[Congressional Record (Bound Edition), Volume 161 (2015), Part 1]
[Senate]
[Pages 1489-1493]
[From the U.S. Government Publishing Office, www.gpo.gov]




  DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2015--MOTION TO 
                                PROCEED

  Mr. McCONNELL. Madam President, I move to proceed to H.R. 240.
  The PRESIDING OFFICER. The clerk will report the motion.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 5, H.R. 240, a bill 
     making appropriations for the Department of Homeland Security 
     for the fiscal year ending September 30, 2015, and for other 
     purposes.


                             Cloture Motion

  Mr. McCONNELL. Madam President, I sent a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to H.R. 240, making appropriations for the Department 
     of Homeland Security for the fiscal year ending September 30, 
     2015.
         Mitch McConnell, John Cornyn, Richard Burr, Jerry Moran, 
           John Thune, Johnny Isakson, Marco Rubio, Roy Blunt, Pat 
           Roberts, Deb Fischer, John Boozman, David Vitter, Tim 
           Scott, Roger F. Wicker, Richard C. Shelby, Michael B. 
           Enzi, Rand Paul.

  Mr. McCONNELL. I ask unanimous consent that notwithstanding rule 
XXII, the mandatory quorum be waived and that the vote on the motion to 
invoke cloture occur at 2:30 p.m. on Tuesday, February 3. I further ask 
that if the motion to invoke cloture is agreed to, all postcloture time 
be yielded back and the Senate proceed to a vote on the motion to 
proceed to the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   Measures Considered By the Senate

  Mr. McCONNELL. Madam President, the Senate's passage of the Keystone 
jobs bill is great news for the American people. The Senate will soon 
turn its attention to a few different matters.
  First, we will be voting on a bipartisan measure that has been 
championed by the Chairs of the Veterans' Affairs and Armed Services 
Committees.
  We lose thousands of our heroes every year to suicide. It is a tragic 
situation. Senators McCain and Isakson are leading efforts to do 
something about it. Their legislation would provide more of the mental 
health and suicide prevention support our Veterans deserve. The measure 
already passed unanimously through the House of Representatives. Now we 
hope for a bipartisan outcome on the Senate floor.
  The same should also be said of a second piece of legislation we will 
consider. It is a debate that will challenge our colleagues on the 
other side with a simple proposition. Do they think Presidents of 
either party should have the power to simply ignore laws they don't 
like? Will our Democratic colleagues work with us to defend key 
democratic ideals such as the separation of powers and the rule of law 
or will they stand tall with the idea that partisan exercises of raw 
power are good things?
  The House-passed bill we will consider would do two things. It would 
fund the Department of Homeland Security and rein in Executive 
overreach. That is it. It is simple, and there is no reason for 
Democrats to block it.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Madam President, we are told that next week we can 
expect the Department of Homeland Security appropriations bill, which 
fully funds the Department of Homeland Security and includes the law 
enforcement priorities that were agreed to on a bipartisan basis in the 
House--and I think will be approved on a bipartisan basis in the 
Senate, hammered out in the Senate Appropriations Committee--will be 
coming to the Senate.
  The House of Representatives has therefore voted to fund Homeland 
Security in essentially the way the President has asked for and the 
Democrats and Republicans agreed on. It is not a perfect bill for 
everybody, but we have to do those things. We have to agree and fund 
all the departments and agencies of our government.
  Yet we now have a statement that our Democratic colleagues are going 
to block the bill. They apparently intend to say Republicans blocked 
the bill and that somehow Republicans didn't fund Homeland Security. 
That is the message they are going to try to promote.
  They are going to say they want a clean bill. What does a clean bill 
mean? Is it a bill that funds the Immigration and Nationality Act as 
was passed by Congress, some 500 pages? It funds the officers and 
enforcement officials who carry out those duties every day. Does it 
fund those? Yes, it funds those.

