[Congressional Record Volume 168, Number 186 (Thursday, December 1, 2022)]
[Senate]
[Pages S6932-S6934]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  PROVIDING FOR A RESOLUTION WITH RESPECT TO THE UNRESOLVED DISPUTES 
    BETWEEN CERTAIN RAILROADS REPRESENTED BY THE NATIONAL CARRIERS' 
   CONFERENCE COMMITTEE OF THE NATIONAL RAILWAY LABOR CONFERENCE AND 
                  CERTAIN OF THEIR EMPLOYEES--Resumed

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.J. Res. 100.
  Under the previous order, the joint resolution is considered read a 
third time.
  The joint resolution was ordered to a third reading and was read the 
third time.


                         Vote on H.J. Res. 100

  The PRESIDING OFFICER. The joint resolution having been read the 
third time, the question is, Shall the joint resolution pass?
  Mrs. MURRAY. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. Murphy) 
and the Senator from Georgia (Mr. Warnock) are necessarily absent.
  Mr. THUNE. The following Senators are necessarily absent: the Senator 
from North Carolina (Mr. Burr) and the Senator from Mississippi (Mrs. 
Hyde-Smith).
  The result was announced--yeas 80, nays 15, as follows:

                      [Rollcall Vote No. 372 Leg.]

                                YEAS--80

     Baldwin
     Barrasso
     Bennet
     Blackburn
     Blumenthal
     Blunt
     Booker
     Boozman
     Braun
     Brown
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Coons
     Cornyn
     Cortez Masto
     Cramer
     Crapo
     Daines
     Duckworth
     Durbin
     Ernst
     Feinstein
     Fischer
     Graham
     Grassley
     Hassan
     Heinrich
     Hirono
     Hoeven
     Inhofe
     Johnson
     Kaine
     Kelly
     Kennedy
     King
     Klobuchar
     Lankford
     Leahy
     Lee
     Lujan
     Lummis
     Manchin
     Markey
     Marshall
     McConnell
     Menendez
     Moran
     Murkowski
     Murray
     Ossoff
     Padilla
     Peters
     Portman
     Reed
     Risch
     Romney
     Rosen
     Rounds
     Sasse
     Schatz
     Schumer
     Shaheen
     Shelby
     Sinema
     Smith
     Stabenow
     Tester
     Thune
     Tillis
     Tuberville
     Van Hollen
     Warner
     Whitehouse
     Wicker
     Wyden
     Young

                                NAYS--15

     Collins
     Cotton
     Cruz
     Gillibrand
     Hagerty
     Hawley
     Hickenlooper
     Merkley
     Rubio
     Sanders
     Scott (FL)
     Scott (SC)
     Sullivan
     Toomey
     Warren

                        ANSWERED ``PRESENT''--1

       
     Paul
       

                             NOT VOTING--4

     Burr
     Hyde-Smith
     Murphy
     Warnock
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 80, the 
nays are 15. One Senator responded present.
  Under the previous order requiring 60 votes for the passage of this 
joint resolution, the joint resolution is passed.
  The joint resolution (H.J. Res. 100) was passed.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.


                         United States v. Texas

  Mr. CORNYN. Madam President, earlier this week, I did something I 
haven't done in a number of years, which is to attend a session of the 
U.S. Supreme Court, their oral arguments.
  Of course, as you know, during the COVID pandemic, even the Supreme 
Court had to change the way it operated, but now the Court is back in 
the Supreme Court Building, meeting together, and listening to oral 
arguments and deciding some of the most important cases that are 
confounding the country and our legal system.
  But the case that I listened to oral arguments in hit very close to 
home because the style of the case was United States v. Texas. It 
centers on a memo issued by the Department of Homeland Security 
Secretary, Alejandro Mayorkas, which he released last fall. In it, he 
provided specific confirmation--indeed, actually direction--to our 
Border Patrol agents that they would no longer have any hard and fast 
rules when it comes to removing illegal entry into the United States, 
particularly by those who commit serious crimes. So rather than a 
mandatory rule, Secretary Mayorkas said: Well, you have to weigh these 
various factors to see whether somebody who is guilty of a serious 
crime should be removed from the United States.
  Under this memorandum, officers with Immigration and Customs 
Enforcement were discouraged from arresting or removing illegal 
immigrants unless they posed a threat to national security, public 
safety, or border security. That sounds reasonable, but it is a little 
more amorphous, a little more vague than specifically people who have 
committed aggravated felonies.
  The memorandum, though, goes on to say that the Agency will 
prioritize anyone who poses a ``current threat to public safety,'' but 
it is unclear exactly what that means. The guidelines state that this 
``is not to be determined according to bright lines or categories.''
  If you are a law enforcement officer, like the Border Patrol, what do 
you want? You want bright lines. You don't want categories. You don't 
want some woke statement about, well, on one hand, you have to consider 
these factors; on the other hand, you have to consider these factors. 
They need bright lines so they can make, perhaps, even life-and-death 
decisions.
  But what Secretary Mayorkas has said in this memorandum is that there

