Congressional Record, Volume 160 Issue 147 (Thursday, December 4, 2014)

[Congressional Record Volume 160, Number 147 (Thursday, December 4, 2014)]
[House]
[Pages H8632-H8651]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PREVENTING EXECUTIVE OVERREACH ON IMMIGRATION ACT OF 2014

Mr. GOODLATTE. Mr. Speaker, pursuant to House Resolution 770, I call
up the bill (H.R. 5759) to establish a rule of construction clarifying
the limitations on executive authority to provide certain forms of
immigration relief, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Hastings of Washington). Pursuant to
House Resolution 770, the amendment in the nature of a substitute
printed in part B of House Report 113-646 shall be considered as
adopted, and the bill, as amended, shall be considered read.
The text of the bill, as amended, is as follows:

H.R. 5759

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Preventing Executive
Overreach on Immigration Act of 2014''.

SEC. 2. FINDINGS.

The Congress finds as follows:
(1) Under article I, section 8, of the Constitution, the
Congress has the power to ``establish an uniform Rule of
Naturalization''.

[[Page H8633]]

As the Supreme Court found in Galvan v. Press, ``that the
formulation of . . . policies [pertaining to the entry of
aliens and their right to remain here] is entrusted
exclusively to Congress has become about as firmly imbedded
in the legislative and judicial tissues of our body politic
as any aspect of our government''.
(2) Under article II, section 3, of the Constitution, the
President is required to ``take Care that the Laws be
faithfully executed''.
(3) Historically, executive branch officials have
legitimately exercised their prosecutorial discretion through
their constitutional power over foreign affairs to permit
individuals or narrow groups of noncitizens to remain in the
United States temporarily due to extraordinary circumstances
in their country of origin that pose an imminent threat to
the individuals' life or physical safety.
(4) Prosecutorial discretion generally ought to be applied
on a case-by-case basis and not to whole categories of
persons.
(5) President Obama himself has stated at least 22 times in
the past that he can't ignore existing immigration law or
create his own immigration law.
(6) President Obama's grant of deferred action to more than
4,000,000 unlawfully present aliens, as directed in a
November 20, 2014, memorandum issued by Secretary of Homeland
Security Jeh Charles Johnson, is without any constitutional
or statutory basis.

SEC. 3. RULE OF CONSTRUCTION.

(a) In General.--Notwithstanding any other law, the
executive branch of the Government shall not--
(1) exempt or defer, by Executive order, regulation, or any
other means, categories of aliens considered under the
immigration laws (as defined in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17))) to be
unlawfully present in the United States from removal under
such laws;
(2) treat such aliens as if they were lawfully present or
had a lawful immigration status; or
(3) treat such aliens other than as unauthorized aliens (as
defined in section 274A(h)(3) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(3))).
(b) Exceptions.--Subsection (a) shall apply except--
(1) to the extent prohibited by the Constitution;
(2) upon the request of Federal, State, or local law
enforcement agencies, for purposes of maintaining aliens in
the United States to be tried for crimes or to be witnesses
at trial; or
(3) for humanitarian purposes where the aliens are at
imminent risk of serious bodily harm or death.
(c) Effect of Executive Action.--Any action by the
executive branch with the purpose of circumventing the
objectives of this section shall be null and void and without
legal effect.
(d) Effective Date.--This section shall take effect as if
enacted on November 20, 2014, and shall apply to requests
(regardless of whether the request is original or for
reopening of a previously denied request) submitted on or
after such date for --
(1) work authorization; or
(2) exemption from, or deferral of, removal.

The SPEAKER pro tempore. The gentleman from Virginia (Mr. Goodlatte)
and the gentleman from Michigan (Mr. Conyers) each will control 30
minutes.
The Chair recognizes the gentleman from Virginia.

General Leave

Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous materials on H.R. 5759.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I urge my colleagues to support Mr. Yoho's important
bill, the Preventing Executive Overreach on Immigration Act of 2014.
President Obama has just announced one of the biggest constitutional
power grabs ever by a President. He has declared unilaterally that, by
his own estimation, more than 4 million unlawful immigrants will be
free from the legal consequences of their lawless actions.
Not only that, he will, in addition, bestow upon them gifts such as
work authorization and other immigration benefits. This despite the
fact that President Obama has stated, over 20 times in the past, that
he does not have the constitutional power to take such steps on his own
and has repeatedly stated, ``I'm not a king.''
Pursuant to article I, section 8, of the Constitution, only Congress
has the power to write immigration laws. Our Founding Fathers
established this separation of powers to prevent tyranny. As James
Madison wrote:

No political truth is certainly of greater intrinsic value
or is stamped with the authority of more enlightened patrons
of liberty than that . . . the accumulation of all powers
legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary, self-
appointed, or elective, may justly be pronounced the very
definition of tyranny.

President Obama is, in effect, rewriting our immigration laws by
granting deferred action to more than 4 million unlawful aliens.
Pursuant to article II, section 3, of the Constitution, the President
is required to ``take care that the laws be faithfully executed''; yet
President Obama is refusing to enforce our immigration laws for these
millions of unlawful aliens.
President Obama justifies his actions by claiming that his
administration is merely exercising the power of prosecutorial
discretion; yet as Clinton administration INS Commissioner Doris
Meissner told her agency, ``Exercising prosecutorial discretion does
not lessen the INS' commitment to enforce the immigration laws to the
best of our ability.''
While previous Presidents have provided immigration relief to groups
of aliens, usually their actions were based on emergencies in foreign
countries, thereby relying upon the broad constitutional power given to
a President to conduct foreign affairs.
Without any such foreign crisis and in granting deferred action to a
totally unprecedented number of aliens, President Obama has clearly
exceeded his constitutional authority.
I commend Mr. Yoho for introducing his bill, which undoes the damage
to our constitutional system that President Obama's actions are
causing. The bill reaffirms the constitutional principles that only
Congress has the power to write immigration laws and that the President
must enforce those laws.
Mr. Yoho's bill prevents President Obama or any future President from
exempting or deferring the removal of categories of unlawful aliens,
except to the extent that the President is relying on his
constitutional powers over foreign affairs or utilizing exceptions
provided for in the bill for exceptional humanitarian and law
enforcement circumstances.
The bill prevents President Obama or any future President from
considering such aliens to be lawfully present in the United States and
thus ineligible for the rights and privileges available to lawfully
present aliens.

{time} 1230

It prevents President Obama or any future President from granting
work authorization to such aliens.
Finally, the bill takes effect as if enacted on November 20, 2014,
thus nullifying the President's recent executive actions. I, again,
urge my colleagues to vote for this necessary bill.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself as much time as I may
consume.
Mr. Speaker, Members of the House, in 1 week this 113th Congress will
expire without having considered a single piece of legislation to fix
our Nation's broken immigration system.
It has been 525 days since the Senate passed bipartisan comprehensive
immigration reform legislation that would have made meaningful and long
overdue reforms. But our Chamber here has still steadfastly refused to
allow an up-or-down vote on that measure.
No one questions that our immigration system is broken. It is failing
our economy and millions of families and our businesses. And yet,
rather than deal with these critical issues, we are here today to vote
on yet another symbolic, anti-immigrant measure that has absolutely no
chance of consideration in the Senate.
I want to be clear. H.R. 5759 is politically motivated, hastily
drafted, and an attempt, once again, to attack our President, as well
as immigrant families who contribute to our communities and our
economy.
By blocking the protections offered by the President's actions, the
legislation would deprive nearly 5 million immigrants and their
families of the hope that they might finally live without constant fear
of separation and deportation.
It would undermine the administration's efforts to devote greater
resources toward securing our borders and deporting felons and not
families. This would mean millions of undocumented immigrants would not
be asked

[[Page H8634]]

to pass national security and criminal background checks and pay their
fair share of taxes in order to register for temporary protection from
deportation.
Now, H.R. 5759 falsely claims that President Obama's assertion of
authority is unlawful. The constitutionality of the President's
executive order is recognized by both liberal and conservative legal
experts. In a letter written last month, 11 prominent scholars
explained that the President's actions ``are within the power of the
executive branch and that they represent a lawful exercise of the
President's authority.''
This letter was signed--I was amazed at the list of constitutional
authorities: Walter Dellinger; David Strauss, formerly with the
Solicitor General's Office; Laurence Tribe; and even conservative
professors like Eric Posner.
Five days later, 135 immigration law professors echoed that
conclusion and provided substantial constitutional, statutory, and
regulatory authority for these actions; not to mention that the
President himself was a professor of constitutional law.
Finally, this measure, H.R. 5759, goes well beyond preventing the
President from expanding deferred action for childhood arrivals or
creating a program to protect the parents of U.S. citizens and lawful
permanent residents from deportation.
It would not only prevent this President, but any future President
from protecting discrete categories of individuals facing unique
dangers and challenges. This means that no future administration would
be able to parole in place the undocumented parents or spouses and
children of military personnel and veterans, or facilitate enlistment
in our armed services by American citizens who have undocumented family
members, or grant deferred action to victims of a crime or serious
forms of human trafficking.
For these and other reasons, this legislation is opposed by many
organizations that care about our immigration system and are working to
protect the vulnerable among us, including the United States Conference
of Catholic Bishops, the AFL-CIO, the Service Workers International
Union, and the National Task Force to End Sexual and Domestic Violence
Against Women.
Let's think this through carefully, and I urge you to oppose this
very dangerous anti-immigrant measure.
Mr. Speaker, I reserve the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield myself 30 seconds to clarify a
couple of things.
First of all, it is not true that the House of Representatives has
not acted to fix our broken immigration system. First of all, last
summer, we passed two bills, one from the Appropriations Committee and
one under the jurisdiction of the Judiciary Committee, that did just
that, that provided resources to secure our borders to stop the surge
of illegal immigrants coming into our country and make sure that the
similarly unconstitutional DACA program that the President implemented
earlier was frozen and could not proceed further. So, to me, that is
simply not true.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. I yield myself an additional 15 seconds to say that
the fact of the matter is that when you talk about taxes, there is no
requirement in the President's executive order that anyone who
qualifies as an unlawful alien must get this administrative
legalization to pay back taxes. There is none.
They have to pay taxes moving forward, but one of the benefits is
they qualify for the earned income tax credit. So this could cost the
taxpayers of the country even more.
Mr. Speaker, I yield 5 minutes to the gentleman from Florida (Mr.
Yoho), the chief sponsor of the legislation.
Mr. YOHO. Mr. Chairman, I appreciate the work that you have done on
this, and I appreciate the attention that this has brought.
Mr. Speaker, there is a lot of consternation about this bill. I stand
here today, obviously, in support of my bill, H.R. 5759, the Preventing
Executive Overreach on Immigration Act of 2014. It is a simple bill. It
is four pages, but yet, it has caused a lot of debate.
It just simply states that the President, Mr. Obama, does not have
the constitutional authority to grant amnesty by issuing work visas to
5 million people here illegally.
I have got a list of scholars too that back up the claim that this is
unconstitutional.
This bill doesn't talk about deporting anybody, as you might hear
later on today that it is going to deport 9 million people. It doesn't
talk about that. It doesn't talk about granting amnesty. It just stops
an unconstitutional action by our President, who has taken an oath to
defend and protect the Constitution of the United States, just like the
rest of us in this body have.
To vote ``no'' against this bill is to vote ``no'' against the
Constitution.
Harry Reid has already said he will not bring up this bill for a
vote. The President says he will veto this if it makes it to his desk.
My question is, to not bring up this bill, or to not sign it, is that
not a vote against our Constitution?
It is important that we address the true debate here, and that is the
separation of powers. This bill is not about border security, work
visas, E-Verify, or immigration reform. This is about the
administration overstepping its bounds and unilaterally challenging the
laws of this great Nation of ours.

Article II, section 3 of our Constitution makes very clear that the
duty of the President is to ``take care that the laws be faithfully
executed.'' Despite this straightforward charge, the administration is
refusing to enforce our existing immigration laws for millions of
unlawful aliens.
Article I, section 8 of the Constitution clearly states, ``Only
Congress has the power to write immigration laws.'' And our Founding
Fathers established this separation of powers to prevent an
overreaching executive.
Mr. Speaker, the Supreme Court found in Galvan v. Press ``that the
formulation of policies pertaining to the entry of aliens and their
right to remain here is entrusted exclusively to Congress, and it has
become about as firmly embedded in the legislative and judicial tissues
of our body politic as any aspect of our government.''
Preserving article I, the legislative powers, this is not a partisan
issue. It is not Republican or Democrat. Allowing executive action like
this to slide simply because we are frustrated with a system
establishes a dangerous precedent that could be abused by Presidents of
both parties for any area of law they disagree with.
I would like to point out to my colleagues on the other side that if
we continue to surrender, from this body, our legislative powers to the
executive branch, then we could easily be standing here in 2, 5, or 10
years discussing a Republican President who refuses to enforce the
employer mandate of the Affordable Care Act or uphold portions of the
Voting Rights Act, and it can go on and on, and it has opened up a
dangerous precedent.
Just because one might agree with the outcome does not justify
overlooking or violating the process to get to that outcome.
Congress has the constitutional powers to create and write laws, and
the President has a duty to faithfully execute those laws, not to pick
and choose, like he does or doesn't like them. And that is according,
again, to article II, section 3.
I urge Members to support H.R. 5759, restore constitutional powers to
Congress, and stand on the side of the Constitution to protect this
great Nation of ours.
Mr. CONYERS. Mr. Speaker, I yield myself 10 seconds before I call on
our distinguished gentlelady from California.
I want everyone, particularly the author of this bill, to know that,
as the senior member of the House Judiciary Committee, I firmly believe
and support the Constitution, the amendments, and the precedents.
I yield 4 minutes to the gentlewoman from California (Ms. Lofgren), a
senior member of the Judiciary Committee who has worked on this issue
for a number of years.
Ms. LOFGREN. Mr. Speaker, there is legal authority for the
President's immigration actions derived, in part, from his
constitutional duty to take care that the laws be faithfully executed.
In Heckler v. Chaney, the Supreme Court explained this duty does not
require the President to act against every technical violation of the
law. The Court said: ``An agency's decision

[[Page H8635]]

not to prosecute or enforce, whether through civil or criminal process,
is a decision generally committed to the agency's absolute
discretion.''
Two years ago, the Supreme Court, in Arizona v. United States, struck
down most of Arizona's S.B. 1070 law. The Court said then the broad
discretion exercised by Federal immigration officials extends to
``whether it makes sense to pursue removal at all.'' The Court said
discretion in the enforcement of immigration law embraces immediate
human concerns and can turn on factors, including whether the alien has
children born in the United States, long ties to the community, or a
record of distinguished military service.
When we created the Department of Homeland Security in 2002, we
charged the Secretary with the duty to establish national immigration
enforcement policies and priorities. That is at 6 U.S. Code 202.

{time} 1245

Congress delegated that authority to the executive branch, and they
are now using this authority. We enacted a law that permits the
issuance of employment authorization. They are now implementing that
part of the law.
This bill would block some portions of the President's recent action
to keep young people from facing deportation and to prevent parents of
U.S. citizen kids from being deported, but the bill harms others, too.
Immigrant victims of domestic violence who seek a green card through
the Violence Against Women Act are not protected from deportation while
they wait for a visa. With this bill, they would face deportation.
Victims of serious crimes approved for U visas get deferred action
while they wait for a visa. Under this bill, they would face
deportation. The exception in the bill is insufficient because victims
may assist law enforcement without appearing at trial.
Victims of severe forms of human trafficking eligible for
statutorily-capped T visas could also face deportation. The bill would
end the ability to parole in place the undocumented families of
American military personnel and veterans. Deporting the mothers of
American soldiers could be the result.
There is strong historical precedent for the President's actions.
Prior Presidents were not met with such obstructionism. President
Ronald Reagan created the family fairness program. Once expanded by
President George H.W. Bush, that program is expected to protect 1.5
million people. The reason was to keep families together, one of the
key motivations for the President's actions last month.
As some wrongly claim, the Reagan program was to carry out
congressional intent in the 1986 act. That is false. When the Senate
Judiciary Committee reported the bill, they said: ``It is the intent of
the committee that the families of legalized aliens will obtain no
special petitioning right by virtue of the legalization. They will be
required to wait in line in the same manner as immediate family members
of other new resident aliens.'' President Reagan decided otherwise.
Some wrongly argue the scope of the Reagan family fairness program
was smaller, that it was not intended to provide relief to 1.5 million
people, about 40 percent of the undocumented population at the time.
Again, that is false. The INS Commissioner then testified before
Congress that it covered 1.5 million people. An internal decision memo
at the time states:

Family fairness policy provides voluntary departure and
employment authorization to potentially millions of
individuals.

