[Congressional Record Volume 170, Number 145 (Wednesday, September 18, 2024)]
[Senate]
[Pages S6127-S6130]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. 685
Mr. LEE. Madam President, I appreciate my friend and colleague, the
Senator from Alabama, for leading this discussion today. This is an
important one to have. And I am honored to be here to be part of it.
You know, the situation at the border, across our southern border,
is, by any standard, a humanitarian crisis and nothing short of that.
Vice President Kamala Harris, appointed by President Biden as his
border czar, publicly declared that she would focus as border czar on
addressing the root causes of immigration.
However, now that Kamala Harris is the Democrats' nominee for the
Presidency, she and the legacy media want to pretend that was never the
case. Axios even reported that Vice President Kamala Harris ``never
actually had''--that is a direct quote--``never actually had'' the
title of border czar.
That is funny because that is a claim that contradicts the reporting
that we have seen from Axios itself on this. In fact, we can see that
right here in this chart.
On April 14, 2021, Axios reported that ``Harris, [who had been]
appointed by [President] Biden as border czar, said she would be
looking for the `root causes' that drive migration.''
Moreover, a tweet from her official Twitter handle further emphasized
her role:
@POTUS asked me to lead our diplomatic work with Mexico, El
Salvador, Guatemala, and Honduras. To address the situation
at the southern border, we have to address the root causes of
migration. It won't be easy work--but it's necessary.
I agree; it is necessary. She took on this role. She acknowledged the
role, and she failed.
Since Biden and Harris's inauguration a little more than 3\1/2\ years
ago, over 10 million undocumented immigrants have entered the United
States and have done so illegally. This figure exceeds the population
of 36 States. Meaning the overwhelming majority of our States, 36 out
of 50 have populations smaller than the total number of persons
entering the United States illegally on the watch of border czar Vice
President Kamala Harris, thus creating a crisis that has been met with
a troubling combination of silence and inaction from this
administration--the executive branch of government responsible for
enforcing our border laws and the border itself.
Now, if the Biden-Harris administration were serious about addressing
the crisis at the border and addressing the issue and ensuring, in the
process, that the real victims of government persecution in other
countries would receive asylum here, then they would support reforming
our broken asylum process. And, sadly, they are not. We are still
encountering over 100,000 illegal immigrants at our southern border
each month.
Now, since President Biden took office, there have been almost 10
million illegal immigrant encounters nationwide. Keep in mind, this
doesn't reflect the sum total of those who have crossed into our
country. These are just the documented immigrant encounters throughout
the country. Though, there are more. That is a subset of the total flow
of illegal immigration. Over 360 individuals on the Terrorist Watchlist
have been stopped while trying to cross the southern border.
And, shockingly, 27,583 Communist Chinese nationals have been
encountered at the southwest border in the last year alone. That is a
lot of people. And China is not close to the United States.
By any metric, the Biden-Harris administration has shown no interest
in securing our border. In fact, the data suggests this administration
wants as many illegal immigrants to enter this country as possible.
My Democrat colleagues want to pretend that Republicans are somehow
responsible for this crisis. Why? Well, it is obvious why. They don't
want to own it given that their party owns the crisis, as their party
is running the administration and it is responsible for making
decisions that has allowed this in.
What argument did they use in order to blame Republicans who are not
in control of the administration, do not occupy the White House, or
control the majority in this Chamber? What is their argument as to why
we as Republicans are to blame? Well, because we were unwilling to pass
a bad immigration bill that would have normalized thousands of illegal
entries across our southern border each month--and particularly in the
hands of the Biden administration, it could have and inevitably would
have made the situation much worse.
But today I am offering a smaller bill, a narrower bill, a more
focused bill that would help alleviate the crisis by closing loopholes
in the law. These would be helpful. They are not necessarily things
that represent a complete loophole such that President Biden would be
powerless to enforce the border without them, but they would make it
harder for President Biden to justify the massive loopholes that he has
manipulated.
This isn't the entire answer. This bill wouldn't necessarily solve
the whole problem. But if my Democratic colleagues can't agree that
these commonsense reforms need to be adopted, then how can we take
their concern about the border crisis seriously?