[[Page S6933]]

is really no clear guidance, no clear definition for our Border Patrol 
in terms of the people they need to detain and remove from the United 
States because they are a public safety threat. I would hope that 
crimes like murder, rape, and aggravated assault would meet this 
balancing test by Secretary Mayorkas, but the memo does not offer any 
specifics. It is, on this hand, you have to consider these factors; on 
the other hand, you have to consider these without any real guidance.
  We know it is unfair to our law enforcement officials to not provide 
them with better guidance because they have to make difficult 
decisions--sometimes split-second decisions, sometimes life-and-death 
decisions. And to have somebody come back and say, ``Well, you didn't 
properly balance the considerations,'' as opposed to having a bright 
line rule or category, which is less discretionary and which provides 
much more clarity and certainty, I think it is a disservice to them, as 
well.
  What about domestic violence, what about child pornography, what 
about driving under the influence of alcohol, money laundering, 
embezzlement? You can look in this memorandum and you won't find any 
answers to those questions, just the old balancing test: On the one 
hand, think about these things; on the other hand, think about those.
  The administration has offered such vague guidance with the term 
``current threat to public safety'' that different ICE officers may 
well reach different conclusions.
  Making matters worse, the memo outlines mitigating factors. So not 
only do you consider these factors and these factors and balance them, 
then you need to consider mitigating factors that an officer should 
consider whether to enforce the law or simply walk away. This includes 
the age of the migrant, as well as how long they have been living in 
the United States, as if a migrant entering the country illegally 
somehow would acquire some equity or vested interest because they have 
been here longer than somebody else. That makes no sense at all.
  The memorandum also said that the law enforcement officer must also 
include a consideration of the physical or mental condition of the 
migrant. It even directs ICE officers to consider how the removal of 
somebody illegally in the United States would impact other people and 
their family.
  Just to be clear, these are not mandates from Congress. This is the 
product of a made-up memorandum by the Secretary of Homeland Security. 
Congress has given the Department the authority to exercise some 
prosecutorial decision, but there is a difference between prioritizing 
certain offenses for removal and effectively exempting entire 
categories for enforcement.
  I think one of the problems that Secretary Mayorkas has is that he 
thinks he has the authority to pick and choose which laws to enforce. 
He has no such authority. Now, he does have authority in terms of 
prioritizing them.
  But, basically, he said that somebody who was in the country 
illegally because they violated immigration laws is the lowest of 
priorities for detention and removal. That is what gets you several 
million people over the last couple years. That is what gets you a 
border crisis, which allows for the illegal importation of the drugs 
that killed 108,000 Americans last year--that sort of wokeness and 
lawlessness.
  We have seen previous administrations prioritize the removal of 
terrorists, transnational criminals, or people who pose a threat to 
public safety or national security, and that is fine. I think we can 
all agree that law enforcement should use its limited resources to 
address the biggest threats but not in the process exempt other people 
who have violated the law from any potential consequences. It defies 
all common sense to instruct a law enforcement officer to turn a blind 
eye when they encounter individuals who came here illegally and 
committed other crimes just because those crimes aren't, in the opinion 
of Secretary Mayorkas, serious enough or because of the age of the 
individual or how long they have actually resided here in the United 
States.