The draft processing plan at the time said:

Current estimates are that greater than 1 million IRCA-
eligible family members will file for this benefit.

Now, many Members on the other side of the aisle want to prevent the
President's actions from going into effect, but the President has
strong constitutional and statutory authority to take these actions.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. CONYERS. I yield the gentlewoman an additional 30 seconds.
Ms. LOFGREN. He cannot change the law, and he has not done so. He
does have the authority to grant temporary relief to some. We need
broad reform, and to do that, we need to legislate.
It is shameful that the House has failed in its duty to legislate to
fix our broken immigration system. The Judiciary Committee has reported
out four bills. We have yet to see them on the floor.
I would like to enter into the Record the testimony by the
Commissioner before the Judiciary Committee in 1990, the draft
processing plan from 1990, and the decision memo from 1990 that prove
the elements of the Reagan fairness plan.

HEARINGS

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARY

Mr. Morrison. Now, Mr. McNary, you used the number 1.5
million IRCA relatives who are undocumented but who are
covered by your family fairness policy. Do I have that number
right?
Mr. McNary. Yes.
Mr. Morrison. Under your recent administrative order, these
1.5 million people essentially are here to stay, with work
and travel privileges. Isn't that right?
Mr. McNary. We think you are right as to the 1.5 million
being here. There is an estimate of another 1.5 million that
would come as a result of this change in definition.
Mr. Morrison. There is another 1.5 million who you think
would be eligible to come?
Mr. McNary. Yes.

DRAFT PROCESSING PLAN

RPF PROCESSING OF FAMILY FAIRNESS APPLICATIONS

UTILIZING DIRECT MAIL PROCEDURES

This proposal identifies one feasible method for
accomplishing the initial receipt of documents required for
an alien to request coverage under the Service's recently
announced policy shift on family fairness. As a result of
this change in policy, current estimates are that greater
than one million IRCA-ineligible family members will file for
this benefit.
Because of the anticipated scope of this workload on the
Service, it is advisable to identify cost-efficient and
effective methods to receive and process applications for
inclusion under the Family Fairness Policy (PEP). Therefore,
it is recommended that one viable option will incorporate
many of the resources currently in place throughout the
Service. One such plan, which can be activated with a minimum
lead time and effort is to have aliens direct mail their
applications to Service Regional Processing Facilities (RPF).

ALIEN MUST FILE BY MAIL WITH THEIR RPF:

1. One Form I-765, Application for Employment
Authorization.
Instructions are modified for this form to tell aliens to
enter in the three ( ) ``F F P'' located in item #16 on the
I-765.
Money order or bank Check for $35.00 made out to INS, if
employment authorization is required.
Affidavit of family membership, using the required format.

THE RPF WILL USE THE LAPS SYSTEM TO DO THE FOLLOWING:

Note: Simply stated, the REF will handle the I-765 with
accompanying documentation, in very much the same manner as
the current I-698, used by temporary residents under
Sec. 245a to apply for adjustment to permanent resident
status.
1. If application is complete, as required, process. If
not, it is returned to the alien until it is perfected.
2. If processable, the I-765 is forwarded to data entry.
Here, a new A-number will be assigned to the application and
the resulting record.
3. LAPS will be used to capture all data from the I-765 for
which there is a comparable field in LAPS. For starters, the
form type will be I-765, the fee amount $35.00, etc.
Information for which there is no comparable field in LAPS
will not be able to be keyed until modifications are made to
the system. The resulting electronic record will enable the
Service to track individual cases, produce timely management
reports, and send notices to the alien.
4. After data entry, all paperwork is placed in the
appropriate A-file folder.
5. The fee, if indicated, is processed with monies
deposited to X accounts.
6. LAPS will preempt all other interviews which have been
scheduled and will schedule I-765 applicants to appear for
interview instead, at the earliest practicable date.
7. LAPS prints an automated mailer to the applicant. This
mailer tells the alien that their request for coverage under
FFP has been received. The mailer states that it is a
replacement I-689 document and grants employment
authorization until the date of a scheduled interview.
Suggested text:
``We have received your request for relief from deportation
under the Family Fairness Policy. You must appear at the
office listed below on ___ for an interview so we may make a
decision on this application. If we approve your application,
you will receive employment authorization at that time. If
you move, notify the INS of your new address using form I-
697A, available at any INS office.''
MESSAGE REPEATS IN SPANISH--MAXIMUM MAILER LINES = 12
7A. Alternatively, if policy requires that employment
authorization be instantaneous, upon processing of the I-765,
the suggested language is:
``We have received your request for relief from deportation
under the Family Fairness

[[Page H8636]]

Policy. You will be notified to appear at an INS office for
an interview so we may make a decision on this application.
This document replaces form I-689 and, combined with proper
identification, authorizes employment until ___. If you move,
notify the INS of your new address using form I-697A,
available at any INS office.''
MESSAGE REPEATS IN SPANISH--MAXIMUM MAILER LINES = 12

ALTEN RECEIVES NOTICE AND SHOW UP AT PHASE II OFFICE HAVING LAPS ACCESS

1. I-213 completed on alien. Decision on EVD is made.
2. Alien is interviewed to determine applicability of FFP
relief and veracity of family relationship claim. Examiner
uses online screen record of I-765 data.
3. If I-765 approved, alien processed at that office for
EAD card.
4. If FFP coverage denied, alien notified in writing using
Form I-210. LAPS screen updated to reflect status.
5. Copy of I-210, I-213 sent to district Deportation and
Investigation branches for issuance of an OSC if alien does
not leave the country within 30 days voluntarily, as provided
on the I-210.

Estimated Resources Required

------------------------------------------------------------------------
Est. cost.
------------------------------------------------------------------------
1. Clerical staff at RPFs: 100....................... $1,348,500
2. Adjudicators at RPFs: 250......................... 3,371,250
3. Clerical staff in Field: 250...................... 3,371,250
4. Adjudicators in Field: 500........................ 6,742,500
------------------
est. subtotal personnel costs: 1,100................. 14,833,500
est. software modification costs..................... 200,000
est. miscellaneous support costs..................... 2,000,000
------------------
Total estimated costs:........................... 17,033,500
------------------------------------------------------------------------
@1,000,000 interviewed in 100 workdays.

PRO:

Centralizes control, security and consistency.
Requires less personnel than a more distributed plan.
Buys the Service valuable time to get ready. The time
normally wasted in mailing can work to our benefit.
Diminishes the potential for a ``circus atmosphere''
created by the media or our critics, who will be avidly
looking for signs of disorganization or inconsistency at our
offices.

CON:

Cost. This can be offset if the Legalization program is
allowed to use the fees received from Form I-765
applications, without restriction, to accomplish this special
project and to remedy disruption caused to the ongoing
legalization, SAW and RAW programs.
Holds the alien, and their representative at arms length.
This may be perceived as negative by the public. However,
given the emotional nature of this issue, the Service cannot
take the risk of exposing too much of itself to the public
until we are ready to handle however many aliens come
forward.
T. Andreotta (February 8, 1990)
RPF-1.FFP
____

Decision Memo

February 8, 1990.
To: Gene McNary, Commissioner.
Subject: The implementation of the Family Fairness Policy--
Providing For Voluntary Departure under 8 CFR 242.5 and
Employment Authorization under 8 CFR 274a.12 for the
spouses and children of legalized aliens (section 245a
and section 210).
The family fairness policy provides voluntary departure and
employment authorization to potentially millions of
individuals. The Service must establish specific procedures
to ensure consistency of processing requests for voluntary
departure and employment authorization from ineligible family
members of temporary resident aliens legalized under the
legalization (section 245a) and special agricultural (section
210) programs. The following processing options are submitted
for consideration.

Traditional processing pursuant to 8 CFR 242.5 (voluntary departure)
and 8 CFR (274a.12 (employment authorization).

Request for voluntary departure will be made in writing to
the district director in whose jurisdiction the ineligible
spouse or child resides.
The district's records section will create an A-file, if a
file has not been previously opened.
The district's investigations section will prepare form I-
213, ``Record of Deportable Alien'' for each ineligible
spouse or child, a determination will be made to grant or
deny voluntary departure, and the aliens will be placed under
docket control.
The district's deportation section will control both
granted and denied cases that have been placed under docket
control. One year call-ups will be maintained for granted
cases. Requests for extensions will be processed by
deportation personnel. Denied cases will be processed for
Orders to Show Cause if the alien has not departed the United
States within the required time frame.
Application for employment authorization will be made on
form I-765, ``Application for Employment Authorization'',
with fee.

pros

Follows established regulatory procedures and guidelines.
Utilizes personnel experienced in processing requests for
voluntary departure, employment authorization, and file
creation.
Does not ``link'' to legalization's promise of
confidentiality and ``no risk'' if alien comes forward to
request voluntary departure. (alien can be denied and placed
into deportation proceedings, etc.)
Does not impact on legalization processing, thus complying
with Congressional intent for a temporary legalization
program that will continue to phase down (adjudicating the
remaining 700,000+ Phase I 245a and 210 cases, the remaining
800,000 Phase II 245a cases, replacement card applications,
processing the 60,000 ongoing litigation cases etc.)
Allows for maximum use of district director's exercise of
discretion.

cons

Places large workload on in place INS structure, that will
strain existing resources.
Jeopardizes the Regional Commissioners and the District
Directors performance goals in other operational activities.
Operational budgets do not contain sufficient funds for
this effort. ( a ``user fee'' may have to be charged
generating negative publicity and charges that the Service's
policy was a ruse to raise money)
Large numbers of individuals will visit in place INS
offices that already experience unacceptable crowds and long
waiting times. (Again, the risk of negative publicity is
great)
Congressional complaints are likely to increase as
resources are diverted from other activities, slowing the
disbursement of benefits and services associated with these
activities)
The morale of personnel in investigations and deportation
is likely to suffer in that the perception of this program
will not ``fit'' with their regular mission assignments. (Low
morale can translate into inadequate processing and poor
service and consequently reflecting badly on the Service)
Not an efficient way to consistently process large numbers.
____

DRAFT PROCESSING PLAN

RPF PROCESSING OF FAMILY FAIRNESS APPLICATIONS

UTILIZING DIRECT MAIL PROCEDURES

This proposal identifies one feasible method for
accomplishing the initial receipt of documents required for
an alien to request coverage under the Service's recently
announced policy shift on family fairness. As a result of
this change in policy, rent estimates are that greater than
one million IRCA-ineligible family members will file for this
benefit.
Because of the anticipated scope of this workload on the
Service, it is advisable to identify cost-efficient and
effective methods to receive and process applications for
inclusion under the Family Fairness Policy (FFP). Therefore,
it is recommended that one viable option will incorporate
many of the resources currently in place throughout the
Service. One such plan, which can be activated with a minimum
lead time and effort is to have aliens direct mail their
applications to Service Regional Processing Facilities (RPF).

ALIEN MUST FILE BY MAIL WITH THEIR RPF:

1. One Form I-765, Application for Employment
Authorization.
Instructions are modified for this form to tell aliens to
enter in the three ( ) ``F F P'' located in item #16 on the
I-765.
Money order or bank check for $35.00 made out to INS, if
employment authorization is required.
Affidavit of family membership, using the required format.

the rpf will use the laps system to do the following:

Note: Simply stated, the RPF will handle the I-765 with
accompanying documentation, in very much the same manner as
the current I-698, used by temporary residents under
Sec. 245a to apply for adjustment to permanent resident
status.
1. If application is complete, as required, process. If
not, it is returned to the alien until it is perfected.
2. If processable, the I-765 is forwarded to data entry.
Here, a new A-number will be assigned to the application and
the resulting record.
3. LAPS will be used to capture all data from the I-765 for
which there is a comparable field in LAPS. For starters, the
form type will be I-765, the fee amount $35.00, etc.
Information for which there is no comparable field in LAPS
will not be able to be keyed until modifications are made to
the system. The resulting electronic record will enable the
Service to track individual cases, produce timely management
reports, and send notices to the alien.
4. After data entry, all paperwork is placed in the
appropriate A-file folder.
5. The fee, if indicated, is processed with monies
deposited to X accounts.
6. LAPS will preempt all other interviews which have been
scheduled and will schedule I-765 applicants to appear for
interview instead, at the earliest practicable date.
7. LAPS prints an automated mailers to the applicant. This
mailer tells the alien that their request for coverage under
FFP has been received. The mailer states that it is a
replacement I-689 document and grants employment
authorization until the date of a scheduled interview.
Suggested text:
``We have received your request for relief from deportation
under the Family Fairness Policy. You must appear at the
office listed below on___ for an interview so we may make a
decision on this application. If we approve your application,
you will receive employment authorization at that time. If

[[Page H8637]]

you move, notify the INS of your new address using form I-
697A, available at any INS office.''
MESSAGE REPEATS IN SPANISH--MAXIMUM MAILER LINES = 12
7A. Alternatively, if policy requires that employment
authorization be instantaneous, upon processing of the I-765,
the suggested language is:
``We have received your request for relief from deportation
under the Family Fairness Policy. You will be notified to
appear at an INS office for an interview so we may make a
decision on this application. This document replaces form I-
689 and, combined with proper identification, authorizes
employment until ___. If you move, notify the INS of your new
address using form I-697A, available at any INS office.''
MESSAGE REPEATS IN SPANISH--MAXIMUM MAILER LINES = 12

ALIEN RECEIVES NOTICE AND SHOW UP AT PHASE II OFFICE HAVING LAPS ACCESS

Estimated resources required

------------------------------------------------------------------------
est. cost
------------------------------------------------------------------------
1. Clerical staff at RPFs:.................. 100 $1,348,500
2. Adjudicators at RPFs:.................... 250 3,371,250
3. Clerical staff in Field:................. 250 3,371,250
4. Adjudicators in Field:................... 500 6,742,500
------------------
est. subtotal personnel costs:.............. 1,100 14,833,500
est. software modification costs............ ....... 200,000
est. miscellaneous support costs............ ....... 2,000,000
------------------
Total estimated cost:................... ....... 17,033,500
------------------------------------------------------------------------
@ 1,000,000 interviewed in 100 workdays.

pro:

con:

Cost. This can be offset if the Legalization program is
allowed to use the fees received from I-765 applications,
without restriction, to accomplish this special project and
to remedy disruption caused to the ongoing legalization, SAW
and RAW programs.
Holds the alien, and their representative at arm's length.
This may be perceived as negative by the public. However,
given the emotional nature of this issue, the Service cannot
take the risk of exposing too much of itself to the public
until we are ready to handle however many aliens come
forward.
T. Andreotta (February 8, 1990)
RPF-1.FFP

Mr. GOODLATTE. Mr. Speaker, I yield myself 30 seconds.
I would point out that the Supreme Court decision in Heckler v.
Chaney in no way justifies the claim that the President of the United
States has this authority to issue this enormous order.

Nor do we have a situation where it could justifiably be
found that the agency has consciously and expressly adopted a
general policy that is so extreme as to amount to an
abdication of its statutory responsibilities.

That is what has happened here. The President has abdicated his
statutory responsibilities in enforcing the law and changed the law,
and that is why it cannot be upheld.
I yield 2 minutes to the gentleman from Missouri (Mr. Smith), a
member of the Judiciary Committee.
Mr. SMITH of Missouri. Mr. Speaker, I thank the chairman for bringing
this legislation to the floor.
Mr. Speaker, President Obama, just last week, made the action and
said, ``Change the law,'' on immigration granting amnesty to millions
of illegal aliens. The President should not be allowed to do this. In
fact, article II, section 3, of the Constitution requires the President
to take care that the law is being faithfully executed.
On March 28, 2011, President Obama said he would not use an executive
order for amnesty, explaining that, ``Temporary protective status
historically has been used for special circumstances.'' Those are his
words.
More than 20 times, the President said executive action on
immigration would not be appropriate. Nothing has changed in our
Constitution, but now, the administration is singing a different tune.
Mr. Speaker, I am from the Show-Me State. I would love for any of my
colleagues in this body to show me in this document, the Constitution
of the United States, where it grants the President the authority to
change the laws. Article I of the Constitution says Congress will
change the laws, not the President. The President will execute the
laws--faithfully execute the laws.
Mr. Speaker, I proudly support this legislation, and I ask all my
colleagues to do so to stop this action.
Mr. CONYERS. Mr. Speaker, I yield 1 minute to the gentlelady from
California (Ms. Pelosi), our leader.
Ms. PELOSI. Mr. Speaker, I thank the gentleman for yielding. I
commend him for his leadership as chairman and now ranking member of
the Judiciary Committee and his important work for comprehensive
immigration reform.
I also salute the ranking member of the Subcommittee on Immigration
and Border Security, Congresswoman Zoe Lofgren of California, who has
not only chaired the Immigration and Border Security Subcommittee, she
has taught immigration law, she has been an immigration lawyer. She
represents a very diverse district in California blessed with a strong
immigrant population.
Mr. Speaker, more than 520 days ago, the Senate passed bold
bipartisan comprehensive immigration reform by an overwhelming margin.
It was bipartisan, it was overwhelming, 520 days ago--more than that.
Time and again, the Republican leadership of the House has promised
productive action to fix our clearly broken immigration system; yet,
time and again, Republicans have refused to give the American people a
vote on this critical issue.
They have ignored law enforcement, the badges; faith leaders, the
Bibles; and business groups--the three Bs. They have denied our country
billions of dollars in economic benefits and $1 trillion in deficit
reduction, turned their backs on millions of hardworking immigrant
families forced to live in daily dread of separation and deportation.
In the face of Republicans' failure to act, President Obama has used
his well-established legal and constitutional authority to bring our
immigration system back into line with our needs as a Nation and our
values as a people.
The President's executive actions will restore accountability to our
immigration enforcement: securing our borders; deporting felons, not
families; and requiring undocumented immigrants to pass a criminal
background check and pay taxes.
Presidents have had broad authority to defer removal when it is in
the national interest, and past Presidents have regularly used this
authority. President Ronald Reagan understood that immigration was the
constant reinvigoration of our Nation.
As a new President in 1981, President Reagan said:

Our Nation is a nation of immigrants. More than any other
country, our strength comes from our own immigrant heritage
and our capacity to welcome those from other lands.