[[Page 1490]]

  What is it that people are complaining about then? What is this clean 
bill they want to see?
  I would suggest it is not a clean bill they want. In reality, they 
want legislation that will fund action by President Obama that violates 
the Immigration and Nationality Act, actions that he has taken through 
Executive amnesty. That is the problem we are dealing with.
  Apparently they believe the President of the United States, who 
doesn't agree with the way immigration law is written, the way it has 
been carried out for 30, 40 years--he is not happy with that. He asked 
the Congress to change it.
  Congress said: No.
  He said: I am going to do it anyway. Right across the river from 
Washington--I am going to lease a building that houses 1,000 new 
workers--new workers--and those workers are going to process and give 
out legal status, work permits, Social Security participation, Medicare 
participation to 5 million people. People who, according to the 
Immigration and Nationality Act, are unlawfully in the country and are 
not able to work. Businesses cannot hire somebody who is in the country 
unlawfully.
  Is there any country in the world that says it is appropriate for a 
business to hire somebody who entered that country unlawfully? What 
kind of logic can support such reasoning?
  So the President is not an imperial master. He asked Congress and 
Congress said no, but he wants to go ahead and do it.
  Our Democratic colleagues are now telling us they are not going to 
support funding of Homeland Security because Congress--the House of 
Representatives bill and the bill I think will have a majority in the 
Senate--will not fund this building, the 1,000 people, and all the 
other activities that will be needed to execute this unlawful, 
unconstitutional Executive amnesty.
  It is through the looking glass. I mean, what world are we in?
  I was a Federal prosecutor for almost 15 years. They enforce the law, 
they don't enforce what some President said he would like to see done 
that is not lawful. Colleagues, this is so serious that the Immigration 
and Customs Enforcement officials, their association filed a lawsuit, 
and they challenged the actions of their supervisors telling them not 
to enforce plain immigration law. They went to Federal court.
  Has anybody ever heard of that before? This is the equivalent of the 
FBI for the immigration service. These are first-rate officers. Many of 
them have been there 20 or 30 years.
  They say: You are asking us to not enforce the law.
  They have challenged it in court. I have never heard of anything such 
as that before. The people in charge of enforcing the law having to go 
to court to keep from being told not to enforce the law? It is amazing.
  This bill will not deny a penny of funding. It will not deny any 
funding for any program, activity or action that is authorized by law. 
It does not deny funding for any of those programs that are actually 
authorized by the laws of the United States. In fact, it says: Spend 
the money, Mr. President, on enforcing and following the law. You 
cannot spend money unconstitutionally to advocate and create a system 
of law Congress rejected--an unlawful activity.
  The Congress of the United States is not helpless when it confronts 
the President. Colleagues, we have to get out from under our desks. Are 
we afraid to say to the President of the United States we don't agree 
with this, and we are not going to fund this?
  Is that the world we are in? Are we hiding under our desks, that the 
President may go on television and attack us because we will not agree 
with his ideas? Surely not, surely not.
  The Congress has the power to appropriate money. It goes back to the 
historic development--before America became a nation--that the 
Parliament took over the power of money from the King. Parliament 
passed the laws, not the King.
  We adopted that and we created a constitutional order, instead of a 
King, to decide how we operate. The Parliament, and the Congress of the 
United States, was empowered to handle the money.
  What obligation, colleagues, does this Congress of the United States 
have to give the President of the United States money to undermine the 
laws of the United States? What power does he have to compel us to do 
so? Zero.
  We should do the right thing. And the right thing is to say: Mr. 
President, we are willing to consider a form of immigration law, but we 
didn't approve of this bill. We didn't support your bill last time and 
we are not going to pass your bill this time. We are going to continue 
to work to improve immigration law and make it better and serve the 
national interest of the United States--not special interests, not 
activist groups and not big businesses, but the average working 
American's interest. That is who we are going to serve in this process.
  So why are we afraid to push back on that? It is amazing to me. So I 
don't think we will. In fact, it is sort of remarkable that this is a 
bipartisan position that the President has overreached. I am not going 
to quote the names of Senators. I will be a little bit courteous at 
this point and just quote some of the statements from all separate 
Democratic Senators in the last few months when asked about this 
Executive amnesty by the President. A lot of Senators have never been 
asked. They are probably thankful they weren't asked.
  This is what one Senator said:

       . . . but the President shouldn't make such a significant 
     policy change on his own.

