[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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