[Congressional Record Volume 159, Number 178 (Monday, December 16, 2013)]
[Senate]
[Pages S8862-S8867]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF JEH JOHNSON

  Mr. SESSIONS. Mr. President, I spoke a bit earlier in relation to the 
nomination of Jeh Johnson to be Secretary of Homeland Security.
  It is an important department with 240,000 employees, and includes 
the Coast Guard, the Secret Service, TSA airport personnel, and ICE 
officers who enforce immigration laws, our Border Patrol officers who 
patrol the border, the Citizenship and Immigration Service which 
evaluates and approves or disapproves people who apply for admission to 
the United States, and agency after agency.
  I have watched many of these complex departments and do not believe 
they have been brought together to the degree they ought to be, and it 
hasn't had the kind of strong leadership it needs to have to be 
effective for the American people.
  In addition to that, we have the difficulty that this administration 
has basically told the immigration component of Homeland Security--one 
of its largest components--that they shouldn't do their job. They have 
been blocked and instructed not to enforce the law to a degree that 
Professor Turley said represents an unacceptable alteration of the 
Madisonion understanding of the separation of powers.
  In other words, the President is charged with the duty to enforce 
law, to see that the laws of the United States are faithfully enforced. 
He is not given the power to flatly direct his officers not to enforce 
laws of the Congress.
  I am sure Mr. Johnson has many abilities. He is apparently a Wall 
Street lawyer, a big political campaigner, has raised a bunch of money

[[Page S8863]]

