of the INS. You know this area well, so help me out here if you 
can. The Administration has announced that it will be granting 
something called ``advance parole,'' that you referred to in 
your written statement and in your opening remarks, to deferred 
action recipients.
    This thing called ``advance parole'' enables them to leave 
the country and then return to the country, crossing back into 
the United States, as parolees as we call it. Now to be clear, 
if the Administration in fact gives ``advance parole'' to the 
new beneficiaries of deferred action, new beneficiaries of 
deferred action who have U.S. citizen children, assuming that 
they are not inadmissible for some other reason, will those 
people who are eligible under that program be able to adjust 
their status, get green cards and eventually citizenship as a 
result of that?
    Professor Ting. My conclusion is that they will. I have 
also come to the conclusion that the Administration is doing 
this deliberately, conscious of the implications and 
deliberately concealing the fact that they are setting forth a 
path to citizenship for most of these 5 million for the reasons 
that you have noted.
    Senator Lee. Okay. But does not Federal law currently say, 
statute on the books, does not Federal law currently say that 
if you are in the United States unlawfully and you leave the 
United States while here unlawfully and then you try to come 
back that you will be inadmissible for a period of either 3 
years or 10 years?
    Professor Ting. Right. Ten years if you have been in the 
country illegally for a year or longer. That was the intent of 
Congress and it has been enacted into law. But the 
Administration is taking the position that someone who leaves 
the country pursuant to an ``advance parole'' is not making a 
departure for purposes of 212(a)(9) and therefore, they are not 
subject to the 10-year bar and they are able to return to the 
country on a parole when they come back.
    Senator Lee. Okay. You are familiar with INS action 
212(d)(5)(A) which is the parole statute. This is the law that 
defines the circumstances in which the Government can grant 
parole. Let me read the relevant part of that statute. It says, 
``The Secretary [of Homeland Security] may parole into the 
United States temporarily under such circumstances as he may 
prescribe only on a case-by-case basis for urgent humanitarian 
reasons or significant public benefit.''
    Now, I want to place in the record USCIS form number I-131 
and the accompanying instructions. These have been handed out 
to Members of the Committee and staff.
    [The information referred to appears as submissions for the 
record.]
    Senator Lee. This is the form that deferred action 
recipients fill out in order to receive ``advance parole''; 
correct?
    Professor Ting. Yes.
    Senator Lee. These instructions say, ``USCIS may in its 
discretion grant advance parole if you are traveling outside 
the United States for educational purposes, employment purposes 
or humanitarian purposes. Educational purposes include, but are 
not limited to, semester abroad programs or academic research. 
Employment purposes include, but are not limited to, overseas 
assignments, interviews, conferences, training or meetings with 
clients.''
    Now, Professor, is granting parole for things like 
conferences or meetings with clients, are those things within 
the lawful meaning? Are those things lawful basis upon which 
this Administration can grant parole?
    Professor Ting. Absolutely not. It is clearly not within 
the statute. Indeed, in 1996, when that language that you read 
was added, the House Judiciary Committee, in its report, said 
that parole should only be given on a case-by-case basis for 
specified urgent humanitarian reasons, such as life-threatening 
medical emergencies or for specified public interests reasons 
such as assisting the Government in a law enforcement activity. 
It should not be used, the House Judiciary Committee said, to 
circumvent Congressionally established immigration policy or to 
admit aliens who do not qualify for admission under established 
legal immigration categories.
    Senator Lee. Okay. So let us suppose that an alien 
approaches the border and seeks entry into the United States 
and announces to the officials who greet him at the border, 
look, I do not have a visa. I am not a citizen, but I do have a 
meeting in Tulsa or Salt Lake City or Denver. I have a meeting 
with a client. May I come in? May I be paroled into the 
country?
    Professor Ting. Well, I have no doubt what should happen. I 
hope even this Administration would recognize that is not 
grounds for admission to the United States and would turn the 
individual around.
    Senator Lee. And yet this program that we are dealing with 
here would allow an alien to get ``advance parole'' and 
ultimately a green card, ultimately potentially citizenship so 
long as that person has a meeting with a client in Toronto, 
rather than Tulsa.
    Professor Ting. Yes. I think that is a correct 
interpretation.
    Senator Lee. And you think that violates Federal law?
    Professor Ting. I am convinced it violates Federal law as 
enacted by the Congress.
    Senator Lee. Thank you, Mr. Ting. Thank you, Madam Chair.
    Chairman Hirono. Thank you, Senator Lee.
    I am expecting other Members, Democratic Members, to 
appear, but I will exercise a prerogative of the Chair and ask 
possibly at least one more question.
    We were informed that the President's Executive action 
places our communities at risk because it undermines respect 
for the law. I do have a letter from the LA Police Department 
Chief, Chief Beck, who says in his written testimony that will 
be part of the record of this hearing, ``Many of these 
undocumented individuals have been and continue to be 
victimized and exploited by others in our community. Law 
enforcement is often unable to take action to stop this 
victimization as the undocumented immigrants and others fear 
that stepping forward will result in their identification and 
removal.'' He goes on to talk about being victimized by 
criminal gangs and others who seek to intimidate members of 
this community.
    [The letter appears as a submission for the record.]
    Chairman Hirono. I wanted to ask Ms. Silva how has DACA and 
potentially DAPA, that would apply to your parents, change your 
family's ability to interact with the police, force do you 
think?
    Ms. Silva. Thank you, Senator. My family will now be able 
to not fear that if they call, again, 911 or if they call an 
ambulance that something will happen to them. It has been the 
case in prior years where people were asked for a social 
security number. They did not exactly know if they were allowed 
to answer or not and so it instills a fear.
    We have in our very own community--the pin that I am 
wearing today is a Tomasama Ciaz [sic] and she was one of our 
DREAMer moms who was not documented. She passed away on June 9 
because she had a stroke and she was afraid that if she called 
911, they were going to ask her for her social security number. 
So she just took pain medication and thought it would go away.
    Unfortunately, she had a stroke. That is what the pain was 
and she passed away several weeks after from complications due 
to the stroke.
    So I know that it happens. I know that people are afraid 
and she was very well-versed on what she was and was not 
allowed to do as an undocumented immigrant. But it is still the 
fear that even though you can call 911, you are afraid to do 
it. And that is just her case of being afraid to get medical 
attention.
    There are people that are afraid to report a crime. People, 
in particular, in domestic abuse cases where people are afraid 
to denounce their abuser because they are afraid that if they 
go to the police that they are going to be able to look them up 
and see if they have a social security number or not. I have 
had friends that do not report that their license plates were 
stolen because they are afraid to go down there and you have to 
fill out a form.
    Again, my parents were afraid for me to apply for a magnet 
school because they thought that my social security number 
would be asked. These are questions that the community has and 
people are afraid of it.
    Chairman Hirono. So it is clear that there is a lot of 
criminality that goes unreported within the undocumented 
community. And it also goes to the testimony that you provided, 
Ms. Shuler, about exploitation in the workplace of all of these 
people who are undocumented.
    So when we talk about disrespect for the law, that is 
already happening to 11 million people in our country who are 
afraid to step forward. So thank you.
    We will go to Senator Hatch.