My bill, the Stopping Border Surges Act, would address loopholes in
our immigration laws, which have helped create some of the perverse
incentives for illegal immigration. It made it easier for the Biden
administration to facilitate this flow of 10 million illegal immigrants
into our country over the last 3\1/2\ years.
The bill would clarify that an adult cannot bring a child into this
country expecting that child to be his or her ticket to avoid
detention. This would help eliminate the disturbing practice of what is
sometimes referred to by the Border Patrol as the practice of recycling
children and babies by coyotes and cartels.
People will bring in a child, and sometimes that same child will be
brought in under similar circumstances over and over and over again as
the ticket into the United States--the ticket thus making it less
likely that they will be detained and ultimately deported.
It allows all unaccompanied children to be returned to their home
countries, thus ending the incentive for the parents to send their
young children here alone, leaving them vulnerable to abuse.
Sadly, we see what is happening to those children under the
supervision of the Biden-Harris administration and Secretary Mayorkas.
They are trafficked either into child slavery, sex slavery, or as drug
dealers.
My bill would require that the Department of Health and Human
Services provides DHS with biographical information about the persons
to whom children are being released so that they know something about
them, rather than just ``This is the person to whom you are going to
release the child.''
It also requires asylum seekers to apply for and be denied asylum in
at least one safe country on their route from their country of origin
to the United States. It would combat the Biden-Harris administration's
obliteration of the credible fear standard by heightening the burden of
proof.
The correct application of this standard is pivotal to the operation
of our asylum system and making sure that it is there for those who
need it and not subject to rampant abuse by those not eligible for it.
It has been corrupted over the years. But this administration has
destroyed it entirely--manipulating it to the point where it is now
beyond recognition. We must fix it.
It is sad that we have to fix it, but we have to fix it in large part
because it has been so distorted and abused by this administration,
profiting international drug cartels to the tune of tens of billions of
dollars a year, leaving a huge--huge--wake of human suffering in its
path.
It would close loopholes and restrict asylum to aliens who present
themselves at an official point of entry. We must eliminate these
loopholes and not allow the Biden-Harris administration to make more of
them.
Congress needs to take back the authority to establish law. We can
start today by passing the Stopping Border Surges Act.
Ending the ambiguities in our current asylum law will help to
mitigate the situation at the border and prevent unelected,
unaccountable bureaucrats from acting with utter impunity to enforce
their own policy preferences, culminating inevitably in open borders
[[Page S6128]]
with more than 10 million people coming into this country in a space of
only 3\1/2\ years. So I urge my colleagues to support this legislation.
To that end, Madam President, as if in legislative session and
notwithstanding rule XXII, I ask unanimous consent that the Committee
on the Judiciary be discharged from further consideration of S. 685 and
that the Senate proceed to its immediate consideration; further, that
the bill be considered read a third time and passed and that the motion
to reconsider be considered made and laid upon the table.
The PRESIDING OFFICER. Is there an objection?
The majority whip.
Mr. DURBIN. Madam President, there is a pamphlet that is circulated
to tourists and students alike entitled ``How Laws Are Made,'' and it
tells the basic process under our Federal Constitution for enacting
legislation. It talks about committee hearings; it talks about votes in
committee, votes on the floor--in the Senate, then in the House;
conference committees, agreements, a lot of other votes. Finally, the
measure is sent to the President, if it is successful, for his
signature or his veto. That is the ordinary process.
You will not see what is happening on this floor of the Senate in the
pamphlet to describe how laws are made. It is such an unusual thing.
Here we are in the Senate, basically trying to say: I ask unanimous
consent to ignore the Constitution as written and the laws as described
and go ahead and pass this bill anyway.
Well, you might say there are times when that is needed--and it is--
but when it comes to the issue of immigration, there is a much broader
consideration.
The fact of the matter is, it has been almost 35 years since we have
passed an immigration reform bill--35 years. I don't know how many
times the Senator from Utah has voted for an immigration bill--perhaps
not--but the point is, we have tried and can't bring the measure to the
floor. There is resistance and objection, primarily from the Republican
side of the aisle, for any type of comprehensive reform.