  The lower court, the District Court for the Southern District of 
Texas, found that Secretary Mayorkas's memorandum guidance doesn't 
justify common sense. They found that it breaks the law. Congress has 
provided the requirement and said that the Secretary ``shall take into 
custody'' noncitizens who commit certain crimes--``shall.''
  The question Chief Justice Roberts kept asking is, Does ``shall'' 
mean ``shall'' or does ``shall'' mean ``may,''--because the law, which 
Congress has passed and was signed by the President of the United 
States, says that you ``shall take into custody'' illegal immigrants 
who commit certain crimes and you ``shall remove'' those individuals 
once they are released from criminal custody. So the word ``shall'' is 
mandatory. It is not discretionary. Congress's law that we passed isn't 
just a polite suggestion. It is an instruction, it is a direction. It 
is a requirement. It is a mandate.
  The reality of this situation, however inconvenient it may be for 
some of our colleagues, is that by entering the United States 
illegally, these individuals have, by definition, broken the law. The 
Secretary of Homeland Security doesn't have the authority to determine 
whether those individuals should face the legal consequences that 
Congress has mandated. That is our job, and the decision was made long 
before President Biden or Secretary Mayorkas took office.
  The State of Texas is disproportionately affected because we have a 
1,200-mile common border with Mexico, and we are seeing the bulk of 
this wave of humanity and the drugs coming across the border, and it 
has imposed a significant burden on our border communities and on our 
State.
  But I believe that the State provided a strong case that the Justices 
should vacate this dangerous and illegal memo once and for all. If you 
think about it a minute, by saying, ``Well, you have to weigh these 
factors against these factors and, oh, by the way, if somebody is of a 
certain age or has been here a while then you exclude them entirely,'' 
what this memorandum did and does is sent a clear message to the world 
that if you come to the United States illegally, you will be able to 
stay as long as you don't get caught committing a murder or some other 
heinous crime. But if you commit other crimes, you still might be 
released by the Department of Homeland Security because there is no 
bright line rule requiring removal under those circumstances.
  This turns on its head what the obligation of the Secretary of 
Homeland Security should be. He takes an oath similar to the one we 
take to uphold the law, the Constitution and laws of the United States. 
I believe it is a clear violation of his oath and his responsibility to 
try to provide this watered-down memorandum. It is completely 
impossible for an individual Customs and Border Protection officer to 
know how they should strike the balance. It is going to be second-
guessed.
  As I said earlier, two Border Patrol agents looking at the same 
individual may weigh these factors differently. Well, it is 
contributing to the Biden border crisis that we have seen raging for 
the past 2 years. The United States, as we like to say, is a nation of 
laws, not men and women. In other words, it doesn't depend on who you 
are. It depends on what the law is, and we all have the same obligation 
to follow the law. The Secretary simply doesn't have the authority to 
cherry-pick which laws he wants to enforce and which ones he doesn't.
  Congress writes the laws, and the executive branch is charged with 
enforcing those laws as written, not as how you wish they would be--
nothing more and nothing less. But, unfortunately, we have seen, time 
and time again--not for days, not for weeks, but for months and even 
now years--that the Biden administration has simply failed to clear 
this very low bar--enforce the law.
  It is discouraging ICE personnel--again, ICE is Immigration and 
Customs Enforcement--from enforcing our immigration laws.
  You remember that, a couple of years ago, some of the more radical 
members of our colleagues' political party said: You should abolish 
ICE. We shouldn't enforce any of our laws.
  But the consequences are pretty clear now. They failed to secure the 
border or provide frontline law enforcement and agents with the 
resources they need in order to do their job. These can sometimes be 
very dangerous jobs.

[[Page S6934]]