In the lead-up to the Immigration Reform and Control Act, President
Reagan, again, called our Nation to action when he said:

We are also going to have compassion and legalize those who
came here sometime ago and have legitimately put roots down
and are living as legal residents of our country, even though
illegal. We are going to make them legal.

In his signing statement of the Immigration Reform and Control Act,
President Reagan said:

We have consistently supported a legalization program which
is both generous to the alien and fair to the countless
thousands of people throughout the world who seek legally to
come to America.

He went on to say:

The legalization provisions in this act will go far to
improve the lives of a class of individuals who now must hide
in the shadows without access to many of the benefits of a
free and open society.

Does that sound familiar?
He went on to say:

Very soon, many of these men and women will be able to step
into the sunlight, and, ultimately, if they choose, they may
become Americans.

In the years immediately following the enactment of the 1986
Immigration Reform and Control Act, President Reagan and President
George Herbert

[[Page H8638]]

Walker Bush took bold action to protect the spouses and children of
people who received status under that law.
Although Congress explicitly chose not to grant status to these
people, Presidents Reagan and Bush recognized that it was not in the
national interest to separate families. Using their authority to
establish a family fairness program by executive action, they offered
spouses and children indefinite protection from deportation and gave
them work authorization.
Every President since President Dwight David Eisenhower has used this
same broad authority, Republicans and Democrats alike. Dating back more
than 50 years, Presidents have granted Extended Voluntary Departure to
nationals of more than a dozen countries, including Cuba, Vietnam,
Laos, Cambodia, Chile, Poland, Afghanistan, Ethiopia, and Uganda.
President George Herbert Walker Bush granted Deferred Enforced
Departure to Chinese nationals after the Tiananmen Square massacre,
even though he vetoed a similar bill passed by Congress.
I remember that well. It was my bill. He vetoed the bill because he
didn't want to sign the bill, and then he issued the executive order
doing exactly what the bill would do. Several years later, he granted
the same status to 200,000 Salvadorans.
Thanks to President Obama's immigration accountability executive
actions, in the same vein, millions of hardworking, law-abiding
families will be able to celebrate the holidays with renewed hope in
the future.
In response to this Presidential action of common sense and
compassion, Republicans are advancing today on this floor a radical
bill of appalling callousness and cruelty. With this bill, Republicans
are demanding that we deport hundreds of thousands of young DREAMers
who know no country but the United States. With this bill, Republicans
would tear apart millions of families and throw thousands upon
thousands of American children into foster care.
With this bill, Republicans would deport the family members of our
heroes in uniform who are serving overseas, deny relief and respite to
victims of human trafficking and domestic violence, and reject the
values that are at the heart of our heritage and our history.
This legislation is unworthy of our Nation.
Don't take it from me. That is why this bill is opposed by groups,
including the United States Conference of Catholic Bishops, who wrote:

Instead of traumatizing these children and young adults--
the future leaders of our country--we should invest in them
by ensuring that their families remain intact.

Mr. Speaker, I hope our colleagues will take the advice of the
Conference of Catholic Bishops and vote against this legislation.
Democrats in the House will continue to demand comprehensive
immigration reform, which honors our heritage, giving certainty to
families, fueling innovation, creating jobs, and reducing the deficit.
We know that the President's steps cannot be a substitute for
legislation. They must be a summons to action.
Here in Congress and across the country, we will keep up the drumbeat
for the progress of advancing comprehensive immigration reform. We will
do so in heeding the advice of President George W. Bush, who told us as
we dealt with this issue to treat the people who are affected by it
with respect.
Republicans should reject this coldhearted bill and give the American
people the vote on immigration reform that they deserve.

{time} 1300

Mr. GOODLATTE. Mr. Speaker, it is my pleasure to yield 3 minutes to
the gentleman from Louisiana (Mr. Scalise), the majority whip.
Mr. SCALISE. Mr. Speaker, I thank the gentleman from Virginia for
yielding and for his leadership on immigration issues.
I especially want to thank my colleague and friend from Florida,
Congressman Yoho, for bringing forward this important piece of
legislation, which just goes back and reestablishes the rule of law,
Mr. Speaker. You have got a President who has consistently gone out,
time and time again, and shown disregard for the Constitution and the
rule of law of this Nation.
We just had an election in November. The President, himself, said
this was going to be a referendum on his agenda, and the American
people were crystal clear about their dislike of this failed agenda
from this President. They have told him: Get back to work. Go work with
Congress to solve problems.
What is the first response? The President has to poke his finger in
the eye of the American people, people who spoke loud and clear to him,
in saying that he is going to disregard what they said; and he is going
to ignore the rule of law and, in fact, ignore what our constitutional
framework of checks and balances is. He thinks he can just sit in the
Oval Office and write his own laws, and then he comes forward with this
proposal to literally disregard enforcement of our Nation's immigration
laws.
This isn't going to stand, Mr. Speaker. This legislation says: You
can't do that, Mr. President. There is a rule of law. You need to start
enforcing that law.
We came together as a House just a few months ago and passed a border
security bill. Let's actually get back to the rule of law and
protecting our Nation's borders. It is not just an immigration issue;
it is a national security issue.
So what is the President's response to this legislation? He threatens
a veto. Again, the President thinks he can just sit in the Oval Office
and make up his own laws.
That is not the way our system of government works, Mr. Speaker. So
we bring this legislation forward today to get us back to that rule of
law and to remind the President that it is time for him to heed the
message that millions of Americans across the country sent just a few
weeks ago in saying: You need to start working with Congress to solve
real problems.
In fact, this weekend, in my home State of Louisiana, there are three
more elections on that ballot. Pay close attention, Mr. President. Pay
close attention to yet another referendum on your agenda that is going
to occur this Saturday with a Senate election and two more House races.
The American people want you to get out of the cocoon of the Oval
Office and start working with Congress to solve real problems.
We have passed legislation to solve those problems. You can try to
ignore them, issue veto threats, but it is time for to you roll up your
sleeves and get to work with us and solve those problems together. Pull
back your executive action. This legislation ensures that happens.
I urge approval.
The SPEAKER pro tempore. The Chair reminds Members to address their
remarks to the Chair.
Mr. CONYERS. Mr. Speaker, I am proud to yield 1 minute to the
gentlewoman from California, Judy Chu, a dedicated member of the
Judiciary Committee.
Ms. CHU. Mr. Speaker, it seems the Republicans will do anything other
than put a bill on the floor to pass immigration reform. So far, they
have refused to allow for a vote on the bipartisan H.R. 15; they are
threatening another government shutdown; and they suggest impeaching
the President for doing what is right.
When they did put a bill on the floor, it was to repeal DACA. It has
been more than a year and a half of refusing to allow a vote on H.R.
15, even though, if it were on the floor today, it would pass. Instead,
we have this bill to undo the President's executive action, a step he
wouldn't have had to take had Congress done its job.
This is just another distraction when what we need are real
solutions. There are real families at stake who need real immigration
reform. American businesses need it. Our communities need it.
If Republicans are unhappy that the President acted, there is still
an option for them--legislative. Join us in crafting and voting on a
bill that will fix our broken immigration system.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
2 minutes to the gentleman from Tennessee (Mr. Duncan).
Mr. DUNCAN of Tennessee. Mr. Speaker, I thank the gentleman for
yielding.
I rise in support of this very reasonable legislation, which really
simply requires that our present immigration

[[Page H8639]]

laws be fully enforced, or at least not be violated. I commend the
gentleman from Florida (Mr. Yoho) for bringing this legislation to the
floor.
The President has said he has been forced to act because the Congress
has not done so. That is not correct, as Chairman Goodlatte pointed out
a few minutes ago. Congress can act in any one of three ways: writing a
new law, changing an old law, or leaving present law in effect.
The administration is glossing over--or is ignoring--the fact that we
have very detailed immigration laws on the books now. They may not like
present law, but no one has the right or the power or the authority to
pick and choose and enforce some laws but not others.
Presidential executive orders have traditionally been used almost
entirely for noncontroversial, administrative-type actions. They were
not meant to be a way for a President to bypass the Congress. We do not
live or are not supposed to live under a system where all the power is
vested in the Executive. We have a Constitution, and it should be
followed.
Mr. Speaker, all of us admire those who have immigrated here legally
and have contributed so much to this Nation. We have allowed many
millions here legally since the Simpson-Mazzoli law of 1986, far more
than any other country. But with 58 percent of the people in the world
having to get by on $4 or less a day, that means that almost 4 billion
people are hoping to get one good meal today and probably aren't.
We are blessed beyond belief to live in this Nation, but our entire
infrastructure--our schools, our hospitals, our jails, our roads, our
sewers--simply cannot handle the rapid influx of megamillions who would
come in a relatively short time if we simply opened our borders. We
have to have a legal, orderly system of immigration, and it must be
enforced.
I urge my colleagues to support this very commonsense legislation.
Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the
gentlelady from Texas, Sheila Jackson Lee, a distinguished member of
the Judiciary.
Ms. JACKSON LEE. I thank the gentleman for yielding.
Mr. Speaker, I rise with a sense of moral indignation that we would
want to block parents from loving their children, children from loving
their parents, and deporting persons who have no reason to criminally
act in this Nation.

I join with the President in saying let us keep families and deport
felons. That is a discretion that is given by the law to allow
Presidents to take care and ensure that the laws are enforced properly.
This legislation is wrongheaded and misdirected. Allow me to say that
this November 20 executive order is now being retroactively judged by
this Congress. That is not the Congress' responsibility. The Congress,
if they desire to do so, as they have done on many occasions, is to
bring this to the judicial courts. But if they do so, they will find
that the law has dictated that courts grant without much interest in
deciding whether or not an administrative decision has been made with
fault. The President, through his executive order, is making an
administrative decision in terms of how laws are prosecuted.
Just yesterday, the State of Texas and a number of other States filed
a lawsuit against the executive actions announced by the President on
November 20. Much to my surprise--and, of course, with great joy--the
Fifth Circuit Court of Appeals appears to have already issued a
decision, dismissing such a complaint. It did so in 1997 when Governor
George W. Bush was arguing that the Federal Government's failure to
enforce our immigration laws violated article I, and the court rejected
Texas' argument that the Federal Government had breached a
nondiscretionary duty to control immigration under the Immigration and
Nationality Act.
Specifically, the court said: ``We are not aware of and have
difficulty conceiving of any judicially discoverable standards for
determining whether immigration control efforts by Congress are
constitutionally adequate.'' Why? Because there is an interpretation of
the law and an administrative component of the law.
Likewise, in Heckler v. Chaney, the Court said: ``An agency's
decision not to take enforcement actions is unreviewable under the
Administrative Procedure Act because a court has no workable standard
against which to judge the agency's exercise of discretion.''
The President of the United States is not exercising discretion of
executive order. He is instructing and giving guidance to
administrative agencies who will make decisions accordingly to the
framework of making sure that those who are felons are out but families
are not.
If you want to stop human trafficking, if you want to have a
conscience in this Nation, if you want to protect the vulnerable, if
you want to keep young people who are bright-eyed simply to serve in
the United States military----
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. CONYERS. I yield the gentlelady an additional 30 seconds.
Ms. JACKSON LEE. I thank the gentleman for his kindness.
Mr. Speaker, if you want to recognize those individuals who have come
here to do what is right and if you want to stop the siege of human
trafficking, as I have said, where Houston is the epicenter of such,
where we see it every day, where people are out of the shadows, if you
want to do that, then you will vote against this misdirected law and
you will read the constitutional dictates--first from the Fifth Circuit
Court of Appeals, then from the United States Supreme Court in Arizona
v. United States--and understand that the President has the executive
authority to do just what he has done, to be a moral keeper and to give
discretion to the law.
Mr. Speaker, I rise in opposition to the rule governing debate of
H.R. 5759, the so-called ``Preventing Executive Overreach On
Immigration Act,'' and the underlying bill.
I oppose the rule and the underlying bill because it is nothing more
than the Republican majority's latest partisan attack on the President
and another diversionary tactic to avoid addressing the challenge posed
by the nation's broken immigration system.
Mr. Speaker, H.R. 5759, which by all appearances was hastily
introduced on November 20, 2014, without evident deliberation for the
ostensible purpose of establishing a retroactive ``rule of construction
clarifying the limitations on executive authority to provide certain
forms of immigration relief.''
As originally drafted and introduced the bill provided:
No provision of the United States Constitution, the Immigration and
Nationality Act, or other Federal law shall be interpreted or applied
to authorize the executive branch of the Government to exempt, by
Executive order, regulation, or any other means, categories of persons
unlawfully present in the United States from removal under the
immigration laws (as such term is defined in section 101 of the
Immigration and Nationality Act).
Any action by the executive branch with the purpose of circumventing
the objectives of this statute shall be null and void and without legal
effect.
Although the bill was referred to the Committee on the Judiciary,
upon which I have served throughout my ten terms in Congress, no
hearing or markup of the bill was ever held. And it shows.
The most obvious and fatal flaw in the bill as introduced and
considered by the Rules Committee is its attempt to dictate to the
federal judiciary how the Constitution is to be interpreted--``No
provision of the United States Constitution . . . shall be interpreted
or applied to authorize the executive branch . . .''
Mr. Speaker, it has been settled law for 211 years, since 1803, when
the Supreme Court decided the landmark case of Marbury v. Madison that
the federal courts, and ultimately, the Supreme Court are the arbiters
when it comes to interpreting the Constitution and the laws. As Chief
Justice John Marshall stated in Marbury:
``It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each.''
Had regular order been followed and this ill-conceived bill been
subject to hearing and markup this fatal deficiency would have been
revealed and made plain and the bill likely would have died a quiet
death.
Mr. Speaker, because H.R. 5759 was so poorly conceived and drafted,
it would have embarrassed the Republican leadership to bring the bill
to floor in its original form so the bill was amended in the Rules
Committee, which made in order an Amendment in the

[[Page H8640]]