But there comes a time when there is a glimmer of hope. Once in a
while, something happens around here, and you think things are going to
be different. That happened not that long ago, a few months back.
We had a conservative Republican Senator from Oklahoma named James
Lankford. James and I disagree on so many issues, but I respect him so
very much when it comes to his legislative commitment. He sat down with
Chris Murphy, a Democratic Senator from the State of Connecticut, and
they said: Can we, Republican and Democrat together, come up with a
measure that won't solve every problem with immigration, but at least
it will move us forward?
What are we going to include in that?
Well, we are going to include provisions that dictate what happens
when someone presents himself to the border: who would be considered in
a fast fashion and who would not be.
We are going to put more Border Patrol agents on the border. They
wrote a provision that the Border Patrol agents' union--thousands of
men and women who risk their lives--endorsed.
Well, what are we going to do about fentanyl and narcotics that are
coming into the United States as well? They added more provisions and
then more law enforcement to stop the flow of narcotics.
There were provisions in that bill which I didn't like, but by and
large, I had to say that was a good bill. It really was a bipartisan
effort to solve some of the major problems we have.
Some on the Republican side said: Unless you pass this bipartisan
bill, we are not going to allow other business to occur.
It was a pretty serious showdown moment. So we were prepared to do
it. A lot of us were prepared to vote for this measure. It was
bipartisan, it made real progress, and it really addressed the flow of
people coming across the border.
What happened next is important. What happened next is one person
stepped up and said: Stop. That person was Donald Trump, the former
President of the United States. He said: I don't want this bipartisan
measure that Senator Lankford and Senator Murphy have crafted to pass
in the Senate.
Critics said: Wait a minute, former President. If we don't do this,
we won't do anything. We won't be able to address this measure
significantly or constructively before the next election.
He said: So be it. Blame it on me, Donald Trump said. Kill this bill.
The word went out on the Republican side: Stop where you are. No
measure is to pass, not even this bipartisan measure.
When it turned out that only a handful of Republicans were willing to
defy Donald Trump, the measure died. That was the end of it.
You have to ask yourself, did we miss an opportunity there? The
answer is, we certainly did--a bipartisan opportunity to do something
constructive. And the decision was made by Donald Trump that he would
rather have this issue going into the election in 2024 than to have any
solution, bipartisan solution, which might inure to the credit of the
Democrats as well as the Republicans. That was the end of the
conversation.
So we find ourselves on the floor today with a measure that is being
suggested on it by unanimous consent that, of course, did not go
through committee and has not been reviewed, and it unfortunately has
some serious flaws. Instead, this bill targets the most vulnerable
people seeking safety and protection in the United States: children
traveling without a parent or guardian, families with minor children,
and asylum seekers fleeing persecution.
The bill that is before us--the unanimous consent request--would
strip away protections for unaccompanied children. It would deport many
of them back into the hands of smugglers, keep others in detention for
up to a month, and keep them separated from adults who could care for
them. This bill would require families to be detained--a failed policy
that has disastrous effects on children and doesn't make the border any
safer.
This bill would also create multiple new restrictions on asylum,
undermining our longstanding commitment to refugees seeking safety,
such as the people in Ukraine. Many of them were refugees to the United
States, once attacked by Vladimir Putin, and I believe most Americans
agree that providing protection for them and their families is the
right thing to do.
The Biden administration is doing what it can under our outdated
immigration laws to secure the border, and encounters between the ports
of entry have decreased by more than 50 percent. Yes, there are too
many flowing over the borders at various times, but we have seen
dramatic reductions in those who are coming across our border now, and
we could have seen more with this bipartisan bill, which Donald Trump
and his loyalists ended up killing.
The administration has dramatically increased deportations, made
tough changes in our asylum system, and improved access to lawful
pathways to citizenship, but ultimately it is Congress's responsibility
to reform our broken immigration system, which has not been updated, as
I said earlier, in 35 years.
