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 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 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 theÐ 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.
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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