  Another Democratic Senator:

       . . . but executive orders aren't the way to do it.

  Another Senator:

       I disagree with the President's decision to use executive 
     action to make changes to our immigration system.

  Another Democratic Senator:

       I'm disappointed the President decided to use executive 
     action at this time on this issue, as it could poison any 
     hope of compromise or bipartisanship in the new Senate before 
     it has even started. It's Congress' job to pass legislation 
     and deal with issues of this magnitude.

  Absolutely correct. It is Congress's duty to do this.
  What about another Democratic Senator:

       I worry that his taking unilateral action could in fact 
     inflame public opinion, change the subject from immigration 
     to the President. I also have constitutional concerns about 
     where prosecutorial discretion ends and unconstitutional 
     authority begins.

  A wise quote, I think.
  Another Senator:

       I have concerns about executive action . . . This is a job 
     for Congress, and it's time for the House to act.

  Another Democratic Senator:

       . . . the best way to get a comprehensive solution is to 
     take this through the legislative process.

  So I would say, colleagues, why would any Senator, Democrat or 
Republican--when the very integrity of the constitutional powers given 
to Congress are eroded in a dramatic way by the President of the United 
States--not want to assert congressional authority? It is important for 
our constitutional structure, in my view.
  Well, there we are. We had hearings in the Senate on these issues and 
on the new nominee for Attorney General. The new nominee said she 
supports and will actively work for the policy the President 
established. The Attorney General is the chief law enforcement officer 
in the land. They take an oath to see that the laws of the United 
States are faithfully executed.
  I believe strongly in this. I don't think it is a close question. It 
is not a close question, colleagues. The President's actions are 
unlawful. The President's executive actions impose a policy that is 
detrimental to our ability to ever establish a lawful system of 
immigration in America. They are against the wishes of the Congress, 
which rejected this proposal, and they are overwhelmingly in opposition 
to the views of the American people, as poll after poll has 
demonstrated.
  Do the American people have no role in their government? They can't 
expect their Members of the Senate to vote for legislation that follows 
the law instead

[[Page 1491]]

of breaking the law? Aren't they frustrated already that Congress is 
not following the law, and they are frustrated with the President's 
failure to follow the law? I think they are.
  Of course I would like to note that President Obama himself said 20 
times he did not have the power to do this. He said, in May of 2008:

       Congress's job is to pass legislation. The president can 
     veto it or he can sign it . . . I believe in the Constitution 
     and I will obey the Constitution of the United States. We're 
     not going to use signing statements . . .

  Another time he said:

       Ultimately, our nation, like all nations, has the right and 
     obligation to control its borders and set laws for residency 
     and citizenship. And no matter how decent they are, no matter 
     their reasons, the 11 million people who broke these laws 
     should be held accountable.

  October of 2010:

       I can't simply ignore laws that are out there.

  On October 25 of 2010, he said:

       I am president, I am not king. I can't do these things just 
     by myself. We have a system of government that requires the 
     Congress to work with the Executive Branch to make it happen.

  Well, even King George couldn't act contrary to the laws passed by 
Parliament. That statement goes on:

       . . . I just want to repeat, I'm president, I'm not king. 
     If Congress has laws on the books that says that people who 
     are here who are not documented have to be deported, then I 
     can exercise some flexibility in terms of where we deploy our 
     resources . . . but there's a limit to the discretion that I 
     can show because I'm obliged to execute the law. That's what 
     the Executive Branch means. I can't just make the laws up by 
     myself.

  Well, how true is that? That is absolutely correct. It goes on. There 
are 20 of these. I could continue, but we will be talking about this as 
the weeks go on.
  Now, what do scholars say? Do the scholars say that this action is 
lawful and that Congress should fund it and we have an obligation to 
fund it or the President has the right to demand it? Jonathan Turley, 
who is a Shapiro Professor of Law at George Washington University, a 
nationally recognized constitutional scholar, testified before Congress 
many times, most often as a Democratic witness, has said he supports 
President Obama and voted for him. But he said this:

       I believe the president has exceeded his brief. The 
     president is required to faithfully execute the laws. He's 
     not required to enforce all laws equally or commit the same 
     resources to them. But I believe the president has crossed 
     the constitutional line . . .

