    [Senate Hearing 114-871]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-871

                      REINING IN AMNESTY: TEXAS v. UNITED
                          STATES AND ITS IMPLICATIONS

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

                                    HEARING

                                  BEFORE THE

                           SUBCOMMITTEE ON OVERSIGHT,
                         AGENCY ACTION, FEDERAL RIGHTS
                               AND FEDERAL COURTS

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 19, 2015

                                   __________

                               Serial No. J-114-9

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    54-420                      WASHINGTON : 2025

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman

    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking
    JEFF SESSIONS, Alabama                   Member
    LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
    TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
    JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
    DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
    DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

                Kolan L. Davis, Chief Counsel and Staff Director
          Kristine Lucius, Democratic Chief Counsel and Staff Director

                           SUBCOMMITTEE ON OVERSIGHT,
                         AGENCY ACTION, FEDERAL RIGHTS
                               AND FEDERAL COURTS

                           TED CRUZ, Texas, Chairman
    CHARLES E. GRASSLEY, Iowa            CHRISTOPHER A. COONS, Delaware,
    ORRIN G. HATCH, Utah                     Ranking Member
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    JEFF FLAKE, Arizona                  RICHARD J.DURBIN, Illinois
    LINDSEY O. GRAHAM, South Carolina    CHARLES E. SCHUMER, New York
    MICHAEL S. LEE, Utah                 SHELDON WHITEHOUSE, Rhoade Island
    DAVID VITTER, Louisiana              AMY KLOBUCHAR, Minnesota
                                         RICHARD BLUMENTHAL, Connecticut

                     John Zadrozny, Majority Staff Director
                     Ted Schroeder, Minority Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Cruz, Hon. Ted...................................................     1
    Coons, Hon. Christopher A........................................     2

                                   WITNESSES

    Family, Jill E...................................................     8
        Prepared statement...........................................    40
        Responses to written questions...............................    75
    Kobach, Kris W...................................................     7
        Prepared statement...........................................    48
        Questions submitted with no response returned................    72
    Rivkin, David B. Jr..............................................     5
        Prepared statement...........................................    57
        Questions submitted with no response returned................    74

                                    APPENDIX

    Items submitted for the record...................................    39

                      REINING IN AMNESTY: TEXAS v. UNITED
                          STATES AND ITS IMPLICATIONS

                                  ----------

                            THURSDAY, MARCH 19, 2015

                                  United States Senate,
                                    Committee on the Judiciary,
                      Subcommittee on Oversight, Agency Action,
                             Federal Rights and Federal Courts,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 3:36 p.m.,
    Room 226, Dirksen Senate Office Building, Hon. Ted Cruz,
    Chairman of the Subcommittee, presiding.
        Present: Senators Lee, Tillis, Durbin, Coons and
    Blumenthal.

                  OPENING STATEMENT OF HON. TED CRUZ,

                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Chairman Cruz. Good afternoon. This hearing will come to
    order. Welcome to each of the witnesses on this panel.
        I will briefly give an opening statement. Then I will
    recognize the Ranking Member on the Subcommittee, Senator
    Coons, to give an opening statement, at which point we will
    begin to receive testimony from the members of the panel.
        It is no secret that I and many Members of the Senate are
    frustrated with the President's continued disregard for the
    Constitution and the rule of law. The Administration has over
    and over again refused to follow Federal law, refused to follow
    the Constitution, whether with regard to Obamacare, whether
    with regard to the work requirements in our welfare programs,
    or whether with regard to amnesty.
        Twenty-two times President Obama admitted to the American
    people he had no legal authority to grant amnesty to those who
    are here illegally. Indeed, one of those 22 times, he put it
    this way: ``I am not an emperor.'' Then, sadly, after the last
    election, apparently things changed and the legal authority,
    the constitutional authority he lacked those preceding 22 time
    suddenly miraculously appeared and I guess, using the
    President's own formulations, he achieved the power of an
    emperor.
        It is disappointing that Congress has not acted more
    effectively to defend the rule of law, to defend Federal
    immigration laws, which the President has decreed he will not
    follow and indeed he will openly defy.
        Far too many Republicans campaigned across the country
    promising to lead; that if we were given a Republican Majority,
    that we would stand up and stop the President's
    unconstitutional amnesty. Yet Congress has failed to honor
    those commitments.
        Senate Democrats filibustered the funding of the Department
    of Homeland Security in order to protect the President's
    illegal amnesty and, unfortunately, Republican leadership
    capitulated to their demands. Yet I am pleased to say when one
    branch of the government is not doing its job reining in the
    lawlessness of another branch of government, the third branch
    of government has stepped forward to perform its job; namely,
    the Federal Judiciary.
        I am very proud that my home State of Texas is taking the
    lead litigating against the lawlessness of President Obama's
    executive amnesty.
        Along with 25 other States, Texas has sued the Federal
    Government, challenging this illegal policy, and the Federal
    Court in Texas has enjoined the law as contrary to Federal law.
        The ruling, a serious scholarly ruling, some 120 pages in
    length, goes through meticulously how the President's executive
    amnesty plan is directly contrary to Federal law. It enjoined
    it as being contrary to the Administrative Procedures Act, a
    major new policy promulgated without the notice and comment
    required by that Act.
        The purpose of this hearing is to assess the impact of that
    litigation, to assess the impact of that Federal Court's
    rulings and to assess the impact of the President's illegal and
    unconstitutional executive amnesty, if it is allowed to go into
    effect, upon the rule of law, upon all 50 States, and upon the
    American people.
        I appreciate the learned witnesses who have come to join us
    today and I look forward to this Committee hearing your
    testimony in this regard.
        Chairman Cruz. I will now recognize the Ranking Member,
    Senator Coons, for his opening statement.

              OPENING STATEMENT OF HON. CHRISTOPHER COONS,

               A U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Coons. Thank you, Mr. Chairman. I welcome and
    congratulate you as Chairman of this Subcommittee.
        Although the name of the Subcommittee has changed over
    recent Congresses, the Subcommittee continues to have an
    important role in overseeing the courts and the Judiciary and
    overseeing agency action as governed by the Administrative
    Procedures Act.
        I am sure, under your leadership, the Subcommittee will
    continue in its tradition of providing responsible oversight,
    while respecting the separation of powers and concerns, as well
    as the nonpolitical nature of the third branch of our
    government.
        Turning then to the subject of this hearing, the case of
    Texas v. United States, in which one U.S. district court judge
    has temporarily blocked a nationwide program that would allow
    millions to come out of the shadows, to contribute to and help
    grow our economy, by one estimate, up to $250 billion.
        I recognize there is a great deal of debate and division in
    this country over immigration. Such issues, however, are
    typically played out in the political branches, not in the
    Judicial. A key reason for this, of course, is the
    constitutional requirement that the Judiciary be empowered to
    decide cases and controversies rather than purely political
    disputes.
        Political disagreements are first hashed out within the
    legislative branch and between the Legislative and executive
    branches, and those are then routinely subjected to review by
    the courts.
        Our overburdened Judiciary would hardly have the resources
    to continue to decide the concrete legal disputes between
    litigants as charged by the Constitution rather than dealing
    with its core responsibilities.
        The doorkeeper that prevents the Judiciary from wading in
    where it should not is the Article III standing doctrine that
    requires a plaintiff to show they have suffered a concrete and
    particularized injury traceable to the acts of the defendant
    that is capable of remedy by law.
        In this case, it is worth noting that the Court rejected
    the plaintiff's theory that standing could be based on a flood
    of illegal migration that the Administration's executive action
    would purportedly, hypothetically, bring about in the future.
    Such damages would be speculative and traceable to the
    demonstrably illegal activities of third parties, not the
    government.
        The Court's opinion on this point seems well supported and
    that should have been the end of the case, as it was when a
    D.C. District Court threw out a very similar lawsuit on the
    basis of standing.
        It is not the end, however, because Texas argued that
    deferred action recipients would be eligible for a Texas
    driver's license under Texas law and because the State of Texas
    has set the fees for licenses below its own cost to make them,
    the Texas DMV potentially stands to lose about $175 per DAPA
    recipient.
        The Judge in this case found this injury confers standing
    on the State of Texas. I very much look forward to our
    witnesses considering that question.
        It seems to me that this case does present a license
    problem, just not the specific one Texas complains of. The
    problem here is the license that the judge's opinion gives
    States to challenge any administrative policy or action with
    which they disagree.
        It is a unique and novel end run around generalized
    grievances and the bar in the Article III standing doctrine.
    There are many other aspects of this case that I think deserve
    strong and close review. I do think that the judge here has set
    dangerous precedent that threatens to undermine a raft of
    practices, guideline and procedures that are critical for the
    functioning of our government, including Department of Justice
    charging decisions, clemency decisions, decisions to defer
    prosecutions.
        I would note that this is an extraordinary hearing and that
    it concerns ongoing litigation in a Federal trial court that is
    subject to current and future appeal. There has been no trial
    and only limited discovery. Only a preliminary injunction has
    been granted so far.
        The APA, the Administrative Procedures Act, may appear to
    some opponents of this President as a conservative cudgel with
    which to bludgeon the Administration, but this hearing strikes
    me as premature.
        The government is confident that this decision will
    ultimately be reversed and if I were a betting man, I would
    wager they are right. At the end of this case, both the APA and
    the judge's recent ruling may be viewed in sharply different
    focus.
        With that, I look forward to our witnesses and thank the
    indulgence of the Chair.
        Chairman Cruz. I thank the Ranking Member and I look
    forward to serving together on this Committee for the next two
    years and to having hopefully a productive collaboration and
    vigorous oversight carrying out our constitutional
    responsibilities in that regard.
        I now want to welcome the three distinguished witnesses who
    are here.
        Mr. David Rivkin is a partner at BakerHostetler here in
    Washington, DC. He is a member of the firm's litigation,
    international and environmental groups, and he co-chairs the
    firm's appellate and major motions team.
        He has extensive experience in constitutional,
    administrative and international law litigation. He has
    represented the 26 States that have challenged the
    constitutionality of the Patient Protection and Affordable Care
    Act and he was the lead outside counsel in the District Court
    and the Court of Appeals.
        He has a bachelor's degree from Georgetown University, a
    master's degree from Georgetown University, and a law degree
    from Columbia School of Law.
        Mr. Kris Kobach is the Secretary of State for the State of
    Kansas. He was sworn in on January 10, 2011. Prior to his
    election as Secretary of State, Secretary Kobach was a
    professor of constitutional law at the University of Missouri-
    Kansas City from 1996 to 2011.
        In 2001, Secretary Kobach was awarded a White House
    fellowship, where he served as the chief advisor to Attorney
    General Ashcroft in immigration law and border security.
    Following his fellowship, he was appointed as counsel to the
    Attorney General.
        He has a bachelor's degree summa cum laude from Harvard, a
    PhD from Oxford, and a law degree from Yale. For the latter
    fact, we hope he can be forgiven. [Laughter.]
        Ms. Jill Family, Professor of Law and Director of the Law
    and Government of the Law and Government Institute at the
    Widener University School of Law, is our third witness.
        Professor Family teaches immigration law, introduction to
    immigration law practice, administrative law and civil
    procedure. Professor Family's research focuses on immigration
    law and administrative law.
        She has an undergraduate degree from the University of
    Pennsylvania, a master's from Rutgers University, and a law
    degree from Rutgers School of Law.
        I would now ask each of the witnesses to rise and be sworn
    in.
        [Witnesses are sworn in.]
        Chairman Cruz. Thank you very much. Mr. Rivkin, you may
    begin.