and gave money to President Obama. He is a close confidant of President 
Obama, was made the legal counsel for the Department of Defense--about 
which he said he was President Obama's man at the Department of 
Defense.
  But he has not had any real leadership and management experience. He 
shows no interest in or desire to seize control of this Department, to 
make it better, and to honor the officers who are a part of it and who 
serve their country often at risk every day, only to find that high 
political appointees in that Department undermine their ability to 
enforce the law and place their lives at risk.
  You say: Jeff, that is an exaggeration. I am going to talk tonight in 
some detail about some of the things this administration has done to 
undermine, block, and frustrate the ability of the fine law enforcement 
officers--ICE officers, customs enforcement officers, Border Patrol 
officers--who serve our country on a daily basis at risk to themselves, 
and it is not good.
  A lot of people might not know that I was a Federal prosecutor and 
Attorney General of Alabama. Back in the mid-1990s when I was traveling 
the State, I would meet the law enforcement officers and I would ask 
them: What happens when you apprehend somebody in Alabama whom you 
identify as illegally in the country?
  Their answer was: Nothing. We let them go. We are told by the Federal 
officials--who are the only ones that can deport anybody: If you don't 
apprehend at least 15, don't bother to call us. So we just don't do it.
  People are shocked at that. I would have town meetings and I would 
ask people: What happens if your local police officer or local sheriff 
apprehends somebody? They think they turn them over to the Federal 
Government for deportation, and that did not happen. It hasn't happened 
in a long time. But it has gotten worse than that.
  The argument was: What we would do is enforce the workplace and we 
would keep people from getting a job. If they don't have a job, they 
won't come to America. We are going to enforce that. That has never 
been effectively enforced. That is just talk. It is not happening. At a 
time of extraordinarily high unemployment, at a time when wages for 
working Americans are sliding downward and not going up, and when every 
month that goes by we see large numbers of people hired part time 
rather than full time, all of this is happening while we are totally 
unwilling to take any action which would stop illegal workers from 
getting jobs that Americans need.
  We have American people that are hurting. We have American people 
unemployed. We have children and grandchildren and grandparents and 
mothers and fathers unemployed or only in part-time jobs. Over the last 
5 or 6 years, the number of people who have gotten jobs in America is 
about 1.9 million over that period. That is how many immigrant workers 
entered the country. So the net improvement in employment in a 
mathematic sense has all gone to foreign workers who come to America--
legally or illegally.
  So we need to be serious about this. We need to ask ourselves: Don't 
we have an obligation to the American people to faithfully enforce the 
laws, and to end the lawlessness and create a good immigration system 
which serves the interests of America and of American workers? I think 
we do. I think that is what the American people want. I think they are 
entitled to that, and I want to show tonight how far away from that we 
are today.
  The reason I am talking about this is we just confirmed Jeh Johnson 
as the Secretary of Homeland Security. He is the political confidant of 
the President, and the President has no intention of enforcing the laws 
and has created a circumstance which is not good for this country.
  Mr. Johnson, in my brief conversation with him, seemed like a nice 
enough gentleman. But I asked him: Why do you want this job, Mr. 
Johnson? You say you believe in law and you believe the laws ought to 
be enforced. If you take this job, you are not going to be allowed to 
enforce the laws. You just need to know that.
  I asked him, was he going to be willing to confront the President and 
tell him: You can't do this. I am a sworn officer here. I have 
thousands of law enforcement officers working for me out there on the 
streets, out there dealing directly with people in violation of 
American law, and I can't keep telling them not to do what they are 
required to do. I don't have the ability to deny them the right to 
enforce the laws of the United States.
  This issue was defined early in the Obama administration.
  President Bush was slow. But President Bush, after comprehensive 
reform in 2006 and 2007 failed, seemed to get it. So he called out the 
National Guard, which made a positive difference. He stepped up 
enforcement. We finally began to build fencing, and he began to have a 
pretty good bit of workplace enforcement. They raided some chicken 
plants in Georgia, and they found hundreds of people working here 
illegally.
  What happened in Georgia was they had to raise pay to get legal 
immigrants to come to work. What is wrong with that? Pay is too low in 
America. We need higher wages.
  So the people during the campaign who had been interfacing with the 
Obama administration obviously had a deal. They were told they were 
going to stop these kinds of enforcement and they weren't going to do 
them anymore. The Immigration and Customs Enforcement raid in 
Washington State was a completely justified enforcement action. But 
pro-amnesty groups complained. As a result, the Secretary of Homeland 
Security Janet Napolitano--who Mr. Johnson will replace--vowed that she 
would get to the bottom of this problem.
  An article in the Washington Times quoted a Homeland Security 
official as saying: The Secretary is ``not happy about it.'' Instead of 
enforcing the law, the Secretary investigated the law officers who were 
simply doing their duty--apparently in response to some demands of 
advocacy groups who had been pushing them during the campaign.
  Then Esther Olavarria, Deputy Assistant Secretary of Homeland 
Security, said on a phone call with employers and pro-amnesty groups: 
We are not doing raids or audits under this administration.
  This statement symbolized the end of workplace enforcement in 
America, and it is in violation of law. Workers are not entitled to 
work illegally in American factories or plants. Where did this come 
from? How did it ever get to be the idea that Americans can have their 
jobs taken by people illegally in the country, and you can't ever do an 
investigation or enforcement action and remove people who are illegally 
here and not authorized to work?
  Then, in 2010, the administration began implementing its plan to 
dismantle the immigration law enforcement system as we know it.
  On May 19, 2010, in an interview with the Chicago tribune, then-
Director of ICE John Morton announced that ICE may not even process or 
accept the transfer of illegal aliens to the agency's custody by 
Arizona officials. Arizona, of course, was facing a very serious 
problem.
  Mr. President, on May 27, 2010, an internal ICE email revealed that 
top officials declared that the low-risk immigration detainees would be 
able to have far greater visitation rights, with visitors staying an 
unlimited amount of time during a 12-hour window--which can really make 
maintaining order at a detention facility difficult--and also that 
they, the detainees, would be given access to unmonitored phone lines. 
The mayor of your town, who is in jail over tax evasion, doesn't get 
unmonitored phone line use, but apparently illegal aliens do. They get 
email, free Internet calling, movie nights, bingo, arts and crafts, 
dance and cooking classes, tutoring and computer training. All of these 
are for people who have been apprehended while illegally in the 
country. It really should be on a fast turnaround to be returned to the 
country from which they came.
  On June 25, 2010, the National ICE Council, which is the union that 
represents more than 7,000 fine ICE officers, cast a unanimous vote. 
They voted ``no confidence'' in their Director, John Morton. According 
to the union, the vote reflected ``the growing dissatisfaction among 
ICE employees and union leaders that Director Morton