    Senator Hatch. Well, thank you, Madam Chairman.
    My heart goes out to you, Ms. Silva. As you know, I was the 
original author of the DREAM Act. But let me just make this 
comment, our liberty requires that Government actually obeys 
the limits on its power including the separation of powers. The 
Constitution provides authority to establish what it calls a 
uniform rule of nationality to Congress, which means it denies 
that authority to the President.
    The action the President announced last month, in my 
opinion, amounts to exercising power that belongs up here in 
Congress. Now my time is limited, so I would appreciate concise 
answers to just a few questions that I have because I would 
like to get through my questions that I have prepared.
    Professor Ting, the Obama Administration says his Executive 
action is simply a different way to enforce the deportation 
rules. But I think he is changing the rules themselves. Do you 
agree with that?
    Professor Ting. Absolutely.
    Senator Hatch. Okay. Let me just keep going. Under current 
Federal law, Congress put the burden on persons in the country 
illegally to show that they are entitled to stay. The 
President's action puts the burden on the Government to show 
that those persons must leave. Do you agree that this is not a 
change in enforcement, but a change in the law and that the 
President does not have that authority?
    Professor Ting. Yes I do.
    Senator Hatch. You are not alone. I feel very deeply about 
these issues, about Ms. Silva and others just like her, but my 
gosh, if we do not follow of law, we are in trouble.
    Professor Eastman, the OLC opinion attempting to justify 
the President's action claims that it is similar to those by 
past Presidents. Now the opinion, however, concedes that the 
INS or DHS changed enforcement priorities in the past when 
Congress told them to do so. The President today says that he 
can change enforcement priorities without Congressional 
authorization.
    Now I may be missing something, but how can receiving prior 
approval by Congress in the past be precedent for not receiving 
prior approval by Congress today? Does that make any sense to 
you?
    Professor Eastman. Senator Hatch, that struck me as 
particularly odd as well.
    Senator Hatch. Well, it is. Immigration activists have long 
asked President Obama to stop deportations until Congress 
changes the law. On July 1, 2010, President Obama said that 
doing so would in his words be unwise and unfair and would lead 
to a surge in illegal immigration. But that is precisely what 
is new Executive action does. It stops deportations for 
millions until Congress changes the law.
    Does it not appear that the President has taken a step that 
he not only knows, but that he actually predicted could make 
the problem significantly worse, Professor?
    Professor Ting. Yes, it does. I think the logic of the 
President's action--you know, why not extend it to all 11 
million undocumented people in the United States? Why not 
extend it to all of the people who will enter illegally in the 
future? Why should they not qualify?
    Senator Hatch. How about all of those standing in line 
right now who played by the rules?
    Professor Ting. Yes. I think that the logic we have heard 
up to this point is, well, why not? They need to talk to the 
police too. Even the people who enter next year should qualify 
because they need to talk to police.
    Senator Hatch. Madam Chairman, I ask consent that a Wall 
Street Journal editorial of November 24, be placed in the 
record.
    Chairman Hirono. Without objection.
    [The editorial appears as a submission for the record.]
    Senator Hatch. This editorial says that the OLC opinion 
attempting to justify the President's action is embarrassing, 
more political than legal. It makes his abuse of power look 
even worse and I agree. I think it really hurts your case 
rather than helps it when the President does not obey the rule 
of law.
    Now before I go, I want to say a word about the future of 
immigration reform. As everybody knows, I voted for the Senate 
bill. I helped to amend that Senate bill and I feel deeply that 
we have got to come up with legislation to resolve these 
problems the right way and I want to talk about the future of 
immigration reform.
    The President has taken this Executive action, the very 
step that he once said was unwise and unfair, and simply tells 
Congress to pass a bill. But it should be obvious to everyone 
that the President's unilateral and unlawful action makes that 
very goal even more difficult.
    Perhaps that is what he intended all along. I do not know. 
I hope not. I believe strongly, however, that we can make real 
progress on immigration reform despite the President's action.
    Employers in the technology section were told for years 
that high-skilled immigration reform would happen only as part 
of comprehensive immigration reform. But now that the President 
has taken action, look who is left holding an empty bag, the 
technology industry.
    Well I believe we can find common ground and achieve 
legislative success in an area like high-skilled immigration. 
This is a no-brainer. My I-Squared bill has 26 bipartisan 
cosponsors. We would have a lot more--we have not gone out to 
get them at this point in the Senate, including Senators 
Klobuchar and Coons on this Committee and broad support in the 
technology sector of our economy.
    Now I am calling on everyone from the President and both 
sides of the aisle in Congress to the tech industry to get 
behind this bill and use it as a launching for more progress on 
immigration reform. The President's action was--as he had 
previously admitted--unwise and unfair. I also believe that it 
is unlawful. But we have to find ways to make progress and 
solve some of the real problems facing our Nation.
    My I-Squared bill is one of those--I should say Senator 
Klobuchar, Coons, Rubio and myself, our bill is one of those 
ways. I want to work with everyone to get it done.
    Now having said all of that, we have got to solve this 
problem, but it ought to be solved the right way so that 
everybody in this country at least knows what the law is and 
everybody in this country knows that this country is a decent, 
righteous country that really will live up to the law. I am 
going to work very hard to get this done, but what the 
President has done is abominable. I am telling you. If we can 
have Presidents do things like that, kiss the Separation of 
Powers Doctrine goodbye.
    Sorry, Madam Chairman.
    Chairman Hirono. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Madam Chairman. 
Thank you to all of the witnesses. I am sorry we had a Rail 
Safety hearing, so I was a little late here.
    I just wanted to lead by adding my support to the I-Squared 
bill. Senator Hatch and I are the original cosponsor of that 
bill, along with Senator Coons and Rubio. We are very proud of 
that bill and I think we all know that there are a lot of needs 
here when it comes to immigration reform, whether it is issues 
at the border, whether it is issues with the path to 
citizenship that we had in the comprehensive bill that we are 
so proud of in the Senate and I appreciated Senator Hatch's 
support for that bill out of this Committee, but it also is the 
workers that have really been the backbone of this country.
    My grandparents on one side were Swiss and the other side 
Slovenian immigrants. My grandfather on the Swiss side actually 
came through Canada and somehow made it through to Wisconsin 
with $40 in his pocket and here I am a United States Senator. 
So that is the story of our country.
    I think one of the things that I wanted to build off of 
what Senator Hatch was talking about--maybe I can ask you this, 
Mr. Schroeder, is the bill that I have with Senator Hatch, 
which was basically included in the comprehensive reform is 
about green cards, its about the fact that Mayo Clinic doctors 
come in and they cannot bring their spouse or agriculture 
workers at the Morris Dairy in Morris, Minnesota where the 
unemployment rate is 2 percent. They come, they work at the 
dairy, and they bring their spouses and then their spouses 
cannot work for 7 years even though they are legal. The spouses 
coming are legal. There are just so many rules right now that 
we were trying to fix with the comprehensive bill.
    My question is, with the President's action, does any of 
that take away from what we could do if we actually passed a 
bill? My point is, I know that Senator Hatch and I may have a 
disagreement on what the President did. And that is fine. We 
have disagreements on this Committee. But I just want to make 
clear, we have some--understandable from some people--there is 
anger about that action. However, does that stop us from taking 
action on these other things that we need to do or, again, 
passing a comprehensive reform bill?