                   STATEMENT OF DAVID B. RIVKIN, JR.,

                PARTNER, BAKERHOSTETLER, WASHINGTON, DC

        Mr. Rivkin. Thank you, Chairman Cruz, Ranking Member Coons,
    Members of the Subcommittee. I appreciate the opportunity to
    testify before you today.
        I am going to focus briefly and solely on the legality of
    President Obama's Deferred Action for Parents of Americans and
    Lawful Permanent Residents, DAPA, since DAPA's policy merits no
    matter how compelling they may be are not relevant to its
    legality.
        My bottom line is that the President cannot suspend any
    validly enacted congressional statute or even dispense with its
    application to certain parties. The Supreme Court confronted
    this very question in the 19, excuse me, in the 1838 case
    called Kendall v. United States. In that case, the President's
    lawyers argued forthrightly not to try to claim that he was
    exercising enforcement discretion or harnessing his limited
    resources, but rather forthrightly argued that the Congress
    passed too many statutes, that the executive branch could not
    execute all of them well, and, therefore, the faithful
    execution really meant they were going to execute a portion of
    them well at the time and defer enforcing other statutes for a
    while.
        The Supreme Court decisively rejected this argument,
    calling the suspension and dispensing powers utterly alien to
    our constitutional tradition.
        This controversy, by the way, dates to a much earlier
    debate between King James II and the Parliament, which
    culminated in the Glorious Revolution. The framers, of course,
    being a professor in encyclopedic knowledge of history, we are
    aware of this and this is what led to the faithful execution
    language in Article III, excuse me, Article II, Section 3,
    which requires the President shall take care that the laws be
    faithfully executed.
        This duty of faithful execution is a compelling
    constitutional obligation subject only to the proper
    constraints of enforcement discretion and resource limitations.
        I would argue that DAPA is, in fact, a constitutionally
    prescribed exercise in dispensing power and is neither a
    legitimate exercise in enforcement discretion nor
    prioritization of government's limited resources.
        It rewrites existing law. Illegal immigrants would not be
    deported if they are not a threat to national security, public
    safety or border security. Beyond those three categories,
    deportation may be pursued only if it serves an important
    Federal interest.
        By contrast, the Immigration and Nationality Act, INA,
    indicates that whoever enters the country illegally is a
    deportable alien who shall, upon the order of the Attorney
    General, be removed.
        The President's policy transforms deportable aliens in two
    different categories, some of which are deportable and some are
    not.
        DAPA, very importantly, and this is the heart of this
    litigation, does not involve case-by-case scrutiny. This is the
    key, because an across-the-board categorical non-enforcement
    policy amounts to the very constitutionally proscribed
    dispensing power, as the Supreme Court held in the Chaney case
    and other cases.
        The Administration argues that this is not the case, that
    there are really are no removable aliens because removal cannot
    be pursued under any circumstances and, therefore, there is
    still an opportunity to exercise enforcement discretion in the
    context of processing individual applications.
        The mere possibility that a small percentage of four-plus
    million applicants may be rejected does not a meaningful
    enforcement discretion make. Numbers aside, since the millions
    of applicants will be applying by mail, the very context for
    implementing DAPA is inherently unsusceptible to the use of
    case-by-case discretion.
        The Administration also claims that Congress somehow
    acquiesced to what the President is doing because Congress has
    from time to time created exceptions by grant--to removal by
    granting deferred deportation opportunities. Congress has
    always done it with a specific narrow category of individuals,
    and I, frankly, find the argument that because statute creates
    certain narrow categories of exceptions, that the President can
    somehow create his own broader category to be somewhat
    unpersuasive.
        Finally, DAPA creates entitlement to benefits, such as a
    work program, and, as Judge Hanen points out in his opinion and
    I think it is perfectly clear, benefit-bestowing is never a
    part of enforcement discretion.
        All these problems aside, DAPA--and this goes to the
    standing, of course--profoundly harms the states by burdening
    them with costs, but there is another argument that is even
    dearer and nearer to me in that DAPA, which Judge Hanen's
    opinion comments briefly, he calls it abdication standing,
    because DAPA unconstitutionally injures state sovereignty.
        All of the States, of course, exercise their sovereignty in
    the shadow of the Constitution supremacy clause. The framers
    who drafted the Constitution in Philadelphia and the citizens
    of the 13 States who ratified have agreed to these arrangement
    to be subject to be preempted by Federal legislation because
    they were given a formidable set of tools to shape this
    preemptive legislation primarily through the States'
    representation in the Senate.
        That is why, by the way, this is the only--that the States'
    membership in the Senate is the only part of our Constitution--
    if you look at Article V, it cannot be amended.
        All of those tools are entirely inapposite if statutes are
    drafted by the President as the sole lawmaker and not by
    Congress. We have INA in place today that preempts States,
    including the State of Texas, from doing anything about
    immigration, and yet the statute that is in place today is not
    the same statute Congress wrote.
        I would close by saying that DAPA reflects a not only
    unconstitutional premise, the President as sole lawmaker, it is
    a dangerous precedent that warps the separation of powers and
    harms individual liberty. It cannot be allowed to stand and I
    am quite hopeful that the Fifth Circuit would uphold the PI and
    the Supreme Court would do likewise and this case would be
    resolved promptly on the merits.
        Thank you.
        [The prepared testimony of Mr. Rivkin appears as a
    submission for the record]
        Chairman Cruz. Thank you, Mr. Rivkin.
        I now recognize Secretary Kobach.

                      STATEMENT OF KRIS W. KOBACH,

                  SECRETARY OF STATE, STATE OF KANSAS

        Secretary Kobach. Thank you, Mr. Chairman and Members of
    the Committee.
        Although I come before you as Secretary of State, I am
    chiefly here in my private capacity as an attorney who has
    represented ICE agents and U.S. citizens in cases and
    litigation in Federal courts across the country.
        At the outset, on that point, it is important for the
    Committee to note that the Texas v. United States decision is
    not the only decision in which a Federal district judge has
    held that the President DACA/DAPA actions are in violation of
    law. It is actually the second.
        The first was in a case where I served as lead counsel.
    Right after the June 2012 DACA, 10 ICE agents sued the
    Department of Homeland Security; and, in April 2013, the
    Northern District of Texas--another district, same State--held
    that the--on a preliminary injunction motion that the statutes
    found at 8 USC Section 1225(b)(2) are violated by the
    President's order.
        Specifically, the President's directives order ICE agents
    to break the law. The law requires ICE agents to put certain
    aliens into removal proceedings and the directives say no, do
    not follow the law, do not put them into removal proceedings.
        That case is currently pending before the Fifth Circuit. It
    is now titled Crane v. Johnson. The reason that the Northern
    District of Texas did not issue a preliminary injunction is
    that the judge subsequently revisited his jurisdiction and
    concluded that the Civil Service Reform Act of 1976 precluded
    jurisdiction and forced the ICE agents to go through the MSPB,
    the administrative hearing, before they could get to a Federal
    court.
        The case is on appeal in this Fifth Circuit both on the
    preclusion question and on the merits, which the Department of
    Justice cross-appealed. I would note that the judge did find
    that the 10 ICE agents do have standing
        Both cases, Texas v. United States and Crane v. Johnson,
    present three independent reasons why these administrative acts
    are unlawful. First, as has already been noted, they violate
    the Administrative Procedures Act's rule and comment
    requirements.
        Second, even if they did not violate the APA, they violate
    substantive provisions of Federal law, which I just mentioned.
    Third, even if they did not violate Federal law, they would
    still violate the Constitution because they constitute an
    executive exercise of legislative power, which violates the
    separation of powers.
        The APA argument is laid out best by Judge Hanen in the
    Texas case. Judge O'Connor lays out the statutory violations
    very well in the Crane case. The APA arguments have already
    been touched upon. Let me jump straight to the violations of
    the substantive provisions of Federal law.
        In 1996, Congress acted to drastically limit the discretion
    that then the INS had been exercising. The process of--the
    procedure of deferred action actually started in the 1990's and
    it was that procedure that Congress tried to limit and to tie
    down so that it could not be used.
        Specifically, Congress passed three interlocking
    provisions, which are found in Section 1225 of Title 8 of the
    United States Code. One of the ones, Section 1225(b)(2)(a) says
    that if the examining officer determines that an alien seeking
    admission is not clearly and beyond a doubt entitled to be
    admitted, the alien shall be detained for a proceeding under
    Section 1229(a). That is a removal proceeding.
        In other words, shall Congress specifically said you have
    to place these aliens in removal proceedings. Shall has a very
    specific meaning, as I am sure the Members of the Committee
    know.
        The DACA and DAPA directives order ICE agents to violate
    these laws. The First Circuit has already characterized these
    specific provisions as mandatory in nature. The District Court
    characterized them as mandatory in nature and rejected the
    Justice Department's rather absurd argument that shall means
    may. As a result, the DOJ has seen fit to cross-appeal in the
    Fifth Circuit.
        The case is currently pending. Oral argument was on
    February 3 of this year.
        The Obama administration's primary protest is that it would
    not make sense to interpret the law this way. We need
    discretion. We need to choose how to exercise our resources.
    The answer, which is found in the text of the law and found in
    Judge O'Connor's ruling, is Congress took away your discretion.
        If you believe that you need to make better decisions about
    which aliens to deport, you must take your case to Congress or
    you must ask Congress for more money. The law is very clear.
        Finally, consider the third document and that is the
    separation of powers argument. Even if there were not a Federal
    statute that says quite clearly you must remove these aliens,
    and Congress had a very clear intent, the legislative record
    supports that meaning, it is a violation of the separation of
    powers.
        In the landmark case of INS v. Chadha, the Supreme Court
    said that if a--``if an action has the purpose or effect of
    altering the legal rights, duties and relations of persons,''
    end quote, then that is a legislative act.
        That is clearly what has happened here. The directives set
    criteria, they grant benefits, and they grant dispensation from
    removal. They alter the legal rights and responsibilities of
    those persons. They are legislation.
        It is illegal on three levels. Indeed, it is also
    unconstitutional. I would be happy to answer your questions.
        [The prepared testimony of Secretary Kobach appears as a
    submission for the record]
        Chairman Cruz. Thank you very much, Mr. Secretary.
        I now recognize Professor Family.