[[Page S8864]]

had abandoned the agency's core mission of enforcing United States 
immigration laws and enforcing public safety and has instead directed 
their attention to campaigning for programs and policies relating to 
amnesty.''
  I have been here in the Senate now for going on 17 years and I am not 
aware of a major governmental employee union voting ``no confidence'' 
in its boss, particularly when it deals with the simple policies of law 
and enforcement, not even relating to some workplace rule or complaint.
  In August 2010 top ICE officials began circulating a draft policy 
that would significantly limit the circumstances under which ICE could 
detain illegal aliens. In effect, ICE agents were no longer authorized 
to pick up an illegal alien for illegally entering the country or for 
possessing false identification documents. False documents? You go to 
the bank or you go to get on an airplane and you use a false document, 
somebody is going to prosecute you. But if you are, apparently, a 
noncitizen who entered the country illegally, you are given immunity by 
the administration. Why? Because they do not want to see the law 
enforced. That is the reason. They basically have made that decision. 
Under the new policy, illegal aliens could only be detained if other 
law enforcement agencies made an arrest for a specific criminal 
violation. This was the beginning of what would become known as 
administrative amnesty.
  Then in December 2010 a Washington Post article on internal ICE 
emails and communications reported that ICE had padded its deportation 
statistics. Many of you have heard that the administration claims they 
deported far more people than before; therefore, they should be 
applauded for being effective law enforcement officers. But it is a 
fact that those numbers were padded and exaggerated. According to the 
Washington Post article, ICE included 19,422 removals in fiscal year 
2010 that were actually removals from fiscal year 2009.
  We have had a problem in this country. There is a growing concern 
about this administration not telling the truth. Their philosophy seems 
to be, we say whatever is convenient at the time, and when we get 
caught we do not worry about it, we just keep right on going and our 
friendly press will ignore it. But it is beginning to bite now. People 
are getting tired of this.
  This is a deliberate--by 19,000--misrepresentation of the number of 
removals.
  The article also described how ICE extended a Mexican repatriation 
program beyond its normal operation date, adding 6,500 to the final 
removal numbers--again, making them look better than they were.
  In a March 2, 2011 memo, ICE Director Morton outlined new enforcement 
priorities and encouraged agents not to enforce the law against most 
illegal aliens and to only take action against those who meet certain 
priorities.
  On July 17, 2011, ICE Director Morton issued a second memorandum 
further directing ICE agents to refrain from enforcing the law against 
certain segments of the illegal alien population--criteria similar to 
that under the DREAM Act--despite having no legal or congressional 
authority to do so and despite the fact that Congress had explicitly 
rejected the DREAM Act three times. This is a matter of serious 
constitutional import.
  On June 17, 2011, ICE Director Morton issued a third memo instructing 
ICE personnel to consider refraining from enforcing the law against 
individuals engaged in a protected activity related to civil or other 
rights. So if you are in the country illegally and, for example, union 
organizing or complaining to authorities about employment 
discrimination or housing conditions, you can be protected from being 
deported. Anybody who is in a nonfrivolous dispute with an employer, 
landlord, or contractor seems to be eligible to avoid the consequences 
of being in the country illegally.
  On June 23, 2011, the ICE Agents and Officers' Union again expressed 
outrage over Director Morton's actions, noting that since the 
administration was ``unable to pass its immigration agenda through 
legislation, it is now implementing it through agency policy.'' That is 
exactly what they did. Everybody who knows enough about what is going 
on knows that is what they did. But somehow, like the frog in the ever-
warming water, we are oblivious to the consequences when an executive 
branch declares and directs a law to be enforced and carried out that 
was never passed and in fact was rejected in recent years three 
separate times.
  The ICE officers association accused the appointees of working hand 
in hand with the open borders lobby--they see this on a daily basis--
while excluding its officers, the ICE officers, from the policy 
development process.

