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Border Security, Economic Opportunity, and Immigration Modernization Act

Floor Speech

Location: Washington, DC


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 President, I ask unanimous consent that the order for the quorum call be rescinded.


Mr. GRASSLEY. I know that when I come to the floor and remind my colleagues about my involvement in the 1986 immigration bill, it sounds like a broken record. I said early on this year that I wanted to educate my colleagues about the mistakes we made in 1986 so those mistakes were not repeated in the first immigration bill to pass the Senate since 1986. Because I was here in 1986, I thought I could share the experience we had. I know firsthand that we screwed up in that 1986 legislation. I was certain other Members in this body could learn from our mistakes.

However, today we are right back to the same place, talking about the same problems, proposing the same solutions.

In 1981, as a freshman Member of the Senate, I joined the Judiciary Committee and was very active in the subcommittee process. We sat down and wrote the legislation. We had 100 hours of hearings and 300 witnesses before we marked up that bill in May of 1982. Hundreds more hours and a dozen more hearings would take place before the bill actually became law in 1986. This year we had 6 days of hearings. We spent 18 hours and 10 minutes listening to outside witnesses.

The Judiciary Committee received the bipartisan bill at 2:24 a.m. April 17. We held hearings April 19, 22, and 23. We heard from 26 witnesses in those 3 days. We heard from the head of the Immigration and Customs Enforcement agency union. We heard from economists and employers, law enforcement and lawyers, professors and advocacy groups. We even heard from people who are undocumented, proving that only in America would we allow somebody who has violated our laws, is not right with the laws, to be heard by the American people.

One of the witnesses on April 23 was Secretary Napolitano. We attempted to learn about how the bill would affect the functions of the executive branch--after all, that is where it is going to be carried out--and whether she saw some flaws, the same flaws many of us were finding in the legislation.

We asked follow-up questions of the Secretary that were thoughtful and focused on the mechanics of the legislation. We wanted to know the Secretary's thoughts since she would be implementing the legislation. Unfortunately, we still have not received responses to questions we raised. Today it has been 2 months since the Secretary has failed to answer our questions--in a sense, ignoring us. She has refused to cooperate. She has refused to tell us how the bill would be implemented by her department. Is it amazing--at least it is to me--that the majority puts up with this, let alone some of my own Republican colleagues?

After the committee hearings, we started the markup process on May 9. We held five all-day sessions where Members were able to raise questions, voice concerns, and offer amendments. Commonsense amendments offering real solutions were repeatedly rejected. Those that were accepted made some necessary improvements. But the core provisions of the bill have remained the same yet to this very day.

I respect the process we had in committee. It was open, fair, and transparent, even though the end result was almost determined. We had a good discussion and debate on how to improve the bill. It was a productive conversation focused on getting immigration reform right for the long term, not to make the same mistakes we did in 1986. Yet I was disappointed that alliances were made that actually ensured nothing passed in that committee process that would make substantial changes and improvements to the bill. Those alliances remain in effect when we are out here on the floor of the Senate.

As of this morning, 349 amendments have been filed to the underlying bill. We started off the debate on the Senate floor with my amendment that would require the border to be effectively controlled for 6 months before the Secretary could process applications for registered provisional immigrant status, RPI, or another way of saying it: legalizing those who crossed the border without papers. That is pretty darn important because we have been told since this bill was put to the public by the Gang of 8 that we were going to secure the border. Well, we are going to secure the border after legalization because a plan put before Congress is not securing the border. Securing the border is only if that plan actually secures the border. But legalization is going to take place before the plan is put into effect. That is what I consider a major shortcoming of this legislation because it makes the same mistakes we did in 1986. We thought we secured the border. We did not secure the border, but we legalized.

My amendment was surely feared by the other side because it would fundamentally change the bill. It would not fundamentally change what the authors of the bill said they were going to do--secure the border and then legalize--but it changed what was actually in the language of the bill. So in order to keep my amendment from being adopted, they insisted on a 60-vote threshold for the amendment to pass, which I refused. So in response they moved to table my amendment.

We were promised an open and fair process. Why wasn't that promise kept? We learned on day one that all the talking about making the bill better was just hogwash. It was a phony and empty promise. They would take to the floor and they would say they were ready to move and vote on amendments. Boy, that sounds very fair and open, doesn't it? Yet, in reality, they were afraid of all of the amendments that could be offered. They refused to let Members offer any amendment of their own choosing. They wanted to pick which amendments would be considered on the floor of the Senate. Does that sound fair and open? Well, it obviously does not. They wanted to decide who, what, when, and how it would be disposed of. That is not right.