                 STATEMENT OF JILL E. FAMILY, PROFESSOR

             OF LAW AND DIRECTOR OF THE LAW AND GOVERNMENT

                  INSTITUTE, WIDENER UNIVERSITY SCHOOL

                    OF LAW, HARRISBURG, PENNSYLVANIA

        Professor Family. Thank you. Mr. Chairman and honorable
    Members of the Subcommittee, thank you so much for the
    opportunity to testify before you.
        I have submitted written testimony and I would like to
    highlight a few points about that testimony.
        With all due respect, Judge Hanen's opinion in Texas v.
    United States is deeply flawed. It misunderstands immigration
    law and misapplies well established administrative law
    principles.
        Judge Hanen erred in concluding that the deferred action
    for parental accountability, or DAPA, policy is something other
    than prosecutorial discretion. Deferred action is, in fact, a
    well established form of prosecutorial discretion and it is a
    part of a long history of prosecutorial discretion in
    immigration law.
        DAPA does not provide legal immigration status. Instead, it
    allows individuals to request deferred action, which simply is
    a signal that the individual is a low priority for deportation.
    Deferred action gives revokable permission for an individual to
    be present in the United States for a certain period of time.
    It does not provide the same security as a legal immigration
    status.
        Further, any recipient of deferred action may request work
    authorization. Work authorization is a part of a separate,
    already established, legally binding framework. The Department
    of Homeland Security did not create work authorization
    especially for DAPA.
        Additionally, the Department of Homeland Security continues
    to enforce the immigration laws. It is merely making priorities
    for how to spend its limited resources.
        Because deferred action is prosecutorial discretion, it is
    not subject to judicial review under the Administrative
    Procedures Act, or APA. The APA prevents judicial review where
    agency action is committed to agency discretion by law.
        The Supreme Court held that, quote, ``An agency's decision
    not to take enforcement action should be presumed immune from
    judicial review.''
        Judge Hanen's decision hinges on his conclusion that the
    APA provides for judicial review. He reaches that conclusion by
    characterizing deferred action as something other than
    prosecutorial discretion.
        I strongly disagree with that conclusion. Statutes give DHS
    discretion in enforcing the immigration laws and DHS is
    exercising its discretion through deferred action.
        I strongly disagree with Judge Hanen's conclusion that the
    immigration statutes forbid DHS to grant deferred action
    without placing an individual into removal proceedings. That is
    never how the statutes have been interpreted and that
    interpretation goes against the meaning of the overall
    Immigration and Nationality Act and the legislative history.
        That interpretation looks at certain statutory sections in
    a vacuum and would create absurd effects. As I stated, I do not
    believe that Judge Hanen should have exercised judicial review
    under the APA.
        Since he did, I will address the question he resolved on
    the merits, whether DHS appropriately invoked an exception to
    notice and comment rulemaking.
        I strongly disagree with Judge Hanen's conclusion that DHS
    was required to use notice and comment rulemaking. The
    Department of Homeland Security issued a memorandum from the
    Secretary of Homeland Security to announce the new immigration
    policies. This type of memorandum is called a policy statement.
        Under the APA, agencies are explicitly authorized to use
    policy statements. It is part of the legal administrative law
    framework.
        The question then is whether the DAPA memo really is a
    policy statement or whether it does not fit into that category.
    The applicable test is whether the memorandum is binding on its
    face or as applied.
        Contrary to Judge Hanen's conclusions, the DAPA memo is not
    binding on its face and it is too early to know how DHS will
    apply it.
        Aside from addressing Judge Hanen's opinion, I want to
    emphasize that agency use of policy statements is not exclusive
    to immigration law or to the current Administration. As I
    explained, the APA explicitly authorizes agencies to use this
    procedural mechanism. Policy statements are very common in
    administrative law and have been for decades.
        Finally, we should encourage the Department of Homeland
    Security's efforts to be transparent about requests for
    deferred action. The listing of criteria for consideration is
    preferable to no signals to either the public or to the
    department's own adjudicators about how the agency may approach
    these requests.
        Agencies are authorized to use policy statements and we
    should encourage agencies to do so with transparency.
        I welcome the opportunity to discuss these matters more
    thoroughly.
        [The prepared testimony of Professor Family appears as a
    submission for the record]
        Chairman Cruz. Thank you very much, Professor Family.
        We will now begin questioning. I would like to start.
        Mr. Rivkin, the Federal court did not pull any punches in
    concluding that the Administration's executive amnesty was in
    direct violation of Federal law.
        Indeed, the Federal court noted, quote, ``The very statutes
    under which defendants claim discretionary authority actually
    compel the opposite result.''
        The Federal court further noted, quote, ``The DHS Secretary
    is not just rewriting the laws, he is creating them from
    scratch.'' That is a direct conclusion of the Federal court in
    this litigation.
        Mr. Rivkin, the question I want to ask you is two-fold.
    Number one, do you agree with that assessment? Number two, if
    you do, what are the consequences for the rule of law if the
    Executive has the authority, under the guise of prosecutorial
    discretion, to categorically refuse to enforce this Federal law
    and other Federal laws?
        Mr. Rivkin. Chairman Cruz, as to the first question, I have
    read very carefully Judge Hanen's decision. I think he is
    absolutely right. This is indeed rewriting of a law. To make
    one point, it was not done in a subterranean fashion. It was
    done in the daylight.
        The President not only had the Secretary of DHS issue
    this--not a policy statement, but a pretty binding opinion. A
    number of statements issued by the Administration indicated
    clearly what is going to happen.
        The notion that there is giong to be a meaningful exercise
    at the field director office is--well, to put it gently, is
    risible.
        We also have a little bit of experience with the
    predecessor of DAPA, called DACA, where, out of hundreds of
    thousands of applicants, less than three percent, Mr. Chairman,
    were rejected. To me, that pretty clearly demonstrates that
    this is a wholesale dispensation of the law relative to a
    particular category of individuals, which is, of course,
    utterly unconstitutional and violates the President's faithful
    execution duty.
        As to what this would portend, let me also briefly link the
    APA arguments that I think are very important here. We have an
    Administration that has really done three things, and I point
    it out in my written statement.
        It has, first, rewritten the law. It is then did not bestir
    itself to comply--let us call them structuring statutes, like
    APA, because the whole purpose of APA, for respect, and Article
    I delegates some authority to Article II, which the courts have
    upheld since the New Deal, it wants to cabin, to discipline
    that exercise by having statutes like APA that provide for a
    structured approach to decisionmaking--notice, comment,
    judicial review.
        The third thing, they said nobody has judicial review.
    Where the Administration wants to rewrite the laws, not comply
    with any structuring statutes that cabin how the Executive does
    it, even if it is given authority, and then there is no
    judicial review, that decision stands.
        It warps separation of powers, which is the primary means
    of protecting individual liberty. For those who care about
    policy results, which I have nothing to say since I do not
    think it is relevant to the law, let me tell you, if that--if
    that endures, if this is the new constitutional baseline,
    future Presidents would suspend on their own and rewrite tax
    laws, worker safety laws, pharmaceutical safety laws and
    various other things that are very, very important to the
    administrative State.
        It is a horrible situation.
        Chairman Cruz. Thank you, Mr. Rivkin.
        I would like to shift now to you, Secretary Kobach.
        The Federal court in Texas heard evidence and that if the
    President's amnesty program went into effect, that just in the
    State of Texas, it would apply to at least 500,000 people who
    were here illegally and that as a consequence, when you add up
    the personnel costs, the facilities costs, the costs of
    driver's license production and all of the other costs, the
    two-year price tag to the taxpayers and the citizens of Texas
    for the President's illegal amnesty was in excess of $103
    million.
        That was included in Exhibit No. 24 in the trial. Without
    objection, I would like to enter that into the record of this
    hearing.
        [The information referred appears as a submission for the
    record]
        Chairman Cruz. My question to you, Secretary Kobach. Does
    your home State of Kansas and do other States face similar
    costs if some 4.5 million people here illegally are granted
    amnesty, issued work authorizations, issued drier's licenses,
    contrary to current law?
        Mr. Kobach. Yes. We do face similar costs and one of the
    reasons we cannot give you an exact number is because the
    Federal Government, the Obama administration will not give us
    the exact names and dates of birth of the amnesty recipients.
    If we had those names we could then see if these individuals
    are receiving leave benefits, X number of people have received
    a driver's license.
        Instead we have to estimate. If you do estimate, in Kansas,
    for example, the number of people who have received the DACA
    benefit is much smaller than in Texas. Of course, our State has
    fewer illegal aliens, but it is roughly 6,000 at this point,
    using the Federal Government's numbers of people in the State.
        Assuming two-thirds of them get a driver's license, you are
    roughly talking about--and, again, assuming agency costs, it is
    conservatively about $150 a driver's license, you are talking
    about $600,000 on drivers' licenses alone. Then if you add all
    of the other services and benefits that the person can avail
    himself of once he has that deferred action. Then the price
    looks much later, I would say approximately $38 million.
        Again, you have to assume. We do not know the names of the
    DACA recipients. Then if you add to DACA another 35,000,
    approximately, Kansans who would be available for DAPA, then
    you increase all of those numbers roughly six-fold.
        You are talking about a whopping increase over what was
    already an illegal and expensive amnesty.
        Chairman Cruz. Does that have a consequence for voting in
    the State of Kansas if people here illegally are given driver's
    licenses?
        Secretary Kobach. Interestingly, it does. The driver's
    license and the Social Security number are documents that the
    National Voter Registration Act specifies are documents you can
    use to register to vote.
        For example, my fellow Secretary of State in Ohio wrote a
    letter to the President asking for what I just mentioned, a
    list of names and dates of birth so he could check the voter
    rolls and see if these individuals had not been registered when
    they go to get a driver's license, because many driver's
    license clerks will, after asking hundreds of people each day
    at the end of the interview, ``Would you like to register to
    vote,'' they will ask the same question and people accidentally
    get on the voter rolls this way.
        The Administration has refused to provide that information.
    In Kansas, we are more secure against that because we are one
    of four States that requires proof of citizenship at the time a
    person registers to vote. The other 46 States, however, I would
    wager that a significant percentage of these individuals, once
    they get the driver's license, are probably becoming
    registered, whether willfully or unintentionally.
        Chairman Cruz. Thank you, Mr. Secretary. Senator Coons.
        Senator Coons. Thank you, Chairman Cruz.
        Professor Family, if I would--you have published
    extensively on the intersection of immigration law and
    administrative law. Just review for us, if you would, what the
    key test is for determining whether DACA and DAPA are
    reviewable under the Administrative Procedures Act.
        Professor Family. Thank you, Senator. I think we cannot
    emphasize enough that policy statements are a part of the rule
    of law. They are part of the Administrative Procedures Act.
        Senator Coons. Is your mic on, Professor Family?
        Professor Family. Sorry. I thought it was.
        Senator Coons. Start again, if you would.
        Professor Family. I think it is important that we emphasize
    that policy statements are a part of the rule of law. They are
    part of the structure of the Administrative Procedures Act and
    the drafters of the Administrative Procedures Act put them in
    there for a reason.
        The test is whether or not the memorandum is binding on its
    face or whether it is--how--we look at how it is applied,
    whether or not the agency applies the memorandum with some
    flexibility.
        Just a couple of points on that. The first is that courts,
    including the Fifth Circuit, have upheld policy statements,
    saying that the agency correctly invoked an exception from
    notice and comment rulemaking and used policy statements where
    agencies have listed out criteria.
        That is not--the DAPA amendment does not really do anything
    new in the fact that the agency lists out some criteria for the
    agency to take a look at, because what a policy statement does
    is the agency expressing to the public and to its own staff how
    the agency plans to use its enforcement power in the future.
    That is what a policy statement--that is what a policy
    statement does.
        I just want to mention--since Mr. Rivkin mentioned the
    three percent rejection rate. I have seen different numbers for
    the DACA rejection rate. I also want to point out that that is
    a rate for a different program. We do not know how the
    Department of Homeland Security will implement DAPA yet.
        It is extremely unusual in administrative law in these
    policy statement cases, which I have read a lot of, that--it is
    extremely unusual to look at how an agency implements a
    different program to make a guess at how the agency would
    implement this particular program.
        I would also like to point out that I do not think the
    rejection rate alone really tells us anything. I think the memo
    itself gives discretion to the agency officers and we do not
    know yet how the agency will implement this particular program.
        I think under the well settled principles of administrative
    law, as I said, I think Judge Hanen erred to find that notice
    and comment rulemaking was required.
        Senator Coons. Let me just follow up, if I might, on that
    exact point about discretion and to whom discretion is granted,