  In effect, ICE officers allege that the political appointees at ICE 
were advancing the agenda of those here illegally and maneuvering 
against their own law enforcement officers trying to do their duty--to 
enforce the law and end the illegality in America. That is exactly what 
they said was happening, and that is exactly what is happening, 
colleagues.
  On June 27, 2011, an internal memorandum revealed that ICE officers 
attempted to publicly distance themselves from the administrative 
amnesty policies and deny that they ever existed after the Houston 
Chronicle exposed the Department of Homeland Security directive to 
review and dismiss valid deportation cases then in process.
  On August 1, 2011, the Justice Department filed a lawsuit in Federal 
court to stop Alabama's law that was designed to assist the Federal 
Government in identifying and bringing forth to the Federal officials 
people in the country illegally.
  On August 18, 2011, Secretary Napolitano announced that DHS was 
reviewing all pending and incoming deportation cases to stop 
proceedings against those illegal aliens who were not DHS priorities.
  On September 28, of 2011, at a roundtable with amnesty advocates, 
President Obama admitted that his deportation statistics were 
misleading. He said:

       The statistics are actually a little deceptive because what 
     we've been doing is . . . apprehending folks at the borders 
     and sending them back. That is counted as a deportation even 
     though they may have only been held for a day or 48 hours.

  That is pretty interesting. So the President is meeting with amnesty 
advocates, and he is admitting this to them but not to the American 
people. He told the American people they had an enhanced number of 
deportations. But when he met with the amnesty people to assuage their 
complaints that too many people were being deported, he said the 
numbers were not correct.
  We need the President of the United States to look the group in the 
eye and say: If you come to America illegally, expect to be deported if 
we apprehend you. What else should he say? He is the chief law 
enforcement of America. He is charged with ensuring that the laws of 
the United States are faithfully executed.
  On October 12, in testimony before the House Judiciary Committee, 
Director Morton admits that Cecilia Munoz, a former senior vice 
president of the National Council of La Raza and now assistant to the 
President and Director of the White House Domestic Policy Council, 
assisted in the preparation of the administrative amnesty memorandum.
  La Raza has been awfully aggressive on these issues. They have every 
right to be aggressive, but I have to tell you their positions are 
nowhere near anything that comes close to being an advocate for a 
lawful system of immigration in America. They want the lawlessness to 
continue.
  On October 18, 2011, ICE refused to take any action after the Santa 
Clara County, CA, Board of Supervisors voted to stop using county funds 
to honor ICE detainers except in limited circumstances.
  Let me tell you about this. I have been an attorney general and a 
U.S. attorney. A detainer is a very useful law enforcement tool that is 
critical for harmonious relationships between various agencies. If 
somebody arrests somebody and they are serving time for drug dealing or 
burglary and another jurisdiction has a charge against him, they place 
a detainer against him at that jail. As soon as they finish their term, 
they are not released; they are turned over to the agency that has 
another charge pending against them.
  So the Santa Clara County Board of Supervisors voted not to allow the 
Federal Government to place detainers on people in their jail who were 
here in the country illegally and voted, in effect, not to turn them 
over, as all law

[[Page S8865]]

enforcement officers do and have done for decades.
  So ICE didn't do anything about it. They still send them Federal 
money for law enforcement. They have things that they could do. They 
just went along with it because I guess they don't care.
  On October 19, ICE refused to act after the mayor of District of 
Columbia, Vincent Gray, issued an order to prevent the DC police from 
enforcing U.S. immigration law. Among other things, the order prohibits 
all public safety agencies from inquiring about an individual's 
immigration status--they can't even inquire about it--or from 
contacting ICE if there is no nexus to a direct criminal investigation 
other than immigration.
  The District of Columbia knows better than that. ICE says their 
officers can't even inquire to see if somebody is illegally in the 
country? That is a stretch. That is unacceptable. We ought to cut off 
funds for cities that refuse to at least conduct minimal cooperation 
with Federal law enforcement.
  October 31, 2011, the Justice Department filed a suit against South 
Carolina to block their immigration law designed to help the Federal 
Government enforce immigration laws. They had plenty of time to sue 
States and other entities who want to help them enforce the laws. They 
had plenty of time also to meet with amnesty groups but no time 
whatsoever to meet with these law officers and find out what their 
concerns are or to draft policies that would help us to be more 
effective.
  On November 7, 2011, USCIS issued a memo stating that USCIS will no 
longer issue ``notices to appear'' in immigration court to illegal 
aliens who do not meet administration priorities. That is a major step 
backward.
  On November 22, the Justice Department filed suit against Utah's 
immigration enforcement system. They have plenty of time to sue Utah, 
which would like them to help enforce the law.
  On November 22, ICE refused to act after Mayor Michael Bloomberg 
signed a measure ordering all New York City jails to ignore certain ICE 
detainers issued to deport illegal aliens from those jails. So the 
mayor of New York issues an order not to honor the detainers placed 
there by the Federal Government--the U.S. government.
  Mr. Bloomberg is spending millions of dollars of his billion-dollar 
wealth to lobby the House to pass an amnesty bill. It is his money; I 
guess he can spend it where he wants to. But just because he has made 
$1 billion, I don't think it suggests to me that he has any better idea 
about how to run the immigration system of the United States than I do, 
since I spent 14 years dealing with Federal law enforcement.