Nature of a Substitute (ANS) that tries--but does not succeed--in
remedying the many deficiencies of the original bill.
As amended and reported by the Rules Committee, H.R. 5759 seeks to
prohibit the executive branch from exempting or deferring from
deportation any immigrants considered to be unlawfully present in the
United States under U.S. immigration law, and to prohibit the
administration from treating those immigrants as if they were lawfully
present or had lawful immigration status.
The amended bill now includes three exceptions to this prohibition:
1. ``to the extent prohibited by the Constitution:''
2. ``upon the request of Federal, State, or local law enforcement
agencies, for purposes of maintaining aliens in the United States to be
tried for crimes or to be witnesses at trial''; and
3. ``for humanitarian purposes where the aliens are at imminent risk
of serious bodily harm or death.''
The amended bill seeks to make November 20, 2014 the effective date
of these prohibitions--thereby retroactively blocking the executive
actions taken on that date by President Obama to address our broken
immigration system by providing smarter enforcement at the border,
prioritize deporting felons--not families--and allowing certain
undocumented immigrants, including the parents of U.S. citizens and
lawful residents, who pass a criminal background check and pay taxes to
temporarily stay in the U.S. without fear of deportation.
Mr. Speaker, let me briefly discuss why the executive actions taken
by President Obama are reasonable, responsible, and within his
constitutional authority.
Under Article II, Section 3 of the Constitution, the President, the
nation's Chief Executive, ``shall take Care that the Laws be faithfully
executed.''
In addition to establishing the President's obligation to execute the
law, the Supreme Court has consistently interpreted the Take Care
Clause as ensuring presidential control over those who execute and
enforce the law and the authority to decide how best to enforce the
laws. See, e.g., Arizona v. United States; Bowsher v. Synar; Buckley v.
Valeo; Printz v. United States; Free Enterprise Fund v. PCAOB.
Every law enforcement agency, including the agencies that enforce
immigration laws, has ``prosecutorial discretion''--the power to decide
whom to investigate, arrest, detain, charge, and prosecute.
Agencies, including the U.S. Department of Homeland Security (DHS),
may develop discretionary policies specific to the laws they are
charged with enforcing, the population they serve, and the problems
they face so that they can prioritize resources to meet mission
critical enforcement goals.
Executive authority to take action is thus ``fairly wide'', indeed
the federal government's discretion is extremely ``broad''; as the
Supreme Court held in the recent case of Arizona v. United States, 132
S. Ct. 2492, 2499 (2012), an opinion written Justice Kennedy and joined
by Chief Justice Roberts:
``Congress has specified which aliens may be removed from the United
States and the procedures for doing so. Aliens may be removed if they
were inadmissible at the time of entry, have been convicted of certain
crimes, or meet other criteria set by federal law. Removal is a civil,
not criminal, matter. A principal feature of the removal system is the
broad discretion exercised by immigration officials. Federal officials,
as an initial matter, must decide whether it makes sense to pursue
removal at all. If removal proceedings commence, aliens may seek asylum
and other discretionary relief allowing them to remain in the country
or at least to leave without formal removal.'' (emphasis added)
(citations omitted).
The Court's decision in Arizona v. United States, also strongly
suggests that the executive branch's discretion in matters of
deportation may be exercised on an individual basis, or it may be used
to protect entire classes of individuals such as ``[u]nauthorized
workers trying to support their families'' or immigrants who originate
from countries torn apart by internal conflicts:
``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. The equities of an individual case
may turn on many factors, including whether the alien has children born
in the United States, long ties to the community, or a record of
distinguished military service.
Some discretionary decisions involve policy choices that bear on this
Nation's international relations. Returning an alien to his own country
may be deemed inappropriate even where he has committed a removable
offense or fails to meet the criteria for admission. The foreign state
may be mired in civil war, complicit in political persecution, or
enduring conditions that create a real risk that the alien or his
family will be harmed upon return.
The dynamic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are consistent
with this Nation's foreign policy with respect to these and other
realities.''
Mr. Speaker, in exercising his broad discretion in the area of
removal proceedings, President Obama has acted responsibly and
reasonably in determining the circumstances in which it makes sense to
pursue removal and when it does not.
In exercising this broad discretion, President Obama has not done
anything that is novel or unprecedented.
Here are just a few examples of executive action taken by several
presidents, both Republican and Democratic, on issues affecting
immigrants over the past 35 years:
1. In 1980, President Jimmy Carter exercised parole authority to
allow Cubans to enter the U.S., and about 123,000 ``Mariel Cubans''
were paroled into the U.S. by 1981.
2. In 1987, President Ronald Reagan used executive action in 1987 to
allow 200,000 Nicaraguans facing deportation to apply for relief from
expulsion and work authorization.
3. In 1990, President George H.W. Bush issued an executive order that
granted Deferred Enforced Departure (DED) to certain nationals of the
People's Republic of China who were in the United States.
4. In 1992, the Bush administration granted DED to certain nationals
of El Salvador.
5. In 1997, President Bill Clinton issued an executive order granting
DED to certain Haitians who had arrived in the United States before
Dec. 31, 1995.
6. In 2010 the Obama administration began a policy of granting parole
to the spouses, parents, and children of military members.
Mr. Speaker, because of the President's leadership and far-sighted
executive action, 594,000 undocumented immigrants in my home state of
Texas are eligible for deferred action.
If these immigrants are able to remain united with their families and
receive a temporary work permit, it would lead to a $338 million
increase in tax revenues, over five years.
Mr. Speaker, the President's laudable executive actions are a welcome
development but not a substitute modernizing the nation's immigration
laws. Only Congress can do that.
America's borders are dynamic, with constantly evolving security
challenges. Border security must be undertaken in a manner that allows
actors to use pragmatism and common sense.
And as shown by the success of H.R. 17, the bipartisan ``Border
Security Results Act, which I helped to write and introduced along with
the senior leaders of the House Homeland Security Committee, we can do
this without putting the nation at risk or rejecting our national
heritage as a welcoming and generous nation.
This legislation has been incorporated in H.R. 15, the bipartisan
``Border Security, Economic Opportunity, and Immigration Modernization
Act,'' legislation which reflects nearly all of the core principles
announced earlier this year by House Republicans.

As a nation of immigrants, the United States has set the example for
the world as to what can be achieved when people of diverse
backgrounds, cultures, and experiences come together.
It is now time to open the golden symbolized by Lady Liberty's lamp
to the immigrant community of today so they can participate fully in
the American Dream.
These loyal and law-abiding persons have been waiting patiently for
far too long for their chance.
We can and should seize this historic opportunity to pass legislation
to ensure that we have in place adequate systems and resources to
secure our borders while at the same time preserving America's
character as the most open and welcoming country in the history of the
world and to reap the hundreds of billions of dollars in economic
productivity that will result from comprehensive immigration reform.
President Obama has acted boldly, responsibly, and compassionately in
exercising his constitutional authority to enforce the immigration laws
in an effective and humane manner.
If congressional Republicans, who have refused to debate
comprehensive immigration reform legislation for more than 500 days,
disapprove of the lawful actions taken by the President, an alternative
course of action is readily available to them: pass a bill and send it
to the President for signature.
The President has shown responsible leadership. The next step is up
to congressional Republicans.
I urge all Members to join me in opposing the rule and the underlying
bill.
Just yesterday, the State of Texas and a number of other States filed
a lawsuit challenging the executive actions announced by the President
on November 20. The lawsuit,

[[Page H8641]]

which will be known as Texas v. United States of America, was filed in
the U.S. District Court for the Southern District of Texas.
Much to my surprise, the Fifth Circuit Court of Appeals appears to
have already issued a decision dismissing the Complaint. In the case of
Texas v. United States--sound similar?--the Fifth Circuit in 1997
dismissed a lawsuit by then Governor George W. Bush arguing that the
Federal Government's failure to enforce our immigration laws violated
Article I, Section 8, Clause 4 of the Constitution--the Naturalization
Clause. The Fifth Circuit also rejected Texas's argument that the
Federal Government had breached a nondiscretionary duty to control
immigration under the Immigration and Nationality Act.
In rejecting the Naturalization Clause argument, the Fifth Circuit
wrote that ``A judicial action presents a nonjusticiable political
question not amenable to judicial resolution where there is . . . a
lack of judicially discoverable and manageable standards for resolving
it.'' In this case, the Court stated plainly that ``We are not aware of
and have difficulty conceiving of any judicially discoverable standards
for determining whether immigration control efforts by Congress are
constitutionally adequate.'' Of course the President lawsuit challenges
the enforcement actions of the President, not of Congress, but the
broader point is the same.
In rejecting the statutory claim brought by Texas, the Court cited
the Administrative Procedure Act and Heckler v. Chaney--the Supreme
Court's leading case on the non-reviewability of agency decisions not
to take enforcement actions--for the proposition that ``An agency's
decision not to take enforcement actions is unreviewable under the
Administrative Procedure Act because a court has no workable standard
against which to judge the agency's exercise of discretion.''
At a time when illegal border crossings was at its peak--1.5 million
returns each year in 1996 and 1997--the Court stated: ``We reject out-
of-hand the State's contention that the federal defendants' alleged
systemic failure to control immigration is so extreme as to constitute
a reviewable abdication of duty. The State does not contend that
federal defendants are doing nothing to enforce the immigration laws or
that they have consciously decided to abdicate their enforcement
responsibilities. Real or perceived inadequate enforcement of
immigration laws does not constitute a reviewable abdication of duty.''
During this President's tenure, well over 2 million people have been
formally removed from this country. Prosecutions for illegal entry and
reentry after removal have increased exponentially. And even if 5
million people come forward and receive temporary protection from
removal through DACA and the new Deferred Action for Parental
Accountability program, there will still be well over 6 million
undocumented immigrants who have received no such protection. With
funds to deport no more than 400,000 people each year I assure my
colleagues on the other side of the aisle that the President is in no
danger of ``doing nothing to enforce the immigration laws'' and that he
had not ``consciously decided to abdicate [his] enforcement
responsibilities.''
The argument that the President has declared that he will no longer
enforce our immigration laws is offensive to the 34,000 people--
including thousands of women and children--who are sitting in detention
centers today waiting for their day in court. It is also frivolous.
The lawsuit filed yesterday will fail and this bill never will become
law. Rather, the President's actions will soon take effect and will
bring a small measure of sanity to our broken immigration system.
Mr. GOODLATTE. Mr. Speaker, may I inquire how much time is remaining
on each side.
The SPEAKER pro tempore. The gentleman from Virginia has 14\1/2\
minutes remaining, and the gentleman from Michigan has 14\1/4\ minutes
remaining.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
2 minutes to the gentleman from California (Mr. McClintock).
Mr. McCLINTOCK. I thank the gentleman for yielding.
Mr. Speaker, this question transcends the issue of illegal
immigration. The President's action has crossed a very bright line that
separates the American Republic, which prides itself on being a nation
of laws and not of men, from those unhappy regimes whose rulers boast
that the law is in their mouths.
It is true that throughout the Nation's history, Presidents have
tested the limits of their authority, but this is the first time a
Chief Executive, who is charged with the responsibility to ``take care
that the laws be faithfully executed,'' has asserted the absolute power
to nullify or change these laws by decree.
Under our Constitution, the President does not get to pick which laws
to enforce and which laws to ignore. He does not get to pick who must
obey the law and who gets to live above the law. He is forbidden from
making laws himself. ``All legislative power herein granted shall be
vested in a Congress of the United States.''
Whether we choose to recognize it or not, this is a full-fledged
constitutional crisis. If this precedent is allowed to stand, it will
render meaningless the separation of powers and the checks and balances
that comprise the fundamental architecture of our Constitution, that
have preserved our freedom for 225 years. If this precedent stands,
every future President--Republican and Democrat--will cite it as
justification for lawmaking by decree.
The measure before us is the first act of this Congress to restore
the balance of powers within this government. The President would be
well advised to heed it before sterner measures are required.
The seizure of legislative authority by the executive proved fatal to
the Roman republic. Now that is happening in our own time. Let that not
be the legacy of this administration.
For more than two centuries, Americans have successfully defended our
Constitution, and now history requires this generation to do so again,
which it does beginning with this measure today.
Mr. CONYERS. Mr. Speaker, I am pleased to yield now 2 minutes to the
gentleman from Rhode Island, Representative Cicilline, a member of the
Judiciary Committee.
Mr. CICILLINE. I thank the gentleman for yielding.
Mr. Speaker, everyone in Congress and most people in this country
understand that our immigration system is broken and needs to be fixed.
Our colleagues on the other side of the aisle have blocked a bipartisan
Senate bill from coming to the floor, and President Obama has taken
action that he is legally permitted and morally obligated to take.
Executive orders are not unusual. Every President since President
Eisenhower has used this authority to take action on immigration
issues, including six Republican Presidents.
So, Mr. Speaker, when the gentleman from Florida said voting against
his bill is like voting against the Constitution, I suggest it is just
the opposite. The contours for the executive authority of the President
are defined in the Constitution and by precedent of the courts. There
is no question that the President has the authority to exercise
prosecutorial discretion in this regard. So, in fact, voting for this
bill undermines the Constitution because the executive authority of the
President is set forth in the Constitution of the United States.
We all recognize there are 11 million undocumented residents of this
country. We don't allocate resources to deport all 11 million. We
allocate resources to deport about 400,000, which means, by definition,
we are asking the department to set priorities in deciding whom to
deport. Setting those priorities ensures that they deport the most
serious offenders, people who pose threats to our communities.
That act of prosecutorial discretion is what is reflected in the
President's executive order.

{time} 1315

It is very important to understand that there is practically very
little question from legal scholars.
I insert in the Record a letter which has the signature of 136 law
professors who support the constitutionality of this provision, as well
as a separate letter from additional titans in the legal community,
beginning with President Lee Bollinger from Columbia University, Adam
Cox from New York University, Walter Dellinger, and several other legal
scholars.

25 November 2014.
We write as scholars and teachers of immigration law who
have reviewed the executive actions announced by the
President on November 20, 2014. It is our considered view
that the expansion of the Deferred Action for Childhood
Arrivals (DACA) and establishment of the Deferred Action for
Parental Accountability (DAPA) programs are within the legal
authority of the executive branch of the government of the
United States. To explain, we cite federal statutes,
regulations, and historical precedents. We do not express any
views on the policy aspects of these two executive actions.
This letter updates a letter transmitted by 136 law
professors to the White House on

[[Page H8642]]

September 3, 2014, on the role of executive action in
immigration law. We focus on the legal basis for granting
certain noncitizens in the United States ``deferred action''
status as a temporary reprieve from deportation. One of these
programs, Deferred Action for Childhood Arrivals (DACA), was
established by executive action in June 2012. On November 20,
the President announced the expansion of eligibility criteria
for DACA and the creation of a new program, Deferred Action
for Parental Accountability (DAPA).

Prosecutorial discretion in immigration law enforcement

Both November 20 executive actions relating to deferred
action are exercises of prosecutorial discretion.
Prosecutorial discretion refers to the authority of the
Department of Homeland Security to decide how the immigration
laws should be applied. Prosecutorial discretion is a long-
accepted legal practice in practically every law enforcement
context, unavoidable whenever the appropriated resources do
not permit 100 percent enforcement. In immigration
enforcement, prosecutorial discretion covers both agency
decisions to refrain from acting on enforcement like
cancelling or not serving or filing a charging document to
Notice to Appear with the immigration court, as well as
decisions to provide a discretionary remedy like granting a
stay of removal, parole, or deferred action.
Prosecutorial discretion provides a temporary reprieve from
deportation. Some forms of prosecutorial discretion, like
deferred action, confer ``lawful presence'' and the ability
to apply for work authorization. However, the benefits of the
deferred action programs announced on November 20 are not
unlimited. The DACA and DAPA programs, like any other
exercise of prosecutorial discretion do not provide an
independent means to obtain permanent residence in the United
States, nor do they allow a noncitizen to acquire eligibility
to apply for naturalization as a U.S. citizen. As the
President has emphasized, only Congress can prescribe the
qualifications for permanent resident status or citizenship.

Statutory authority and long-standing agency practice

Focusing first on statutes enacted by Congress, Sec. 103(a)
of the Immigration and Nationality Act (``INA'' or the
``Act''), clearly empowers the Department of Homeland
Security (DHS) to make choices about immigration enforcement.
That section provides: ``The Secretary of Homeland Security
shall be charged with the administration and enforcement of
this Act and all other laws relating to the immigration and
naturalization of aliens . . . .'' INA Sec. 242(g) recognizes
the executive branch's legal authority to exercise
prosecutorial discretion, specifically by barring judicial
review of three particular types of prosecutorial discretion
decisions: to commence removal proceedings, to adjudicate
cases, and to execute removal orders. In other sections of
the Act, Congress has explicitly recognized deferred action
by name, as a tool that the executive branch may use, in the
exercise of its prosecutorial discretion, to protect certain
victims of abuse, crime or trafficking. Another statutory
provision, INA Sec. 274A(h)(3), recognizes executive branch
authority to authorize employment for noncitizens who do not
otherwise receive it automatically by virtue of their
particular immigration status. This provision (and the formal
regulations noted below) confer the work authorization
eligibility that is part of both the DACA and DAPA programs.
Based on this statutory foundation, the application of
prosecutorial discretion to individuals or groups has been
part of the immigration system for many years. Longstanding
provisions of the formal regulations promulgated under the
Act (which have the force of law) reflect the prominence of
prosecutorial discretion in immigration law. Deferred action
is expressly defined in one regulation as ``an act of
administrative convenience to the government which gives some
cases lower priority'' and goes on to authorize work permits
for those who receive deferred action. Agency memoranda
further reaffirm the role of prosecutorial discretion in
immigration law. In 1976, President Ford's Immigration and
Naturalization Service (INS) General Counsel Sam Bernsen
stated in a legal opinion, ``The reasons for the exercise of
prosecutorial discretion are both practical and humanitarian.
There simply are not enough resources to enforce all of the
rules and regulations presently on the books.' In 2000, a
memorandum on prosecutorial discretion in immigration matters
issued by INS Commissioner Doris Meissner provided that
[s]ervice officers are not only authorized by law but
expected to exercise discretion in a judicious manner at all
stages of the enforcement process,'' and spelled out the
factors that should guide those decisions. In 2011,
Immigration and Customs Enforcement in the Department of
Homeland Security published guidance known as the ``Morton
Memo,'' outlining more than one dozen factors, including
humanitarian factors, for employees to consider in deciding
whether prosecutorial discretion should be exercised. These
factors--now updated by the November 20 executive actions--
include tender or elderly age, long-time lawful permanent
residence, and serious health conditions.