    by whom it is exercised and whether or not the agency guidance
    here is exempted.
        As I understand it, agency guidance is generally exempted
    from the Administrative Procedures Act notice and comment
    requirements.
        DAPA appears to be guidance, but the Judge ruled that it
    was not because employees are required to follow it. Is that
    the right test? Even if the judge were right about that test,
    do the DACA program and the announced DAPA program allow Custom
    and Immigration Services, USCIS officers to exercise discretion
    or are they utterly without discretion?
        Professor Family. No. They have discretion. It is tricky
    because if you think just from an administrative law
    perspective of how you would want an agency to operate, we want
    to have these policy statements because we want agencies to be
    able to give some direction to lower level agency officials.
    Otherwise, the alternative option would be, you know, sort of
    supervisory officials would say we will give you some sort of
    idea of what we would like to see happen, but we have no way
    of, you know, transmitting that or making sure that our lower
    level adjudicators understand and we will just totally leave it
    up to each individual adjudicator to decide what they maybe
    think is best.
        A policy statement really is the better of two worlds in
    the sense that supervisory officials are able to give some
    direction, but still leave some discretion to lower level
    agency officials, and the DAPA memo does that.
        Senator Coons. To the specific point about whether
    individuals operating at the front line are able to exercise
    discretion and whether the discretion that is legally at issue
    here is by those agents or by the agency as a whole, what is
    your answer to the latter?
        Professor Family. Yes. That is an administrative law
    question in terms of--that is unsettled and it may be enough
    just that the agency itself does not consider itself bound. In
    other words, if the higher level agency officials who are
    writing the memos, if they are free to change their mind, which
    they are, then that may be enough in order to say that it is a
    valid policy statement.
        Senator Coons. What is the legal significance--this will be
    my last question. What is the legal significance of the fact
    that an applicant who, upon review, is denied in the exercise
    of discretion by a USCIS officer? They cannot appeal, to the
    best of my understanding. What is the legal significance of
    that?
        Professor Family. I think, you know, the fact that this
    policy was implemented through a policy statement I think shows
    that the Department Of Homeland Security wanted to access the
    flexibility that policy statements provide and, in fact, why
    they were included in the Administrative Procedures Act,
    because it gives the agency an opportunity to change its mind.
        The agency could look at how the policy is being
    implemented and decide--you know, they might decide to change
    the way that they are enforcing the law. I think that a policy
    statement leaves the agency with a lot of flexibility. Again,
    if we sort of take this discussion out of immigration law and
    just look it at sort of good governance generally, policy
    statements serve a very important and useful purpose.
        Senator Coons. Thank you, Professor Family. Thank you,
    Chairman.
        Chairman Cruz. Thank you. Senator Durbin.
        Senator Durbin. Thank you, Mr. Chairman. I would like to
    note that this Texas case was brought by Governors from several
    States, I believe all Republican Governors. I may be mistaken.
    That it did not include governors, pardon me, attorneys general
    of States like my own, and some 14 States are now asking that
    the injunction that was issued by this court not apply to those
    States.
        The arguments they are making is there is no damage. They
    believe that the President's executive orders, in fact, will
    enhance the collection of revenue. One of the requirements of
    President Obama's executive order is that people come forward,
    register, submit themselves to a criminal background check,
    which, of course, would make them subject to deportation if
    there is a finding of wrongdoing of a serious nature and then
    be given a temporary work permit.
        No matter how many times you use the word amnesty, we are
    talking about deferred action and a temporary renewable permit
    to stay or work in the United States and during that period pay
    taxes.
        In my State, it is estimated there are 560,000 undocumented
    immigrants living in Illinois; 214,000 of them are potentially
    eligible--potentially eligible. If these immigrants receive
    this temporary work permit, it would lead to a $347,000,000
    increase in tax revenues for Illinois over 5 years.
        That may be the reason Illinois did not join this lawsuit,
    because we disagree with the premise. We happen to believe that
    it is good for our economy and good for our State.
        Ms. Family, I look at some of the comments that are made by
    legal scholars here and they draw analogies to what previous
    Presidents have done by executive order.
        In 1987, Ronald Reagan, executive action to stop the
    deportation of 200,000 Nicaraguans. In 1990, President George
    HW Bush stopped the deportation of Chinese students. He kept
    hundreds of Kuwaiti citizens here who were otherwise illegal
    and saved them from being deported.
        In 2001, President George W. Bush limited deportation of
    Salvadorean citizens at the request of that country's president
    and ordered that deportation decisions include consideration of
    specific factors.
        It seems that each and every one of these fall into the
    basic argument that was made by Justice Anthony Kennedy when
    he, in fact, struck down the controversial Arizona immigration
    law, which was authored by one of our witnesses today.
        This what Justice Kennedy said: ``A principal feature of
    the removal system is the broad discretion exercised by
    immigration officials. Discretion in the enforcement of
    immigration law embraces immediate human concerns, unauthorized
    workers trying to support their families, for example, likely
    pose less danger than alien smugglers or aliens who commit a
    serious crime.''
        If we only appropriate enough money, Ms. Family, to our
    agencies to, at least theoretically, deport four percent of the
    undocumented from the United States each year, does it not
    stand to reason that they must use discretion in choosing those
    who are most likely to be a harm to the United States or a
    threat to the United States?
        Professor Family. Yes. I think that prosecutorial
    discretion is inevitable in immigration law. I think we also
    have to remember here that we are talking about the regulation
    of people. That is something that drew me to the field of
    immigration law. I actually practiced immigration law before I
    became a law professor.
        I think we need to remember that we are talking about the
    regulation of people here and prosecutorial discretion is
    always going to be necessary and humane. I think we do not want
    to lose aspect--lose sight of that, as well. I think we also
    need to remember that if you are talking about prosecutorial
    discretion in terms of the regulation of people and where they
    can be, an intrinsic part of that is always going to be
    sanctioning someone's presence; not giving them a legal status,
    but sanctioning their presence.
        I think if we look at sort of the reality and the practical
    nature of the situation, you know, especially given the limited
    congressional appropriations, I think the Department of
    Homeland Security is doing what the statute has mandated that
    it do.
        Senator Durbin. Not only limited resources, but limited
    action by Congress, having passed a bipartisan comprehensive
    immigration bill in the Senate with 68 votes, sent to the House
    where it languished for a 1 year and a half with no action at
    all. The President's response by executive order was only after
    the House of Representatives and Congress had been given ample
    opportunity to exercise their own power under our Constitution.
        What the President is clearly attempting to do is to bring
    in those people, no threat to the United States, who will
    register, subject themselves to a criminal background check,
    pay taxes, and for that receive a temporary work permit. That,
    to me, is not even close to amnesty.
        Thank you.
        Chairman Cruz. Thank you, Senator Durbin. Senator Lee.
        Senator Lee. Thank you, Mr. Chairman.
        Mr. Rivkin, I am very concerned that this Administration
    may have created a new beast and that would involve
    establishing regulations by calculated inaction.
        Many years ago, of course, the Supreme Court in Heckler v.
    Chaney concluded that agency inaction is normally not subject
    to review in court under the APA.
        In the case of executive amnesty, of course, the
    Administration has gone beyond that, beyond Heckler, but it
    does cause me to worry about whether the Heckler rule has come
    to serve as sort of a shield, a shield behind which in any
    Presidential administration from here forward could shield,
    could hide unconstitutional or illegal executive policies and
    hope that those policies could never be reviewed in the same
    way that they could otherwise if they involved not inaction,
    but action.
        My question for you is should we, should Congress consider
    changing the law to make an agency's non-enforcement, its
    calculated inaction decisions, subject to judicial review?
        Mr. Rivkin. Let me say first, Senator Lee, that I do not
    think the rule of Heckler v. Chaney is that porous. I think
    actually if you look at the OLC memo that provided
    justification for DAPA, it parsed the law perfectly fine. It
    applied it incorrectly to the facts by arguing, in fact,
    because the holding of Chaney is--there is a fundamental
    difference, the case states very clearly, between a wholesale
    suspension of enforcement, because that is what dispensing
    power is, and doing it on a case-by-case basis.
        If DAPA was truly a case-by-case enforcement decision with
    an opportunity for ICE officers to look at each individual
    applicant and reach some decision would not have a problem.
    That is not what it is.
        The reason it is not what it is--and if I may briefly
    comment on the question of discretion here, because Judge Hanen
    walks through it very carefully, particularly on pages 75 and
    76 of his opinion.
        Look, it cannot be a sham. We have a decision by the
    Secretary of Homeland Security that is written in pretty
    mandatory terms, from an agency that staffed itself up to
    implement the flood of applications, where the President of the
    United States who says that four million-plus people are going
    to come out of the shadows.
        We have four million-plus applications, Senator, who are
    going to come in to be processed by roughly 50-plus field
    officers. In this situation, unlike granting of consular visas
    where you can look at the applicant, a very discretionary
    decision, you can satisfy all the criteria. You can have a
    return ticket, you have ties to the country you come from, the
    consular officer does not like the fact that you look shifty,
    you are sweating, or he may just think you are not trustworthy.
        How is it possible to exercise meaningful discretion when
    50-plus people are going to get four million-plus applications,
    knowing full well that their political masters expect virtually
    all of those applications to be granted?
        The problem is not with Heckler v. Chaney. The problem is
    the Administration using it incorrectly. I have every
    confidence that Article III courts would look for it.
        There are ways to tighten it. Yes, you can certainly change
    APA to clarify Section 702 because we have--obviously,
    Professor Family and I disagree about what it means. Let me
    just say also one thing. The fact that the agency can change
    its mind never means that it is truly a policy statement. The
    agency can always change its mind. If it is operating on its
    own discretion you, Article I, gave it, it can change its mind
    and issue a new rule. Under that logic, nothing would ever be
    judicially reviewable.
        To me, again, the notion that this is not something that
    requires meaningful input under APA or judicial review just
    underscores the extent, frankly, of the arrogance of this
    Administration.
        Look, I served in two administrations. Nothing is--nobody
    is more appreciative of prosecutorial discretion or all the
    prerogatives of Article II--I am an Article II person by my
    professional experience, but I have never seen any
    administration that would make such enormously imperious claims
    that would, frankly, make Nixon blush about the extent to which
    he could write domestic law without any warrant in statute or
    the Constitution.
        Senator Lee: So this, in your opinion, moves far outside of
    calculated discretionary inaction contemplated under Heckler v.
    Chaney. This is calculated action in the opposite direction of
    the statute.
        Mr. Rivkin. That is exactly right, masquerading as
    inaction.
        Professor Family: May I add something real quick?
        Senator Lee: Sure.
        Professor Family: I just want to make sure we do not lose
    sight of the fact of the reason why the Supreme Court held in
    Heckler that they did not think there should be judicial review
    over non-enforcement decisions, and that is because they were
    trying to protect against judges who essentially want to say to
    the executive I disagree with how you have chosen to enforce,
    the choices that you have made about enforcement.
        I think, you know, if we look at this situation, I think we
    have got some of that going on here. We have got disagreements
    about how the Department of Homeland Security should be
    enforcing the immigration laws and that is exactly what Heckler
    wanted to protect against.
        Senator Lee. Thank you, Mr. Chairman.
        Chairman Cruz. Thank you, Senator Lee. Senator Tillis.
        Senator Tillis. Thank you, Mr. Chairman. I was largely
    planning on being here to learn amongst the lawyers on this
    panel. I am the only non-lawyer you will be dealing with.
        I do have a question. It really goes back to the point that
    Senator Durbin made. He cited several examples where he thinks
    prior administrative actions are on par with the actions taken
    by President Obama.
        Can any of you, from Ms. Family down the line, talk about
    either why you agree with that or what the differences were in
    the context within which the decisions were made?
        Ms. Family, you can start.
        Professor Family. Sure. Thank you. Yes. I think deferred
    action is a longstanding type of prosecutorial discretion in
    immigration law. Prosecutorial discretion in immigration law
    goes back a long, long time.
        Many people do not know this, but John Lennon actually was
    granted prosecutorial discretion. I think that it is--deferred
    action to an immigration attorney is nothing newsworthy. I
    think actually what--to an immigration attorney, what would be
    newsworthy here is that the agency is being more transparent
    about how it intends to consider requests for deferred action
    and I think, as I said earlier, we should be encouraging that.
        Senator Tillis. Mr. Secretary.
        Mr. Kobach. Yes, thank you. I can speak directly to this.
    First of all, the cases before 1996 are largely irrelevant