  On December 15, 2011, DHS rescinded Maricopa County, Arizona's 287(g) 
agreement, a cooperative agreement whereby local law enforcement 
received training in identifying and apprehending illegal aliens and 
handling them in a way preferably consistent with law--being very 
careful in how we treat people who are detained in a decent and very 
fine way. The 287(g) Program is a very fine program. It really is good. 
And it is a great disappointment to me that this administration has 
basically killed it.
  I remember Alabama was the first State in the Nation that 
participated in the 287(g) Program. A certain number of officers--not a 
huge number--came to a training center for several weeks and were 
trained on how to be of valuable assistance to the Federal officers to 
maximize their ability to be effective. This has been canceled. It 
basically ended under this administration.
  Director Morton told a Maricopa County attorney that ICE will no 
longer respond to calls from Maricopa County sheriff's officers 
involving traffic stops, civil infractions, or other minor offenses. 
DHS's legal reasoning is unclear given that Federal law requires the 
Federal Government to respond to inquiries by law enforcement agencies 
to verify immigration status. In other words, local officers apprehend 
somebody and they make an inquiry as to whether this person is lawfully 
in the country and they have a right to be responded to. Apparently, 
they have chosen not to respond to that basic law enforcement request.
  On December 29, 2011, ICE announced the creation of a 24-hour hotline 
for illegal alien detainees to be staffed by the Law Enforcement 
Support Center--the same organization that ICE had already stated was 
understaffed as far as keeping up with the immigration status check 
requests for State and local law enforcement. They were getting lots of 
requests for statuses on people, about whether they were legally or 
illegally here, from local law enforcement. They don't have enough time 
to do that, but now these officers have been given the extra duty of 
having a 24-hour hotline for illegal alien detainees. Who are we 
serving here?
  ICE then revised its detainer form to include a new provision which 
states ICE should consider this request for a detainer operative ``only 
upon the subject's conviction'' of an offense. It completely ignores 
the fact that presence in the United States of America illegally is a 
violation of federal law.
  On January 3, 2012, there was a report by the inspector general that 
revealed that USCIS officials or top political officials pressured the 
employees to approve applications that should have been denied and that 
employees believed they did not have enough time to complete the 
interviews of applicants, ``leaving ample opportunity for critical 
information to be overlooked.'' The 911 Commission said people should 
be interviewed face-to-face, but that idea has completely collapsed 
today.
  On January 10, 2012, the President promoted Cecelia Munoz to be the 
new Director of his Domestic Policy Council. She previously served as 
senior vice president of La Raza. We need an objective person in that 
position, not an advocate for undermining the law. I am not saying she 
is a bad person. She is perfectly legitimate to be an advocate for 
amnesty or open borders. It is a free country. But she ought not to be 
put in a top position where the duty is to enforce the law.
  On January 17, 2012, DHS stopped the rollout of the Secure 
Communities Act in Alabama, according to a DHS email, because the 
administration disagrees with Alabama's immigration law. They just quit 
cooperating.
  In January 2012, ICE attorneys in Denver and in Baltimore recommended 
that the agency voluntarily close 1,667 removal cases, resulting in the 
release of illegal aliens already in proceedings without consequence of 
their violation of immigration law.
  On January 19, 2012, the President issued an Executive order waiving 
certain screening safeguards, allowing those applying for nonimmigrant 
visas--people who come here to work only--to obtain them more easily 
from China and Brazil. On the same day, the State Department announced 
it will waive the longstanding statutory requirement of in-person 
interviews by a consular officer.
  On February 7, 2012, ICE announced the creation of a public advocate 
who is to serve as a point of contact for aliens in removal 
proceedings, community advocacy groups, and others who have concerns, 
questions, and recommendations they would like to raise about the 
enforcement of laws and amnesty efforts.
  In February 2012, the President revealed in his budget a proposal to 
cut funding for ICE and the 287(g) Program, effectively gutting the 
program.
  On April 17, 2012, the administration announced it would reduce 
National Guard troops stationed at the border from 1,200 to 300. Is 
this an action of an administration that seems to be interested in 
seeing that we have a lawful system of immigration we can be proud of, 
a legal system that promotes the interests of the United States of 
America? Are we at a point in time where we are undermining law?
  I have about half of these done so far, and I could continue. It goes 
on and on and on. It is a consistent trend and agenda. It is basically, 
if you don't grant amnesty, Congress, I am not going to enforce the 
law. Just forget it. I am going to direct my officers to do what I want 
them to do, not what the law of the United States requires them to do. 
It is a deep and fundamental challenge to the very integrity of 
American constitutional order.
  People say: Jeff, you are exaggerating.
  Let me tell my colleagues about a recent House Judiciary hearing that 
was held on the President's constitutional duty to faithfully execute 
the laws. Chairman Goodlatte summarized the reason for the hearing as 
follows:


