[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
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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
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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
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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
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