    because in 1996 Congress very specifically said that ICE agents
    shall place these people into removal proceedings.
        In 1996, there was a sea change in immigration law. What
    happened was what previously would have been called catch and
    release occurred, where the ICE agent just let the person go,
    no recording of anything, now the law requires the ICE agent to
    take the person into custody. They actually requires him to
    detain the individual if he is unlawfully present and put them
    into one box or another. You either go into the normal removal
    box, you go into the expedited removal box, or you going into
    an asylum box.
        At that point, there is discretion, but is only the
    discretion that Congress chose to allow and it is defined by
    law.
        To use Senator Durbin's example of 2001, that was temporary
    protected status. There is a specific statute that says you can
    give discretion on a temporary protected status basis to all of
    the people of a nation because of the hardships in that nation,
    usually natural disaster or war.
        Senator Tillis. Kuwait being another example.
        Secretary Kobach. Exactly. Exactly. There is another
    statutorily defined area of discretion. That is called
    cancellation or withholding of removal in Section 1229(b) of
    Title 8. From that point onward, Congress said discretion is
    confined by law.
        One other point about discretion. It has been falsely--
    well, I should not say falsely. Ms. Family said that there is
    still discretion being exercised and I do not know which agency
    she was talking about, but the ICE agents I represent have told
    a very different story in testimony before the courts.
        There is no discretion. All the alien has to do is assert
    that he or she is eligible for the amnesty, for DACA, and that
    is it. The ICE agent is forbidden from actually inquiring and
    saying prove it, prove you came in at this date, prove you came
    in that date.
        Word has gotten around--according to one of our ICE agents
    in El Paso, word has gotten around into the jails that all you
    have to do is say you are eligible for Obama's amnesty. That is
    the way they refer to it. ICE has to let you go, zero
    discretion.
        In the discretion that has been exercised by CIS, the
    agency that hands out the benefits, the only case that we know
    of an individual being denied an application for DACA was
    because he did not fill out the form entirely, did not sign his
    name, or did not provide the fee.
        I know of no example and in the discovery in these cases so
    far, we have seen no example produced by the government showing
    any individual who met the criteria, but was denied the
    benefit, not one example.
        Senator Tillis. Mr. Rivkin.
        Mr. Rivkin. Thank you, Senator Tillis. I actually would be
    happy to provide a written answer for the record. I have
    analyzed very carefully when the opinion came out, because it
    is a long opinion--I can go with erudite--it is a long opinion.
    It walked carefully through each instance of prior use, Article
    II, of some authorities to prevent a person from being deported
    immediately.
        I would say a couple of things. First of all, I agree with
    Secretary Kobach about the fact that discretion got ratcheted
    down in 1996. Quite aside from that, nomenclature is very
    important. Congress has never--no executive in the past has
    ever engaged precisely in that kind of deferred action.
        It engaged in actions that were specifically authorized by
    Congress, the most notable which is the extended voluntary
    departure. There is a fundamental difference between extended
    voluntary departure, which basically said you are being
    deported, but we are not going to do it forcefully, you have a
    certain period of time to do that, and saying you can stay here
    and you can work.
        Every single thing they cite, this thing was--we are
    talking about the law. Details matter. An even more fundamental
    problem here is this. We are not just talking about resource
    limitations. A lot of people who are now in deportation
    proceedings, who have already been captured, Senator, whose
    administrative process almost run out, are now being led out,
    their indications, binding orders to release them.
        That is difficult for me to justify. It is one thing to say
    we do not have resources. There are a lot of illegal aliens out
    there. We cannot go capture them all. But you have people in
    custody. That is not prosecutorial discretion. That is not any
    kind of discretion.
        Senator Tillis. Mr. Chair, just a comment, if I may. I know
    I am over my time. I know it was said that those who are being
    considered for deferred action and let us say under DACA that
    they pose no threat to us.
        As the Senator from North Carolina and 25 minutes from my
    home, I think the families of the victims of three people who
    were murdered recently by somebody who was granted deferred
    action, that there is some risk and we need to be sensible to
    that.
        Thank you.
        Chairman Cruz. Thank you, Senator Tillis. Senator
    Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman.
        Let me ask Professor Family, if I may, and anyone else who
    wants to respond, as well.
        One of the aspects of Judge Hanen's opinion that worries me
    because it has implications beyond this case concerns her
    saying--she seems to be saying that whenever the head of an
    agency provides guidance to agency officials, he or she has to
    go through notice and comment, even if she explicitly says that
    the officials should use discretion, even if she says 10 times
    that that the official should use discretion and even if there
    is no evidence that officials are not using their discretion.
        As you probably know, it can be very difficult to predict
    how long it will take to promulgate a rule through notice and
    comment. The average rule around here these days takes about 18
    months. A quarter can take longer than 3.5 years and some can
    take decades. It is difficult to provide guidance to agency,
    meaning that the public does not know what the agencies--public
    agencies are pursuing and agency action is likely to be
    arbitrary and maybe even unfair.
        More importantly, it makes it nearly impossible to change
    rules as you get more information. If you provide guidance and
    then discover a better way to do things, it could take another
    decade to fix the problem.
        Americans are forced to live with this system and even the
    creators of the system know it is not working because of the
    delay, because of the obstacles to effective rulemaking.
        Can you please talk about this opinion beyond the immediate
    case, the DACA/DAPA case that is involved here, why it is
    important for government to be flexible and to make changes, as
    experience dictates that there be changes and that there be
    discretion and flexibility in these rules?
        Professor Family. Sure. Thank you, Senator. I think the
    Administrative Procedure Act gives agencies some flexibility
    and the choice to choose between notice and comment rulemaking
    and to use a policy statement, as long as the policy statement
    truly is a policy statement.
        We could have a discussion, as a matter of good governance,
    whether agencies should pick, you know, at certain times or
    whether they should use more notice and comment rulemaking or
    less.
        I think we cannot lose sight of the fact that a policy
    statement is an authorized procedural mechanism for an agency
    and quite necessary, as well. Agencies need policy statement in
    order to move more nimbly and more flexibly.
        If something comes up and an agency needs to move quickly
    to protect public health or to respond to something more
    quickly, a policy statement is helpful and I think they are a
    necessary and important part of the administrative process.
        Like anything, they may have drawbacks and there may be
    things about them that people do not like as much as something
    else, but I think that they very important and a very necessary
    part of the administrative process. I think we need to think
    very carefully about how--how we are treating them.
        The whole idea of a guidance document is that it is not
    supposed to be binding. From an immigration attorney's
    perspective, USCIS denies applications all the time. I think
    that--I do not necessarily agree with the assertion that just
    because a guidance document says one thing, that definitely
    means that all adjudicators will walk in lockstep with what the
    policy memo said.
        In fact, I spend a lot of time explaining to immigration
    attorneys that they cannot expect USCIS adjudicators to follow
    everything that is in a policy statement because it is a policy
    statement and that is what it is supposed to do.
        Senator Blumenthal. Thank you. I know the judge may have
    been very well meaning with his order, but I think it was based
    on an unrealistic and simply non-factual view of the way the
    process operates. I would be glad to have comments from anyone
    else.
        Secretary Kobach. Thank you, Senator. I would point out
    that by its own terms, DACA is not a guidance document. It is
    termed by the agency a directive and it is framed as a
    directive to the employees, you shall apply these criteria and
    you shall not do certain things and you shall do certain
    things.
        The practice of the agency has been when an ICE agent
    initiates removal proceedings contrary to agency policy, he is
    punished. He faces adverse employment action. Indeed, one of
    our 10 plaintiffs in the Crane case has faced such punishment
    just before DACA was initiated, under the Morton memorandum,
    which has now been rescinded.
        Second, the other reason you should not--I do not think it
    is correct to describe this as a guidance document because it
    sets up entirely new criteria. When the document--when the
    directive creates a criteria that you must be here for 5 years,
    these are arbitrary numbers, not necessarily bad numbers, but
    creating a number out of whole cloth that is not found in
    statute, 5 years, you have to have arrived before the age of
    16. Your maximum age has to be no higher than 30. That is a
    policymaking document that is a directive to these people.
        The third point I would mention is right before DACA was
    initiated, in April 2012, this Administration had been doing
    what previous administrations did and had formal notice and
    rulemaking and in April of that year they had formal notice and
    rulemaking on the provisional unlawful presence waivers of
    inadmissibility for certain immediate relatives, published in
    the Federal Reg, and that was far less expansive and policy-
    oriented than the DACA directive and suddenly the
    Administration decided, well, we were going by the old rules,
    we were going with notice and comment according to the APA, now
    suddenly we have changed.
        I think the reason they changed is there were so many legal
    problems, all those problems would have come out in the notice
    and comment period.
        Mr. Rivkin. If I may briefly comment. Long ago when I
    practiced administrative law for a living, although not an
    immigration lawyer, I can assure you that there are other
    venues for an agency like ICE to proceed with dispatch. They
    could have done an emergency final rule which would have been
    subject to judicial review.
        The real reason, in my opinion, they proceeded the way they
    did is they precisely wanted to evade judicial review. As
    important as it is to move with speed and dispatch, it is
    important to have some accountability.
        The problem with a policy statement, pretending to be a
    policy statement, but really being a final agency action is it
    evades review, because it would never be then subject to
    review. Nobody would have standing to challenge any individual
    decision.
        Section 702 of APA would not apply, and here we are.
    Consider for a second--let us forget about immigration law, as
    important as it is. If you look at the case law in the D.C.
    Circuit--because of venue selection provision, most of those
    cases--not all are litigated in the D.C. Circuit, not in the
    case of INA.
        Invariably, these are very progressive groups,
    environmental groups, labor groups, who take issue 99 percent
    of the time with an agency not wanting to do something by
    notice and comment. Often they succeed, because as I said in my
    brief statement, this is the structuring statute that you gave
    to the executive to comply with executive exercises, broad
    delegated power, because you wanted people, citizens, to have
    their voice.
        You wanted the agency to reflect in the final rule how they
    respond to the questions that are being raised, and you want
    Article III to preside and review of the final decision. These
    are very important virtues that you all wanted to be in place.
        Thank you.
        Senator Blumenthal. Is there--my time has expired but if I
    can ask just one more question. What is the experience--I
    presume there is experience with the November 20 memo showing
    how it would be implemented. Does not the policy, by its own
    terms, include discretion?
        Secretary Kobach. The policy does not allow for--does not
    give guidance as to how you deviate from these factors that
    must be considered in each alien's case. We do not have
    implementation of the DAPA memo of November 2014, although it
    subsequently came out that in one portion of it where it
    expanded DACA, the 2012 memo, they did--the agency apparently
    did implement it with respect to, I believe, 100,000 people.
        That information is very new information. We have not seen
    much about it. Much of the statements we have made--the
    statements we have been making about implementation have been
    based on the two years-plus of implementation of DACA.
        Senator Blumenthal. But by its own terms, it permits
    discretion. In fact, it virtually mandates discretion.
        Secretary Kobach. It mandates deferred action and if you
    think deferred action is, by definition, discretionary, then I
    suppose you could reach that conclusion. It does not tell the
    ICE officer here are some things you can look at and you decide
    whether they apply. It says if these things apply, the person
    shall not be deported. It is not--it does not mandate
    discretion.
        Mr. Rivkin. If I can just weigh in for 10 seconds, Senator.
    If we had a situation where the agency was mandated to do
    something, very specific criteria, and Secretary Kobach
    mentions, then there is completely undetermined basis for
    discretion.
        Then you add to that 50-plus people doing that by mail from
    millions of applications and you put it all together and you
    say how are we going to do that, how are we going to exercise
    discretion, flip a coin and say out of 100 applicants that I
    get to process in an hour, I am going to throw a couple back.
    There is not a discretion.
        I said in my remarks, unlike--there is no interview, there
    is no back-and-forth. It is not like cross-examining witness.
    It is a faux discretion. It is a pseudo discretion. It is not a
    real discretion.
        Senator Blumenthal. Thank you very much. Thank you.
        Chairman Cruz. Mr. Kobach, you just had a back-and-forth
    with Senator Blumenthal and previously you and Professor Family
    had a disagreement on the degree of individual discretion that
    is exercised in these cases.
        I will note that the Federal Court in Texas assessed that
    question and indeed in footnote 101 of the Federal Court's