What is even more disturbing is the fact that the alliances made thwarted the ability of the minority to have any say whatsoever. Republicans were obstructed even by Members of our own party. They voted to table amendments, and they refused an open amendment process. One Republican said:

I am confident that an open and transparent process, one that engages every Senator and the American people, will make it even better. I believe this kind of open debate is critical in helping the American people understand what's in the bill, what it means for you, and what it means for our future.

That was never carried out here on the floor of the Senate.

The same Senator also wrote Chairman Leahy on March 30, saying:

I write to express my strong belief that the success of any major legislation depends on the acceptance and support of the American people. That support can only be earned through full and careful consideration of legislative language and an open process of amendments.

That was a letter to Senator Leahy on March 30. It was well-intended, but I don't see a defense of that position out here on floor of the Senate as we are steamrolled.

In a letter to me on April 5, the Senator wrote:

If the majority does not follow regular order, you can expect that I will continue to defend the rights of every Senator, myself included, to conduct this process in an open and detailed manner.

As we are being steamrolled with just a few amendments being considered, we can see that may have been well-intended, but it is not carried out.

When the bill was introduced, the senior Senator from New York said:

One of the things we all agree with is that there ought to be an open process so that the people who don't agree can offer their amendments.

Well-intended. The Gang of 8 called for a robust floor debate. They said they supported regular order. I asked them do they think that having only considered nine amendments equates to a robust and open process.


Mr. GRASSLEY. I will yield for a question. I may not answer it, but I will yield.


Mr. GRASSLEY. The Senator is correct.


Mr. GRASSLEY. We only had nine amendments. Is that a robust and open process? Do they think the majority has allowed regular order? From my point of view, the answer is a clear and resounding no.

We are at a point where the process has been halted. It is unclear if any more amendments will be debated and voted on. The only amendment that is in order is the one that was concocted behind closed doors and is loaded full of provisions that are shockingly close to what can be called earmarks.

We are back where we started--with a gang of Members promising that their legislative text is the best thing to happen to immigration reform, that their solution is the end of future illegal immigration. Does anyone really think this will solve the problem once and for all? From my point of view, based upon my experience in 1986 and since, the answer is a clear and resounding no.

There are fundamental flaws in this amendment we call the Schumer-Corker-Hoeven amendment--legalization first. I am going to take the opportunity to walk through some changes.

The authors claim the amendment is a border ``surge'' that leaves no more doubt about whether the border will be secure. Yet the border changes only account for about half of the total amendment. There are changes to every title. There are changes to exchange visitor programs, the future guest worker program, and visas for the performing arts. This isn't just a border amendment; there are provisions in the bill to attract other Senators to support its passage. I will dive into those provisions in detail in a moment, but first I wish to focus on border measures.

The sponsors of this bill want you to believe it is different from the 1986 legislation. They say it will be a tough and expensive road and it would be easier for individuals to go home than to go through the process. What the sponsors don't like to admit is that the bill is legalization first, enforcement later--and I have to add, enforcement later, if ever.

Take, for example, the fact that one of the sponsors who went on Spanish television tried to apologize for speaking the truth. He said:

Let's be clear, nobody is talking about preventing the legalization. The legalization is going to happen. That means the following will happen: First comes the legalization. Then come the measures to secure the border. And then comes the process of permanent residence.

He spoke the truth.

The fundamental flaw underlying the bill has not changed with this amendment. Let's be clear. No one is preventing the legalization. It is going to happen, as opposed to the promise when this bill was put forward that the bill was going to secure the border first.

There is a lot of money in this bill, there is a lot of micromanaging in this amendment, and there are more waivers. Remember, this is already on top of--I think one Member counted 222 waivers for the Secretary. We write a piece of legislation. We are supposed to legislate. We legislate and then say to the Secretary: Well, you can ignore what we legislate in certain conditions.

We ought to be making broad policy here and not delegating to the administration the way that we too often do--not just in this legislation but, as a matter of fact, on most everything.

What the amendment does is require more boots on the ground. It increases the presence of Border Patrol even though the Members of the Gang of 8 had long opposed that idea. They said it was unnecessary and costly. But let's be honest with the American people. The amendment may call for more Border Patrol agents, but it doesn't require it until the undocumented population, who are now called RPIs, apply for adjustment of status or a green card. It is legalization first, border security long down the road.

