[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.
____________________