Judicial recognition of executive branch prosecutorial discretion in
immigration cases

Federal courts have also explicitly recognized
prosecutorial discretion in general and deferred action in
particular: Notably, the U.S. Supreme Court noted in its
Arizona v. United States decision in 2012: ``A principal
feature of the removal system is the broad discretion
exercised by immigration officials . . . Federal officials,
as an initial matter, must decide whether it makes sense to
pursue removal at all . . .'' In its 1999 decision in Reno v.
American-Arab Anti-Discrimination Committee, the Supreme
Court explicitly recognized deferred action by name. This
affirmation of the role of discretion is consistent with
congressional appropriations for immigration enforcement,
which are at an annual level that would allow for the arrest,
detention, and deportation of fewer than 4 percent of the
noncitizens in the United States who lack lawful immigration
status.
Based on statutory authority, U.S. immigration agencies
have a long history of exercising prosecutorial discretion
for a range of reasons that include economic or humanitarian
considerations, especially--albeit not only--when the
noncitizens involved have strong family ties or long-term
residence in the United States. Prosecutorial discretion,
including deferred action, has been made available on both a
case-by-case basis and a group basis, as are true under DACA
and DAPA. But even when a program like deferred action has
been aimed at a particular group of people, individuals must
apply, and the agency must exercise its discretion based on
the facts of each individual case. Both DACA and DAPA
explicitly incorporate that requirement.

Historical precedents for deferred action and similar programs for
individuals and groups

As examples of the exercise of prosecutorial discretion,
numerous administrations have issued directives providing
deferred action or functionally similar forms of
prosecutorial discretion to groups of noncitizens, often to
large groups. The administrations of Presidents Ronald Reagan
and George H.W. Bush deferred the deportations of a then-
predicted (though ultimately much lower) 1.5 million
noncitizen spouses and children of immigrants who qualified
for legalization under the Immigration Reform and Control Act
(IRCA) of 1986, authorizing work permits for the spouses.
Presidents Reagan and Bush took these actions, even though
Congress had decided to exclude them from IRCA. Among the
many other examples of significant deferred action or similar
programs are two during the George W. Bush administration: a
deferred action program in 2005 for foreign academic students
affected by Hurricane Katrina, and ``Deferred Enforcement
Departure'' for certain Liberians in 2007.'' Several decades
earlier, the Reagan administration issued a form of
prosecutorial discretion called ``Extended Voluntary
Departure'' in 1981 to thousands of Polish nationals. The
legal sources and historical examples of immigration
prosecutorial discretion described above are by no means
exhaustive, but they underscore the legal authority for an
administration to apply prosecutorial discretion to both
individuals and groups.
Some have suggested that the size of the group who may
``benefit'' from an act of prosecutorial discretion is
relevant to its legality. We are unaware of any legal
authority for such an assumption. Notably, the Reagan-Bush
programs of the late 1980s and early 1990s were based on an
initial estimated percentage of the unauthorized population
(about 40 percent) that is comparable to the initial
estimated percentage for the November 20 executive actions.
The President could conceivably decide to cap the number of
people who can receive prosecutorial discretion or make the
conditions restrictive enough to keep the numbers small, but
this would be a policy choice, not a legal issue. For all of
these reasons, the President is not ``re-writing'' the
immigration laws, as some of his critics have suggested. He
is doing precisely the opposite--exercising a discretion
conferred by the immigration laws and settled general
principles of enforcement discretion.

The Constitution and immigration enforcement discretion

Critics have also suggested that the deferred action
programs announced on November 20 violate the President's
constitutional duty to ``take Care that the Laws be
faithfully executed.'' A serious legal question would
therefore arise if the executive branch were to halt all
immigration enforcement, or even if the Administration were
to refuse to substantially spend the resources appropriated
by Congress. In either of those scenarios, the justification
based on resource limitations would not apply. But the Obama
administration has fully utilized all the enforcement
resources Congress has appropriated. It has enforced the
immigration law at record levels through apprehensions,
investigations, and detentions that have resulted in over two
million removals. At the same time that the President
announced the November 20 executive actions that we discuss
here, he also announced revised enforcement priorities to
focus on removing the most serious criminal offenders and
further shoring up the southern border. Nothing in the
President's actions will prevent him from continuing to
remove as many violators as the resources Congress has given
him permit.
Moreover, when prosecutorial discretion is exercised,
particularly when the numbers are large, there is no legal
barrier to formalizing that policy decision through sound
procedures that include a formal application and
dissemination of the relevant criteria to the

[[Page H8643]]

officers charged with implementing the program and to the
public. As DACA has shown, those kinds of procedures assure
that important policy decisions are made at the leadership
level, help officers to implement policy decisions fairly and
consistently, and offer the public the transparency that
government priority decisions require in a democracy.

Conclusion

Our conclusion is that the expansion of the DACA program
and the establishment of Deferred Action for Parental
Accountability are legal exercises of prosecutorial
discretion. Both executive actions are well within the legal
authority of the executive branch of the government of the
United States.
Hiroshi Motomura & Susan Westerberg Prager, University of
California, Los Angeles, School of Law*; Shoba Sivaprasad
Wadhia, Pennsylvania State University Dickinson School of
Law; Stephen H. Legomsky, Washington University School of
Law; David Abraham, University of Miami School of Law; Raquel
Aldana, University of the Pacific, McGeorge School of Law;
Farrin R. Anello, Seton Hall University School of Law;
Deborah Anker, Harvard Law School; Sabrineh Ardalan, Harvard
Law School; David C. Baluarte, Washington and Lee University
School of Law; Melynda Barnhart, New York Law School; Jon
Bauer, University of Connecticut School of Law; Lenni B.
Benson, New York Law School; Jacqueline Bhabha, Harvard Law
School;
Linda Bosniak, Rutgers University School of Law-Camden;
Richard A. Boswell, U.C. Hastings College of the Law; Jason
A. Cade, University of Georgia Law School; Janet Calvo, CUNY
School of Law, New York; Kristina M. Campbell, University of
the District of Columbia David A. Clarke School of Law; Stacy
Caplow, Brooklyn Law School; Benjamin Casper, University of
Minnesota Law School; Linus Chan, University of Minnesota;
Howard F. Chang, University of Pennsylvania Law School;
Michael J. Churgin, University of Texas at Austin; Marisa
Cianciarulo, Chapman University Dale E. Fowler School of Law;
Evelyn Cruz, Arizona State University; Ingrid Eagly, UCLA
School of Law; Philip Eichorn, Cleveland State--Cleveland
Marshall School of Law;
Bram T. Elias, University of Iowa College of Law; Stella
Burch Elias, University of Iowa College of Law; Jill E.
Family, Widener University School of Law; Niels Frenzen,
University of Southern California; Maryellen Fullerton,
Brooklyn Law School; Cesar Cuauhtemoc Garcia Hernandez,
University of Denver Sturm College of Law; Lauren Gilbert,
St. Thomas University School of Law; Denise L. Gilman,
University of Texas School of Law; John F. Gossart, Jr.,
University of Maryland School of Law; P. Gulasekaram, Santa
Clara University; Anju Gupta, Rutgers School of Law--Newark;
Susan R. Gzesh, University of Chicago; Jonathan Hafetz, Seton
Hall University; Dina Francesca Haynes, New England Law,
Boston; Susan Hazeldean, Cornell Law School;
Ernesto Hernandez-Lopez, Chapman University; Laura A.
Hernandez, Baylor Law School; Michael Heyman, John Marshall
Law School; Barbara Hines, University of Texas School of Law;
Laila L. Hlass, Boston University School of Law; Geoffrey
Hoffman, University of Houston Law Center; Mary Holper,
Boston College Law School; Alan Hyde, Rutgers University
School of Law--Newark; Kate Jastram, University of
California, Berkeley, School of Law; Kit Johnson, University
of Oklahoma College of Law; Anil Kalhan, Drexel University
Kline School of Law; Daniel Kanstroom, Boston College Law
School; Elizabeth Keyes, University of Baltimore School of
Law; Kathleen Kim, Loyola Law School Los Angeles; David C.
Koelsch, University of Detroit Mercy School of Law; Jennifer
Lee Koh, Western State College of Law;
Kevin Lapp, Loyola Law School, Los Angeles; Christopher
Lasch, University of Denver Sturm College of Law; Jennifer J.
Lee, Temple University Beasley School of Law; Stephen Lee,
University of California, Irvine; Christine Lin, University
of California, Hastings College of the Law; Beth Lyon,
Villanova University School of Law; Stephen Manning, Lewis &
Clark College; Lynn Marcus, University of Arizona James E.
Rogers College of Law; Miriam H. Marton, University of Tulsa
College of Law; Elizabeth McCormick, University of Tulsa
College of Law; M. Isabel Medina, Loyola University New
Orleans College of Law; Stephen Meili, University of
Minnesota Law School; Vanessa Merton, Pace University School
of Law; Andrew Moore, University of Detroit Mercy School of
Law; Jennifer Moore, University of New Mexico School of Law;
Daniel I. Morales, DePaul University College of Law; Nancy
Morawetz, NYU School of Law; Karen Musalo, U.C. Hastings
College of the Law; Alizabeth Newman, CUNY School of Law;
Noah Novogrodsky, University of Wyoming College of Law;
Fernando A. Nunez, Charlotte School of Law; Mariela Olivares,
Howard University School of Law; Michael A. Olivas,
University of Houston Law Center; Patrick D. O'Neill, Esq.,
University of Puerto Rico School of Law; Sarah Paoletti,
University of Pennsylvania Law School; Sunita Patel, American
University, Washington College of Law; Huyen Pham, Texas A&M
University School of Law; Michele R. Pistone, Villanova
University School of Law; Luis F.B. Plascencia, Arizona State
University; Polly J. Price, Emory University School of Law;
Doris Marie Provine, Arizona State University; Nina Rabin,
James E. Rogers College of Law, University of Arizona;
Jaya Ramji-Nogales, Temple University, Beasley School of
Law; Renee C. Redman, University of Connecticut School of
Law; Ediberto Roman, Florida International University; Victor
C. Romero, Penn State Law; Joseph H. Rosen, Atlanta's John
Marshall Law School; Carrie Rosenbaum, Golden Gate University
School of Law; Rachel E. Rosenbloom, Northeastern University
School of Law; Ruben G. Rumbaut, University of California,
Irvine; Ted Ruthizer, Columbia Law School; Leticia M.
Saucedo, UC Davis School of Law; Heather Scavone, Elon
University School of Law; Andrew I. Schoenholtz, Georgetown
Law; Philip Schrag, Georgetown University Law Center; Bijal
Shah, NYU School of Law; Ragini Shah, Suffolk University Law
School; Careen Shannon, Yeshiva University, Benjamin N.
Cardozo School of Law; Anna Williams Shavers, University of
Nebraska College of Law; Bryn Siegel, Pacific Coast
University School of Law;
Anita Sinha, American University, Washington College of
Law; Dan R. Smulian, Brooklyn Law School; Gemma Solimene,
Fordham University School of Law; Jayashri Srikantiah,
Stanford Law School; Juliet Stumpf, Lewis & Clark Law School;
Maureen A. Sweeney, University of Maryland Carey School of
Law; Barbara Szweda, Lincoln Memorial University Duncan
School of Law; Margaret H. Taylor, Wake Forest University
School of Law; David Thronson, Michigan State University
College of Law; Allison Brownell Tirres, DePaul University
College of Law; Scott Titshaw, Mercer University School of
Law; Phil Torrey, Harvard Law School; Enid Trucios-Haynes,
Louis D. Brandeis School of Law, University of Louisville;
Diane Uchimiya, University of La Verne College of Law;
Gloria Valencia-Weber, University of New Mexico School of
Law; Sheila I. Velez Martinez, University of Pittsburgh
School of Law; Alex Vernon, Ave Maria School of Law; Rose
Cuison Villazor, University of California at Davis School of
Law; Leti Volpp, University of California, Berkeley; Jonathan
Weinberg, Wayne State University; Deborah M. Weissman,
University of North Carolina at Chapel Hill; Lisa Weissman-
Ward, Stanford Law School; Anna R. Welch, University of Maine
School of Law; Virgil O. Wiebe, University of St. Thomas
School of Law, Minneapolis; Michael J. Wishnie, Yale Law
School; Stephen Yale-Loehr, Cornell University Law School;
Elizabeth Lee Young, University of Arkansas School of Law.
____

November 20, 2014.
We are law professors and lawyers who teach, study, and
practice constitutional law and related subjects. We have
reviewed the executive actions taken by the President on
November 20, 2014, to establish priorities for removing
undocumented noncitizens from the United States and to make
deferred action available to certain noncitizens. While we
differ among ourselves on many issues relating to
Presidential power and immigration policy, we are all of the
view that these actions are lawful. They are exercises of
prosecutorial discretion that are consistent with governing
law and with the policies that Congress has expressed in the
statutes that it has enacted.
1. Prosecutorial discretion--the power of the executive to
determine when to enforce the law--is one of the most well-
established traditions in American law. Prosecutorial
discretion is, in particular, central to the enforcement of
immigration law against removable noncitizens. As the Supreme
Court has said, ``the broad discretion exercised by
immigration officials'' is ``[a] principal feature of the
removal system.'' Arizona v. United States, 132 S. Ct. 2492,
2499 (2012).
Even apart from this established legal tradition,
prosecutorial discretion in the enforcement of immigration
law is unavoidable. According to most current estimates,
there are approximately 11 million undocumented noncitizens
in the United States. The resources that Congress has
appropriated for immigration enforcement permit the removal
of approximately 400,000 individuals each year. In these
circumstances, some officials will necessarily exercise their
discretion in deciding which among many potentially removable
individuals is to be removed.
The effect of the November 20 executive actions is to
secure greater transparency by having enforcement policies
articulated explicitly by high-level officials, including the
President. Immigration officials and officers in the field
are provided with clear guidance while also being allowed a
degree of flexibility. This kind of transparency promotes the
values underlying the rule of law.
2. There are, of course, limits on the prosecutorial
discretion that may be exercised by the executive branch. We
would not endorse an executive action that constituted an
abdication of the President's responsibility to enforce the
law or that was inconsistent with the purposes underlying a
statutory scheme. But these limits on the lawful exercise of
prosecutorial discretion are not breached here.
Both the setting of removal priorities and the use of
deferred action are well-established ways in which the
executive has exercised discretion in using its removal
authority. These means of exercising discretion in the
immigration context have been used many times by the
executive branch under Presidents of both parties, and
Congress has explicitly and implicitly endorsed their use.

[[Page H8644]]

The specific enforcement priorities set by the November 20
order give the highest priority to removing noncitizens who
present threats to national security, public safety, or
border security. These common-sense priorities are consistent
with long-standing congressional policies and are reflected
in Acts of Congress.
Similarly, allowing parents of citizens and permanent
lawful residents to apply for deferred action will enable
families to remain together in the United States for a longer
period of time until they are eligible to exercise the
option, already given to them by Congress, to seek to
regularize the parents' status. Many provisions of the
immigration laws reflect Congress's determination that, when
possible, individuals entitled to live in the United States
should not be separated from their families; the November 20
executive action reflects the same policy. The authority for
deferred action, which is temporary and revocable, does not
change the status of any noncitizen or give any noncitizen a
path to citizenship.
In view of the practical and legal centrality of discretion
to the removal system, Congress's decision to grant these
families a means of regularizing their status, and the
general congressional policy of keeping families intact, we
believe that the deferred action criteria established in the
November 20 executive order are comfortably within the
discretion allowed to the executive branch.
As a group, we express no view on the merits of these
executive actions as a matter of policy. We do believe,
however, that they are within the power of the Executive
Branch and that they represent a lawful exercise of the
President's authority.
Lee C. Bollinger, President, Columbia University; Adam B.
Cox, Professor of Law, New York University School of
Law; Walter E. Dellinger III, Douglas B. Maggs
Professor of Law, Duke University and O'Melveny &
Myers, Washington, D.C.; Harold Hongju Koh, Sterling
Professor of International Law, Yale Law School;
Gillian Metzger, Stanley H. Fuld Professor of Law,
Columbia Law School; Eric Posner, Kirkland and Ellis
Distinguished Service Professor of Law, University of
Chicago Law School; Cristina Rodriguez, Leighton Homer
Surbeck Professor of Law, Yale Law School; Geoffrey R.
Stone, Edward H. Levi Distinguished Service Professor
of Law, The University of Chicago; David A. Strauss,
Gerald Ratner Distinguished Service Professor of Law,
University of Chicago Law School; Laurence H. Tribe,
Carl M. Loeb University Professor and Professor of
Constitutional Law Harvard Law School.