To resolve our challenges at the border, we need immigration reform
that will actually fix our broken immigration system and provide the
necessary resources to DHS to secure the border. Rather than providing
additional resources, improving infrastructure, or adding more lawful
pathways, this bill would undermine fundamental American values and put
families and children at risk.
Recently, a bipartisan group of Senators had a tough border deal put
together. I want to commend Senator Lankford for his courage in
stepping up, particularly when Donald Trump was opposed to it. I wish
the majority of Republicans would have stood behind their Senator from
Oklahoma, but the Senator from Utah and others decided they wouldn't.
They would rather take these opportunities to come to the floor and try
the unanimous consent route.
Donald Trump was crystal clear. He said: Blame it on me if the bill
fails. The bill failed, and I am blaming it on him just as he has. He
doesn't want a solution; he wants an issue in November.
The time is long past due for my Senate Republican colleagues to stop
partisan bickering, get behind James Lankford's effort, and work on a
bipartisan basis to pass the immigration
[[Page S6129]]
legislation the American people deserve.
I object.
The PRESIDING OFFICER (Ms. Rosen). Objection is heard.
The Senator from Utah.
Mr. LEE. Madam President, I appreciate the thoughtful remarks from my
friend and colleague, the distinguished Senator from Illinois. He and I
have worked together on many issues. We don't agree on everything, but
when we do agree, it is a lot of fun. We are able to do a lot of great
things together. I appreciate his leadership on the Judiciary Committee
and the fact that he has always been friendly toward me.
I also appreciate his reference to our sort of civics aspect of what
we do. The notion of how a bill becomes a law is always, always
instructive. It is always helpful to bring that up. You know, we have
lost some of that in our system, and people get confused as to how laws
are made.
Of course, the very first operative provision of the Constitution--
article I, section 1--has only one clause, so it is clause 1. The very
first language after the preamble says that all legislative powers
herein granted shall be vested in a Congress of the United States which
shall consist of a Senate and a House of Representatives.
Remember, legislative powers are lawmaking powers, meaning all power
to make law--to make Federal law--is vested in this body and the body
with which we share the legislative power just down the hall, the House
of Representatives.
Article I, section 7 elaborates on this function and makes clear yet
again that you cannot make a Federal law without following this
formula. The formula prescribed by article I, section 7 is bicameral
passage followed by presentment to the President of the United States.
You have to pass the same legislative text down the hall and also pass
it here. It doesn't matter in what order unless it is a revenue bill,
but that is not relevant here, but it does have to be the same text
passed by both bodies. Then and only then can you present it to the
President for signature, veto, or acquiescence. That is how you make a
law. That is what the Constitution requires.
Now, on top of that, we have a number of other procedures that we
have added by Senate rule, precedent, procedure, common practice. Those
are not required by the Constitution, but those rules and practices are
acknowledged as legitimate by the Constitution. Yes, most of the time,
we pass those, but it is ultimately up to us to decide when, whether,
to what extent, and in what ways to follow all of our procedures.
And I agree with the Senator from Illinois--it does make sense
whenever we can do it--that we always should follow our own procedures.
It generally works out best if we can move something through committee,
if we can have a full committee hearing and we can have what is called
a markup, where we introduce and entertain amendments to proposed
legislation, pass it out of committee, and then bring it to the floor
ultimately.
I think we generally have much better legislation when we do it that
way, and I would love to follow that procedure with this particular
bill. If what the Senator from Illinois and the chairman of the
Judiciary Committee is offering is for us to have a full committee
hearing and a markup on this bill, I would love that, and I would
gladly entertain that.
Tragically, in the Senate, we have seen a deviation from that same
practice--that same practice to which he attributes great significance,
understandably, today. In fact, fully 94 percent of all legislative
matters passed by this body are passed by this same procedure that I am
attempting to utilize here today--by unanimous consent.
The way it works is, essentially somebody makes a request, and they
ultimately come down to the floor like I have done today and say: Let's
call up and pass this bill.
Why would we do that? Well, in many instances, committee chairmen
have become somewhat stingy with what bills on which they are going to
hold hearings and markups. We have been unable to get a hearing or a
markup set on this bill, and so this bill, like so many others--in
fact, like 94 percent of all legislation passed by this body--comes to
the Senate floor today without the benefit of having had either a
hearing or a markup.