[[Page S8866]]


       The Obama administration has ignored the Constitution's 
     carefully balanced separation of powers and unilaterally 
     granted itself the extra constitutional authority to amend 
     the laws and to waive or suspend their enforcement. This raw 
     assertion of authority goes well beyond the executive power 
     granted to the President and specifically violates the 
     Constitution's command that the President is to take care 
     that the laws be faithfully executed. The President's 
     encroachment into Congress's sphere of power is not a 
     transgression that should be taken lightly. As English 
     historian Edward Gibbon famously observed regarding the fall 
     of the Roman Empire, the principles of a free constitution 
     are irrevocably lost when the legislative power is dominated 
     by the executive.

  From ObamaCare to immigration, the current administration is picking 
and choosing which laws to enforce. So this is correct. I believe 
Chairman Goodlatte is discussing an important issue.
  What about the testimony of the witnesses at that hearing? It was 
stunning. One witness, Professor Jonathan Turley, well known throughout 
the country, writes a lot in publications and legal journals. He is the 
Shapiro Professor of Public Interest Law at George Washington 
University Law School and is a nationally recognized constitutional 
scholar. He said he is a supporter of President Obama's policies and 
voted for him. But I want you to hear this, colleagues. Professor 
Turley, at the hearing, said this:

       I believe the president has exceeded his brief. The 
     president is required to faithfully execute the laws. He's 
     not required to enforce all laws equally or commit the same 
     resources to them. But I believe the president has crossed 
     the constitutional line in some of these areas.

  (Ms. WARREN assumed the Chair.)
  Mr. SESSIONS. He goes on--this is a direct quote--

       This goes to the very heart of what is the Madisonian 
     system. If a president can unilaterally change the meaning of 
     laws in substantial ways or refuse to enforce them, it takes 
     offline that very thing that stabilizes our system.

  He goes on:

       I believe the members will loathe the day that they allow 
     that to happen.

  He is talking about Members of Congress. ``I believe the members [of 
Congress] will loathe the day that they allow that to happen.''
  He goes on:

       This will not be our last president. There will be more 
     presidents who will claim the same authority.
       When I teach constitutional law, I often ask my students, 
     what is the limiting principle of your argument? When that 
     question is presented to this White House, too often it's 
     answered in the first person, that the president is the 
     limiting principle or at least the limiting person. We can't 
     rely on that type of assurance in our system.