    Professor Schroeder. Senator Klobuchar, no it does not, in 
any way shape or form. As a matter of fact, the President has 
called for comprehensive immigration reform and has quite 
expressly stated that anything about the temporary actions that 
the Department of Homeland Security took on November 20, can be 
altered by legislation, revised in any way this body sees fit. 
And I am sure he is hoping to continue to be able to work with 
the Congress on such reform going forward. But there is nothing 
in the temporary actions that he has taken that prejudice in 
any way moving forward on constructive commonsense legislation.
    Senator Klobuchar. Yes and I think that economic impact of 
the reform--I see Senator Durbin is here and Senator Flake--and 
there were so many people that worked hard on getting that 
comprehensive bill done in the Senate and I think some of the 
best arguments for it were actually the economic argument for 
it. We know that the nonpartisan CBO report showed that 
comprehensive immigration reform would actually reduce the 
deficit by $158 billion over 10 years and much, much more, $700 
billion, I believe, over 20 years and increase the Nation's 
gross domestic product by 3.3 percent in 10 years. That is 
pretty phenomenal for people that want to do something about 
the debt and that is the CBO that brought back that score and 
that is why Grover Norquest has made this such a priority 
because it brings down the debt.
    So I wondered if you, Ms. Schuler, could just comment on 
the economic reason that the AFL-CIO is behind this bill and 
how you see that as fitting into the arguments that we are 
talking about today.
    Ms. Shuler. Sure. Earlier we had talked about payroll taxes 
and the impact it would have, but I think our main concern is 
about raising wages--raising wages for not just undocumented 
workers but for all workers and the fact that what the 
President did is a beginning step to doing that. Certainly we 
would prefer comprehensive reform. That is our top priority, 
but we think that this is a step in the right direction and 
that when we give workers the opportunity to, as we said 
earlier, kind of come out of the shadows, we have an 
underground economy essentially where workers are being paid 
less because they are afraid to speak out and afraid to 
actually speak out when something unsafe is happening on the 
job or when employers are cutting corners. There is a whole 
host of reasons why they are fearful and you heard it earlier 
too from Ms. Silva.
    We are coming at this from an economic angle because we 
believe that when we lift the floor and we start providing fair 
wages for all working people in this country that it actually 
is going to benefit everyone, and we need a raise in this 
country, as you know. We have been fighting on many fronts.
    Senator Klobuchar. I think we have seen the sentiment for 
that in a lot of the States. Thank you.
    Before I run out of time here, Mr. Schroeder, do you want 
to answer that from an economic standpoint? The debt argument, 
and other things we could see if we, one, in part, with some of 
the work from the President's action but really what we would 
need was, the comprehensive reform, and some of these other 
things as well, in order to realize that full economic benefit 
with the debt reduction and also with the economic--the 
increase in the productivity and the increase in the GDP?
    Professor Schroeder. I think it is just undisputable that 
the specific actions that the DHS is taking will have a 
beneficial impact, but the real impact on the economy will be 
if we can fix the immigration system, solve the problem that 
you and Senator Hatch are working on, solve the other 
bottlenecks in the immigration system and use the immigration 
laws to support the engine of economic recovery instead of 
often frustrating it.
    Senator Klobuchar. And I think some of those things could 
not be done by Executive order. I am sure my colleagues would 
argue should not have been anyway, but let us just put that 
aside for right now.
    Some of these things that we have been working on really 
hard with the green cards and the visas and the agriculture 
jobs, they just simply could not be done by Executive order 
because of the law and it is just another argument for why we 
need the comprehensive reform.
    Professor Schroeder. Absolutely right.
    Senator Klobuchar. All right. Thank you.
    Chairman Hirono. Senator Flake.
    Senator Flake. Thank you madam Chairman. Thank you for your 
testimony.
    Let me just say from the beginning that I am one of those 
who believes we have to have a permanent immigration solution. 
I was part of the Gang of Eight process here to write the 
Senate bill. While in the House, I wrote several bills that 
would have dealt with this in a comprehensive way. We need 
reform desperately. We need people to come out of the shadows. 
It is no fun being in the shadows. It is no fun living in fear. 
We need a permanent solution, one that addresses our situation 
on the border, one that addresses our problems with interior 
enforcement and employment, one that deals with our long-term 
issues with workers, whether that is high tech workers or other 
workers and also a mechanism that deals with those who are here 
illegally. That is not adequate right now. So we desperately 
need this.
    My problem with what the President did is that he did it 
the wrong way. This is a function that rests with Congress and 
he has made it more difficult to reach a long-term permanent 
solution by taking this action. That is my issue. So I know 
there is disagreement at this table. I happen to side with 
those who believe that the President did go beyond his 
constitutional authority for basically a categorical approach 
to those who are here.
    I should point out that the steps that we took in the 
Senate bill, the steps that we have taken with other 
legislation actually covered more people who are here in the 
shadows, if you will, than the President's action did. So it is 
not that he took action for a group that does not need to be 
dealt with and dealt with in a rational humane way. It is just 
that in taking this action, he has made it more difficult for 
Congress to move forward and for that I am truly sorry because 
I think it will be more difficult.
    That is not to say that we should not try and I have said 
more than once that I think our approach to the President's 
action is not to try to stick a finger in his eye, but to put 
legislation on his desk. So that is what I will move forward 
and try to do.
    It is unlikely that there will be a comprehensive bill like 
the Senate bill now. I think that it will likely be a more 
piecemeal approach because that is what the President has done. 
He has made that fashionable, I guess, if you will. To take 
just one portion and try to address it. I think that that is 
likely the approach that will be taken now and I hope we take 
it. I hope the House moves forward. I hope the Senate does as 
well and that we can get legislation on the President's desk 
that deals with this issue in a more permanent fashion and in a 
better way than the President's actions.
    I thank you for your testimony. I will not get into the 
differences here. I think they have been aired and we have 
heard them, but I just want the folks here to know and my 
colleagues to know where I am. I hope that we can move 
meaningful legislation to deal with this issue because it is 
not going away. We need to deal with it and we should. So thank 
you.
    Chairman Hirono. Senator Durbin.
    Senator Durbin. Thank you, Madam Chair. We have really come 
down to some pretty stark choices here. I would like to ask 
you, Professor Eastman and Professor Ting, while seated at a 
table with an undocumented person, someone even call illegal 
person--we have three choices and I would like you to tell me 
which one you choose.
    The choices are, number one, stick with the current way we 
are doing things. Agree with the House of Representatives. We 
do not have to do anything. Leave the system as it is. Do not 
deport people, just leave them where they are.
    Then we have the suggestion by Presidential candidate Mitt 
Romney, self-deportation. Let us tell these people to leave, 
all 11 million of them. Just leave.
    Or the President's approach, create some priorities here. 
Say to people if you want to stay in this country and you are 
undocumented, you have got to come forward and register. You 
have to submit yourself to a criminal background check and you 
have to pay taxes for a temporary situation where you can work 
in this country.
    So which of those three do you choose?