    opinion, the Federal Court observed that the claim of
    individualized discretion--what the Court said is evidence of
    DACA's approval rate, however, persuades the Court that this,
    quote, ``factor'' is merely pretext.
        Indeed the Court goes on to say in that same footnote no
    DACA application that has met the criteria has been denied
    based on an exercise of individualized discretion.
        The Federal Court heard this argument and concluded, to put
    it colloquially, it ain't never happened. There is no
    discretion.
        Indeed I would note that, as you described the experience
    of your clients, the ICE agents, it brought to mind what
    President Obama said on February 25 when he was doing an
    interview with MSNBC and Telemundo, and the President said,
    quote, ``There may be individual officers or border patrol who
    aren't paying attention to our new directives, but they're
    going to be answerable to the head of the Department of
    Homeland Security because he has been very clear about what our
    priorities should be. If somebody is working for ICE and there
    is a policy and they don't follow the policy, there are going
    to be consequences for it.''
        Secretary Kobach, does that sound like granting discretion
    or does that sound like a not very veiled threat that you will
    grant amnesty or risk serious employment sanctions?
        Secretary Kobach. It is a threat that is not veiled at all
    that you will face employment consequences and significant
    ones, if the President of the United States is actually
    delivering them.
        Let me give you an example of the perfect case where you
    might say if they had discretion, they would have exercised it.
    One of our ICE agents in this plaintiff group of 10 is based in
    El Paso.
        Just to quickly tell the story, the El Paso--this was in
    DACA. It was the late summer of 2012. The El Paso sheriff's
    office called, said we have in our jail someone who has been
    arrested for assault and he has admitted that he is illegally
    in the country, would you please, ICE, come over and pick him
    up and remove him, deport him.
        ICE went over to pick him up. When they took custody of
    him, he had a scuffle. He injured one of the shoulders--one of
    the officer's shoulders and ran away. They had another fight,
    again, fighting a Federal law enforcement officer, ran away.
    They finally got him under control and got him into the
    vehicle.
        At this point, one of the officers had been severely
    injured, the other office minor injuries. They get him to the
    ICE headquarters and they are ordered by the supervisor, as
    soon as he asserts that he is eligible for the amnesty, turn
    him, go.
        The ICE officers were in shock, disbelief. This guy had
    just assaulted two Federal law enforcement officers, in
    addition to his prior assault that he had been arrested by the
    El Paso authorities for.
        You would think if discretion existed, well, maybe we would
    exercise discretion in this case. The guy is beating up Federal
    law enforcement officers, but no.
        No discretion was allowed. There is no discretion certainly
    at the ICE level and as the statistics and as Judge Hanen
    reflected, at the CIS level, that agency does not appear to
    have real discretion either.
        Chairman Cruz. Am I understanding you correctly that the
    President's executive amnesty program is so inflexible that a
    violent criminal who has committed three acts of assault, two
    of which are against Federal law enforcement officers, has fled
    law enforcement, is nonetheless forced to remain free and
    potentially commit more assaults?
        Secretary Kobach. He was ordered, let him--they were
    ordered to let him go and they were absolutely shocked.
        Chairman Cruz. I think that speaks for itself.
        Let me shift, Professor Family, to a different component,
    which is the legal justification. Much of the legal
    justification has been discussed in the context of
    prosecutorial discretion. This is far more than simply saying
    we are not going to prosecute cases, because part of this
    illegal amnesty is printing up millions of work authorizations
    and Social Security cards for people that Federal law
    explicitly prohibits working in this country.
        It is not obviously an exercise of limited resources,
    because printing up millions of work authorizations cost
    additional money and additional resources. When you print a
    document labeled a work authorization that is prohibited by
    Federal law, that is known as counterfeiting an immigration
    document.
        Work authorizations can be printed only pursuant to Federal
    law and when Federal law prohibits someone here illegally from
    working, the President's order directs that work authorizations
    be printed nonetheless. All of this is hinged on this
    wonderfully flexible theory of prosecutorial discretion.
        What I would like to ask you, because you have also in this
    hearing defended prosecutorial discretion, do you understand
    the limits--the theory of prosecutorial discretion to have any
    limits whatsoever? Is there anything that constrains the
    authority of this President or a subsequent President to pick
    and choose which laws he or she will enforce and which laws he
    or she will ignore?
        Professor Family. Thank you, Senator. I think we will just
    have to respectfully disagree on our interpretations of what
    the law allows in this circumstance.
        Work authorization for anyone who is granted deferred
    action is authorized by a Federal regulation. That is legally
    binding on the Department of Homeland Security. They have to
    follow that----
        Chairman Cruz. Federal regulation, of course, cannot
    authorize conduct that is prohibited by Federal statute.
        Professor Family. That is where I think we have to
    respectfully disagree about what the statute says. I--the
    statute gives the Department of Homeland Security some
    delegated authority to decide who will get work authorization
    and then the Department of Homeland Security is utilizing that
    delegation through a regulation to say people who get deferred
    action can get work authorization.
        I think we just disagree on what the Immigration and
    Nationality Act says.
        Chairman Cruz. If you would shift to the question I asked,
    which is the theory of prosecutorial discretion. Are there any
    limits you would recognize on that theory? For example, the
    President has claimed he has the authority to grant amnesty to
    some 4.5 million people here illegally.
        Under your understanding of prosecutorial discretion, would
    anything prevent him tomorrow from granting amnesty to all 12
    million people here illegally?
        Is there any principal distinction between 4.5 million and
    12 million or does this mean the President has the authority to
    grant amnesty to everybody?
        Professor Family. Let me tell you what I would think about.
    I would think about--you know, I would look to the statute to
    see what the statute says in terms of what Congress has
    delegated to the executive branch.
        Of course, actions need to be rational. Right? They cannot
    be arbitrary and capricious. They have to be principled and
    they have to be thought through. We cannot just flip a coin to
    decide what the policy is going to be.
        I would look at those things and then I would also point
    out that the Office of Legal Counsel memo actually stopped
    short of saying what I think you are suggesting is just
    authorizing--prosecutorial discretion being authorized for the
    whole undocumented population.
        I really do want to emphasize this point, as well, that,
    you know, sort of what is at stake here is not a green card.
    Right? We are just talking about revokable permission to be
    present for a certain period of time.
        As a matter of fact, because the Department of Homeland
    Security did this by policy memorandum, you know, that means
    that a new administration has great flexibility in deciding
    whether to continue the program or not.
        Chairman Cruz. Since my time has expired, I am going to
    recognize Senator Coons and then I am going to loop back at the
    end of these questions to finish this chain of questions.
        Professor Family. Sure.
        Chairman Cruz. Because there is more I would like to
    discuss.
        Professor Family. Sure.
        Chairman Cruz. Senator Coons.
        Senator Coons. Thank you, Mr. Chairman. I have another
    commitment, so I will be fairly brief and just thank the panel
    of witnesses and suggest that we have had a persistent
    disagreement about some of the critical facts, whether there is
    discretion being exercised in DACA cases.
        I would be happy to share with Mr. Kobach a declaration of
    David Newfeld from the case that goes into some detail about a
    specific instance where there is discretion being exercised.
    There is a denial of the application based on actions by the
    applicant that are outside the three categories that you
    described.
        I think it is just emblematic of the broader disagreement
    we are having.
        Is this amnesty, as some strongly suggest, or is this
    deferred action that provides not an entitlement to a benefit,
    but simply a temporary work permit? Does it fit within the
    history of prosecutorial discretion and within the existing
    legal boundaries of the Administrative Procedures Act and
    immigration law or is it well outside of it?
        I choose the former and, in my view, a thorough and
    detailed review of this by the Circuit Court, by the Supreme
    Court, by those of us in Congress will ultimately uphold the
    President's executive action.
        Thank you to the Members of the panel and thank you,
    Chairman, for the opportunity.
        Chairman Cruz. Thank you, Senator Coons. Senator
    Blumenthal.
        Senator Blumenthal. Thanks, Mr. Chairman. Thank you for
    giving us the opportunity to question again.
        I am not an expert in this area of law, so forgive me if I
    am hitting in an area or focusing on an area where there is a
    difficulty in understanding or parsing the language here. I
    feel like we are in alternate or different universes almost
    because I look at this document, November 20th policy document,
    and I see again and again and again and again--I think it is
    nine times--a reference to the exercise of discretion.
        In fact, in Section B, there is a specific direction, ``I
    hereby direct, in effect, case-by-case, quoting ``case-by-
    case'' analysis of individual situations. And the last of these
    factors is present no other factors in the exercise of
    discretion makes a grant of deferred action inappropriate,
    which is kind of an open-ended mandate, use discretion.
        I am having trouble understanding how that policy guidance
    from the Secretary of Homeland Security, the cabinet secretary
    responsible for this policy for the exercise of prosecutorial
    discretion, is not, in effect, a mandate for discretion.
        I recognize that this policy guidance has never been
    implemented because it was stayed, but to say there has been no
    experience, and I think the judge concludes there has been no
    experience implementing the policy guidance, when it is, in
    fact, stayed by the order, is a sort of Alice in Wonderland
    thinking that is beyond the bounds of a proper judicial order
    and certainly difficult for me to understand.
        Maybe you can address that issue. Mr. Kobach.
        Secretary Kobach. Two thoughts. I appreciate your question,
    Senator. I think that the DAPA directive is artfully worded and
    it is artfully worded in the wake of the DACA litigation.
        By the point DACA/DAPA was issued in November 2014, we
    already had the case up to the Fifth Circuit in Crane and the
    District Court judge had already ruled that these were the--
    this would fall within the APA rulemaking and notice provisions
    and comment provisions, and, therefore--and it was a final
    order. It was binding upon the officers.
        I think the use of the word discretion repeatedly in the
    DAPA memo was an attempt to force the word in there, but for--
    meaning--Senator Blumenthal. The way that they forced the word
    in there artfully, that is often the way we obey the law.
        Secretary Kobach. Right. But if I say----
        Senator Blumenthal. As Attorney General of the State of
    Connecticut, I tried to follow the law and artfully interpret
    it so as to----
        Secretary Kobach. Let me give you an example. If I say to
    you I have a memorandum ordering you to exercise discretion and
    not remove anyone who meets these five criteria. I am asking
    you to exercise discretion, but I am directing you that your
    discretion shall always result in this final outcome.
        I would note that with respect to ICE agents, there is zero
    discretion. Again, there are two different agencies--ICE, which
    is forced to decline to deport, and then there is CIS, which is
    handing out this benefit. The latest word from the officers is
    now the supervisors are essentially holding the leash very
    tightly on the line officers and making sure that no officer
    ever initiates removal proceedings.
        There is no discretion given to the officers and their
    supervisors are ensuring that they never go in the other
    direction, that they always turn the person loose.
        The practice of DACA has been zero discretion.
        Mr. Rivkin. If I can add, very briefly, Senator. Let us
    forget about immigration law. Let us talk about constitutional
    law for a second.
        The essence of constitutional interpretation is
    harmonizing--I will forebear citing various cases--but
    harmonizing different constitutional provisions.
        We do have enforcement discretion, prosecutorial discretion
    that is the heart of what it means to be the executive. That is
    the reason you have Article II, because you cannot do
    everything by laying down rules in advance and not by any
    faithful execution requirements.
        There has to be a meaningful, judicially enforceable
    cabining principle, that is so often the case. The court is
    entitled to look at the reality of a situation. Let us even
    forget about the DACA experience. Let us say it never existed.
    You have a situation where millions of people are applying by
    mail, with--in the presence of a categorical criteria for
    adjudicating the applications, to be processed very quickly by
    a very limited number of individuals, without any interactions.
        I would submit to you it cannot possibly be meaningful
    discretion. If that is meaningful discretion, then the
    prohibition against dispensing power means nothing. You can
    easily say, for example, that because of limited resources, in
    a post-9/11 world, FBI is not going to prosecute bank robbery
    and we would have a nice set of criteria which says that if you
    robbed the bank, but got less than this much money, you shall
    not be prosecuted, except that, of course, you still have
    discretion.
        That is--there may be instances where the dividing line is
    difficult. But in this instance, the dividing line is not
    difficult. It is not discretion. It is dispensing power, which
    basically means you are not going to apply a given statute to a
    particular category of people and you create your own category.
        That is exactly--I hate to sound highfaluting, that is
    exactly what James II did, that is exactly what the President
    did in the Kendall case, and that is not part of our
    constitutional architecture.
        Senator Blumenthal. Maybe if I were to restate it--and I
    apologize to the Chair for taking a little bit of extra time--