  That is what Professor Turley said, who voted for President Obama and 
is a well-known legal scholar. That is dramatic testimony and we need 
to listen to it. I am hearing it from my constituents daily. They think 
this administration is not telling the truth on a regular basis. They 
cannot imagine how we can pass a health care law, and the President is 
just going and picking and choosing what parts of it he wants to go 
forward, what parts he wants to delay. How can this happen? Is this a 
legal system or not?
  Mr. Turley goes on:

       The problem of what the president is doing is that he is 
     not simply posing a danger to the constitutional system; he 
     is becoming the very danger the Constitution was designed to 
     avoid: that is, the concentration of power in any single 
     branch. This Newtonian orbit that the three branches exist in 
     is a delicate one, but it is designed to prevent this type of 
     concentration.

  Wow. This is very strong. Then, when Professor Turley was asked 
whether the President has acted contrary to the Constitution, Professor 
Turley answered in the affirmative. He said further:

       I really have great trepidation over where we are heading 
     because we are creating a new system here, something that is 
     not what was designed. We have this rising fourth branch in a 
     system that's tripartite. The center of gravity is shifting, 
     and that makes it unstable. And within that system you have 
     the rise of an uber presidency. There could be no greater 
     danger for individual liberty, and I really think that the 
     framers would be horrified by that shift because everything 
     they've dedicated themselves to was creating this orbital 
     balance, and we've lost it. . . .

  That makes the hair stand on the back of my neck. This goes to the 
core of our government. Are we a legal system or not? If we start 
eroding these classical principles of law, duty, and responsibility--
the appropriate balance between the three branches of government--we 
have done something that is important. As Professor Turley said, we are 
undermining the orbital balance. Indeed, he said we have lost it--
Professor Turley, not me.
  Professor Turley goes on to say:

       It's not prosecutorial discretion to go into a law and say 
     an entire category of people will no longer be subject to the 
     law. That's a legislative decision.

  It is a legislative decision, not the President's decision. The 
legislature represents the people. Over a period of years, people are 
elected to this body and the House.
  It goes on. Professor Turley said:

       Prosecutorial discretion is a case-by-case decision that is 
     made by the Department of Justice. When the Department of 
     Justice starts to say, we're going to extend that to whole 
     sections of law, then they are engaging in a legislative act, 
     not an act of prosecutorial discretion. Wherever the line is 
     drawn, it's got to be drawn somewhere from here. It can't 
     include categorical rejections of the application of the law 
     to millions of people. . . .

  Great Scott. He is so correct. Prosecutors have discretion. They do 
not have to prosecute every case that comes before them. But the 
President does not have power just to eviscerate whole sections of law 
that affect millions of people. Professor Turley hit that exactly 
correct. He goes on to say:

       Many of these questions are not close, in my view. The 
     president is outside the line. . . . And that's where we have 
     the most serious constitutional crisis, I view, in my 
     lifetime, and that is, this body is becoming less and less 
     relevant.

  He is talking to the House, the House of Representatives. You are 
becoming less and less relevant. He considers this to be ``the most 
serious constitutional crisis . . . in my lifetime.'' We sit here 
oblivious to what has been happening. I have talked about it an awful 
lot, but I guess I have not been very effective. Professor Turley's 
arguments and remarks just hammer home how serious it is, this question 
we are dealing with.
  So he goes on to say this:

       I believe that [Congress] is facing a critical crossroads 
     in terms of its continued relevance in this process. What 
     this body cannot become is a debating society where it can 
     issue rules and laws that are either complied with or not 
     complied with by the president. I think that's where we are . 
     . . [A] president cannot ignore an express statement on 
     policy grounds. . . .

  He says the President cannot ignore an express act, statement of law 
because he has a different policy view.
  Now, does anybody contend that he can? I would like to see them send 
me a note on it. Any Member of this body who thinks the President of 
the United States can ignore an express statement of law because he 
just disagrees with it on policy grounds--I would like to hear them 
defend that issue or explain their position on it.
  He goes on to say:

       [I]n terms of the institutional issue . . . look around 
     you. Is this truly the body that existed when it was formed?

  He is talking to the House now.

       Does it have the same gravitational pull and authority that 
     was given to it by its framers? You're keepers of this 
     authority. You took an oath to uphold it. And the framers 
     assumed that you would have the institutional wherewithal 
     and, frankly, ambition to defend the turf that is the 
     legislative branch.

  Isn't that true?