Mr. CICILLINE. Mr. Speaker, the President's executive order will
ensure that we have a safer country, that we will grow our economy, and
that we will keep families together. I strongly urge my colleagues to
reject this Republican proposal and to allow the President's executive
order to remain.
Mr. GOODLATTE. Mr. Speaker, at this time, I am pleased to yield 3
minutes to the gentleman from Pennsylvania (Mr. Barletta).
Mr. BARLETTA. Mr. Speaker, I rise in support of H.R. 5759. This bill
simply says that the President cannot issue blanket amnesty. This
legislation also contains language that is similar to my own bill, the
Defense of Legal Workers Act, H.R. 5761. It states clearly that illegal
immigrants who are granted executive amnesty are not authorized to work
in the United States.
When we talk about illegal immigration, we always hear about what we
should do to help the illegal immigrants. Well, what about the American
workers? Who is going to stand up for them? There is a toxic
intersection of this executive amnesty and the Affordable Care Act.
Under the ACA, employers with 50 or more workers will have to provide
health insurance or pay a $3,000 fine. But under the President's
amnesty, illegal immigrants are exempt from the ACA. That means with
their new work permits, illegal immigrants will be $3,000 cheaper to
hire. That will drive companies to hire illegal immigrants instead of
legal American workers--or worse yet, get rid of American workers in
exchange for cheaper replacements.
This bill is a small step, but I will vote for any bill that stops
executive amnesty and that includes stopping the funding and supporting
my own bill that protects American workers.
Let's remember that we have been put in this position by a President
who campaigned on a slogan of ``yes we can'' but governs under the
philosophy of ``because I want to.''
Mr. CONYERS. I am pleased to yield 2 minutes to the distinguished
gentleman from North Carolina (Mr. Price).
(Mr. PRICE of North Carolina asked and was given permission to revise
and extend his remarks.)
Mr. PRICE of North Carolina. Mr. Speaker, I rise in strong opposition
to this misguided and politically motivated legislation. In fact it
would be dangerous and irresponsible for this body to prohibit the
Department of Homeland Security from exercising prosecutorial
discretion. DHS and ICE must be able to prioritize the detention and
the deportation of people who pose a threat to public safety and
national security, as opposed to deporting, for example, college
students who were brought to this country by their parents. Or,
perhaps, spouses of U.S. citizens serving in the military. It is not
even a close question.
The reality is discretion is and always has been exercised by every
prosecutor in this country. To my knowledge, Republicans have never
questioned this, never challenged it, until the current President began
prioritizing dangerous criminals for immigration enforcement.
As former Solicitor General Walter Dellinger recently wrote:

In light of how legally conservative the Justice Department
opinion really is, it is a wonder that this issue has become
the subject of such heated, occasionally apocalyptic
commentary. Those who object to the President's efforts to
unite families should stop hiding behind unfounded legal
alarums and debate the President's actions on the merits.

That is very good advice, Mr. Speaker, and I urge defeat of this
cynical and unwarranted legislation.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
1\1/2\ minutes to the gentleman from South Carolina (Mr. Sanford).
Mr. SANFORD. Mr. Speaker, I thank the chairman. I thank not only the
chairman but I thank the gentleman from Florida for his hard work on
this important measure because my dad used to say that at times in life
it is important to call an ace an ace. And I think fundamentally what
this bill does is call an ace an ace with regard to cutting off and
ending unilateral actions by Presidents, whether they are Republicans
or Democrats.
This is fundamentally about the balance of power in our Federal
system. It is also important because it fits with what I am hearing
from a lot of folks back home when they say, well, this issue of
immigration reform has less to do with immigration than it has to do
with the rule of law in this country and the way in which it should be
applied to all folks equally. They say that it is fundamentally unfair
for States to be burdened with new costs based on the unilateral action
by a President. They say it is fundamentally unfair for our Federal
entitlement system to be that much more wobbly based on a unilateral
action by a President. And they say it is fundamentally
unconstitutional for the President to take action in the pattern that
he has, whether it is with the Affordable Care Act, whether it is with
the Federal contracts, whether it is with war in the Middle East, or
now immigration.
So is this enough ultimately? No. I think we ultimately need to
defund the President's ability to move forward. But it is an important
first step in that basic notion that my dad prescribed of calling an
ace an ace.
Mr. CONYERS. Mr. Speaker, I am now pleased to yield 2 minutes to the
gentleman from Texas, Al Green.
Mr. AL GREEN of Texas. Mr. Speaker, I cannot support this
legislation, and I hope nobody expects me to.
Mr. Speaker, I am the beneficiary of the greatest executive order
ever written, the Emancipation Proclamation. In 1863, when Lincoln
signed the Emancipation Proclamation, the country was at war, it was
being torn apart, and yet he signed that proclamation. While it did not
liberate the slaves, it did lead to the passage of the 13th Amendment
in 1865.
I can't agree with this legislation because Truman in 1948 signed an
executive order integrating the military, and it went on to integrate
the broader society because it was a part of the avant-garde effort.
And I would note that at the time he did it, the Dixiecrats were
formed. They split from the Democratic Party.
We have always had times of strife in this country, but great
Presidents have always stepped forward, and they have done the right
thing.
Now let me address something quickly that has to be addressed: the
question of this is a magnet, that it attracts a lot of people to the
country. You can't be serious about this. If you

[[Page H8645]]

were serious about the magnetic approach, you would have done something
about wet-foot, dry-foot. Wet-foot, dry-foot allows any person who is
from Cuba who gets one foot on American soil to come right on in and
get into a pathway to legalization, just by getting one foot on. Have
the other foot in the water, one on land? Come on in. And that is the
policy of the United States Government. You would end that if you were
serious. That is a magnet. But you don't see magnets until it comes to
certain people, it seems.
Mr. President, I salute you for what you have done. I commend you, I
stand with you on this issue, but more importantly, I stand with
bringing people out of the shadows of life into the sunshine of a new
life.
God bless you.
The SPEAKER pro tempore. The Chair would once again remind Members to
address their remarks to the Chair.
Mr. GOODLATTE. Mr. Speaker, at this time, it is my pleasure to yield
2 minutes to the gentleman from Georgia (Mr. Collins), a member of the
Judiciary Committee.
Mr. COLLINS of Georgia. Thank you, Mr. Chairman.
Mr. Speaker, it is amazing again to come down to this House floor to
discuss issues and to be a part of this debate. I think one of the
issues that really has to come to light here is when it is being said
that what we are doing is trivial, what we are doing doesn't matter,
then, frankly, what does matter? Does the Constitution matter? Does the
rule of law matter? What is amazing to me, and I sat through a whole
5\1/2\-hour hearing the other day in dealing with this, we used letters
that were not probably used for the right context, we used other
examinations, and it always came back to, well, in the end, if it just
helps somebody, it is okay.
The problem I am having here with this is this problem: the ones who
are coming into our country, many of them whom I have spoken with in my
time as a pastor and other times dealing with missionary work, they are
coming from places where rule of law is not followed and where rule of
law is broken. So now what do we do? They come to a country in which
rule of law is being put aside and is being expanded just to help just
a little bit.
Mr. Speaker, I applaud the gentleman from Florida. I applaud everyone
from here who is saying it doesn't matter if it is a Democrat or a
Republican, what is right is what is right, and that is what matters on
the floor of this House. When we understand that, then we can get back
to what really matters, and that is saying that it is a time for
debate. It is not a time for exercising further outside the lines. It
is a time in which we, as a group, come together and say, let's solve
problems, let's not poison the well so we cannot have conversations,
and we don't have the dignity which we have for those who truly want to
come to our country, who have done it legally and have done it right.
Why would we do that?
That is what is wrong with this debate. The problem that we are
having right now is we are just simply saying, Mr. President, there are
three branches of government, and you can do whatever you want to
within your side, but the Congress has to do it on its side, and it
listens to the people as well. I think they spoke pretty loud and clear
3 weeks ago.
Mr. CONYERS. Mr. Speaker, I am pleased now to yield 3 minutes to the
distinguished gentleman from Illinois, Luis Gutierrez.
Mr. GUTIERREZ. Mr. Speaker, I have spent the past year speaking every
year in this Chamber about the damaging effects of our broken
immigration system on our security, our economy, our families, and
communities. We started with such great hope at the beginning of this
Congress. But here we are in the final hours of the 113th Congress, and
instead of moving a piece of legislation that the majority would put
forward to address the underlying problems with our immigration system,
we have before us another symbolic, superficial vote that will fix
absolutely nothing.
Mr. Speaker, this bill will not strengthen security at our borders,
including the most important gateways that are rarely mentioned, at
LAX, Chicago O'Hare, or JFK. This bill will not address the labor needs
of our agricultural industry or tech industry. This bill will not
protect American workers by implementing E-Verify across the board to
make sure there is one legal labor force in America, paying their fair
share of taxes and fully protected by American labor laws. This bill
does not do that.
This bill will not answer the pleas of U.S. American citizens who
have a parent or a spouse who wants to get right with the law, is
willing to submit to a thorough background check at their own expense
and prove to the American people that they are not a threat and able to
work, pay taxes, and contribute to the success of this country.
Instead of moving forward, instead of legislating actual solutions to
difficult public policy issues, instead of putting the emphasis on
doing what needs to be done to improve the economy, the security, and
the basic human decency of our laws, we are left with a tired and
unfortunate partisan battle. It is a partisan fight based on pure
fantasy, not just the fantasy that the U.S. Congress will ever
appropriate enough money to jail, expel, and deport 11 million people
and their families, but also the fantasy that what your side votes on
today will ever become law. You know it. I know it. Apparently the
majority prefers to take symbolic votes instead of legislating real and
lasting solutions.
Mr. Speaker, they didn't call Ronald Reagan a tyrant. They didn't
call him lawless. Yet he said, ``I will protect 1\1/2\ million
undocumented people that you call illegal.'' He protected them. When
the Congress expressly said they would not be included for any benefit
under the 1986 Immigration Reform and Control Act, he protected them.
He used his Presidential power to do that. And he wasn't called a
tyrant, and he wasn't called lawless. He was doing the right thing:
protecting the siblings and spouses of those that would be granted
legalization under that law that Congress expressly excluded.
And do you want to know something? I am happy that President Barack
Obama is following in that great and proud tradition set forth by
President Ronald Reagan that he would rather put family first, the
demagoguery and any anti-immigrant policy always last.

{time} 1330

Mr. GOODLATTE. Mr. Speaker, I yield myself 1 minute.
Mr. Speaker, it is always a pleasure to me to see former President
Ronald Reagan, especially here in the House Chamber. I, in fact, voted
for President Reagan twice and was proud to support him.
One of the things that I remember most about President Reagan was
that great debate with his opponent in one of the Presidential debates
in which he said, ``There he goes again,'' pointing out when his
opponent said something inaccurate about him.
Well, there they go again because what we have today is something
that is very, very different than what President Reagan did. President
Reagan signed a law--a bill passed by the Congress and signed it into
law, and then he found some things that he didn't think were correct,
so he then took action.
In today's Washington Post, which I would cite for the gentleman from
Illinois, its headline, The Washington Post editorial today, ``An
action without precedent,'' so when he cites President Reagan as a
precedent here, The Washington Post clearly refutes that by pointing
out how small that was and how it was done in response to a specific,
identifiable concern about legislation that had been passed. Guess
what? The Congress then subsequently fixed it as well.
That is not what is occurring here today, and as The Washington Post
notes, it is plain that the White House's numbers--the 1.5 million
claim--are indefensible, and it is similarly plain that the scale of
Mr. Obama's move goes far beyond anything his predecessors attempted
and without legislation that had been passed to found it upon.
No, this is power grab of enormous proportion. It is
unconstitutional. It is clearly what he said he was going to do when he
came to this body.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. I yield myself an additional 1 minute.

[[Page H8646]]

When he came to this body almost 3 years ago with his list of things
that he wanted done, he said, ``If you don't do it, I will.'' On that
occasion, some Members on that side of the aisle stood up and
applauded.
Guess what? Since then, in health care reform, in the environment, in
enforcement of our drug laws and in a whole host of other things, that
is exactly what he has done, and he said he was going to do it. He
said, ``I have my pen and my phone, and I will do it myself.''
Well, in this case, he has, on more than 20 occasions, said he did
not have the authority to do it. Now, the folks on the other side of
the aisle are saying, ``Oh, he didn't change the law.''
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. I yield myself an additional 30 seconds.
He didn't have the authority to change the law, but guess what? When
he signed the order, here is what he said:

What you are not paying attention to is that I just took
action to change the law.

To change the law. Article I of the Constitution says the law is only
changed by the United States Congress. Article III says the President
shall faithfully execute the law. His actions are unconstitutional and
they are unprecedented.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I am pleased now to yield 1\1/2\ minutes to
the gentlewoman from California (Ms. Lofgren).
Ms. LOFGREN. Mr. Speaker, I, in my opening remarks, did note the
uncanny similarity between the action that President Reagan and the
first President Bush took and the action that President Obama has now
taken.
I would note that I used the official record as a source of
information instead of chat and articles, and I submitted for the
record the internal decision memorandum in the INS, dated February 8,
1990, indicating that 1.5 million, 40 percent of the undocumented
population, in contravention to the orders of Congress, were going to
be given deferred action.
The Commissioner of the INS testified that 40 percent of the
undocumented population were going to be given, in contradiction to the
Congress' explicit decision, were going to be given deferred action. I
also have the draft processing plan that says millions of people would
be given, in contravention to the act of Congress, deferred action.
They even have the amount of money that they were going to make off the
estimated filing fees.
I would recommend that people take a look at the documents, and they
will see that what President Reagan did is almost exactly the same as
what President Obama did--40 percent of the population.
I don't think that President Reagan could get the Republican
nomination today, but that does not diminish the validity of his action
at that time.
Mr. GOODLATTE. Mr. Speaker, I am pleased to yield 2 minutes to the
gentleman from Georgia (Mr. Kingston).
Mr. KINGSTON. Mr. Speaker, we are hearing a lot of feigned outrage
from the other side, but I want to point out a few things.
Number one, it was the President himself who said, over 20 times, why
this action is illegal. I would invite the Democrats to read his
remarks. There are over 20 different instances of it.
Number two, they talk about prosecutorial discretion, and this is
okay, but as I understand it, you have that discretion when you run out
of money and maybe you can't implement a finer point of a law,
something that you are prosecuting. It doesn't mean you change the law.
I would invite the Democrats who think that we disproportionately
pick on this President, I would invite them to look at the 1950s case
during the Truman administration in which President Truman nationalized
the steel business by executive order in order to avoid a strike.
It went to the Supreme Court. The Supreme Court found on a 6-3 vote
that you could not change the law of such magnitude by executive order,
and that was not a case of picking on poor little old Harry Truman. It
was a case of standing up for the United States Constitution.
I would also like to invite the Democrats to look at the lawsuit that
17 States have now joined in saying that the President has violated
article II, section 3, the part of the Constitution that talks about
taking care to execute the laws, which this President seems to think is
a pick-and-choose operation run out of his political office.
I would also invite the Democrats to go to Central America and talk
to so many of the immigrants that I have. I have been to Honduras. I
have been to El Salvador. I have been to Guatemala. I have talked to
people, and one of our earlier speakers said that, ``You think there is
some sort of magnet, that they come here because we changed the law,
you are out of your mind.''
I would say go to Central America and talk to the folks. That is
exactly why they come: because they get the word that it is easier to
come here under those circumstances.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GOODLATTE. I yield an additional 30 seconds to the gentleman.
Mr. KINGSTON. For those who think that relaxing our laws does not
create a magnet, they need to go to Central America and talk to the
people who would be taking advantage of this.
Finally, let me say this about leadership: in split government with
three branches, equal branches, you don't get what you want. Leadership
is pulling together the coalitions to talk to people and ask: ``What
part of this law can we agree on? And what can we do about it?''
That is what leadership is about. The President has that opportunity
to show leadership now that he is going to have a new Congress and a
new Senate to work with. The way to get things done is to reach out and
work with people and not to be in your face against them.
Mr. CONYERS. Mr. Speaker, I am pleased to yield 2 minutes to the
distinguished gentleman from California (Mr. Becerra).
Mr. BECERRA. Mr. Speaker, I thank the ranking member for yielding me
this time.
I don't hear anyone disagreeing that our immigration system is
broken. It is broken for our commerce as businesses try to figure out
how to do the best business across the border, as they try to figure
out who they can employ and not employ. It is broken. I don't think
anyone contests that.
We need to have as much security here at home as we can because we
know, abroad, there are folks who would like to hurt us. If we don't
have a Department of Homeland Security with laws that work well, our
security is broken.
Certainly, the whole discussion here makes it very clear that
American families--American families--are being disrupted, separated
day after day. No one wants to see that done to an American family,
certainly not to a whole bunch of American citizens who want to have
opportunities in the future. Our immigration system is broken. Let's
just all agree on that.
So what do we do? Well, we can fix the broken immigration system, or
we can put message bills on the floor of the House that are never going
to get signed and become law and leave in 5 more days and end the year
2014 without having done anything and watch as we have gone more than
two to three decades without fixing a broken immigration system.
Or we could finally take the bill that has been sitting here in the
House for 525 days that passed in the Senate on a bipartisan vote, 68
out of 100 Senators, Republicans and Democrats, voted to fix the broken
immigration system. That has been sitting here waiting for a vote for
525 days.
We have 5 days left in this session. Within 5 days, we could fix the
broken immigration system for our economy, for our families, and for
our national security; or we could do a message bill as we have on the
floor, which will not pass the Senate, which will not be signed by the
President, which means that we leave 2014 having done nothing.
The President said in January, during his State of the Union,
``Congress, let's get this done together, but if you can't do
something, then I will do what I can under my executive authority.''
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CONYERS. I yield an additional 30 seconds to the gentleman.
Mr. BECERRA. The President said in his State of the Union, ``If you
can't do

