[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 8270-8272]
[From the U.S. Government Publishing Office, www.gpo.gov]




 BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION 
                   ACT--MOTION TO PROCEED--Continued

  Mr. SESSIONS. Madam President, I am delighted to see the 
administering of the oath to our new Senator. As a former Federal 
prosecutor, I know he understands much of the Federal law we deal with 
around here. Having been one of those myself, I welcome him and believe 
there will be many gifts and experiences he has had from that role that 
will help him serve in the Senate, writing laws that will actually be 
the laws enforced by his former fellow prosecutors around the country.
  A closer examination of the legislation before us, this is it here, 
over 1,000 pages now. But you have to study it because it makes all 
sorts of references to ``except as provided by'' in this section and 
that section and subsection E(2)(I)(1)(3) and things like that. It is 
hard to read. But a close examination reveals that the promised 
enforcement of immigration law in the future that is so critical, and 
the American people deserve, the American people have asked for, for 
decades, is not there.
  The triggers are not triggers at all. In fact, it would actually 
weaken even current law, granting the Secretary of Homeland Security, 
now Secretary Napolitano in particular, unprecedented power to 
determine how and when the border is secured, if ever. Remember, at 
this moment, the Secretary of Homeland Security is being sued by 
Federal law officers, ICE officers, Immigration and Customs Enforcement 
officers, of her own department because they say she is issuing 
directives to them to keep them from complying with plain Federal law.
  In other words, she is directing them not to comply with Federal law. 
The Federal judge has taken the case and allowed it to go forward and 
is taking testimony on it. But the bill that illegal immigrants can 
receive amnesty, not when the border is secured but when Secretary 
Napolitano tells Congress she is starting to try to secure the border. 
Within 6 months of enactment of the legislation, Secretary Napolitano 
need only submit to Congress her views on a comprehensive southern 
border strategy and a southern border fencing strategy and give notice 
that she has begun implementing whatever plans she decides to 
implement. At that point, she may begin processing applications and 
granting amnesty. Indeed, she will be doing that without any border 
security or enforcement measures ever being required to be in place.
  The reality is, once amnesty has been granted, it is never going to 
be revoked. Under this scheme, enforcement is unlikely ever to occur. 
That is just like 1986, which Senator Grassley earlier today, ranking 
member on the Judiciary Committee from Iowa, who was here in 1986, says 
was a great failure at that time. He voted for the bill. He says it was 
a mistake. It was a mistake because we did not put in mechanisms to 
ensure that in the future the enforcement would actually occur.
  That is why he opposes this bill. Frank Sharry, the head of America's 
Voice, a pro-amnesty advocate, recently said about these triggers, 
``The triggers are based on developing plans and spending money, not on 
reaching that effectiveness''--
  In other words, not reaching an effective system of security in the 
future--it is not tied to that. Then he goes on to say, ``which is 
really quite clever.'' Really clever, is it not, to see if they can 
fool the American people. They have written something that looks like a 
real trigger, that has teeth in it, that says you do not get your 
amnesty and legal status until enforcement occurs. But when we read the 
bill it is not there. Mr. Sharry actually lays it out.
  In fact, in 2007, Senator Isakson first came up with an idea of a 
trigger mechanism. That gained popularity. I think he was the one who 
wrote the language that was in that bill. It is much stronger than this 
one. It was much stronger than what is in the bill today. Actually, it 
had the potential to work.
  Remember, this was what was said when the bill was rolled out. 
Basically, they said the American people, we got a good bill. You can 
trust us. The enforcement will occur because we have triggers in the 
bill to guarantee it is

[[Page 8271]]