       . . . the framers assumed that you would have the 
     institutional wherewithal and, frankly, ambition to defend 
     the turf that is the legislative branch.
  We are sitting here, we had the majority leader stand before the 
Presiding Officer and break the rules of the Senate to amend the Senate 
rules just a few weeks ago. It was a stunning development. This is 
Third World stuff. This is not the United States of America, a 
constitutional Republic that I served as a prosecutor year after year.
  We took so much pride, my staff and I, in trying to make sure nobody 
was given an advantage or disadvantage based on status or wealth or 
race, intelligence or background or whatever advantage they had: equal 
justice under the law. We enforced the law whether anybody would have 
voted for it or not had we been in Congress. It was passed by Congress, 
we enforced the law. At that same hearing, Nicholas Rosenkranz, a 
professor of law at Georgetown University Law Center and the author of 
the single most downloaded article about constitutional interpretation 
in the history of

[[Page S8867]]

the social science research network, also testified before the House 
Judiciary Committee.
  He stated that the President's Constitutional duty to take care that 
the laws be faithfully executed ``is not optional; it is mandatory,'' 
and that President Obama's ``wholesale suspension of law . . . is the 
paradigm case of a `take care' clause violation.''
  He further testified:

       What's striking about this is the president's decision to 
     enforce the immigration laws as though the DREAM Act had been 
     enacted, when in fact it has not. . . . Rather than declining 
     to comply with a duly enacted statute, the president is 
     complying meticulously, but with a bill that never became 
     law.

  So they offered a bill. It was rejected by the Congress. The 
President is almost to the letter enforcing a bill rejected by the 
people's representatives. Professor Rosenkranz goes on to say:

       Congress has repeatedly considered . . . the DREAM Act. The 
     President favors this act. Congress has repeatedly declined 
     to pass it. So the President simply announced that he would 
     enforce the Immigration and Nationality Act as though it had 
     been--as though the DREAM Act had been enacted. To put the 
     point another way, the president's duty is to take care that 
     the laws be faithfully executed, laws capital L, not those 
     bills that fail to become law, like the DREAM Act.

  I think this is a serious matter and I think Professor Rosenkranz 
hits it directly. Professor Rosenkranz was in agreement with Professor 
Turley that ``prosecutorial discretion is one thing.''
  It is real.

       But wholesale suspension of law is quite something else, 
     and that is what has happened under ObamaCare. Likewise, in 
     the immigration context, kind of case-by-case prosecutorial 
     discretion is one thing, but a blanket policy that the 
     immigration act will not apply to 1.8 million people, that's 
     quite something different. This is a scale of decision-making 
     that is not within the traditional conception of 
     prosecutorial discretion.

  That is certainly true. It is hard to believe we are here. I think we 
are here because in the great law schools of America and the top levels 
of our academic world in our new media and so forth, we have moved in 
sort of a postmodern world in which words do not have meaning. They are 
subject to being altered whenever they choose to fit the mood of a 
moment.
  The President said, when he nominated people for the Supreme Court, 
he wanted nominees who would show empathy. What is empathy? It is not 
law. Is it politics? Is it bias? Is it personal opinion? Our system is 
based on law, not empathy, not bias, not politics, not ideology. This 
is a serious matter. Chairman Goodlatte then interjected:

       In fact the president has taken it a step further and has 
     actually given legal documents to the people in that 
     circumstance, well beyond simply deciding not to leave them 
     there and not prosecute them, but to actually enable their 
     violation of the law by giving them documents to help them 
     evade the problems that ensue from living in the country that 
     they're not lawfully present in.
       Professor Rosenkranz replied, ``Quite right.'' This matter 
     is not going away. We are going to deal with it. I truly 
     believe the American people expect this government of theirs 
     that works for them to produce an immigration system, a legal 
     system that involves ObamaCare and other policies that is 
     committed to law and not to the feelings of the chief 
     executive and not to his policy preferences.

  We avoid that or we have a serious matter in this country that goes 
to the heart of the strength of this Republic. You could sap that 
strength, erode the power of our legal system. The legal system, in my 
opinion, is the greatest strength this Nation has.
  I yield the floor.

                          ____________________