[[Page H8647]]

something, I will do what I can under my executive authority under the
Constitution.'' And so he did.
Now, it is a matter of trying to make things work better and smarter,
given that we have a broken immigration system. Now is not the time to
double down with these social agenda matters that go nowhere. We could
get this done, but we all have to be accountable. Just as we demand
those immigrant families to be accountable, Congress has to be
accountable.
Let's get this done. The American people have been telling us that
for years. Get this done. You know the solution. Let's act. There are 5
days to go. Let's get this done. Put the Senate bipartisan bill on the
floor, and we will get this done.
Mr. GOODLATTE. Mr. Speaker, may I inquire how much time is remaining?
The SPEAKER pro tempore. The gentleman from Virginia has 2 minutes
remaining. The gentleman from Michigan has 1\1/2\ minutes remaining.
Mr. GOODLATTE. Mr. Speaker, I have one speaker remaining, and so I
reserve the balance of my time to close.
Mr. CONYERS. Mr. Speaker, it is my pleasure to yield 1\1/2\ minutes
to the gentleman from New York (Mr. Nadler), a senior member on the
Judiciary Committee, to close out our side.
Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, the President is not changing the law, he is exercising
Presidential prosecutorial choice. The very fact that only 400,000
people a year can be deported when there are admittedly 11 million
undocumented people in this country says you have to make choices.
I didn't see anyone on that side of the aisle demand that President
Bush--or President Obama, for that matter--deport all 11 million people
and propose the appropriation to enable that to be done. Failing that,
there must be choices. The President must choose.
I will not repeat all of the legal arguments that we have heard over
the last hour that the President has it well within his power to make
these choices. Discretion happens--400,000 against 11 million--
discretion happens.
Making that discretion systematic and sensible, prioritizing it,
doesn't change the law. The Republicans admit the law is broken, but
they haven't brought any bills to this floor in 4 years, and they have
ignored the bipartisan Senate bill, so the President must act and that
he acts within his power is good.
Finally, I must comment on the remarks of Mr. Barletta who says--and
I have heard other people say it--that the undocumented aliens--or the
documented aliens, for that matter--pose a threat to American jobs.
The fact is they do jobs that other people don't want, and more to
the point, what poses a threat to American living standards is the fact
that they can't enforce standards. The fact that an undocumented alien
can't complain to an enforcement agency when he is paid below minimum
wage or when he is exploited, that reduces wage levels for everyone.
If you want to help wage levels for American workers, let the
undocumented people who are here and who are going to stay here, let
them come out of the shadows, pass a comprehensive bill, let them work
legally, and enforce the minimum wage law. It will benefit all American
workers.
Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, it has been said repeatedly that we need to do
immigration reform, and I certainly don't disagree with that, but the
United States Constitution says that immigration reform must be done by
the United States Congress, and the President doesn't say, nor does the
Constitution say, ``Hey, if the Congress doesn't do it or doesn't do it
the way I like it, then I get the opportunity to do it myself.'' That
is not what the Constitution says. It says the President shall
faithfully execute the laws.
Now, the gentleman from New York, in talking about the impact of the
President's executive action here says, ``Oh, the people who are here
illegally and are taking jobs, they are taking jobs that Americans
don't want.''
Well, maybe there is some truth to that, maybe some of them are not,
but the fact of the matter is the President has unilaterally taken an
executive order that would give every single one of the 4 million to 5
million undocumented people in the United States who take jobs, to take
any job in the country they want to, as good a job, as high-paying a
job as they want.

{time} 1345

So, yes, we need to do immigration reform. The American people want
us to do immigration reform, but they want us to start with enforcement
first.
Instead, what the President has done, he has taken the law into his
own hands. That is the real issue in this case and the real matter
before the Congress and the real import of this legislation. It is not
about where you are on immigration reform; it is about where you are on
protecting the United States Constitution. Because this President's
actions are unprecedented; this President's actions are beyond the
pale; this President's actions are unconstitutional.
This legislation offered by the gentleman from Florida (Mr. Yoho)
stops that. That is why every Member of the House should support this
good legislation and make sure that we preserve what we are sworn under
an oath to preserve, and that is the Constitution of the United States.
Ladies and gentlemen, I urge adoption of this legislation, and I
yield back the balance of my time.
Ms. ROYBAL-ALLARD. Mr. Speaker, I rise in strong opposition to H.R.
5759.
Almost three quarters of all undocumented immigrants in America are
women and children.
Before President Obama took action to adjust the status of certain
long-term U.S. residents, these women were trapped in the shadows.
They lived in fear of being deported and permanently separated from
their kids.
Many remained in violent relationships because their abusers
threatened to expose their immigration status.
Others were forced to work in unsafe and unsanitary conditions,
unable to report their exploitative employers.
What message is this dangerous bill sending to these women and their
families?
Go back to the shadows.
Stay at your dangerous job.
Continue to live in fear of losing your children.
Mr. Speaker, these women deserve better and so does our country.
The messages issued by this body should always be rooted in hope and
empowerment, not fear.
Instead of playing political games with the lives of vulnerable
immigrants, we should be working together to build on the President's
actions by passing comprehensive immigration reform.
H.R. 5759 would have devastating consequences for millions of
families with deep ties to their communities. As the Republican
Leadership is well aware, this bill has no chance of being signed into
law. Let's reject this callous political gimmick and finally get to
work fixing our broken immigration system.
Ms. LEE of California. Mr. Speaker, I rise in strong opposition to
H.R. 5759, the so-called Executive Amnesty Prevention Act of 2014.
Let me start by saying that I applaud our President for taking bold
action to keep families together.
He acted where this Congress has failed to act.
A bipartisan, comprehensive immigration reform bill was passed in the
Senate more than 500 days ago. Yet Republican leadership in the House
failed to bring the bill up for a vote in the House.
And so as a result, our President took responsibility to stop the
suffering of millions of mixed-status families who have lived for years
in fear and uncertainty. He did so with full legal authority, just as
every President--Democrat and Republican--has done since Dwight D.
Eisenhower.
Of course, the Executive Order is not perfect, and does not relieve
uncertainty for every deserving family.
But I am pleased that some 5 million people will be able to step out
of the shadows, contribute to our economy, and pursue the American
dream. This Congress still needs to pass a comprehensive bill to truly
fix our broken immigration system.
Instead of voting on this misguided and cruel bill, we should be
having a vote on the comprehensive plan that we know would pass this
House.
Ms. JACKSON LEE. Mr. Speaker, I rise in opposition to the rule
governing debate of H.R. 5759, the so-called ``Preventing Executive
Overreach On Immigration Act,'' and the underlying bill.

[[Page H8648]]

I oppose the rule and the underlying bill because it is nothing more
than the Republican majority's latest partisan attack on the President
and another diversionary tactic to avoid addressing the challenge posed
by the nation's broken immigration system.
Mr. Speaker, H.R. 5759, which by all appearances was hastily
introduced on November 20, 2014, without evident deliberation for the
ostensible purpose of establishing a retroactive ``rule of construction
clarifying the limitations on executive authority to provide certain
forms of immigration relief.''
As originally drafted and introduced the bill provided:

No provision of the United States Constitution, the
Immigration and Nationality Act, or other Federal law shall
be interpreted or applied to authorize the executive branch
of the Government to exempt, by Executive order, regulation,
or any other means, categories of persons unlawfully present
in the United States from removal under the immigration laws
(as such term is defined in section 101 of the Immigration
and Nationality Act).
Any action by the executive branch with the purpose of
circumventing the objectives of this statute shall be null
and void and without legal effect.

Although the bill was referred to the Committee on the Judiciary,
upon which I have served throughout my ten terms in Congress, no
hearing or markup of the bill was ever held. And it shows.
The most obvious and fatal flaw in the bill as introduced and
considered by the Rules Committee is its attempt to dictate to the
federal judiciary how the Constitution is to be interpreted--``No
provision of the United States Constitution . . . shall be interpreted
or applied to authorize the executive branch . . .''
Mr. Speaker, it has been settled law for 211 years, since 1803, when
the Supreme Court decided the landmark case of Marbury v. Madison that
the federal courts, and ultimately, the Supreme Court are the arbiters
when it comes to interpreting the Constitution and the laws. As Chief
Justice John Marshall stated in Marbury:

It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule
to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts
must decide on the operation of each.

Had regular order been followed and this ill-conceived bill been
subject to hearing and markup this fatal deficiency would have been
revealed and made plain and the bill likely would have died a quiet
death.
Mr. Speaker, because H.R. 5759 was so poorly conceived and drafted,
it would have embarrassed the Republican leadership to bring the bill
to floor in its original form so the bill was amended in the Rules
Committee, which made in order an Amendment in the Nature of a
Substitute (ANS) that tries--but does not succeed--in remedying the
many deficiencies of the original bill.
As amended and reported by the Rules Committee, H.R. 5759 seeks to
prohibit the executive branch from exempting or deferring from
deportation any immigrants considered to be unlawfully present in the
United States under U.S. immigration law, and to prohibit the
administration from treating those immigrants as if they were lawfully
present or had lawful immigration status.
The amended bill now includes three exceptions to this prohibition:

1. ``to the extent prohibited by the Constitution;''
2. ``upon the request of Federal, State, or local law
enforcement agencies, for purposes of maintaining aliens in
the United States to be tried for crimes or to be witnesses
at trial''; and
3. ``for humanitarian purposes where the aliens are at
imminent risk of serious bodily harm or death.''

The amended bill seeks to make November 20, 2014 the effective date
of these prohibitions--thereby retroactively blocking the executive
actions taken on that date by President Obama to address our broken
immigration system by providing smarter enforcement at the border,
prioritize deporting felons--not families--and allowing certain
undocumented immigrants, including the parents of U.S. citizens and
lawful residents, who pass a criminal background check and pay taxes to
temporarily stay in the U.S. without fear of deportation.
Mr. Speaker, let me briefly discuss why the executive actions taken
by President Obama are reasonable, responsible, and within his
constitutional authority.
Under Article II, Section 3 of the Constitution, the President, the
nation's Chief Executive, ``shall take Care that the Laws be faithfully
executed.''
In addition to establishing the President's obligation to execute the
law, the Supreme Court has consistently interpreted the Take Care
Clause as ensuring presidential control over those who execute and
enforce the law and the authority to decide how best to enforce the
laws. See, e.g., Arizona v. United States; Bowsher v. Synar; Buckley v.
Valeo; Printz v. United States; Free Enterprise Fund v. PCAOB.
Every law enforcement agency, including the agencies that enforce
immigration laws, has ``prosecutorial discretion''--the power to decide
whom to investigate, arrest, detain, charge, and prosecute.
Agencies, including the U.S. Department of Homeland Security (DHS),
may develop discretionary policies specific to the laws they are
charged with enforcing, the population they serve, and the problems
they face so that they can prioritize resources to meet mission
critical enforcement goals.
Executive authority to take action is thus ``fairly wide,'' indeed
the federal government's discretion is extremely ``broad'' as the
Supreme Court held in the recent case of Arizona V. United States, 132
S. Ct. 2492, 2499 (2012), an opinion written Justice Kennedy and joined
by Chief Justice Roberts:

Congress has specified which aliens may be removed from the
United States and the procedures for doing so. Aliens may be
removed if they were inadmissible at the time of entry, have
been convicted of certain crimes, or meet other criteria set
by federal law. Removal is a civil, not criminal, matter. A
principal feature of the removal system is the broad
discretion exercised by immigration officials. Federal
officials, as an initial matter, must decide whether it makes
sense to pursue removal at all. If removal proceedings
commence, aliens may seek asylum and other discretionary
relief allowing them to remain in the country or at least to
leave without formal removal. (emphasis added) (citations
omitted).

The Court's decision in Arizona v. United States, also strongly
suggests that the executive branch's discretion in matters of
deportation may be exercised on an individual basis, or it may be used
to protect entire classes of individuals such as ``[u]nauthorized
workers trying to support their families'' or immigrants who originate
from countries torn apart by internal conflicts:

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.
The equities of an individual case may turn on many factors,
including whether the alien has children born in the United
States, long ties to the community, or a record of
distinguished military service.
Some discretionary decisions involve policy choices that
bear on this Nation's international relations. Returning an
alien to his own country may be deemed inappropriate even
where he has committed a removable offense or fails to meet
the criteria for admission. The foreign state may be mired in
civil war, complicit in political persecution, or enduring
conditions that create a real risk that the alien or his
family will be harmed upon return.
The dynamic nature of relations with other countries
requires the Executive Branch to ensure that enforcement
policies are consistent with this Nation's foreign policy
with respect to these and other realities.

Mr. Speaker, in exercising his broad discretion in the area of
removal proceedings, President Obama has acted responsibly and
reasonably in determining the circumstances in which it makes sense to
pursue removal and when it does not.
In exercising this broad discretion, President Obama has not done
anything that is novel or unprecedented.
Here are a just a few examples of executive action taken by several
presidents, both Republican and Democratic, on issues affecting
immigrants over the past 35 years:
1. In 1980, President Jimmy Carter exercised parole authority to
allow Cubans to enter the U.S., and about 123,000 ``Mariel Cubans''
were paroled into the U.S. by 1981.
2. In 1987, President Ronald Reagan used executive action in 1987 to
allow 200,000 Nicaraguans facing deportation to apply for relief from
expulsion and work authorization.
3. In 1990, President George H.W. Bush issued an executive order that
granted Deferred Enforced Departure (DED) to certain nationals of the
People's Republic of China who were in the United States.
4. In 1992, the Bush administration granted DED to certain nationals
of El Salvador.
5. In 1997, President Bill Clinton issued an executive order granting
DED to certain Haitians who had arrived in the United States before
Dec. 31, 1995.
6. In 2010 the Obama administration began a policy of granting parole
to the spouses, parents, and children of military members.
Mr. Speaker, because of the President's leadership and far-sighted
executive action, 594,000 undocumented immigrants in my home state of
Texas are eligible for deferred action.
If these immigrants are able to remain united with their families and
receive a temporary work permit, it would lead to a $338 million
increase in tax revenues, over five years.
Mr. Speaker, the President's laudable executive actions are a welcome
development but

[[Page H8649]]

not a substitute modernizing the nation's immigration laws. Only
Congress can do that.
America's borders are dynamic, with constantly evolving security
challenges. Border security must be undertaken in a manner that allows
actors to use pragmatism and common sense.
And as shown by the success of H.R. 17, the bipartisan ``Border
Security Results Act, which I helped to write and introduced along with
the senior leaders of the House Homeland Security Committee, we can do
this without putting the nation at risk or rejecting our national
heritage as a welcoming and generous nation.
This legislation has been incorporated in H.R. 15, the bipartisan
``Border Security, Economic Opportunity, and Immigration Modernization
Act,'' legislation which reflects nearly all of the core principles
announced earlier this year by House Republicans.
As a nation of immigrants, the United States has set the example for
the world as to what can be achieved when people of diverse
backgrounds, cultures, and experiences come together.
It is now time to open the golden symbolized by Lady Liberty's lamp
to the immigrant community of today so they can participate fully in
the American Dream.
These loyal and law-abiding persons have been waiting patiently for
far too long for their chance.
We can and should seize this historic opportunity pass legislation to
ensure that we have in place adequate systems and resources to secure
our borders while at the same time preserving America's character as
the most open and welcoming country in the history of the world and to
reap the hundreds of billions of dollars in economic productivity that
will result from comprehensive immigration reform.
President Obama has acted boldly, responsibly, and compassionately in
exercising his constitutional authority to enforce the immigration laws
in an effective and humane manner.
If congressional Republicans, who have refused to debate
comprehensive immigration reform legislation for more than 500 days,
disapprove of the lawful actions taken by the President, an alternative
course of action is readily available to them: pass a bill and send it
to the President for signature.
The President has shown responsible leadership. The next step is up
to congressional Republicans.
I urge all Members to join me in opposing the rule and the underlying
bill.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 770, the previous question is ordered on
the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.