  He said that again yesterday at the judiciary hearing on the Attorney 
General. He continues:

       This goes to the very heart of what is the Madisonian 
     system. If a president can unilaterally change the meaning of 
     laws in substantial ways or refuse to enforce them, it takes 
     offline that very thing that stabilizes our system. I believe 
     the members will loathe the day that they allow that to 
     happen. This will not be the last president. There will be 
     more presidents who will claim the same authority.

  Well, I think that is pretty significant. Professor Turley is a 
supporter of President Obama personally, and someone who has been a 
frequent Democratic witness for Congress.
  Professor Nicholas Rosenkranz of Georgetown University Law Center, in 
his testimony yesterday before the Senate Judiciary Committee, said--
and how simple and true is this. It is pretty insightful, frankly:

       Rather than declining to comply with a duly enacted 
     statute--

  The INA.

     the President has decided to comply meticulously--with a bill 
     that never became law.

  What a statement that is. And it is absolutely true. He went on to 
say:

       Congress has repeatedly considered a statute called the 
     DREAM Act, which would exempt a broad category of aliens from 
     the Immigration and Nationality Act. The President favored 
     this DREAM Act, but Congress repeatedly declined to pass it.

  It is not in the code. It didn't pass. He goes on to say:

       Once again, the President does have broad prosecutorial 
     discretion and broad discretion to husband executive 
     resources. But in this case, it is quite clear that the 
     President is not merely trying to conserve resources. . . . 
     To put the point another way, the President shall ``take Care 
     that the Laws''--capital L--``be faithfully executed''--not 
     those bills which fail to become law. Here, in effect, the 
     President is faithfully executing the DREAM Act, which is not 
     law at all, rather than the Immigration and Nationality Act, 
     which is supreme law of the land. The President cannot enact 
     the DREAM Act unilaterally, and he cannot evade article 1, 
     section 7, by pretending that it passed when it did not.

  How much clearer can you lay it out? This professor is simply telling 
the truth. There is no other way to look at this, in my opinion. 
Congress is being challenged at its very core by this action, and the 
result of this challenge will have constitutional ramifications and it 
will have ramifications as we consider the relative powers of the 
executive, legislative, and judicial branches in the years to come.
  This is not a little matter, colleagues. It really is an affront to 
constitutional order. We have a duty no matter what we feel about this 
amnesty that goes well beyond DREAM Act amnesty. We have a 
constitutional duty to defend the integrity of the Congress against an 
encroachment of monumental proportions by the President. That is the 
fundamental issue we will be dealing with when people complain about 
the funding bill for DHS.
  David Rivkin, who served two Presidents in the Office of White House 
Counsel, and Elizabeth Price Foley, a constitutional law professor, 
wrote an article recently in the Wall Street Journal. It just hammers 
and devastates the arguments the President is making in favor of his 
executive amnesty. They say this:

       By announcing a global policy of nonenforcement against 
     certain categories, Mr. Obama condones unlawful behavior, 
     weakening the law's deterrent impact, and allows lawbreakers 
     to remain without fear of deportation . . . These individuals 
     are no longer deportable although Congress has declared them 
     so.

  They conclude with a statement we need to consider. I believe their 
concluding statement is accurate. I think it is pretty much 
indisputable. And if it is accurate, then Congress has a duty to stand 
firm.
  This is what they conclude:

       The President, after months, finally extracted from the 
     Office of Legal Counsel of the U.S. Department of Justice a 
     memorandum that allows basically what he is trying to do. It 
     has been heavily criticized. Legal scholars say it is a poor 
     analysis in a whole lot of ways. In fact, it is unacceptable.