I am all for putting more agents on the border, but why wait? Why allow legalization now and simply promise more agents in the future? Even then, who really believes that the Secretary, like the one we have today, will actually enforce the law?

Then there is the fencing. One of the conditions that must be met before the Secretary can produce green cards for people here illegally is that the southern border fencing strategy has been submitted to Congress and implemented. This fencing strategy will identify where 700 miles of pedestrian fencing is in place. Note that this is not double-layered, as in current law; the amendment states that a second layer is to be built only if the ``Secretary deems necessary or appropriate.'' Can the authors of this amendment say that is a promise to the American people to build a fence if somehow the Secretary is given the authority of whether it is necessary or appropriate? Additionally, the underlying bill still specifically states that nothing in this provision shall be interpreted to require her to install fencing.

The amendment also requires that an electronic entry-exit system is in use at all international air and sea ports but only ``where U.S. Customs and Border Protection are currently deployed.'' This is actually weaker than the bill that came before the Senate a few weeks ago. That bill required that an electronic entry-exit system be in use at air and sea ports, not just internationally. It is still weaker than current law, which requires biometric entry and exit at all ports of entry, including air, sea, and land. That current law has been on the books for a long period of time--not carried out by both Republican and Democratic administrations. So what certainty do we have that this is going to be carried out?

The Schumer-Corker-Hoeven amendment border proposal adds technology in addition to manpower at the southern border. It authorizes the Secretary to purchase and deploy certain border technology. I will give some examples that are included in this amendment.

In Arizona, the Secretary is allowed to deploy 50 fixed towers, 73 fixed camera systems, 28 mobile surveillance systems, 685 unattended ground sensors, and 22 hand-held equipment devices, including night vision goggles.

In San Diego, the Secretary is allowed to deploy the same type of equipment but of different quantities. They also will deploy nonintrusive inspective systems, a radiation portal monitor, and a littoral detection and classification network.

In El Centro, CA, the Secretary is allowed to deploy the same equipment, but the list also includes two sensor repeaters and two communications repeaters.

They will also get 5 fiber optic tank inspection scopes, a license plate reader, a backscatter, 2 portable contraband detectors, 2 radiation isotope identification devices, 8 radiation isotope identification devices updates, 3 personal radiation detectors, and 16 mobile automated targeting systems.

That is not all. The list goes on. It includes certain helicopters and aircraft upgrades. It includes 10 Black Hawk helicopters and 30 marine vessels.

I would like to know what some of these items are. Who provided the amendment sponsors with this list? We had a hearing in January, and not once did the list appear. Secretary Napolitano did not provide the committee with any list. Did Sikorsky, Cessna, and Northrop Grumman send a wish list to certain Members of the Senate?

While the Senate micromanages what technology is to be purchased and deployed, we should take note that the bill allows the Secretary to ``reallocate'' the personnel, infrastructure, and technologies laid out. It is pretty simple: A Secretary who says the border is secure right now can change all of this stuff specifically mentioned in this amendment.

Let's also not forget about the litigation exception. The triggers or conditions may never have to be met. Green cards can be issued if the Supreme Court grants review of litigation on the constitutionality of the implementation of the conditions. Under the bill, if any court in this country issues a stay on implementing one of the conditions, then green cards are to be issued after 10 years. The bill does not specify what sort of ruling must prevent implementation or even that the ruling be on the merits, nor does the bill require that appeals run their course, even if the appeal upholds the conditions.

We still maintain this toothless commission called the southern border security commission, but it retools it a little bit. It still does not give it any teeth whatsoever. The amendment requires the creation of the commission 1 year after the enactment, which is probably better than the 5 years that is in the bill. They would also be required to hold public hearings once a year. Under the original version of the bill, the commission would be in existence until they submitted a plan. Under this amendment, the commission will live for 10 years. Yet, the recommendations they provide still do not hold any
weight. They can be ignored. They are nonbinding.

There is a lot of spending in this amendment as well. In addition to micromanaging resources in each sector, the amendment increases taxpayer spending by $40 billion over the introduced version of the bill before this amendment was added to it. Originally, the legislation called for spending $100 million for startup costs and $6.5 billion for the Secretary to carry out the law. When we got to committee, there was a technical amendment that increased that startup cost from $100 million to $1 billion. During markup, Senator Schumer and his allies increased the trust fund allocation from $6.5 billion to $8.3 billion. The Schumer-Corker-Hoeven amendment increases the trust fund to $46.3 billion.