    Professor Ting. Senator, the underlying question is given 
the fact that we admire and respect immigrants, how many 
immigrants do we want to come to the United States every year? 
Does it matter? If it does not matter, we can save $18 billion 
a year and just not enforce immigration laws----
    Senator Durbin. Professor? Excuse me. The Executive order 
does not leave the gates open. The Executive order closed the 
gates 5 years ago. Five years ago. So this notion of a flood of 
new immigrants, that is not what the Executive order says.
    Professor Ting. We need to decide what we want. Once we 
decide what we want, then we can decide which policies are the 
best way to get us to where we want. Are we prepared to accept 
unlimited immigration into the United States or do we want to 
enforce a limit? That is the question.
    Senator Durbin. Wait a minute, sir. See you have gone to 
the extreme again.
    Professor Ting. No. It is about the numbers.
    Senator Durbin. It is not unlimited. The President's 
Executive order has a limitation as did the comprehensive 
immigration bill. Mr. Ting, you said in your testimony and I 
will add as the son of an immigrant, thank God--thank God that 
this is a nation of immigrants so you and I have a chance to 
sit here in the United States Senate and debate this issue. Let 
us never forget that this is a nation of immigrants and they 
had made it great nation and you and I are damn lucky it is.
    Professor Ting. I teach immigration law every week. I am 
well aware of the history of the immigration system in the 
United States and I am well aware of the role that my parents 
played in coming to the United States at a time of Chinese 
exclusion.
    Professor Eastman. Senator, you said this is a nation of 
immigrants. That is true. It is also a nation of laws. The 
underlying assumption to your question is choosing an option 
that ignores those laws. The Constitution is----
    Senator Durbin. So which option do you choose? You have 
three.
    Professor Eastman. The option that you selected of the 
President's policy is one that ignores the laws that this 
body----
    Senator Durbin. Now wait a minute. That leaves you two 
options. Which option? Which one do you choose, the current 
situation or mass deportation?
    Professor Eastman. Well, the current situation is not one 
of non-enforcement. The law says, the law has mandatory Section 
252, for example, specifies that people who are not able to 
demonstrate a lawful presence in the United States shall have 
removal proceedings initiated against them.
    Senator Durbin. So you would take the Romney approach. Let 
us deport all of these people.
    Professor Eastman. Senator, this body is the one that sets 
the law. If you think that is too draconian then this body 
ought to change the law, but the notion that the executive can 
unilaterally suspend the law is not part of the constitutional 
system we the people agreed to live under when it was adopted.
    Senator Durbin. Your position is the Romney deportation. 
Enforce the law.
    Professor Eastman. No. My position is to enforce the law 
that is on the books and tell the Congress which has the 
authority to change it, change that law. Otherwise, we live in 
a lawless society and Professor Ting's claim that if it is 
lawless, you will be opening the doors to an innumerable amount 
of people to come here because we have already demonstrated no 
willingness to enforce the law and we saw that happen on the 
southern border in Texas.
    Senator Durbin. So you are saying enforce the law, deport 
the 11 million. That is your position?
    Professor Eastman. I am saying, enforce the law until 
Congress changes it, yes, Senator.
    Senator Durbin. Well I can tell you if you think that we 
can deport 11 million people without dramatic negative impacts 
on individuals, families and our economy than I do not believe 
you are in the world of reality.
    Professor Eastman. Then change the law, Senator. But do not 
do it by an executive fiat. That is the question.
    Senator Durbin. We did it in the United States Senate. The 
House refused to act. Now we have three choices.
    Professor Eastman. The House had a number of bills that it 
sent up here that you refused to act on.
    Senator Durbin. Give me an example of one on immigration.
    Professor Eastman. Senator, there was a STEM jobs bill that 
passed in the House that was sent here and it died even though 
everyone says they are for STEM jobs.
    Senator Durbin. That certainly does not address all but a 
part----
    Professor Eastman. No, but it is a bill that dealt with 
immigration which is what you asked and they sent it up here. 
You have a disagreement between this body and the other body.
    But the notion that the President can unilaterally change 
the law at his will is no part of our constitutional system. 
That is the issue we are dealing with.
    Senator Durbin. So the 11 Presidents who have done this 
before him over a period of 60 years were all in violation of 
the law?
    Professor Eastman. No. They were not, and let me go through 
that. I am glad you asked because it is significant.
    President Eisenhower, President Kennedy, President Reagan 
all did this in dealing with their Article II powers over 
foreign affairs that deal with international humanitarian 
crises. That is not what the President here has done.
    Senator Durbin. What about President Bush's----
    Professor Eastman. President Bush--you were not here when I 
read it, but President Bush acted pursuant to a specific 
statutory authority that gave explicit discretion to the 
Attorney General. No such statutory authority exists here. 
Those are dramatically different things if we are going to 
stick with the law that is on the books.
    Senator Durbin. I think you are being selective in the way 
you read this.
    Professor Eastman. I am not being selective.
    Senator Durbin. I would just tell you this, prosecutorial 
discretion is part of the executive authority. You have come 
out in favor of mass deportation. I do not think that is 
reasonable and I do not think it is good for this country.
    I also accept your challenge to do something. We did with a 
vote of 68 in favor, 14 Republicans. We passed comprehensive 
immigration reform. The House of Representatives refused to 
call it or any part of it and now you are telling us, well, let 
us leave the situation as it is or deport everyone who is here. 
Those are not acceptable alternatives.
    Professor Eastman. Neither is the President doing it on his 
own.
    Senator Durbin. What the President has done is to make this 
a safer nation by putting more resources on the border, putting 
a limitation on those who are eligible to come forward, 
register, submit to a criminal background check and pay their 
taxes in America to work on a temporary basis. That to me is a 
reasonable response to the House's failure to act when we 
passed this legislation.
    Professor Eastman. Senator, you said it is safer. I 
challenge you to go down to the border States of people who are 
dealing with the massive influx, the humanitarian crisis that 
were a direct result of the President's lawlessness on the DACA 
program. People came here thinking they had a free ticket.
    Senator Durbin. With all due respect, Professor Eastman, 
read the law. What the President said in DACA, affecting Astrid 
Silva, had a limitation and deadline on eligibility. Do not 
blame the President for what happened at the border.
    Professor Eastman. Well everybody in Central America 
thought that this was the ticket to salvation.
    Chairman Hirono. I am going to give the last word to the 
Senator.
    Professor Eastman. Under DACA--I am coming. It is a 
humanitarian crisis down there that this thing created.
    Senator Durbin. If you read the law, you know that is not 
true.
    Professor Eastman. It did not cause it, but by law----
    Chairman Hirono. Thank you, gentlemen.
    Senator Cornyn.
    Senator Cornyn. Well, I was kind of enjoying that, myself.
    [Laughter.]
    President Obama--under his Administration we have seen 2.5 
million people deported. No one is suggesting, as my friend 
from Illinois is, that we support mass deportations. But what 
we recognize is when we have a conflict between what our heart 
tells us we would like to do out of a sense of simple human 
compassion, when we have a conflict between our heart and our 
head, that it is usually the right choice to let your head 
prevail. And what it calls for, Professor Ting, is exactly what 
you said, some reasonable, sensible, predictable policy on who 
we are going to allow and under what circumstances to come 
immigrate into our country.