    but you are saying that there is no discretion because the
    categories and criteria are set forth.
        Mr. Rivkin. I am saying there is no discretion given the
    overall context for implementation of what Professor Family
    calls policy statement. Again, if we have 4-plus million----
        Senator Blumenthal. The overall context includes a factor
    that says present no other factors that in the exercise of
    discretion makes the grant of deferred action inappropriate--no
    other factors in the exercise of discretion.
        I almost think you could say if that were a law, it would
    be void for vagueness.
        Mr. Rivkin. I understand the argument, Senator, but if I
    may.
        Senator Blumenthal. It is so broad, in the mandate for
    discretion, it says there are all these other factors, have no
    lawful status as of the date of this memorandum, but by the
    way, if you do not like those factors and if you think they are
    inappropriate, it is like playing tennis with the net down.
        Mr. Rivkin. I understand. Let me explain in two sentences
    why it would not work. That type of a process would work in a
    personal interview, which I mentioned earlier in my remarks,
    like consular affairs offices do.
        Senator Blumenthal. I apologize, I was not here.
        Mr. Rivkin. It does not work in a situation where people
    apply by mail and fill out the form, because the people
    processing the application--leaving political pressures aside,
    let us say they do not exist--would have no opportunity to
    discern any of the factors that would disqualify the
    application of those three criteria unless they are mind
    readers.
        Senator Blumenthal. I guess--and I--this is an interesting
    conversation and I appreciate your indulging me and your
    thoughtful responses.
        When you mentioned the bank robbery example, it recalled
    for me exactly these kinds of criteria. When I was a United
    States Attorney for Connecticut and the Department of Justice
    had these kinds of criteria for a lot of different kinds of
    criminal prosecutions, one of them being bankruptcy--one of
    them being bank robbery, because the Department of Justice was,
    to put it sort of colloquially, trying to get out of the
    bankruptcy--out of the bank robbery business.
        The Department of Justice was trying to shift
    responsibility for prosecutions of bank robbery, which were the
    bread-and-butter for many years of medium or small U.S.
    Attorneys' offices, Connecticut being one of them, and it was
    saying, in effect, you should be doing more serious criminal
    prosecutions.
        It actually established monetary amounts and it has done
    maybe--they are no longer in effect, but it did so for a
    variety of criminal prosecutions and said, in effect, here are
    the guidelines and then exercise your discretion.
        Mr. Rivkin. If I may, Senator, actually making my case, I
    am all familiar with never-ending bureaucratic docket work
    between main Justice and the U.S. Attorney's office,
    particularly for the Seventh District of New York.
        You have all the information at the fingertips. Let us say
    you had a small bank robber and you were not inclined to
    prosecute him, but you interviewed him or the Assistant U.S.
    Attorney interviewed him, he was arrogant, he would not give
    out his colleagues or he manifested some other bad faith, he
    lied to you, I would bet you would prosecute him, because
    prosecutors always go after people who lie to them,
    irrespective of how grave the original offense was.
        The context in which you functioned allowed you the
    meaningful exercise of discretion. If, on the other hand, all
    you had was an application from somebody, I would ask you, how
    can you possibly exercise the discretion?
        Senator Blumenthal. Exactly. We did exercise discretion. If
    it was an organized crime case or if it involved drugs and not
    to say bank robbery, but the point is that--and this is the
    overall point I am making and I will just end with this.
        These officials in this area exercise the same kind of
    discretion or can exercise the same kind of discretion and that
    is the intent of that last category and of the use of the term
    discretion. Mr. Kobach has called it artfully, but I think it
    is purposefully and correctly, because I think it is the
    essence of a prosecutorial decision, and that is why decisions
    made by prosecutors are so profoundly significant and why the
    power is so far reaching and important.
        Secretary Kobach. If I could just add one last comment. I
    would hope that most of the attorneys in this room, especially
    those with prosecutorial experience, would agree on this point.
        Under no circumstances can prosecutorial discretion be used
    to confer a benefit. In this case, the benefit of employment
    authorization, which is statutorily a benefit, is being given
    in addition.
        You could say if we had this broader definition of
    prosecutorial discretion, that we will exercise discretion not
    to remove you. In addition to not removing you, we are handing
    you a benefit; or to take your bank robbery example, the U.S.
    Attorney shall exercise discretion and not prosecute these bank
    robbery cases and, in addition, shall hand each potential
    defendant a bag of money worth $5,000.
        We would laugh at that. We would say that is not
    prosecutorial discretion. You have exercised discretion not to
    prosecute, but then you have handed a benefit, too. That is
    exactly what the agency has done.
        Senator Blumenthal. The benefit in that instance is not a
    bag of money, but liberty, which, for a lot of folks, matters
    as much as a bag of money.
        Secretary Kobach. The right to work is a very valuable--it
    is an authorization that many people do not have.
        Chairman Cruz. Thank you very much.
        Senator Blumenthal. Thank you.
        Chairman Cruz. Mr. Rivkin, I think this was a very good
    exchange between you and Senator Blumenthal and I would note
    prosecutorial discretion is a longstanding doctrine. It would
    certainly be an acceptable decision of prosecutorial
    discretion, for example, for the department to determine it
    would prioritize deportations or prioritize prosecutions for
    violent criminals, such as the individual, the case that Mr.
    Kobach pointed out.
        That would be a traditional use of prosecutorial
    discretion. We are going to focus first on the most dangerous
    criminals.
        There is a qualitative difference here. This is not simply
    saying where are we going to focus our prosecution resources
    first. This is affirmatively printing authorizations to violate
    Federal statute.
        Indeed, Mr. Rivkin, you have a lot of years' experience in
    the Department of Justice. Are you familiar with any example,
    as Senator Blumenthal asked you, where not only did a U.S.
    Attorney decline to prosecute a bank robber, but the U.S.
    Attorney cranked up the printing press and printed up an
    authorization to rob banks and handed it to the person and said
    you are hereby authorized to each day forward violate Federal
    law and over the course of 365 days, you may rob 365 banks,
    because the work authorization, each and every day, purports to
    authorize an alien here illegally to violate Federal statute.
        Are you aware of any other context in which the department
    has purported to issue a license to violate Federal law?
        Mr. Rivkin. No, I am not, Senator Cruz. In fact, I am
    thinking about this issue as to how else it could have been
    done, I pondered briefly the question of pardon power, because
    pardon power is one of those absolute powers, no limitations,
    not judicially reviewable. Then pardon power can only be
    exercised for past violations.
        No President can pardon somebody for things you have done
    in the past and then say you can do a couple more in the
    future. No. It is--this is a compelling example, aside from not
    case-by-case, why this is not prosecutorial discretion.
        In my testimony, I used the example of the IRS, another
    favorite Agency. If IRS decides that you violated tax law, at
    best, they will let you go. They may waive the penalties. But
    IRS is not going to send you a financial boon, even of a small
    magnitude, because they decided that you deserve it.
        This is--this gives a bad name to prosecutorial discretion.
        Chairman Cruz. Let me go back, Professor Family, you and I
    had an exchange where you said that the statutes did not, if I
    understood you correctly, prohibit employment of those who are
    here illegally.
        If you look at Section 7--274(a) of the Immigration and
    Nationality Act, it provides ``It is unlawful for a person or
    other entity to hire or to recruit or refer for a fee for
    employment in the United States an alien knowing the alien is
    an unauthorized alien.''
        Now, that is an explicit prohibition and every one of those
    work authorizations that is purported to be handed out under
    executive amnesty is an authorization that purports to give
    that individual the authority to violate that statute or their
    employer the authority to violate that statute.
        Professor Family. Yes, Senator. There is also another
    statutory section where Congress has, in its defining who is
    unauthorized to work, and has said that you are unauthorized--
    you are not authorized to work unless you have been authorized
    to work by this Act, meaning the Immigration and Nationality
    Act, or the Attorney General, which that is under the old
    language when the Immigration and Naturalization Service used
    to be part of the Department of Justice. That now means the
    Secretary of Homeland Security.
        Congress has given the Secretary of Homeland Security--has
    delegated authority to make decisions about who is authorized
    to work. The Department of Homeland Security has taken that
    delegation and then through a regulation, has said that people
    who get deferred action, and this regulation predates DACA and
    DAPA, said that people who get deferred action are eligible to
    apply for work authorization.
        Chairman Cruz. You are referring to Section 1324(a), page
    three. At the same time--so your argument, in order to be
    correct, is that by using the words ``or by the Attorney
    General,'' that Congress has, in effect, given the Attorney
    General the authority to allow any person on the face of the
    planet the ability to work in this country.
        Using ordinary canons of statutory construction, if that
    were the case, the entire rest of this statute is superfluous.
    It could have been written as a one-sentence statute, the
    Attorney General can let in anyone they want or keep out anyone
    they want.
        I cannot imagine--and I would point out the alternative
    interpretation that any court would follow is Congress has
    periodically authorized the Attorney General to grant specific
    exemptions. For example, Congress has authorized the Attorney
    General to provide for work for battered spouses, as well as
    certain nationals of Cuba, of Haiti, of Nicaragua.
        In that instance, the rational interpretation, consistent
    with the canons of statutory interpretation, is that the
    phrase, ``or by the Attorney General'', refers to the specific
    categories where Congress has given the Attorney General or the
    Secretary of DHS the authority to make those determinations.
        Professor Family. I mean, I guess we just disagree on the
    interpretation of the statute, because to me, that would make
    the language ``or by the Attorney General'' superfluous. I
    mean, why would we need that language if it was only--if work
    authorization was only permitted by how Congress had said it
    was permitted under the Act?
        Chairman Cruz. I want to make sure I understand your
    interpretation correctly then. You believe that that phrase
    ``or by the Attorney General'' gives today the Secretary of
    Homeland Security the authority to allow any one of the seven
    billion people on the face of the planet the authority to work
    in this country.
        Professor Family. No, because work authorization is a
    wholly separate issue from who will be allowed to enter the
    United States.
        Chairman Cruz. You are saying that the Attorney General--
    anyone the Attorney General chooses can be granted a work
    authorization.
        Could the Attorney General issue a work authorization--
    every resident of the Nation of China is hereby authorized to
    work in the United States, would that be consistent with
    Federal law?
        Professor Family. I think I disagree with your premise,
    because to me, who is allowed to enter or would be legally
    admitted to the United States is a different question than who
    could have work authorization.
        Chairman Cruz. With respect, you have not suggested any
    limitation that the Attorney General could only issue work
    authorizations to people in the United States. You have claimed
    the words ``or by the Attorney General'' give the Attorney
    General unlimited discretion to choose anyone to grant a work
    authorization.
        Is there anything you are pointing to in the statute that
    says they have to be physically present here?
        Professor Family. I think my interpretation of the statute
    is that ``or by the Attorney General'' language means that
    Congress is delegated to the Department of Homeland Security
    the authority to make decisions about who is eligible for work
    authorization and the Department of Homeland Security has done
    that through a regulation. One of many categories of
    individuals who are eligible for work authorization are those
    who have been issued deferred action.
        Chairman Cruz. Would it be consistent with the theory you
    are putting forth for the Department of Homeland Security to
    grant work authorizations to every resident of the Nation of
    China?
        Professor Family. No, because, again, I disagree with the
    underlying premise of your question in that----
        Chairman Cruz. Which premise is that?
        Professor Family. Well, because I think that assumes that
    every citizen of China would be legally admitted into the
    United States.
        Chairman Cruz. There is nothing in what you laid out that
    says legally admitted to the United States, and indeed,
    Professor Family, if your qualification is that the Attorney
    General or the Secretary of DHS can only grant work
    authorizations to those legally admitted in the United States,
    then you have just admitted that the DAPA program is directly
    contrary to that statute, that the 4.5 million were not legally
    admitted.
        Professor Family. No, no, no. I was--I was just--Senator,
    respectfully speaking, I was just referring to your
    hypothetical about the----
        Chairman Cruz. Help me understand the legal difference you
    are positing between 4.5 million people here illegally and 1.2
    billion people currently residing in another nation. What is
    the line? Because you are claiming unlimited discretion for the
    Attorney General and I want to understand what is the legal
    line.
        Professor Family. Again, I go back to my position that I
    think under the language of the statute, it gives the Secretary
    of Homeland Security discretion to decide who is eligible for
    work authorization.
        Of course, those decisions have to be rational and I think
    if you look at the regulation, where the Secretary of Homeland
    Security has made those decisions, they have made some careful
    decisions about who is eligible for work authorization and who
    is not.
        Secretary Kobach. Mr. Chairman, can I comment on this very
    topic?
        Chairman Cruz. Secretary Kobach, sure.