  This is what the authors of this recent opinion piece in the Wall 
Street Journal said:

       The OLC's memo endorses a view of presidential power that 
     has never been advanced by even the boldest presidential 
     advocates. If this view holds, future presidents can 
     unilaterally gut tax, environmental, labor or securities laws 
     by enforcing only those portions with which they agree. This 
     is a dangerous precedent that cannot be allowed to stand.

  So this is what is at stake. And now we learn that the Democrats 
intend to oppose even going forward to consider the House bill that 
funds the Department of Homeland Security--and they intend to block 
that through the filibuster.
  This is what Senator Barbara Mikulski is reported by Congressional 
Quarterly as saying last night:

       Senator Mikulski tells CQ that Democrats will block the 
     Senate from proceeding to debate the DHS spending bill over 
     immigration riders.

  Have they made that decision? Surely not. Surely we should move to 
the bill. If they are unhappy with the language the House put in this, 
then offer an amendment to take it out. They will have the right to 
have full amendments, consistent with the rules of the Senate, on this 
legislation. They can offer amendments to strike the language in the 
House that simply says we are not going to fund unlawful Executive 
amnesty. It is a pretty stunning thing that we are dealing with and 
that we will be confronting next week. I believe it is a position that 
is untenable. It is untenable constitutionally, it is untenable 
lawfully, and it is untenable because it is contrary to the will of 
Republicans and Democrats in the House and Senate who oppose the 
President's action. It is untenable politically because overwhelmingly 
the American people reject it.
  I am flabbergasted that we are now hearing that Democrats might not 
even allow the bill to come up on the floor. What does that mean?

[[Page 1492]]

  I suppose they will say: Mr. Republican Congress, are you shutting 
down Homeland Security?
  Why? I would ask.
  Well, because you are putting in language that says the President 
shouldn't go off and create and endorse and support and fund changing 
of the law of the United States that Congress hasn't changed, and we 
insist that you fund his activities and give him the money he needs to 
carry out this project.
  Then Congress says: No. We don't want to do that.
  We oppose it and we won't pass the bill that funds Homeland Security.
  That is a bad thing to do. The American people won't like it that you 
don't fund Homeland Security, the Republicans may say.
  And do you know what our Democratic colleagues will say?
  No. You shut Homeland Security down because you kept the President 
from doing his activity. We are going to accuse you of not funding 
Homeland Security, and we are going to say you placed the Nation at 
risk. The President is going to accuse you of defunding Homeland 
Security, and he is going to accuse you of putting the country at risk. 
And the media? Why, they are on our side, and they are going to report 
it that way. When you turn on your television at night, they are going 
to say to the American people that Republicans didn't fund Homeland 
Security, and you are going to lose.
  Look, we are not through the looking glass yet. Give me a break. That 
is not going to sell. The American people are not going to buy that and 
the press is not going to shill for this kind of story. It is going to 
be clear who is not funding Homeland Security. It is going to be clear 
who wants to create a lawful system of immigration and to fund it in an 
effective way and serve the national interests in this fashion.
  I feel strongly about it. Hopefully this won't happen. Hopefully the 
report last night is not going to be the position of the Democratic 
Party.
  I just read of seven or eight of them who said they don't approve of 
the President's action. Why would they vote not to even go to a bill? 
And remember, if the bill comes up and our colleagues don't like this 
language in it, they can move to alter it or strike it. Let's vote on 
it.
  Sometimes you win in this body; sometimes you lose. We lost many 
times--many on the Republican side--in supporting the Keystone 
Pipeline. Now we are told the President may veto the bill that has well 
over 60 votes and many Democrats voting for it. Well, is Congress going 
to say ``We are going to ignore that'' and ask the law enforcement 
officers or the other officers to ignore the President's veto and 
pretend the law passed when it didn't pass? Of course not. And neither 
can the President. We are coequal branches, and the President does not 
have the authority and the right and the power to enforce a law that 
never passed to grant amnesty to people who are unlawfully here.
  It goes beyond prosecutorial discretion. As I said, I was a 
prosecutor for a long time. It is not prosecutorial discretion to give 
someone who is unlawfully in the country a work permit, a photo ID--as 
they intend to do--a Social Security number, the right to participate 
in Social Security, the right to work, to take any job in America. What 
job are they going to take? Who is offering any jobs of any numbers 
today in America? Not many. So these individuals who are here 
unlawfully will now be able to go to the trucking company and take a 
pretty good trucking job or maybe a forklift operator job or maybe they 
want to work for the county commission.
  I asked the Attorney General nominee 2 days ago at a hearing would 
the Department of Justice sue a business that said: Well, we have job 
openings, but we are going to hire those people who have green cards or 
who came here lawfully and have a lawful status, but we are not going 
to hire somebody with temporary Presidential amnesty? Are you going to 
sue them for some sort of violation of rights?
  She said she didn't know. They might. She basically said they might 
sue them. So this is a real danger.
  The truth is, colleagues, we don't have enough jobs in America today. 
We have the lowest percentage of Americans actually working, in the 
working ages, that we have had since the 1970s. It has dropped steadily 
year after year. There is no doubt that if you bring more people into 
our country than we have jobs for, it does make it harder.
  Also, an excess of labor pulls down wages, and things aren't really 
getting better. Median family wages since 2007 are down $4,000. That is 
a stunning amount. Wages in December--last month--in America dropped 5 
cents an hour.
  This idea that the economy is on track, everything is wonderful--it 
is not so wonderful for average working Americans. Their wages went 
down, not up, as we have been told is happening. This is not going to 
help. It is going to make that situation worse.
  Fundamentally, we need a lawful system of immigration that we can be 
proud of, and somebody needs to be concerned first and foremost about 
the people we represent. We should be concerned about the people who 
have immigrated here lawfully. Their wages are down also, in some cases 
even more so. In fact, they are often competing most directly against 
unlawful immigrants.
  I would say this: This is not the right way to do it. We are going to 
continue to talk about this. I believe the Congress of the United 
States, once it is really understood what is happening, will listen to 
the constituents of America. They will decide first and foremost that 
our duty is to create a lawful system of immigration that is fairly 
endorsed, that we can be proud of, and that serves the interest of the 
American people--the national interest. That is what is being 
overlooked.
  People are coming from abroad. They want to come to America. We have 
always had the most generous immigration system in the world, and we 
believe in immigration. But they should come lawfully and the Congress 
should help create a system that supports a lawful entry into America.
  The council that represents the Customs and Immigration Service 
Officers just January 22nd of this year issued a strong statement. They 
said:

       The dedicated immigration service officers and adjudicators 
     at USCIS are in desperate need of help. The President's 
     executive amnesty order for 5 million illegal immigrants 
     places the mission of USCIS in grave peril.

  Has anybody been listening to them or do they just listen to big 
business? Do they just listen to activist groups? Do they just listen 
to lobbyists, politicians with their political schemes to win 
elections? Is that what they are listening to? They are not listening 
to the officers who are carrying out the duties.
  Last fall the same group who represents these government workers--Ken 
Palinkas, a very able leader, said this:

       Making matters more dangerous, the Obama administration's 
     executive amnesty, like S. 744 that he unsuccessfully lobbied 
     for, would legalize visa overstays and cause millions 
     additionally to overstay--raising the threat level to America 
     even higher.

  It goes on with many other points.
  I thank the Chair for the opportunity to speak. I am very worried 
that our Democratic colleagues are making a mistake. I think it is the 
right thing in this new Senate with Majority Leader McConnell who has 
allowed more votes in 1 day than the Republicans got from Senator Reid 
the entire year last year. We probably doubled the number of votes this 
year than we had all of last year.
  The Democrats are saying, we are not even going to go to this bill 
that would fund Homeland Security. And if we don't go to it, then 
Homeland Security is not funded. Are they going to block a bill that 
would fund Homeland Security?
  Senator McConnell is saying you can have your relevant amendment. If 
you don't like the language the House put in that says the money can 
only go to fund lawful activities, then you can vote to take it out and 
offer an amendment to take it out; but if you don't have the votes, you 
lose. That is the way the system should work.

[[Page 1493]]

  I thank the Chair and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________