Motion to Recommit

Mr. MURPHY of Florida. Mr. Speaker, I have a motion to recommit at
the desk.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. MURPHY of Florida. I am opposed in its current form.
Mr. GOODLATTE. Mr. Speaker, I reserve a point of order against the
motion to recommit.
The SPEAKER pro tempore. A point of order is reserved.
The Clerk will report the motion to recommit.
The Clerk read as follows:

Mr. Murphy of Florida moves to recommit the bill, H.R.
5759, to the Committee on the Judiciary with instructions to
report the same back to the House forthwith with the
following amendment:
Subsection (b) of section 3 of the bill is amended in the
matter preceding paragraph (1), by striking ``Subsection
(a)'' and inserting ``In accordance with this subsection and
subsection (e), subsection (a)''.
Add, at the end of the bill, the following:
(e) Protecting Military Families, Victims of Human
Trafficking, and Cuban Nationals.--The provisions of this Act
shall not apply to exemptions, deferrals, or other actions
that--
(1) provide relief to parents, spouses and children of U.S.
citizens who are current members or veterans of the U.S.
Armed Forces, the Selected Reserve of the Ready Reserve, or
who seek to enlist in the Armed Forces;
(2) protect victims of domestic violence who have
successfully petitioned for relief under the Violence Against
Women Act; and victims of crimes and serious forms of human
trafficking from further abuse; and
(3) protect Cuban nationals in the United States, or that
arrive at or between a port of entry into the United States,
or any persons of other nationality deserving of similar
protections.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Florida is recognized for 5 minutes in support of his motion.
Mr. MURPHY of Florida. Mr. Speaker, this is the final amendment,
which will not kill the bill or send it back to committee. If adopted,
the amended bill will immediately proceed to final passage.
Mr. Speaker, my amendment would shield the unintentional victims of
the bill before us, namely, military families, survivors of domestic
violence and exploitation, and the Cuban people fleeing the brutal
communist regime of the Castros.
First, the amendment would preserve the government's policy of
protecting undocumented parents, spouses, and children of military
personnel from deportation. After the Pentagon heard from many
servicemembers who feared for the safety of their families back home,
U.S. Citizenship and Immigration Services instituted a parole in place
policy for respecting military families, supporting military readiness,
and honoring our commitment to those who serve our Nation so bravely.
Mr. Speaker, is parole in place for military families such an abuse
of power?
Surely, the majority of this House wants our brave men and women
serving on the battlefield to be able to focus on the mission and not
fear that their families will be taken from them. The slogan ``support
our troops'' must at least mean that.
Next, my amendment would protect the victims of domestic violence,
abuse, and severe human trafficking. We know a willingness to come
forward and cooperate with law enforcement can break the cycle of
violence and make justice possible for the real criminals. USCIS
developed a program to give victims of incredible violence temporary U
visas for abuse and T visas for trafficking. In 2010 alone, nearly
12,000 of these visas were given out so victims can come out of the
shadows.
What is it about visas for abuse victims that so enrage some in this
Chamber?
American women deserve better than a policy that threatens to deport
the victim while their abuser simply walks free. That is why the
National Task Force to End Sexual and Domestic Violence Against Women
wrote that this bill ``broadly sweeps large numbers of victims into its
scope and ignores the best interests of victims and their children.''
Finally, this motion would preserve our country's longstanding
practice of granting parole and, ultimately, green cards to Cuban
nationals. Those who escape the clutches of the nearly 56-year-old
communist dictatorship yearn for the freedom they are so brutally
denied just 90 miles from our shore.
To this day, Cuban democracy activists, including Las Damas de
Blanco, remain subject to arbitrary arrest, beatings, and imprisonment.
Without the protection spelled out in my amendment, fleeing survivors
of the Castro regime are denied a chance at freedom and deported.
Is that what we want?
Growing up in south Florida, I can tell you that the cultural
richness of the great State of Florida does not exist without Cuban
American immigrants, many of whom escaped with nothing more than their
lives.
To my friends across the aisle who call this a ``process'' argument,
let me say, if this House had done its job, we wouldn't face a process
question in the first place. You want a better process? Pass a bill.
Dispense of this measure before us and bring up H.R. 15, a real
immigration bill from the gentleman from Florida (Mr. Garcia). It will
reform our broken system, secure the border, create hundreds of
thousands of jobs, and reduce the deficit by nearly $1 trillion. It has
got the votes. We can make it the law by Christmas.
The American people asked for immigration reform, and this body voted
to half secure the border and deport DREAMers. Now we are looking at
ripping apart military families, prosecuting the victims of domestic
violence and human trafficking, and sending Cuban refugees back to the
brutal hands of the Castros.
I urge my colleagues, don't let this be the story of the 113th
Congress. Pass this motion to recommit and defeat this mean-spirited
bill before us.
I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I withdraw my reservation of a point of
order, and I claim the time in opposition to the gentleman's motion.

[[Page H8650]]

The SPEAKER pro tempore. The reservation of the point of order is
withdrawn.
The gentleman from Virginia is recognized for 5 minutes.
Mr. GOODLATTE. Mr. Speaker, first, I want to thank the gentleman from
Florida (Mr. Yoho), also the gentleman from Idaho (Mr. Labrador) for
the contribution he made to the language that is in this important bill
to stop the President's unilateral action that is unconstitutional.
The gentleman offering the motion to recommit should note that the
bill takes effect as if enacted on November 20, 2014. It nullifies the
President's unlawful, unconstitutional executive order. It does not
change all immigration law that provides already considerable statutory
protection for our members of the Armed Forces of the United States and
their families. It protects victims of domestic violence who
successfully petition for relief; and Cuban nationals, as has been
noted during the debate here, are already protected under the law, and
this bill in no way, shape, or form harms any of those protections
under the law.
I would urge my colleagues to oppose this motion to recommit and
support the underlying legislation, which is needed to stop the
unconstitutional actions of the President of the United States in
writing an executive order that is unprecedented in its scope.
I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. MURPHY of Florida. Mr. Speaker, on that I demand the yeas and
nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX and the
order of the House of today, this 15-minute vote on the motion to
recommit will be followed by 5-minute votes on passage of the bill, if
ordered, and the motion to concur in the Senate amendment to H.R. 3979
with an amendment.
The vote was taken by electronic device, and there were--yeas 194,
nays 225, not voting 15, as follows:

[Roll No. 549]

YEAS--194

Adams
Barber
Barrow (GA)
Beatty
Becerra
Bera (CA)
Bishop (GA)
Bishop (NY)
Blumenauer
Bonamici
Brady (PA)
Braley (IA)
Brown (FL)
Brownley (CA)
Bustos
Butterfield
Capps
Cardenas
Carney
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Costa
Courtney
Crowley
Cuellar
Cummings
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Deutch
Dingell
Doggett
Edwards
Ellison
Engel
Enyart
Eshoo
Esty
Farr
Fattah
Foster
Frankel (FL)
Fudge
Gabbard
Garamendi
Garcia
Grayson
Green, Al
Green, Gene
Grijalva
Gutierrez
Hahn
Hanabusa
Hastings (FL)
Heck (WA)
Higgins
Himes
Hinojosa
Holt
Honda
Horsford
Hoyer
Huffman
Israel
Jackson Lee
Jeffries
Johnson (GA)
Johnson, E. B.
Kaptur
Keating
Kelly (IL)
Kennedy
Kildee
Kilmer
Kind
Kirkpatrick
Kuster
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Lewis
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham (NM)
Lujan, Ben Ray (NM)
Lynch
Maffei
Maloney, Carolyn
Maloney, Sean
Matheson
Matsui
McCollum
McDermott
McGovern
McIntyre
McNerney
Meeks
Meng
Michaud
Miller, George
Moore
Moran
Murphy (FL)
Nadler
Napolitano
Neal
Nolan
Norcross
O'Rourke
Owens
Pallone
Pascrell
Pastor (AZ)
Payne
Pelosi
Perlmutter
Peters (CA)
Peters (MI)
Peterson
Pingree (ME)
Pocan
Polis
Price (NC)
Quigley
Rahall
Rangel
Richmond
Roybal-Allard
Ruiz
Ruppersberger
Rush
Ryan (OH)
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Schwartz
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Speier
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Tierney
Titus
Tonko
Tsongas
Van Hollen
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters
Waxman
Welch
Wilson (FL)
Yarmuth

NAYS--225

Amash
Amodei
Bachus
Barletta
Barr
Barton
Benishek
Bentivolio
Bilirakis
Black
Blackburn
Boustany
Brady (TX)
Brat
Bridenstine
Brooks (AL)
Brooks (IN)
Broun (GA)
Buchanan
Bucshon
Burgess
Byrne
Calvert
Camp
Campbell
Capito
Carter
Cassidy
Chabot
Chaffetz
Clawson (FL)
Coffman
Cole
Collins (GA)
Conaway
Cook
Cotton
Cramer
Crenshaw
Culberson
Daines
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Diaz-Balart
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Farenthold
Fincher
Fitzpatrick
Fleischmann
Fleming
Flores
Forbes
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gardner
Garrett
Gerlach
Gibbs
Gibson
Gingrey (GA)
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guthrie
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Heck (NV)
Hensarling
Herrera Beutler
Holding
Hudson
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (OH)
Johnson, Sam
Jolly
Jones
Jordan
Joyce
Kelly (PA)
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kline
Labrador
LaMalfa
Lamborn
Lance
Lankford
Latham
Latta
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Marchant
Marino
Massie
McAllister
McCarthy (CA)
McCaul
McClintock
McHenry
McKeon
McKinley
McMorris Rodgers
Meadows
Meehan
Messer
Mica
Miller (FL)
Miller (MI)
Mullin
Mulvaney
Murphy (PA)
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Palazzo
Paulsen
Pearce
Perry
Petri
Pittenger
Pitts
Poe (TX)
Pompeo
Posey
Price (GA)
Reed
Reichert
Renacci
Ribble
Rice (SC)
Rigell
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross
Rothfus
Royce
Runyan
Ryan (WI)
Salmon
Sanford
Scalise
Schock
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stewart
Stivers
Stockman
Stutzman
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner
Upton
Valadao
Wagner
Walberg
Walden
Walorski
Weber (TX)
Webster (FL)
Wenstrup
Westmoreland
Whitfield
Williams
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IN)

NOT VOTING--15

Aderholt
Bachmann
Bass
Bishop (UT)
Capuano
Coble
Collins (NY)
Crawford
Doyle
Duckworth
Gallego
Hall
McCarthy (NY)
Miller, Gary
Negrete McLeod

{time} 1419

Messrs. FORBES, HURT, ROGERS of Alabama, ROTHFUS, POSEY, and STIVERS
changed their vote from ``yea'' to ``nay.''
Messrs. SEAN PATRICK MALONEY of New York, ENGEL, KEATING, CARDENAS,
RUSH, and JOHNSON of Georgia changed their vote from ``nay'' to
``yea.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
Stated for:
Mr. GALLEGO. Mr. Speaker, on rollcall No. 549, had I been present, I
would have voted ``yes.''
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. GOODLATTE. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 219,
nays 197, answered ``present'' 3, not voting 15, as follows:

[Roll No. 550]

YEAS--219

Amash
Amodei
Bachus
Barletta
Barr
Barrow (GA)
Barton
Benishek
Bentivolio
Bilirakis
Black
Blackburn
Boustany
Brady (TX)
Brat
Bridenstine
Brooks (AL)
Brooks (IN)
Broun (GA)
Buchanan
Bucshon
Burgess
Byrne
Calvert
Camp
Campbell
Capito
Carter
Cassidy
Chabot
Chaffetz
Clawson (FL)
Cole
Collins (GA)
Collins (NY)
Conaway
Cook
Cotton
Cramer
Crenshaw
Culberson
Daines
Davis, Rodney
Dent
DeSantis
DesJarlais
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Farenthold
Fincher
Fitzpatrick
Fleischmann
Fleming
Flores
Forbes

[[Page H8651]]

Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gardner
Garrett
Gerlach
Gibbs
Gibson
Gingrey (GA)
Goodlatte
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guthrie
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Heck (NV)
Hensarling
Herrera Beutler
Holding
Hudson
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (OH)
Johnson, Sam
Jolly
Jones
Jordan
Joyce
Kelly (PA)
King (NY)
Kingston
Kinzinger (IL)
Kline
LaMalfa
Lamborn
Lance
Lankford
Latham
Latta
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Marchant
Marino
Massie
McAllister
McCarthy (CA)
McCaul
McClintock
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meadows
Meehan
Messer
Mica
Miller (FL)
Miller (MI)
Mullin
Mulvaney
Murphy (PA)
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Palazzo
Paulsen
Pearce
Perry
Peterson
Petri
Pittenger
Pitts
Poe (TX)
Pompeo
Posey
Price (GA)
Reed
Reichert
Renacci
Ribble
Rice (SC)
Rigell
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Roskam
Ross
Rothfus
Royce
Runyan
Ryan (WI)
Salmon
Sanford
Scalise
Schock
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stewart
Stivers
Stockman
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner
Upton
Wagner
Walberg
Walden
Walorski
Weber (TX)
Webster (FL)
Wenstrup
Westmoreland
Whitfield
Williams
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IN)

NAYS--197

Adams
Barber
Bass
Beatty
Becerra
Bera (CA)
Bishop (GA)
Bishop (NY)
Blumenauer
Bonamici
Brady (PA)
Braley (IA)
Brown (FL)
Brownley (CA)
Bustos
Butterfield
Capps
Cardenas
Carney
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Coffman
Cohen
Connolly
Conyers
Cooper
Costa
Courtney
Crowley
Cuellar
Cummings
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Denham
Deutch
Diaz-Balart
Dingell
Doggett
Edwards
Ellison
Engel
Enyart
Eshoo
Esty
Farr
Fattah
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Garcia
Gohmert
Grayson
Green, Al
Green, Gene
Grijalva
Gutierrez
Hahn
Hanabusa
Hastings (FL)
Heck (WA)
Higgins
Himes
Hinojosa
Holt
Honda
Horsford
Hoyer
Huffman
Israel
Jackson Lee
Jeffries
Johnson (GA)
Kaptur
Keating
Kelly (IL)
Kennedy
Kildee
Kilmer
Kind
Kirkpatrick
Kuster
Langevin
Larsen (WA)
Lee (CA)
Levin
Lewis
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham (NM)
Lujan, Ben Ray (NM)
Lynch
Maffei
Maloney, Carolyn
Maloney, Sean
Matheson
Matsui
McCollum
McDermott
McGovern
McNerney
Meng
Michaud
Miller, George
Moore
Moran
Murphy (FL)
Nadler
Napolitano
Neal
Nolan
Norcross
O'Rourke
Owens
Pallone
Pascrell
Pastor (AZ)
Payne
Pelosi
Perlmutter
Peters (CA)
Peters (MI)
Pingree (ME)
Pocan
Polis
Price (NC)
Quigley
Rahall
Rangel
Richmond
Ros-Lehtinen
Roybal-Allard
Ruiz
Ruppersberger
Rush
Ryan (OH)
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Schwartz
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Speier
Stutzman
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Tierney
Titus
Tonko
Tsongas
Valadao
Van Hollen
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters
Waxman
Welch
Wilson (FL)
Yarmuth

ANSWERED ``PRESENT''--3

Gosar
King (IA)
Labrador

NOT VOTING--15

Aderholt
Bachmann
Bishop (UT)
Capuano
Coble
Crawford
Doyle
Duckworth
Hall
Johnson, E. B.
Larson (CT)
McCarthy (NY)
Meeks
Miller, Gary
Negrete McLeod

{time} 1428

Mr. GARAMENDI changed his vote from ``yea'' to ``nay.''
So the bill, as amended, was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

____________________