        Secretary Kobach. I think Ms. Family's analysis of this is
    missing--it is, being done out of acumen, missing several
    Federal statutes. The DHS Secretary does not have authority to
    give employment authorization to anyone. It has to be
    employment authorization to a person who is admissible to the
    United States and it cannot be contrary to another Federal
    statute.
        There are two Federal statutes I can think of just off the
    top of my head that this is contrary to. One is 8 U.S.C. Sec.
    1225, which is in my testimony, which says that these aliens
    must be detained for a removal proceeding. Clearly, that is
    contrary to that statute and the only court--well, the two
    courts that have specifically reviewed that have said it is.
        The second, I do not have the statutory cite memorized, but
    it is the unlawful presence 10-year bar statute. Most of these
    DAPA individuals, by being illegally in the United States the
    requisite amount of time, will have accumulated enough unlawful
    presence that there is a 10-year bar to them getting a visa to
    come into the United States and work. There are two statutory
    barriers to the Secretary of Homeland Security doing what Ms.
    Family suggests he could do or she could do.
        Chairman Cruz. Professor Family, let me go back, because
    one is positing a novel legal theory, the limits are highly
    relevant. Both the Obama administration and your testimony
    today have argued that prosecutorial discretion allows the
    President to refuse to prosecute and to grant work
    authorizations to some 4.5 million people here illegally.
        Can you give me any principled line that would prevent that
    discretion from applying to all 12 million people currently
    here illegally?
        Professor Family. I think that prosecutorial discretion is
    always guided by statutory concerns. It is always guided by
    rationality. Right? It has to be rational. I think we are
    certainly nowhere near the situation----
        Chairman Cruz. You would not say it is irrational. You
    would not say it is irrational for the President to grant
    deferred status to the 12 million, would you?
        Professor Family. I think I would need to know more about
    the Administration's reasons why it was doing that.
        Mr. Rivkin. If I can just add, for 30 seconds.
    Unfortunately, for Ms. Family, if it is truly prosecutorial
    discretion, rationality is irrelevant. Maybe as a political
    accountability matter, but as a legal matter, it is irrelevant
    because it is not subject to judicial review.
        We do have balanced prosecutorial discretion that cannot be
    either changed by Article I or by Article III and then that man
    says trust me and if people do not like it, they may not elect
    me, and if I am not standing for election, then it is
    irrelevant. It cannot possibly mean that.
        Chairman Cruz. Professor Family, let me also understand the
    extent of prosecutorial discretion, because not only, under the
    Obama administration's terms, would it apply to immigration
    law, would it allow the President to grant amnesty to all 12
    million people here illegally or, for that matter, would allow
    the President to prospectively grant amnesty to any person on
    the face of the planet who came illegally to this country going
    forward.
        Would it also, in your view--let us imagine we have a
    subsequent President who chooses to exercise prosecutorial
    discretion with regard to the tax laws and he or she instructs
    the Secretary of Treasury, using prosecutorial discretion, you
    shall no longer collect taxes in excess of 25 percent.
        I will tell you, I happen to think that is a terrific
    policy, as a matter of economic policy. I also believe in rule
    of law and I do not believe the President can unilaterally
    decree that.
        Can you--Is there any reason, under your theory of
    prosecutorial discretion or, rather, under the Obama
    administration's theory of prosecutorial discretion, that a
    subsequent President could not simply decline to enforce the
    tax laws in excess of 25 percent?
        Professor Family. I think one of the things we would need
    to think about is what are the congressional policies
    underlying--underlying the statute that delegates the authority
    in the first place.
        Thankfully, I am not a tax law expert. Immigration law is
    complicated enough. I do not know enough about the tax
    statutes. In terms of immigration law, you know, the priorities
    are rational here. They are consistent with congressional
    policies that are underlying the statute.
        We need to keep in mind that what the Obama administration
    is doing is--they are not granting legal status. They are not
    giving out green cards. They are saying you are of low priority
    for us. It is a revokable thing. They could decide tomorrow to
    actually deport the person. It does not provide the same
    Security as a lawful immigration status.
        Chairman Cruz. Let me try to see if there are any limits to
    this theory. Earlier at this hearing, Senator Lee was here.
    Imagine in 2010 we have President Lee. Would President Lee have
    the authority under prosecutorial discretion to announce that
    the Lee Administration will not enforce any Federal
    environmental laws or any Federal labor laws against any
    citizens of the State of Utah? Would that be consistent with
    prosecutorial discretion?
        Professor Family. In my mind, that would fail the
    rationality test.
        Chairman Cruz. No, no. He has a very good reason that he
    thinks the environmental laws and labor laws are hurting the
    citizens of Utah.
        Professor Family. Not the citizens of any other State?
        Chairman Cruz. Okay. Fine. I will give you a second
    scenario. He announces we will no longer enforce the
    environmental laws or labor laws against any citizen of the
    United States. They are hurting everybody. Would that be
    permissible?
        Professor Family. That is not the situation that we have
    here. I mean, the Department of Homeland Security is still----
        Chairman Cruz. I understand it is a hypothetical. My
    question--and as you well know, having been a litigator, courts
    will frequently ask hypotheticals to determine the extent of a
    legal theory you are proffering.
        You are suggesting that the Administration can choose to
    engage in prosecutorial discretion and not enforce particular
    laws. I am asking is there any limit to it. Could a President
    Lee say the Federal environmental laws are hereby suspended in
    the United States of America?
        Professor Family. No. I do not think that that would be
    permissible, but I do not think that is what we are talking
    about today.
        Chairman Cruz. Why would it not? Help me understand the
    principled legal distinction between that and what the
    President has done here.
        Professor Family. Because here the President is merely
    setting enforcement priorities as he has been directed to do by
    the Immigration and Nationality Act.
        Chairman Cruz. Then let me tweak the hypothetical. Suppose
    a President Lee says I am hereby directing the enforcement
    priorities of the United States. We will prosecute every other
    Federal law before we enforce any Federal environmental law.
    Since there are limited resources, we are not going to have
    time. President Lee also goes on television, as President Obama
    did, and says any Federal official who violates it, there will
    be consequences and employment consequences.
        That is a matter of just resources. Would that be
    permissible?
        Professor Family. You are talking--are you asking about how
    the executive branch would--how they would prioritize in terms
    of order of things?
        Chairman Cruz. Could a subsequent President choose to
    enforce--to prioritize the enforcement of every other Federal
    law ahead of environmental laws such that no Federal
    environmental law would ever be enforced again?
        Professor Family. No. I think I said earlier I do not think
    a President could just say I am never going to enforce
    environmental law or I am never going to enforce immigration
    law. Again, I do not think that is what we have going on today.
        Chairman Cruz. How about could a President issue four-year
    temporary permits to violate Federal environmental law, print
    it up, we are deferring enforcement of all of these, we are
    printing you an environmental polluter pass, you may use this--
    now, this is temporary. It is purely deferred. We might one day
    come back and enforce the law. For the four years the President
    leads the Administration, you have this authorization to
    violate the law. Would that be permissible?
        Ms. Family. I guess the best answer to that I can give you,
    since I am not an environmental law expert, is that all
    agencies marshal their resources and engage in prosecutorial
    discretion. I do not know this for sure, but I would be very
    surprised if the EPA does not, you know, decide and think about
    and prioritize which types of environmental violations it is
    going to make higher priorities or not.
        Chairman Cruz. No doubt they do, but there is something
    qualitatively different issuing an authorization to violate
    law.
        For my final set of questions, I would just like to ask Mr.
    Rivkin. You talked about the assertion of Federal power of this
    President and I am reminded of what President Obama said not
    too long ago when he was asked if he had the authority to grant
    amnesty and his response was ``I am not an emperor.'' Those are
    not my words, those are Barack Obama's words.
        The obvious implication is to grant amnesty in
    contravention of Federal law would be to behave as an emperor.
    That is in the assessment of President Obama.
        I am reminded of the assessment of Professor Jonathan
    Turley, a known liberal constitutional law professor, a
    Democrat who voted for Barack Obama, who has testified before
    Congress that Barack Obama has become the embodiment of the
    imperial presidency and he used terms very similar to what you
    used earlier in this hearing, Mr. Rivkin.
        He said Barack Obama has become the President Richard Nixon
    always wished he could be. I would welcome your thoughts as to
    the consequences of a President having the sort of unbridled
    executive power to pick and choose which Federal laws to obey,
    which Federal laws to ignore, and which Federal laws to
    unilaterally alter.
        Mr. Rivkin. Thank you, Mr. Chairman. I wish I had an hour,
    but let me be brief.
        I think that it is an extremely dangerous situation, as you
    elucidated in your hypotheticals. It violates separation of
    powers. My hope is that this is an aberrational--and by the
    way, I, frankly, think there is a broader pattern of usurpation
    of Article I prerogatives.
        This Administration withdraws money from the Treasury not
    in consequence of appropriations and other contexts. This
    Administration X, with this name, whenever you try to exercise
    appropriations power, whether through an appropriations rider
    or capping the budget overall.
        This Administration takes umbrage at the House's ability to
    invite a foreign leader. This Administration takes umbrage in
    the Senate's ability to send a letter to a foreign leader.
        There is an utter disdain for Article I. My hope is it is
    aberrational, but if that new baseline emerges and, God forbid,
    it gets sanctified by Article III, and, as you well know from
    your litigation experience, Article III does look frequently at
    separation of powers and past practice, we are often in a
    horrible place. No matter how compelling the policy merits of
    this, he cannot be right, because individual liberty depends
    most profoundly not just on the Bill of Rights, but on cabining
    of powers and exercising of powers only that are appropriate to
    the particular entity who is doing it.
        Briefly, it is not just diffusion of power. The reason
    legislation is--for Article I is because it benefits from
    deliberation. It benefits from delays no matter what people
    have said about delays.
        If you have a sole legislator, he is going to be as bad at
    legislating as, frankly, Article I when you are trying to wage
    war, because war requires unity of command and speed and
    dispatch.
        It is--in my opinion, you cannot criticize this enough. You
    cannot be alarmed about this enough no matter what your
    political philosophy, no matter what your ideology or party
    affiliation is.
        Chairman Cruz. Thank you very much.
        Senator Blumenthal, do you have any additional questions?
        Senator Blumenthal. Yes. I would point out, I think the
    point has been made before that this exercise of discretion in
    applying the law dates back to I think the 1960's and deferred
    action itself goes back to 1975.
        It is a long established policy of Presidential authority
    that is based on the statutes, long exercised by presidents
    well before this one, including, most prominently, President
    Bush.
        It is based on limits of resources, humanitarian
    consideration, and appropriate consideration is exactly like
    the ones that are recognized in the November 20 policy
    guidance.
        I think there is a mixing of arguments here. On the one
    hand, that the statute is somehow being disregarded and
    unimplemented, and, on the other hand, that there is no
    exercise of discretion in that the factors are slavishly
    dictated so as to, in effect, abrogate individual decisions
    based on those humanitarian considerations or limitations of
    resources.
        I think that we are dealing here with the real world and
    the consequences of real world decisions, not with
    hypotheticals and scenarios about environmental laws
    disregarded in Utah or in the United States. These actions are
    deferred. No one is given a pot of money. No one is given a
    benefit. They remain here in a deferred status, which other
    Presidents potentially can reverse.
        I think in a certain way, the debate we are having here
    demonstrates anew the importance of reforming these laws. I am
    just a country lawyer from Connecticut but what is very
    apparent to me is that the very interesting and important
    conversation we are having in this body and all around the
    United States that is ongoing shows that the law needs to be
    reformed. We need a better way of dealing with these
    individuals so that the exercise of discretion is given a
    sounder statutory basis in law.
        Thank you very much. Thank you, Mr. Chairman.
        Chairman Cruz. I thank my friend, the country lawyer. I
    thank each of the witnesses for being here today. I think this
    was a very productive and informative hearing. Thank you for
    taking the time. Thank you for the preparation. Thank you for
    participating in the questioning and conversations.
        We will keep the record open for one week for any Member
    who wishes to provide written questions. We would ask the
    witnesses to respond to those questions in a timely manner.
        The hearing is now adjourned.
        [Whereupon, at 5:32 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Submitted by Senator Leahy:

     Coalition For Humane Immigrant Rights of Los Angeles.............    99

    Submitted by Senator Cruz:

     Exhibit 1 to Declaraton of Joe Peters............................    83

     Exhibit 24, District Court for the Southern District of Texas....    78

    Miscellaneous:

     Prepared Statement of Senator David Vitter from the State of
        Louisiana.....................................................    70

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]