Border Security, Economic Opportunity, and Immigration Modernization Act--Continued--

Floor Speech

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Mr. GRASSLEY. Madam President, we will soon be voting on the Thune amendment, and I rise to speak in support of the Thune amendment.

The Thune amendment would strengthen the bill and beef up the triggers that precede the legalization program.

The Thune amendment would ensure that current law regarding double-layer fencing is implemented.

Over the years, administration after administration--and not just Democrat or just Republican but both--has failed to enforce the laws on the books. The American people don't want more laws that will simply be ignored, they want the laws on the books to be enforced. This amendment offered by Senator Thune would ensure that the border is more secure before any legalization program is carried out.

In a new CNN poll released just today, 36 percent of those polled said they favored a path to citizenship for people who have come to this country undocumented. But 62 percent of those polled said it is more important to increase border security to reduce or eliminate the number of immigrants coming into the country without permission from our government. So if we stand with the American people, and if we want the border secured, we will vote for the Thune amendment.

It is this simple: When issues come up in my town meetings in my State of Iowa and people are asking what is going on with immigration, and we sit down and try to explain to the people how this bill is moving along or what it might include, invariably there are a lot of people in the audience who say we don't need more legislation, we need to have the laws on the books enforced. I think this is backed up by this poll we have heard about from CNN today.

In addition to that, I think it very much clarifies that people want the laws on the books enforced. But, more importantly, they expect people who take an oath to uphold the Constitution and the laws would actually carry out the laws they are elected to carry out. So I hope my colleagues will vote for the Thune amendment.

I yield the floor and suggest the absence of a quorum.

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Mr. GRASSLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

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Mr. GRASSLEY. I ask for the yeas and nays.

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Mr. GRASSLEY. Mr. President, I have no problems with this amendment. It ensures that tribal communities are represented.

The bill's task force is a new and independent entity designed to provide recommendations about immigration and border security. Mr. Tester is adding four additional members to the task force to ensure that the tribes are represented; however, this amendment does not fundamentally change the bill.

There is no opposition to making sure that the tribes have a voice in policy. Of course, this task force doesn't have any real power, it only makes recommendations. The Secretary isn't required to address their concerns or enact their recommendations. Too often, the Secretary does not take into consideration our recommendations. Even now she has a hard time implementing laws.

So, again, while the amendment is noncontroversial, Members should know this task force is a figleaf for actual border security.

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Mr. GRASSLEY. My colleagues have heard me mention so many times that we tend to delegate more and we ought to be legislating. This bill is another example of delegating too much and giving too much authority to Cabinet-level people, in this case the Secretary of Homeland Security, and not making enough hard decisions on the floor of the Senate.

It is reminiscent of the 1,693 delegations of authority we gave to Cabinet people in the health care reform bill to a point where you can read that 2,700 pages and understand it, but we truly don't know what the health care system in the United States is going to be until those 1,693 regulations are put in place. That is going to be a long way down the road.

I wish to point out to my colleagues, I think we are making the same mistake in this immigration bill that is before the Senate. I wish to take some time to talk about how important it is to emphasize the need for Congress to legislate, not delegate, especially with this immigration bill before us.

When an immigration bill is nearly 1,200 pages long, the American people should expect that it is their elected representatives writing the legislation and making most of the decisions. They should expect the executive branch and the Secretary of Homeland Security, in particular, to carry out those policies.

There are individual circumstances that Congress cannot fully anticipate, so it is understandable, then, delegating some authority. With direction from Congress, the Secretary should be able to issue regulations to enforce legislative policies in those situations. Those regulations and any discretion the Secretary exercises, such as other delegations of power from Congress, should be subject to judicial review to ensure that the policies Congress established are being carried out according to congressional intent.

But this immigration bill takes a different and wrong-headed approach. It provides highly general discretion to the Secretary. It gives the Secretary tremendous, often unilateral, discretion to implement the bill. In many instances, that discretion is not even subject to judicial review.