  What is more, the administration has actually sanctioned villainizing 
Border Patrol and ICE personnel for doing the very job that we asked 
them to do--enforcing our immigration laws.
  Frequently, if you talk to the Border Patrol agents, they will talk 
about the push factors that encourage people to leave their home 
country, like poverty and violence. And then they talk about the pull 
factors, or what they can expect to encounter at the border as to 
discourage them from coming or to encourage them.
  There has been no attempt by the Biden administration to address the 
pull factor that encourages people to make the dangerous trek from 
their homes and come to the United States illegally.
  That would be something called deterrence, discouraging somebody from 
illegally coming to the country in the first place. And the asylum 
program, which has now resulted in millions of cases on the backlog of 
immigration courts, there has been no effort made to try to fix the 
broken asylum process, no attempt to strengthen law enforcement and to 
actually remove people who have no legal right to be here in the United 
States.
  If you go to the border now--as I have been many times--and you talk 
to the Border Patrol agents, they will tell you that they routinely 
detain people from as many as 150 different countries. This isn't just 
people coming from Mexico or Central America; these are literally 
people coming from around the world. You will find Ukrainians. You will 
find Russians. You will find people from the Middle East. You will find 
people from Iran, North Korea, China.
  The fact of the matter is that if you have enough money, if you are 
willing to pay the price that these human smugglers require, you can 
make your way into the United States and through our southern border 
illegally.
  So it is an abdication of duty and a complete embarrassment to our 
law-abiding society. I think many Americans watch what is happening at 
the border, and they wonder, is this the same country I grew up in, or 
did I miss something? Because they feel like something has gone 
terribly awry with this sort of lawlessness and chaos.
  The Biden administration's laissez faire attitude toward our Nation's 
immigration laws is absolutely disgraceful, and there must be 
consequences. The American people deserve better than this, and I hope 
to see more accountability next Congress once Republicans take control 
of the House.
  That means that we will have new chairmen of the various committees, 
and they will call people like Secretary Mayorkas before those 
committees and hold them accountable. But until that happens, I don't 
expect things to get much better, because if the Biden administration 
hasn't been motivated to get off the dime and actually do something 
about this chaos and lawlessness at the border, I don't know what it 
will take to change their minds.
  But sometimes when public officials don't do what they are supposed 
to do and you can't change their minds, sometimes you need to change 
who those public officials are. Unfortunately, we may have to wait 
until the next election to do that.
  Immigration enforcement is a bigger job today than it was a few years 
ago, and I am afraid it is getting ready to become even more 
challenging. Just last month, the DC district court judge vacated the 
Center For Disease Control's title 42 order, and the judge granted a 5-
week stay which will expire here in less than 3 weeks.
  Title 42--just to remind everybody--is a pandemic-related order 
designed to protect public health. It is not really an immigration 
order, but it is a public health order. So when people are coming 
across the border untested and unvaccinated, we recognize that is a 
potential to spread even more of the coronavirus.
  And so Border Patrol has told me as long ago as about a year ago that 
they have been able to expel some people, particularly adult males, 
from coming across the border using the title 42 authority. But that is 
getting ready to go away in 5 weeks--or less than 3 weeks now.
  And we have not heard any plan out of the Biden administration for 
how they are going to do the job without that authority, because they 
simply refuse to use any other authorities, like expedited removal, in 
order to discourage people from illegally entering the country.
  Back when I sat down with some of the leaders of the Customs and 
Border Protection and Border Patrol, about a year ago now, they told me 
that once title 42 goes away, unless there is another alternative plan 
for controlling people's access to the border, they will lose control 
completely.
  At this point, title 42 is one of the few remaining tools we have to 
prevent even more chaos at the border. Of the more than 230,000 
encounters at the southern border in October, 230,000 migrants came to 
the border, more than 78,000 were removed under title 42.
  You might ask what happened to the rest of them. Well, they were 
ushered into the country, perhaps never to be heard from again, based 
on weak asylum claims or other refusals by the Biden administration 
simply to enforce our immigration laws.
  But 78,000 is not inconsequential. That is 78,000 people the Border 
Patrol didn't have to process, feed or house, or take care of. But once 
title 42 is gone, that will all change. And the consequences will be 
dire. It has been 2 weeks since the Federal judge struck down title 42, 
and I have yet to hear a peep out of the Biden administration what they 
will do to address these consequences.
  A few weeks ago, President Biden held a post-election press 
conference and was asked what he intends to do differently over the 
next 2 years, given the fact that 75 percent of the voters say the 
country is headed in the wrong direction. He said: Nothing. He intends 
to do nothing differently.
  Three out of four Americans believe the country is heading in the 
wrong direction, and the President of the United States of America 
says: I am not going to change the direction.
  The Senate majority leader shared the same sentiment, calling the 
election results a vindication for Democrats. Given their recent 
comments, President Biden and Senator Schumer don't seem to recognize 
there is a problem at all. In fact, they seem happy with the way things 
are going, and they have assured us that Democrats are just going to 
keep moving in the same direction.
  So if you think this is bad--and two-thirds of the voters believe we 
are headed in the wrong direction--just get ready, because it is about 
to get worse.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Order of Procedure

  Mr. SCHUMER. I ask unanimous consent that all postcloture time on the 
Blackwell and Pryor nominations be considered expired; that the vote on 
confirmation of the Blackwell nomination occur at a time to be 
determined by the majority leader, following consultation with the 
Republican leader; and that the vote on the confirmation of the Pryor 
nomination occur at 5:30 p.m. on Monday, December 5.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

                          ____________________