enforced. That is not so, is it? Colleagues, does that not make you 
uneasy? Should it not make the American people uneasy, when they have 
seen Congress time and time again avoid going forward with real law 
enforcement?
  The bill states that the southern border strategy should detail a 
plan for achieving and maintaining ``effective control'' of the 
southern border. Effective control is defined as ``persistent 
surveillance,'' which itself is not defined, plus ``an effectiveness 
rate of 90 percent or higher.'' What effectiveness rate? This is 
calculated by dividing the number of apprehensions and turnbacks in a 
sector during a fiscal year by the total number of illegal entries in 
the sector during that fiscal year.
  But this does not account for those who escape detection by the 
Border Patrol. During her testimony before the Senate Judiciary 
Committee, Secretary Napolitano all but acknowledged the effectiveness 
rate is meaningless because, by definition, the Department of Homeland 
Security has no idea how many people avoid detection.
  How can you have that formula? The measure is subject to almost 
limitless manipulation.
  One thing we all should remember, having been involved in this for a 
number of years now, the border should already be secure. It should 
already be secure. The Secure Fence Act of 2006, passed by both Houses 
of Congress, already requires, right now, the Department of Homeland 
Security to maintain 100-percent operational control of all land and 
maritime borders and required the Homeland Security to do so within 18 
months of the bill having been passed in 2006. That mandate has been 
ignored, not complied with, and the border is certainly far from 100-
percent operational control.
  We are going to pass a new bill that is even weaker than this and 
expect it is going to result in some major improvement in law 
enforcement?
  By contrast, the rejected 2007 immigration bill set a stronger target 
of 100-percent operational control of the entire border, which had to 
be met before illegal immigrants could be given the probationary legal 
status.
  The current bill is essentially the same as the failed 1986 bill. It 
is legality immediately and a promise of enforcement in the future.
  It is important to know that nothing in the bill prevents Secretary 
Napolitano from submitting a strategy--that is all she has to submit, 
is a strategy--that simply reiterates her publicly stated views about 
the border. She says first that the border is ``more secure than it has 
ever been.''
  While the bill states that Homeland Security shall start ``the 
implementation'' of the plan ``immediately after'' submission and give 
notice to Congress of its commencement and provide reports on its 
progress, nothing in the bill actually requires the Secretary to 
implement anything. It just doesn't. It is not there. All she has to do 
is start the amnesty process, what she intends to do, and then to 
submit reports in the future.
  We have heard there will be more fencing. You have heard that talk. 
The bill is going to make sure we have more fencing. But no language in 
the bill requires the Secretary to construct any fencing at all. 
Rather, the bill states the Secretary shall submit to Congress, within 
6 months of enactment, her views on a fencing ``plan'' to identify 
where fencing, if any, including double-layer fencing, infrastructure 
technology, including ports of entry, should be deployed along the 
border.
  The problem is Secretary Napolitano, who will be responsible for 
implementing these provisions, has said multiple times that no further 
fencing is necessary. She recently testified before the Judiciary 
Committee that Homeland Security would prefer to rely on drones and 
high-tech surveillance:

       We would prefer money . . . if we have our druthers, we 
     would not so designate a fence fund.

  Does it make more sense to use technology to observe people entering 
the country illegally, or does it make more sense to stop them from 
entering?
  After the Secure Fence Act was passed in 2006 requiring 700 miles of 
double-layer fencing, they said, well, we are not going to build 
double-layer 700 miles of fencing. We have a better idea. We are going 
to have a virtual fence. We are going to use technology, balloons, and 
things of that nature. We have this sophisticated plan. They spent $1 
billion on that plan--totally abandoned; an utter failure.
  That is what is upsetting the American people in this country. 
Promises are made. We are going to build a fence. We all vote for a 
fence. Then, oh, no, we are not going to vote for a fence, we have a 
better idea. Then we spend $1 billion and get zero for it.
  This is not necessary. We can make great improvements at the border 
if we have the will to do so. The will and the determination is what is 
lacking.
  Proponents of this bill have repeatedly said ``this legislation 
contains the toughest border immigration enforcement measures in U.S. 
history.'' If that is the case, then why is the bill weaker than 
current law? Why is it weaker than in 2007, the bill that was offered 
and rejected? Congress overwhelmingly passed the mandate to build a 
fence in 2006--and I was engaged in that debate--by 80 to 19 votes, 
with the support of then-Senators Biden and Obama. Vice President Biden 
and President Obama voted for it. It hasn't come close to having been 
built.
  I think we have 36 miles of fencing having been completed, when the 
bill called for 700. If we had done that, we would be in a lot better 
place to ask the American people today, let's be compassionate and see 
if we can't do something kind to people who have entered our country 
illegally.
  According to a Rasmussen's poll in April of this year, a substantial 
majority of Americans want the fence built, but Congress has failed to 
do so. The bill would authorize $8.3 billion in additional funding to 
carry out all of its provisions.
  You notice, it has some fencing language in it, $1.5 billion, but 
what is the $1.5 billion for? Is it to build a fence? You can build a 
lot of fence with that much money. No. It is for the developing of a 
fencing strategy, and the other things that money would be spent for 
too.
  In fact, a fence does save money. Since the fence is a force 
multiplier, fewer Border Patrol agents will be needed. They can cover 
more miles, and it reduces costs. It makes a clear statement to the 
world that the United States is serious: Our borders are no longer 
open. Don't come here illegally. If you do, we are going to apprehend 
you, and you will be disciplined in some fashion and deported. If we do 
that, we will see a dramatic reduction in the number of people coming 
to our country illegally.
  During our Judiciary Committee markup on this legislation, an 
amendment sponsored by Senator Leahy was adopted that says nothing in 
this provision ``shall require the Secretary to install fencing'' if 
the Secretary in her discretion determines that fencing is not 
necessary. Of course, she says she doesn't favor more fencing.
  In addition, the amendment requires that the Secretary consult with 
the Secretaries of Interior, Agriculture, States, local governments, 
Indian tribes, and property owners, before she could ever build a 
fence, and to minimize the impact on the environment, culture, 
commerce, and quality of life for residents.
  Well, you always try to do those things. All of this is an indication 
that with regard to the question of barriers and fencing to enhance the 
lawfulness at our border, this bill doesn't do it. Actually, this bill 
is hostile to it. Can you see that language in there? This was 
discussed at Judiciary. It passed in the committee.
  Only 36.3 miles of fencing out of the 700 has ever been completed. 
Had the rest of it been completed, we would be in a lot better shape 
today.
  We were told:

       If, in 5 years, the [Secretary's border security] plan has 
     not reached 100 percent awareness and 90 percent 
     apprehension, the Department of Homeland Security will lose 
     control of the issue and it will be turned over to the board 
     of governors to finish the job.

  That was Senator Rubio on the ``Mark Levin Show.'' This commission

[[Page 8272]]

they talk about at the border, the mere existence is left to the sole 
discretion of the Secretary of Homeland Security only if she determined 
that Homeland Security, her own department, ``has not achieved 
effective control'' of the border 5 years after enactment.
  Wait 5 years, and if she hasn't done the job--she has certified she 
hasn't done the job, and after the legalization has already been 
granted--it is then entirely up to the Secretary to determine whether 
her plans are ``substantially completed'' and ``substantially 
implemented''--then and only then would the Southern Border Security 
Commission be formed.
  The bill's proponents claim the commission would be ``a powerful and 
important policy-making body,'' and that the Secretary of Homeland 
Security will be compelled to implement the commission's 
recommendations. That was one of the Gang of 8's news releases.
  Not so. The commission is empowered only to make recommendations to 
the President, the Secretary, and Congress, which are then to be 
reviewed by the Comptroller General. Nothing in the bill requires any 
other commission's recommendations to be implemented. They don't have 
any power. Once it makes its recommendations, the commission dissolves 
in 30 days, kaput.
  As Byron York noted in the Washington Examiner in his column today:

       There is nothing in the bill requiring the commission to 
     finish the job of border security, and indeed it would have 
     no authority to do so.

  Indeed, it would have no authority to do anything, really, except 
issue a report.
  The second issue that deals with illegality in our country is the 
visa question. We were told the path to citizenship in the bill would 
be ``contingent upon . . . tracking whether legal immigrants have left 
the country when required.'' That has a plain meaning, have they left 
when required.
  Under current law, we have a mechanism where people are fingerprinted 
and they are identified when they come into the country. There is no 
clocking out when they leave the country.
  What does the bill do? Does it fix that problem? Let's look at the 
history of it. The bill rolls back the requirements in current law, 
laws that were passed on six different occasions by Congress since 1996 
for a biometric exit system. We have a biometric entry system at some 
points, but not an exit system. Yet instead of forcing the 
administration's hand, making this happen, this bill gives in to the 
executive branch's obstinacy over at least two administrations and 
provides for only an ``electronic,'' not biometric, exit system, and 
only at air and seaports, not land ports.
  It is estimated that nearly 40 percent of the illegal population here 
today are visa overstays. GAO, our Government Accountability Office, 
has repeatedly said a system such as the one called for in this bill 
will not reliably identify visa overstays, and that without a biometric 
exit system:

       DHS cannot ensure the integrity of the immigration system 
     by identifying and removing those people who have overstayed 
     the original period of admission.

  That is the Government Accountability Office's objective, nonpartisan 
analysis of the legislation.
  Beyond violating our laws, visa overstays pose a substantial threat 
to national security. Visa overstayers come from all over the world. 
The 9/11 Commission, after the 9/11 attacks, recommended that:

       The Department of Homeland Security, properly supported by 
     Congress, should complete, as quickly as possible, a 
     biometric entry-exit system.

  In a report entitled ``Tenth Anniversary Report Card: The Status of 
the
9/11 Commission Recommendations,'' they came back together to see how 
well their recommendations had been carried out. They praised the fact 
that we have an entry system, a biometric entry system known as US-
VISIT. It has been proven to be valuable, they say, in national 
security too.
  Despite this successful deployment of the entry component of US-
VISIT, the Commission notes there is still no comprehensive exit system 
in place. As important as it is to note when foreign nationals arrive, 
it is also important to note when they leave. Full deployment of the 
biometric exit component of US-VISIT should be a high priority. Such a 
capability would have assisted law enforcement and intelligence 
officials in August and September of 2001 in conducting a search for 
two of the 9/11 hijackers who were in the United States on expired 
visas.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair. I believe 5 o'clock has arrived. I 
thank the managers of the Agriculture bill. I know they worked hard on 
their legislation.
  I yield the floor.

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