Well, that doesn't stop the 94 percent of the legislation from moving
forward. In fact, in addition to that 94 percent of the legislative
proposals that are passed by unanimous consent, an additional number of
them--I am not sure what the number is; it probably varies a little bit
from year to year--but an additional number of them are brought to the
floor and passed not unanimously but by rollcall vote without having
had the benefit of either a full committee hearing or a markup. This,
too, is unfortunate. Sometimes it is necessary and unavoidable, and
other times, it is not.
The point is this: Neither the Constitution nor the Senate rules
prohibit passing legislation this way. Sometimes it becomes necessary
when the other path has been made unavailable to us by the majority
party and the committee chairman.
In this circumstance, there is an additional reason why we need to
bring this forward. We talked a minute ago about the legislative
process required by the U.S. Constitution to pass a law to make or
change any statute that is Federal in nature. You have to go through
that article I, section 7 formula: bicameral passage in Congress,
followed by presentment to the President for signature, veto, or
acquiescence.
What the Constitution does not countenance and certainly prohibits is
the making of new law or the modification of existing law by the
executive branch of government or by anyone or anything outside the
framework of article I, section 7. That is what we have seen with our
immigration laws, including and especially with this administration
with regard to laws that are relevant here--laws, for example,
involving asylum standards.
The asylum standards have morphed over the years, over many decades,
and the practice of applying our asylum laws has become so different
under this administration than what the law actually says, although
this is comparable in many respects to another great frustration of
mine that is closely related to this where we outsource de facto
lawmaking authority to unelected, unaccountable bodies in the executive
branch, allowing them to just make new law. We call them regulations to
get around the obvious awkwardness that would otherwise be created by
this thing called the Constitution to which we have all sworn an oath,
but we allow, in effect, the executive branch to make laws that way
under the form of rules and regulations.
But either way, whether it is by the stroke of the Executive pen or
whether it is through an administrative Agency, we have seen laws being
made and changed entirely outside the constitutionally authorized
process recognized by article I, sections 1 and 7.
So it is one of the reasons we are here today because we have had the
executive branch making and changing law not authorized by the
Constitution, and we have had a lack of access to committee hearings
and committee markups. So that is why we come here today and do this.
While it is not ideal, it is how 94 percent of the legislation passed
by this body is, in fact, passed. So that kind of matters. That
provides some helpful context.
We talked a little bit about asylum and how the asylum laws have been
abused and modified. The idea behind asylum is that if you are subject
to certain kinds of persecution in your home country, we want to
provide people with a place to go.
The problem we had in this administration--the way it is supposed to
work is if you show up without documents at the U.S. border and you
make the case that you are entitled to stay here as an asylee, well,
you are supposed to be detained until such time as they can decide the
issue. You don't have a statutory or a constitutional right to be
granted asylum. It is a discretionary grant of authority given to the
Secretary of Homeland Security. No one has a guaranteed right to it. So
you are supposed to be detained while they consider your application,
whether or not they are going to grant it.
But instead, what this administration has been doing is just saying:
OK. Come in. You claim asylum. And they let you go. And because there
are so
[[Page S6130]]
many people coming in--about 10 million of them; many of them are
claiming asylum--they decide that the best thing to do is not deport
them because they can't handle all those asylum applications. They
can't adjudicate them. They say: Well, let's just let them go--let them
go and tell them that at some point you may hear about a hearing that
will be scheduled before an immigration judge. We hope you will come to
your immigration hearing. At the current rate, many of these people are
being told that their immigration hearing may not happen until the mid-
2030s.
This doesn't make any sense. This amounts to a de facto change in
law.
It definitely amounts to a de facto change in law when we have got
things like what is called immigration parole. Immigration parole is
supposed to exist as a discretionary grant of authority, allowing the
U.S. Government to let somebody come into the United States either for
a specific humanitarian purpose or a public purpose. But it has to be
individualized, not generalized by country, not broad categories, and
an individual person. The law specifies that.