    I feel like we need to have a reprise of that old 
``Schoolhouse Rock'' song, ``How a Bill Becomes a Law.'' 
``Saturday Night Live'' had an interesting parity of that 
recently because the idea from my friends across the aisle is 
that just because the Senate passed a comprehensive immigration 
reform bill and the House did not take it up and pass it 
without changing one word fast enough, that justifies the kind 
of lawlessness that we have seen from this President. And it is 
just really unfortunate for many, many reasons.
    I think one of the reasons it is so unfortunate is because 
of the damage that it does to people like Ms. Silva. She may 
not realize this, but of course, it is a temporary provision. 
She has no opportunity under the President's deferred action to 
obtain a green card and become an American citizen. The only 
way that could possibly happen is for Congress to pass a law 
allowing that. She came here at 4 years old with her parents. 
She is not culpable. She committed no offense in my view or in 
the view of the law, I believe. And we ought to make an 
accommodation for people like Ms. Silva.
    But what the President did is actually make it harder 
because he poisoned the well creating what is already a very 
controversial subject, very divisive subject and making it 
worse and making it harder for us to do what Senator Flake said 
he wants to do and what I want to do which is to take on a 
step-by-step basis, try to build consensus on different aspects 
of our immigration system and to make progress.
    So the problem with what the President did, of course, is 
it defied what common sense tells us is going to be required 
for sustainability of any change to our immigration system and 
that is consensus--consensus. That is what the Constitution 
forces us to do as Members of Congress working together to pass 
a law and get the President to sign it. But the President did 
an end run around that and leaving the country divided and 
leaving no consensus.
    And, of course, I think Professor Ting noted this, that by 
putting 5 million people ahead of the others who are waiting 
patiently in line trying to play by the rules, I think it would 
strike people as fundamentally unfair for the millions of 
people who have been waiting patiently in line and playing by 
the rules and I think that is not good.
    And as far as the disagreement with Senator Durbin, I think 
what Senator Durbin forgets is what we experienced just last 
spring when 62,000 unaccompanied minor children from October to 
springtime coming across our southwestern border to my State 
where a humanitarian crisis ensued. It is essential in any law 
enforcement scheme to have some sort of deterrence. We cannot 
hope, the police cannot hope in every instance to capture 
everybody who might be inclined to commit a crime.
    What we do is to create a system of deterrence so people do 
not start down that path in the first place. And of course, the 
horrors, experienced by these children coming up on the back of 
the beast through Mexico into the United States, subject to the 
tender mercies of the drug cartels and other people who profit 
from this business model, those are unspeakably horrific.
    So I am really not happy, as you might be able to tell, 
with what the president has done here. I think he has violated 
his oath. He has actually harmed the cause of people like Ms. 
Silva by making it harder for us to do our job.
    Let me just close on this. Under President Obama's 
Executive actions, many people who have committed criminal 
offenses will be allowed to receive deferred action and 
employment authorization. Based on my reading of the DHS 
directive, some people convicted of the following crimes will 
be eligible for the program.
    Are you aware--let me start with Professor Ting and Dr. 
Eastman--that someone who is guilty of child pornography 
possession, child abuse, assault, abduction, false 
imprisonment, voter fraud, larceny, robbery, harassment, theft, 
reckless driving and distribution of alcohol to minors, all of 
them would--according to my reading of the President's deferred 
action--be eligible for that program. Do you have the same 
understanding professor Ting?
    Professor Ting. I am not aware of any authority that would 
contradict what you have just said, Senator.
    Senator Cornyn. I think given the decision that Director of 
ICE, Morton, made several years ago in his first memo saying 
they were going to selectively enforce the law to return people 
who are picked up in our jails who have committed other 
offenses here and this whole idea that the President can 
selectively enforce our immigration laws to the tune of 
millions of people which in essence represents a nullification 
of the law, I think the President has made our communities much 
less safe and particularly the communities where many 
immigrants live who are subject to the violence and the crimes 
that the people they purport to be helping, that they end up 
being the victims of those crimes. Thank you.
    Chairman Hirono. Senator Blumenthal.
    Senator Blumenthal. Thanks very much Madam Chairwoman. 
Thank you for having this hearing. I am hopeful that in the new 
year and in the new session we will put aside some of the 
differences that we have and come back to the ground that we 
have in common, the legal ground, moral ground, political 
ground that was so powerfully expressed in the bipartisan bill 
that we passed.
    I want to thank my colleagues across the aisle for their 
work and say to them that I look forward to a new session when 
we will pass a bill, that we will act more than talk, and that 
we will fulfill the promise of this country which is that we 
take advantage of the enormous energy and talent that 
immigrants bring to our land and that we will enable millions 
of people to emerge from the shadows and more fully participate 
in the greatest, strongest nation in the history of the world. 
We are a nation of immigrants and we are strong and great in 
part because we welcome immigrants.
    I have spent most of the past 40 years in law enforcement, 
so I tend to see this issue through the prism of a law 
enforcer. I respect the President's Executive action and 
support it because of its effect, in part, on law enforcement 
enabling people to participate and cooperate in law enforcement 
and to support the need for more information which they are 
ready willing to give, but sometimes fear doing so because of 
the retribution that can come to them as a result of the laws 
that currently are applied. This message has been amplified by 
a number of letters that the Committee has received for this 
hearing. I would ask, Madam Chairwoman, that they be entered 
into the record--from Chief Charlie Black of the Los Angeles 
Police Department, the chief of the Kansas, Garden City Chief 
of Police James Hawkins and Richard Beale, Dayton Police 
Department and a number of his colleagues.
    Chairman Hirono [off microphone]. Without objection with a 
notation that the Chair has the authority to dispose of--to the 
extent that they are different, without objection they will be 
included in the record.
    Senator Blumenthal. Thank you.
    [The letters appear as submissions for the record.]
    Senator Blumenthal. Ms. Shuler, as you know, there has been 
a lot of criticism of the President's program because of its 
supposed cutting opportunities of employment for ordinary 
working people. Now I would think if anyone is aware of the 
negative impact on work opportunities for working people, your 
members and you would be aware of them. What do you think of 
that criticism?
    Ms. Shuler. I think it is a lot about fear. We tend to want 
to paint it in a picture of us versus them and especially as 
people have struggled in recent years with the recession with 
employment, it is easy to sort of use a scare tactic to pit us 
against each other. But what we have seen is that the evidence 
does not support the notion that this will create some kind of 
mass unemployment. In fact, we think it actually will create 
more opportunities for people.
    I had said earlier that we are all about work opportunities 
and making sure that people who work hard are actually rewarded 
fairly for their work and that they have access to safety 
protections and benefits. Again, we think this goes a long way. 
It is a step in the right direction to making sure that the 8 
million people that we think out of the 11 million that are 
working already can actually come out of the shadows and gain 
access to those kinds of protections.
    Senator Blumenthal. And many of them already pay taxes, but 
the ones that do not will be required to pay taxes?
    Ms. Shuler. That is right.