Now, think, going from $8.3 billion to $46.3 billion. Add the $3 billion for the Secretary to have startup costs, and we are at $50 billion. That is over a 500-percent increase in spending. You know, a billion here and a billion there, and it soon adds up to real money.

Note that this isn't shifting money from the trust fund, such as the Cornyn amendment would have done. And that amendment was defeated on the floor of the Senate. Instead, it is just plain old brand new spending. The sponsors found a money tree to pay for the wish list provided by Secretary Napolitano and the aerospace industry.

Based on reports of how this deal was struck, we have a pretty good idea of why spending has increased. According to a Politico article from last week, negotiations for this deal were at a standstill until the Congressional Budget Office's score was released. The CBO's score stated if the bill becomes law it would cut the deficit by almost $1 trillion over the next 20 years.

Thus, with this estimate in hand, the Politico report tells us how the negotiators were able to find a solution: ``Throw money at it.'' According to the article, it was suggested Senators could funnel some of the savings into border security, and that is what has been done. Again, as is often the case in Washington, the solution always seems to be just throw more money at the problem. But the money has to come from somewhere.

Furthermore, paying for the agents requires raiding the Social Security trust fund. Indeed, the bill sets aside $30 billion to pay for Border Patrol agents. But when asked on the floor how the Gang of 8 found the money, Senator Hoeven said he and Senator Corker were able to add the $30 billion in spending because the CBO projects that S. 744 will bring in more revenue than it requires in expenditures. Upon closer examination, it is clear the projected revenue under CBO analysis is due to an increase in Social Security and Medicare taxes.

This money must be set aside if Social Security and Medicare are to remain solvent. Thus, taking that tax revenue and using it for the fence means raiding the Social Security and Medicare trust funds. You know how the Medicare trust fund was raided for health care reform? Sounds like the same thing is happening here.

On the date of enactment, the Treasury will transfer $46.3 billion to the trust fund. The sponsors claim the Treasury will be repaid. But when will the funds be paid back to the Treasury? When will the American people be reimbursed? The sponsors of the bill are saying taxpayers would not bear the burden. Yet there is no requirement the funds be paid back. There is no time limit or accountability to ensure they are repaid.

The Schumer-Corker-Hoeven amendment increases fees on the visas for legal immigrants in order to replenish the trust fund and the Treasury. It happens that employers, students, and tourists will pay the price. The bill allows the Secretary to increase those fees, so employers who bring in high-skilled workers will bear the burden. Students and tourists who come in the legal way will bear the burden.

But guess what. The amendment goes on to say the fees for those who cross the border in violation of our laws cannot be charged more than what is allowed. The Secretary cannot adjust fees and penalties on those who apply for or renew RPI status or even blue card status.

There is no interior enforcement in here, and there is a real problem when we don't have more interior enforcement than is here because we will have more people coming here who are undocumented. The amendment in the underlying bill will not end undocumented immigration. The Congressional Budget Office reports that illegal immigration will only be reduced by 25 percent due to the increased number of guest workers coming into the country. The amendment does nothing to radically reduce illegal immigration in the future and does not provide any resources to interior enforcement agents whose mission it is to apprehend, detain, and deport undocumented immigrants. Just like with the 1986 legislation, we will be back in the same position in 10 years facing the same problems.

The amendment, for instance, in section 1201, attempts to address people who overstay their visas. It says the Secretary shall, one, initiate removal proceedings; two, confirm that immigration relief or protection has been granted or is pending; or, three, otherwise close 90 percent of the cases of nonimmigrants who were admitted and extended their authorized period of admission by more than 180 days.

So while it appears to be tough on overstays, it only affects people who overstay their visa by 180 days or 6 months. It also allows the Secretary to close the cases.

What does it mean for the Secretary to close these cases? Under current law, an immigration judge has the power to administratively close a case. It is used to temporarily remove a case from the calendar. Sometimes a judge waits for further action to be taken. An administrative closure is not a final order. Closure does not mean termination. It does not mean deportation. So I think it is unclear what this language does and who it is applying to.

Moreover, it is unclear how the Secretary would know who has overstayed if no exit data or tracking system exists. Also, why doesn't the amendment require the Secretary to deal with 100 percent of the people who overstay their period of authorization? Given there are no ramifications for the Secretary if she does not capture 90 percent of visa overstays, this, again, is another law that will not be followed.