An example of a humanitarian purpose is somebody is in a foreign
country. Maybe their mother lives here. She is about to die, and that
person needs to come in and be there for the funeral with the
understanding that he or she will probably leave thereafter.
The public use, the public benefit example, would be someone who
maybe speaks an obscure language. We don't have adequate interpretation
services in that language here. We need somebody to come in and
translate for that language. We allow them to come in, be a translator
for that trial, with the understanding that they will leave.
Well, this President has granted contrary to what the law allows. He
has effectively rewritten the law so as to just grant huge categorical
blocks of immigration parole. We are talking to the tune of hundreds of
thousands of people who have been admitted in a single year on these
things.
That is lawless. That is outside what the law requires. So, yes, that
is a change of law, and that is why we need to tighten this law here.
Now, I do want to get to this point about the so-called border bill,
the border bill that my friend and colleague from Illinois claims--
mistakenly but very wrongly--was killed only by one man, Donald J.
Trump. It is just not what happened, not what happened at all. And I
don't agree with his description of the bill either.
The Senator from Illinois and I share a common friendship with and
great affection for the senior Senator from Oklahoma. The senior
Senator from Oklahoma did a fantastic job. He had done a great job on
so many things that he decided that he would try to negotiate this. I
think it was done at the request of the minority leader, the Republican
leader in the Senate, to try to negotiate something.
The Senate Republican conference wanted legislation that would, in
one way or another, tie President Biden's hands so he couldn't continue
to abuse and negotiate that system of laws, and so he went in there. He
did his best to negotiate that. At the end, most Members of our
conference didn't feel comfortable with what he negotiated because it
wouldn't adequately tie President Biden's hands.
It is not his fault, and it is not Donald Trump's fault. But the fact
is that most of the Members of our conference didn't feel that it did
enough to tie President Biden's hands.
Perhaps under the jurisdiction of a different President, that
legislation might have worked but not with this President. It certainly
didn't tie President Biden's hands.
So it wasn't Donald Trump who killed the bill. It was the fact that
we didn't have the votes here.
So, look, this is a big deal. It matters. I reject, fundamentally,
the premise that we can't reform any of our immigration laws without
so-called comprehensive reform, which is usually code for something
else, including allowing large numbers of persons entering illegally to
be deemed legal.
So let's make sure we have the facts right, both on the way laws are
made and based on what happened with this legislation and why it is
necessary to pass the Stopping Border Surges Act.
The PRESIDING OFFICER. The Senator from Alabama.
Mrs. BRITT. Madam President, I appreciate the remarks from my
distinguished colleague from Utah.
While my colleague from Oklahoma gets set, I just want to recap a
couple of things. I mean, here we have today a fracking bill that has
been put on the floor but yet blocked by Democrats.
We have a bill here just now closing asylum loopholes, helping
unaccompanied children get back to their family, but that has been
blocked by Democrats.
Earlier, you saw us put a bill on the floor that would actually help
build a barrier on our southern border, but yet that was blocked by
Democrats.
When we have looked at how Vice President Harris is running, it is
obviously very different than the way she served.
If you look back in 2020, Vice President Harris said, ``Trump's
border wall is a complete waste of taxpayer money and won't make us any
safer.''
I am wondering if she will put a disclaimer that says that underneath
her commercials that focus on and show the border wall.
She said, as a Senator, that she vowed to block any funding for the
border wall and urged her colleagues to reject any funding for the
border wall, which is actually exactly what they continued to do and
you saw them do here today.
Here is the deal: You can't have it both ways. Kamala Harris either
wants to secure our border--which she has had ample time to do--
building barriers that help us keep Americans safe or she doesn't,
which is what we have seen throughout her tenure both in the Senate and
as Vice President. But yet now she is campaigning as something totally
different.
We saw here today that her newfound support of a border wall is not
supported by her Democratic colleagues here in the Senate.
I look forward to hearing more about what we have seen on the
campaign trail versus, in actuality, where she stands.
On that, I see my distinguished colleague from Oklahoma and would
love the opportunity to hear from him.
The PRESIDING OFFICER. The Senator from Oklahoma.