    Senator Blumenthal. So, far from driving down wages or 
working conditions, you would agree, would you not, that it 
will actually enhance opportunities for average Americans and 
ordinary working people?
    Ms. Shuler. Yes, absolutely. And we have seen evidence even 
within our unions, the United Food and Commercial Workers, for 
instance, has cited that they think about 100,000 of their 
members will actually benefit from this memorandum. We know 
that in the construction industry, for example, in the State of 
Texas, I think it is 50 percent of construction is done by 
undocumented workers, 20 percent overall in the country. So you 
can imagine what kind of a competitive disadvantage that can 
place on a contractor who is employing union members. We see it 
as an opportunity to lift the floor for everyone so that every 
contractor is competing fairly in the construction industry.
    Senator Blumenthal. Great. Thank you so much. I thank you 
Madam Chairwoman.
    Chairman Hirono. Senator Sessions.
    Senator Sessions. Thank you, Madam Chair. Thank all of you. 
This is a very interesting and important hearing.
    I do believe that, Professor Ting, you are correct. I 
remember in 2007 in this room, a professor testifying on 
immigration said Senators tell me what you want. If you want a 
policy that serves the interests of poor people around the 
world, I can tell you what it is, admit them to the United 
States. If you have a policy that serves a national interest of 
the United States, then we can work together and I can help you 
craft one.
    So I think that is our first decision. It has to be a 
lawful system. It has to be one that serves the national 
interest. That is what our people have demanded and pleaded 
with Congress for 40 years for and the politicians have refused 
to give it.
    There was a time, Ms. Shuler, when unions did not see it 
the way you see it today. I think you are incorrect. Professor 
Borhaus at Harvard, probably the premier student of these 
issues, in April 2013 concluded--once again, consistent with 
his previous studies--on net, current immigration policy 
reduces the wages of U.S. workers in competition with 
immigrants by an estimated $400 billion a year while increasing 
profits of business owners who use immigrant labor by an 
estimated $437 billion.
    So virtually all of the additional profit that goes to the 
businesses is paid for by reduced wages. Wages are down since 
2000. Adjusted for inflation, they are down over $3000 since 
2007, over $2300 since 2009. This is a huge thing.
    I do not believe we have a shortage of labor when wages are 
falling. I tell my business friends, you believe in the free 
market, wages are down, I do not believe we have a shortage. 
That has not been disputed. I think you owe it to your members 
to study this issue more carefully as we go forward.
    Now, Professor Eastman, you have talked about the 
prosecutorial discretion issue. As a former Federal prosecutor, 
I understand that. I think you are correct. But it is a 
separate issue to give work authorization. Would you not agree?
    Professor Eastman. I do agree, Senator. And if I could 
correct something in the record before, this notion that 
because 30,000 of the DACA applicants did not receive their 
DACA status and that means it was case-by-case assessment is 
just wrong. The reason there were 30,000 that were denied is 
because they did not meet the eligibility. The numbers I have 
seen on those who applied and met all of the criteria for 
eligibility is that 99.7 percent of them were given it. That is 
the categorical exemption that suspends the law that I was 
talking about.
    Senator Sessions. Professor Ting you have studied this 
issue, you have taught it, you were Assistant INS Commissioner, 
Harvard graduate. If you move from the discretion to prosecute 
issue, which I believe and Professor Turley has asserted is an 
overreach by this Administration just as you and Professor 
Eastman have said, but let us talk about the idea that the 
President of the United States can provide a photo ID, a Social 
Security number, the right to participate in Social Security 
and Medicare, to receive earned income tax credits, and child 
tax credits which are basically direct checks from the United 
States.
    You have suggested we have gone from not enforcing current 
law to the President creating by Executive order a new legal 
system, an alternative that Congress has flatly refused to 
pass. Would you comment on that?
    Professor Ting. Yes. Unlike North Korea, this country is 
not governed by a single great leader who makes policy as he 
wishes. This country is governed by a constitutional process 
which specifies a consultative deliberative process in which a 
check and balance system prevails, and which even the House of 
Representatives--even the House of Representatives has a role 
to play in establishing law in the United States. That is a 
process that we should all treasure because it is the key to 
our freedom and our liberty in this country and we have to pay 
attention to it. We do not have a great leader. We have a 
constitution and we have a process.
    Senator Sessions. Well, it is time for somebody to stand up 
for working Americans. This country cannot absorb--there are 
limits to the number of workers this country can absorb. We 
just do not have that many jobs.
    When I travel my State, Ms. Shuler, I see robotics 
everywhere. In the next 20 years, I predict we will have twice 
as many widgets and no more workers to produce those widgets. I 
think that is the trend we face. And the idea that certain 
businesses feel they have a right to demand labor at the wages 
they would like to pay, I think should not be a position you 
should support. I know you have questioned the increases in 
guest workers, but I think the entire matter of the legitimate 
number of people that we can absorb effectively, having the 
most generous policy in the world which we want to maintain as 
best we can, but I think you should consider that.
    Well, she should probably be given a chance to respond and 
I thank you for listening to me. And I do appreciate the 
opportunity for this hearing.
    Chairman Hirono. Ms. Shuler, would you like to respond?
    Ms. Shuler. I guess I just get a couple of minutes. Yes, I 
would agree with you that wages are down and I think 
immigration is not to be blamed. I think there are so many 
other pieces of the economy that are not working.
    Workers have less bargaining power, I would argue, in the 
economy. So I think it is a bigger piece of the puzzle instead 
of noting that wages are down because you are attributing it to 
these immigration policies that you think are going to bring in 
so many more workers.
    I think too, in terms of technology, it is something we 
definitely have our eye on and it is something we think that 
could also be an opportunity for workers as we have seen in 
past revolutions. The industrial revolution, it creates new 
kinds of jobs. So the notion that jobs are going away because 
of technology that we are not going to have enough jobs because 
of it for everyone who is here working, I think is false.
    Senator Sessions. I think the challenge for us today, Madam 
Chair, is what can we do to help the American worker. They are 
the ones that have suffered. Professor Borhaus has studied this 
intensely. He says it does pull down wages. The Federal Reserve 
in Atlanta has found that wages are pulled down by excessive 
flows of labor and if you bring in more iron, the price of iron 
falls. You bring in more labor, the price of labor falls.
    Thank you, Madam Chair.
    Chairman Hirono. Senator Coons.
    Senator Coons. Thank you, Senator Hirono. I would like to 
thank you and Chairman Leahy for convening this important 
hearing.
    Looking back on the 113th Congress, it was one of my 
proudest occasions serving in the Senate, working alongside 
you, Senator Hirono, and many of our colleagues, both Democrats 
and Republicans, to advance a comprehensive immigration reform 
bill that would have provided relief to millions of families 
who contribute so much for our country, to dramatically 
increase protections of our homeland, particularly along the 
southern border, and to continue to sustain robust economic 
growth.
    While the President cannot accomplish such a broad and 
vital overhaul of our badly broken immigration system on his 
own, I believe the President's recent Executive actions take a 
step in the right direction. Among other benefits, the 
President's actions will give a measure of peace and comfort to 
many of our Nation's children who currently go to bed every 
night worrying that one or both of their parents may be taken 
away before they wake up in the morning and by prioritizing, by 
outlining enforcement priorities that focus on removing 
convicted criminals rather than hardworking parents, the 
President's actions take a step in aligning our system with our 
values.
