Marketplace Fairness Act of 2013

Floor Speech

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Mr. SESSIONS. Mr. President, we have had a long-standing problem in the enforcement of immigration laws in the United States. The Secretary of Homeland Security, Secretary Napolitano, has regularly and sophisticatedly issued policy directives that have adversely impacted the ability of law enforcement officers to do the job that is required of them by law. It has caused quite a bit of a problem.

The ICE officers association, the union, voted a couple of years ago unanimously no confidence in John Morton, the Director of that agency. He should already have been removed, in my opinion. In addition, morale, according to a government survey in the ICE officers department, is one of the very lowest in the government.

I asked Secretary Napolitano in 2011 had she met with these officers and discussed the problems. The answer was no. I asked her Tuesday, yesterday, had she met with them. She said no.

I raised the point that these ICE officers are not complaining about pay, not complaining about working conditions, and not complaining about things that often enter into employment disputes.

What they are saying is that the Secretary and Mr. Morton are denying them the right to follow the law of the United States, denying them the right to enforce the law they are required to enforce, and they charged that they are refused the right to carry out plain directives from the Congress that said under certain circumstances they shall commence, for example, removal proceedings against someone. The Secretary just says: No, we are not going to do that anymore.

Well, here is a very unusual development, I would suggest. I started out as a young Federal prosecutor in 1977, and I have never heard of this occurring. The ICE officers sued Secretary Napolitano and Mr. Morton, and they raised the suggestion they were placed in an untenable position where the law required them to do one thing and they were told by their superiors to do something contrary to law. The case was heard in Federal Court.

In the hearing yesterday, I raised this with the Secretary. And my friend, the chairman of the Judiciary Committee, Senator Leahy, laughed. He said: Well, a lot of people file lawsuits, but it is another thing to win one of these lawsuits.

That is true. It is unusual to see some of these lawsuits that are filed actually reach a situation in which Federal officials are directed to do something. But it appears that is exactly what the Federal judge did yesterday. He said the Secretary doesn't have the ability to direct agents not to do what Congress has explicitly required them to do. They have a right to have certain policies and procedures--although those are pretty dangerous as it is because setting prosecutorial guidelines and procedures can create a circumstance in which effective law enforcement is neutered. But to go forward and actually dictate that mandated statutory requirements not be enforced, this Federal judge suggested, was not acceptable.

One ICE agent testified at the hearing that agents have witnessed large numbers of criminal aliens in jails telling each other how to evade immigration laws because word has gotten around that ICE agents are required to take their verbal claims at face value. If they say they have been here and came here as a child, that must be taken at face value, without verification, and ICE agents must then release them instead of putting them on a path to removal.

Another officer, Chris Crane, the president of the 7,600-member association, testified in court the administration's policies put officers in the untenable position of releasing illegal aliens from custody who have been identified as a result of their criminal behavior simply because word has gotten around they do not have to be deported if they claim to qualify for the President's administrative amnesty.

It is a remarkable development, that a Federal judge has concluded that law enforcement officers in America are being directed not to follow plain law.

With regard to the proposed legislation produced by the Gang of 8 that is going to be brought up tomorrow in the Judiciary Committee. It has hardly been read yet, but we know that law greatly expands the discretion given to the Secretary of Homeland Security. In many different places it gives the Secretary the power to do that and waive some of what would appear to be plain policy goals of the act, at least according to the people who sponsored it.

This has far-reaching implications for the debate on the reform of immigration. The bill gives the Secretary an unprecedented amount of discretion and waiver authority. By some estimates, there are over 200 mentions in this nearly 900-page bill of giving more power to the Secretary. Five times in the bill it affirms the Secretary's "unreviewable discretion'' to waive or alter provisions of the legislation as she sees fit. In fact, the bill essentially codifies the flawed policies that are now being challenged in this lawsuit. It gives statutory power to the Secretary to do what she has been doing.

Indeed, illegal immigrants apprehended after the new law goes into effect would not enter deportation proceedings. Instead, the Secretary ``shall provide the alien with a reasonable opportunity to file an application'' for provisional legal status provided the immigrant ``appears prima facie eligible, to the satisfaction of the Secretary.'' The bill emphasizes that it is not designed to ``require the Secretary to commence removal proceedings'' against any illegal immigrant.

We have a Secretary of Homeland Security who is issuing policies that require sworn law officers not to enforce actions specifically required by congressional law. A Federal judge just yesterday found that is not proper, and stated in effect the Secretary is not above the law, which I think most Americans would certainly agree with. Now we have a proposed new law that would give more authority to the Secretary to continue to waive policies in the future and would grant the Secretary additional discretion in many areas.

This is the problem, colleagues: Congress tells America we are going to give legal status--amnesty--immediately to some 11 million people who have entered the country illegally. By definition, that is to whom this applies. And we say: Trust us, we are going to have the toughest laws you have ever heard of in the future. Well, first, these laws aren't that tough. Secondly, it provides multiple waiver authorities to the Secretary of Homeland Security, and this Secretary has proven she is not willing to have the laws of this country enforced. She has even been sued by her own law enforcement officers, who have just won at least an initial victory in a lawsuit in Federal Court.

This is a dramatic example of the problems I have been hearing from Federal law officers. They need to be respected and affirmed in their duties. On a daily basis they are out confronting people who are in this country unlawfully and violating various laws. They are trying to remove them from the country, as we have always done--and as every country does when people violate their laws--and they have been undermined in that. Their morale has plummeted, and the Secretary hasn't even talked to them.

I will tell you who else hasn't talked to them--the people who wrote this bill. Chris Crane, the head of the association, wrote, called, publicly asked for the opportunity to participate in these discussions and at least tell them what the real world is like. But, no, they had the chamber of commerce, they had the agriculture people, they had certain union officials, they had La Raza. They have all been meeting and talking but not the people out there struggling every day trying to make sure we have a lawful system.

That is what the American people are asking for. The American people are not angry at people who want to come to America. We believe in immigration. We are going to see immigration continue. No one is suggesting that is going to end. But the American people are upset with their politicians and their government leaders who say one thing, promise one thing, and do the exact opposite. They have been promising for 30 years that we are going to have a lawful system of immigration. It hasn't occurred.

We passed a law to have 700 miles of fencing, and everybody applauded--some of them grudgingly. Yet only 30 miles of a double fencing, as required by law, has ever been built.

Twenty years ago there was a law mandating an effective entry-exit visa system. Some of the foreign terrorists came in on 9/11 under the visa system. Forty percent of the people here illegally, it now appears, come to this country through the visa system. It hasn't been fixed yet, but we continue to promise we will do it sometime. Even this bill, as I look at it, won't close the gaps in the entry-exit visa system. It will not fix that problem.

So I think the American people are pleading with Congress to do the right thing, to actually make sure we have a system that serves the national interest and is fair. No system is fair if people who do the right thing have to wait and wait and wait and people who do the wrong thing get rewarded. That is so obvious as to be unmistakable.

So I look forward to going forward with a discussion of what we can do to improve this system. We certainly need improvement. I certainly respect my colleagues who worked on it. I think their hearts are right. I know their hearts are right. We can do some good things. But I do believe the American people are right to be dubious. The American people are right to watch this very carefully, and they should not affirm another one of these situations in which a promise occurs, such as an immediate grant of legality, with a vague promise of enforcement in the future. This court case is dramatic proof that enforcement has not been happening.

I thank the Chair, and I yield the floor.

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