It does nothing to end this administration's anti-enforcement policies but, instead, gives the Secretary of Homeland Security vast discretion to ignore serious criminal convictions of immigration violators, including gang-related crime, domestic violence, drunk driving, and child abuse.

The bill would not only create an immediate legalization program for those here illegally today but also a permanent legalization program for future undocumented immigrants. The Schumer-Corker-Hoeven amendment includes a provision that would make individuals admissible despite the 3- and 10-year bars.

I would like to know more about the rationale from the sponsors as to why this language was included. There is no doubt this amendment was crafted in the back

rooms on Capitol Hill, and it is no secret some Members were able to insert provisions in the Schumer-Corker-Hoeven amendment while the rest of us attempted to work out an agreement on pending and filed amendments.

While some of us were trying to legislate and bring up amendments for votes on the floor, others were taking advantage of the pay-to-play game. Clearly, some of the amendments filed were included. Let me share some examples.

No. 1, the amendment now authorizes funds for an educational campaign to help deter illegal crossings into Mexico from the South. This amendment would put American taxpayer money toward training for law enforcement officials in Mexico, Honduras, El Salvador, Guatemala, and other countries. It would allow for taxpayer expenditures to educate nationals of other countries ``about the perils of the journey to the United States.''

This amendment should have been considered under regular order.

No. 2, the amendment now includes a provision that would require Customs and Border Protection officials to reduce airport wait times.

This amendment which was filed should have been considered under regular order.

No. 3, the amendment now makes it harder for Border Patrol agents to enforce U.S. immigration law along the northern border by limiting the mileage or distance agents can search vehicles or other forms of transportation.

This amendment which was filed should have been considered under regular order.

No. 4, the Schumer-Corker-Hoeven amendment includes amendment No. 1283 that creates a ``Youth Jobs Fund'' using $1.5 billion from the U.S. Treasury to be repaid through fees. The goal of the fund is to ``provide summer and year-round employment opportunities to low-income youth.''

This amendment should have been considered under regular order.

No. 5, the Schumer-Corker-Hoeven amendment includes amendment No. 1493, which designates zones 1, 2, and 3 occupations involving seafood processing in Alaska as shortage occupations. It also includes amendment No. 1329, which extends the J visa Summer Work Travel Program to seafood processing positions only in Alaska.

These amendments should have been considered under regular order.

No. 6, the amendment now includes amendment No. 1183, which was actually pending before the Senate. It would allow for fee waivers on certain visa holders, namely O and P nonimmigrants, who come to the United States to work in Hollywood or play professional sports.

We could have voted on this and had regular order on that amendment.

Well, there are a lot more amendments I could go through, but I will just suggest some clarifying amendments. And there probably should have been more clarifying amendments.

The amendment by SCHUMER, HOEVEN, and CORKER also includes so-called ``technical fixes.'' One fix is related to the H-1B visa cap. The sponsors of the bill, and those who worked behind closed doors to devise an H-1B visa package, stated the annual cap would not exceed 180,000. Yet the language didn't do what they said it did. As written, it provided 20,000 more than they claimed. So this amendment includes a clarification to say the cap shall not exceed 180,000.

The second clarifying change in the amendment is related to visas for countries that have entered into free-trade agreements with the United States. During committee consideration, the Senator from New York added an amendment that would provide 10,500 visas for countries in the African Growth and Opportunity Act and the Caribbean Basin Economic Recovery Act. The change in this amendment clarifies that only a total of 10,500 may go to those countries rather than to each country that is described under the act. Still, it is not 100 percent clear the clarification achieves the goal.

So it is legitimate with these clarifications and fixes, but how many more clarifying amendments are necessary? These two provisions were included because my staff caught them and brought them to the sponsors' attention. But how many more provisions are not written properly that we do not know about?

At the end of the day the Schumer-Corker-Hoeven amendment doesn't do what the sponsors say it will. As we have seen all along, we are being promised one thing and sold another.

I am frustrated with how the majority has processed this bill. We should have had 3 genuine weeks on this bill processing amendments and having votes. Yet we are forced to vote on packages that were concocted behind closed doors. We were given 72 hours to read the legislative text. That may be plenty of time to read it, but it is not plenty of time to actually study it and know what is in it. Even then, the American people would have had a difficult time getting their hands on the bill over the weekend or understanding its true ramifications.

It is quite obvious I am going to vote against this amendment. It does nothing to change the legalization first philosophy and offers little more than false promises the American people can no longer tolerate.

I yield the floor.


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