    I would like to thank all of the witnesses for their time 
and their testimony today. In the few minutes that I have, I 
would like to ask three questions if I might.
    First to Ms. Silva, you have spoken eloquently about the 
contributions of undocumented people to our country, including 
your parents and their contributions to their communities. 
Could you elaborate on the experiences you have had with 
members of your community who are undocumented and the 
potential to boost their real contributions to our society 
through the President's recent actions?
    Ms. Silva. Thank you, Senator. There are, again, millions 
of families that are affected by this. We have had people that 
have wanted to start a business, but have been unable to 
because they lack the Social Security number. With this action 
they will be able to do so. I know that with deferred action we 
had several of our peers who opened up businesses and created 
jobs.
    The amount of people that are going to be able to go out--I 
know that we have volunteers that come to us every day and they 
ride the bus, three, four buses just to get to help us on 
whatever the issue is. This is dedication that cannot be 
mirrored in anything else and I look forward to seeing what 
they can apply that to but they have not had the opportunity to 
do so. But with this they will be able to come out of the 
shadows and contribute even more.
    Senator Coons. Thank you.
    Ms. Silva. Thank you.
    Senator Coons. Ms. Shuler, what has been the AFL-CIO's 
experience in advocating for workers facing dangerous work 
conditions when those same workers feared deportation if they 
raise any concerns or the loss of their jobs or worse? How does 
the President's Executive action impact the work environment 
for U.S. citizens currently facing a difficult or dangerous or 
unsustainable or inappropriate work conditions?
    Ms. Shuler. I think this memorandum has a tremendous 
impact. I had mentioned earlier that as we know, fear that 
people face when they see something on the job either happening 
to themselves or coworkers, unsafe condition on the job, the 
last thing they want to do is raise it if they are an 
undocumented worker because they know that the employer has no 
consequence, basically, if they fire them at will for speaking 
out. So we think that this memorandum will actually give them 
the freedom and the security to raise the issues and feel that 
they have those protections in place so that they can speak up 
for themselves.
    Senator Coons. Thank you. Professor Schroeder, if you 
would, the OLC opinion analyzes the immigration laws currently 
on the books and finds that those laws within themselves 
contain sufficient delegated authority to the President to take 
the Executive action he has taken with respect to immigration. 
The OLC does not take into account, however, the additional 
positive benefits that the President's Executive actions will 
have on enforcement and compliance with Federal tax laws, with 
labor laws, and with the criminal code. Do you believe these 
additional benefits would buttress the OLC analysis that the 
President is in compliance with his obligation to take care 
that the laws are faithfully executed?
    Professor Schroeder. Senator Coons, I believe that the 
fundamental question that has to be answered is whether the 
Department of Homeland Security, within its existing statutory 
authorities, can balance the competing interests in a situation 
like this and come up with the conclusion that there ought to 
be some deferred action initiative. To the extent that there 
are additional payoffs beyond those that are taken into account 
in the memorandum, those I think we count on the favorable side 
of the balance.
    Senator Coons. Let me ask if I might, Madam Chair, just one 
last question. Professor, if you could just respond to some of 
the criticism from my colleagues that the President's actions 
might allow a future President to ignore environmental laws or 
discrimination laws. Is that correct?
    Professor Schroeder. Well, Senator Coons, to a certain 
degree the answer is yes. But it is not because of anything 
that President Obama is doing. It is because of the nature 
prosecutorial discretion. We frequently see when the White 
House changes hands very significant differences in enforcement 
policies.
    One example would be the Civil Rights Division in the 
Justice Department. Past Republican Presidents have tended to 
have Attorneys General who give different priorities to the 
kinds of lawsuits to be brought under the civil rights laws 
then say President Obama or President Clinton. We have seen the 
same thing under the environmental statutes where different 
presidents have different enforcement priorities.
    Congress can restrict those priorities by passing 
legislation and from time to time, indeed, they have. People 
have talked a lot about our separation of powers system as if 
this is being torn asunder by what the President here is doing. 
In fact, enforcement discretion is an integral part of the 
traditional way our separation of powers system has operated 
and it does result in substantial changes in policy and 
priorities from one White House to another. That is entirely 
within the purview of a proper exercise of the President's 
authority under the statutes the Congress has enacted.
    If Congress wants to be more precise, channel enforcement 
priorities with more explicit language. Congress knows how to 
do that. It has done that in the past. And it is perfectly free 
to do that.
    Senator Coons. All right. Thank you. Thank you, Madam 
Chair.
    Chairman Hirono. Senator Cruz.
    Senator Cruz. Thank you, Madam Chairman. Thank you and 
welcome to each of the witnesses for being here today. I think 
the topic of this hearing is exceptionally important both as a 
substantive policy matter, but also more importantly as a 
matter of constitutional law and the threat we are seeing to 
our constitutional system.
    I want to begin on substance. It is my view that the modern 
Democratic Party and to a significant extent, union leadership 
are actively working contrary to the interests of working men 
and women in this country and union members. Indeed, in January 
2013, in a Rasmussen poll 90 percent of union members said that 
the reduction of illegal immigration was important to them. 
Likewise, Zogby in 2010, polling union members found 72 percent 
of union members said Americans can fill open jobs.
    My question for you, Ms. Shuler, is the AFL-CIO is here 
testifying in favor of work authorizations for some 5 million 
people who are in this country illegally. That testimony is 
directly contrary to these strong interests and preferences of 
your millions of members. How does leadership reconcile acting 
against the interests and preferences of those millions of 
union members?
    Ms. Shuler. I will say that polls are subject to 
interpretation and we have seen that since this last November. 
We can find a poll that will support anything essentially. I 
think the journey that we have been on in the labor movement 
with regard to union members and the immigration issue has been 
a long journey and we have had a very diverse debate and 
diverse set of opinions over time that has evolved and I will 
say that we have a very robust executive council that 
represents, as I said earlier, 12.5 million working men and 
women and we have broad agreement that this policy that we are 
talking about, the President's memorandum, will benefit workers 
because of the impact that a low-wage economy of people working 
in the shadows, people who are afraid to speak out and advocate 
for themselves, the impact that that has on all working people.
    Senator Cruz. Thank you, Ms. Shuler. I would note that 
while some opinion polls are open to interpretation, the 
election we had in November was unambiguous. President Obama 
rightly said his policies were on the ballot across the country 
and the American people overwhelmingly rejected amnesty. I feel 
confident that union members across the country would be 
astonished to know that union bosses are more interested in 
loyalty to the Democratic Party than the union bosses are in 
standing up for the working men and women who have been 
struggling mightily the last 6 years.
    It would like to now turn, Professor Eastman, to the 
constitutional and legal questions. You and I have known each 
other a couple of decades now. As troubling as this is on 
substance, and I think this is very troubling on substance, the 
broader constitutional issue is even more pernicious in my 
view.
    Now the President, has attempted to justify unilaterally 
setting aside Federal immigration laws under the aegis of 
prosecutorial discretion. Prosecutorial discretion has long 
been part of what a prosecutor does. Prosecutors decide to 
allocate resources to one crime or another. But what the 
President has done here is far broader than prosecutorial 
discretion.