This, obviously, is not the way power is supposed to work in our representative system of government. Uncontrolled unilateral discretion is not what the Framers of the Constitution envisioned for a government with separation of powers, checks, and balances. We have seen, for instance, and recently with the IRS, what can happen when the executive branch exercises authority with too much discretion and not enough oversight.

By some accounts, there are 222 provisions in the bill that give the Secretary of Homeland Security discretion or even allow her to waive otherwise governing parts of the bill. Other people have counted even more than the 222 provisions I have just referred to. Whether it is more or less, it is still a lot. In some cases, it is not just the delegation, it is how it is delegated.

The Secretary's unbridled waiver authority makes a bill that is already weak on immigration enforcement then even weaker.

Ironically, when the Judiciary Committee marked up the immigration bill, it rejected amendments that I and others offered to limit judicial review of immigration enforcement proceedings against people who are in this country illegally. The majority argued against them by claiming that judicial review, which historically has been limited to these enforcement actions, should be expanded to cover these decisions and that is an expansion of judicial review.

Let me speak of the inconsistency of when they didn't think judicial review should be there. The majority wants unlimited judicial review when the Secretary would take enforcement action against people in the country illegally.

At the same time, the bill provides more judicially unreviewable discretion for the Secretary when she decides not to enforce the law against undocumented immigrants.

The people of this country should be aware of the one-way ratchet for discretion that the bill contains. Then it adds judicial review when the Secretary would enforce the law and does not provide judicial review when the Secretary decides to withhold enforcement of border security and other measures designed to reduce illegal immigration.

I believe it is worth noting some of the specific provisions of the bill that give the Secretary discretion in enforcement, sometimes without judicial review. Some of the specific language that allows her to waive provisions that supporters of the bill claim make this bill even tough on illegal immigration and border security should also be discussed.

When they are contrasted, the legislation's goal is very clear: enact very general border security measures that are said to be tough, while giving the Secretary often unilateral discretion and waiver authority to water down those measures.

For instance, the Secretary can commence processing petitions for registered provisional immigrant status--RPI status we call it--based on her determination of border security plans and how she views the status of their implementation. The fencing that the bill seems to demand can be stopped by the Secretary when she believes it is sufficient.

The Secretary has the ability to decide whether certain criminal offenses should bar someone from the legalization program. She can waive, with few exceptions, the grounds of inadmissibility prescribed in law. She is given discretion whether to bring deportation proceedings against those who do not qualify for RPI status. If they are denied, shouldn't they be deported?

The Secretary is also allowed to waive various requirements when a person adjusts from RPI status to legal permanent resident status, including what counts as passing a background check.

The Secretary has broad authority on how to use the $8.3 billion in upfront funds transferred from the Treasury. On top of that, she has wide discretion on how to use the additional $3 billion in startup costs that don't have to be entirely repaid to the Treasury.

Notwithstanding the constitutional powers of Congress over the purse, she is given authority to establish a grant program for nonprofit organizations.

With respect to the point system, the Secretary is given discretion to recalculate the points for particular petitioners and to decide not to deport inadmissible persons.

She also has the discretion to waive requirements for citizenship that otherwise apply under the bill.

The Secretary is also given a great deal of discretion in the operation of the electronic employment verification system; for instance, which businesses will be exempt from the requirement; which documents can individuals present to prove identity or work authorization. She also has the authority to determine when an employer who has repeatedly violated the law is required to use the system. Those decisions will be vital in determining whether the employment verification system will be effective.

Members of this body can opine all day about what this bill does, but we may not know for years, as in the case of ObamaCare, until these regulations are written or these waivers are used, the extent to which this bill is carried out with the intent that we believe it is carried out.

We don't know that for years. I use the example of the health care law because we are learning, after 4 years that the bill has been passed, there are a lot of unknowns in it. We also learned there is not a lot of certainty. That is the fallout from delegating so much power in one Secretary. We shouldn't repeat that mistake when we pass this bill next week.

I yield the floor.

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