    The President has not simply said we are going to focus our 
prosecutorial resources on the most violent illegal immigrants. 
What the President has said is something qualitatively 
different which is that the Administration will issue work 
authorizations to some 5 million people who are here illegally.
    Now there is no authorization in law for these work 
authorizations. The Administration is, for all intents and 
purposes, counterfeiting immigration documents because Federal 
immigration law says quite clearly that individuals who have 
come to this country illegally are not eligible to work.
    My question to you, as a constitutional scholar: Are you 
aware of any interpretation of prosecutorial discretion that 
allows the Federal Government to issue essentially get out of 
jail free cards, work authorizations that purport on their face 
to authorize 5 million people to violate the express terms of 
Federal law?
    Professor Eastman. No, Senator I do not. Let me take the 
example that Professor Schroeder gave a moment ago about an 
Administration that chooses to provide less enforcement 
resources or priority to the environmental law.
    Let us make it categorical like this one is. Say if you 
produce less than 10 million tons of pollutants a year, we are 
not going to prosecute you. That would be pushing the envelope 
on prosecutorial discretion, but it still would not have gone 
as far as this has.
    To go as far as what happened here we would be giving a 
license to continue to pollute. We would give pollution 
permits, pollution validation licenses for 3 years, renewable 
infinitely in order to match what the President has done here.
    I have never seen anything like it, certainly not under the 
guise of prosecutorial discretion. No Supreme Court decision 
has even hinted that the prosecutorial discretion authority can 
be used so far.
    Senator Cruz. And there is nothing in Federal law or the 
Constitution that authorizes it?
    Professor Eastman. Nothing whatsoever here.
    Senator Cruz. Thank you very much.
    Chairman Hirono. Since the Chair has allowed some latitude 
in terms of the questioning and the time limits, I would like 
to ask Professor Schroeder if you would like to respond to the 
questions by Senator Cruz on the extent of limits of 
prosecutorial discretion.
    Professor Schroeder. Yes, I quite agree that work 
authorization cannot be done under enforcement discretion. And 
if you read the OLC memorandum, they do not think so either.
    They think the employment authorization documents can only 
be issued because of a provision of the statute that allows 
those documents to be issued if aliens fall into categories 
acknowledged by law or granted by the Attorney General. You 
then look to a code of Federal regulations provision that has 
been on the books for years and you will find that one of the 
enumerated categories are people who have received deferred 
action. So that is the legal basis for the work authorization 
and I quite agree it is not prosecutorial discretion.
    Senator Cruz. Professor Schroeder, if I might follow up on 
that. You are right. The OLC memo grasps one portion of the 
statute which is a definitional portion that makes reference to 
an authorization by the Attorny General. And yet under ordinary 
principles of statutory interpretation, we do not interpret one 
element of a statute to make the remainder of the statute 
superfluous.
    Does it strike you as a reasonable legal interpretation 
that the meaning of this one phrase in a definitional section 
gives the Attorney General the ability to authorize any person 
on earth illegally in this country or who wants to come to this 
country to work? And if that is the case, what is the purpose 
of the entire remainder of the statute if it simply could be 
rewritten, the Attorney General may grant authorization to 
anybody to work, notwithstanding any other provision of Federal 
law?
    Professor Schroeder. No. I quite agree the Attorney General 
could not grant that to anyone. I believe that his discretion 
is limited by the terms of the code of Federal regulation which 
specifies categories. It does not have a provision in it that 
says, and anybody the Attorney General cares to grant documents 
to can also be granted documents.
    Senator Cruz. So let me make sure I understand you. You say 
because the CFR, in turn the regs, seek to expand on that and 
say deferred adjudication that the Attorney Geneneral could say 
we are deferring adjudication to 7 billion people, everyone 
illegally in this country and everyone who might seek to come 
to this country, we will defer adjudication to all of them?
    Professor Schroeder. No. He could not do that either. But 
now you are back in prosecutorial discretion land. That would 
be an abuse of prosecutorial discretion under the language and 
analysis of the Office of Legal Counsel opinion.
    Senator Cruz. But how is 5 million not an abuse?
    Professor Schroeder. Because there is a humanitarian 
concern that is reflected in Congressional policy embodied in 
the statute that is reflected in the choice that the Department 
of Homeland Security has made to grant deferred action to those 
individuals. Once they are in the deferred action category, 
they become eligible for work authorization pursuant to the 
statute and the regs that I have just referenced.
    Senator Cruz. But, Professor Schroeder, I recognize that 
you agree substantively with the policy of granting amnesty and 
reasonable minds can disagree on that.
    Professor Schroeder. Senator, if I may, I agree legally 
with the policy.
    Senator Cruz. Well, my question was legally. Your answer 
was as a humanitarian matter you support it.
    Professor Schroeder. No. Excuse me if I misspoke. I 
apologize. The analysis of the OLC opinion requires that 
deferred action decisions be consonant with policies that are 
reflected in the existing immigration laws. They, therefore, 
needed to find a justifiable humanitarian concern which they 
did in the terms of family unification for the classes of 
individuals that they are talking about, namely people who have 
one member of the family as a legal citizen or legal permanent 
resident here and that is the justification.
    You may not like it. You may think it is overweighted by 
other concerns like the kinds that Professor Ting has 
expressed, but there is nothing in the statute that precludes 
that action. That action is consonant with the stated policy 
and under the system of separation of powers that we have; it 
is up to the current Administration to make the policy call--
with which people can disagre--as to how to implement the 
statute that gives the President that discretionary 
flexibility. That is the full dress review of the argument.
    Senator Cruz. Your suggestion is that this----
    Chairman Hirono. Senator Cruz.
    Senator Cruz [continuing]. Executive authority is 
authorized because it is consistent with the will of Congress? 
Is that really what you are saying?
    Professor Schroeder. No. I am saying that executive 
discretion is authorized----
    Chairman Hirono. Excuse me.
    Professor Schroeder. Pardon me.
    Chairman Hirono. The Chair believes that she has given wide 
latitude on this matter and clearly there are differences of 
legal opinion that are very deeply held and felt. You can 
certainly submit questions, further questions, to the witnesses 
and for the record, and make any further statements.
    At this point I would like to thank all of our panelists, 
our testifiers, and to my colleagues for----
    Senator Lee. I would inquire of the Chairman, is there an 
intention for a second round of questioning to address the 
magnitude of the legal issues here?
    Chairman Hirono. We have been going on for over 3 hours, so 
I would like to close this hearing.
    Senator Lee. So the Chairman does not want a second round 
of questions. Is that correct?
    Chairman Hirono. The Chair believes that she has given 
enough latitude for a lot of people to go over time, so at this 
point, the Chair is going to exercise her discretion and 
prerogative to close this hearing.
    Senator Lee. Madam Chair, before we close, could I 
introduce two documents into the record?
    Chairman Hirono. Certainly. In fact, in closing I would 
like to say that the hearing record will remain open for 1 week 
for the submission of written testimony and for the questions 
for the record.
    This hearing is adjourned.
    [Whereupon, at 4:52 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]
    

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