Hearing of the Senate Judiciary Committee - Keeping Families Together: The President's Executive Action on Immigration and the Need to Pass Comprehensive Reform

Hearing

I appreciate the Chairman holding this hearing on this important matter.

As a nation founded by newcomers, the United States, for more than two centuries, has served as a haven for those seeking refuge and the chance to make a better life. It's inspiring to consider the sacrifices made by those who've come here to pursue liberty, prosperity and happiness. The promise of freedom and opportunity continues to guide those who dare to dream big and work hard.

One of the reasons why so many seek out a new life in America is because our nation is founded upon the rule of law. We are, indeed, a nation of laws -- not men. And this tradition isn't held in as high regard in some other areas of the world.

But I fear that the rule of law here in the United States is being slowly eroded, as the branch of government charged with faithfully executing the laws is increasingly abandoning its duty.

Today, it's estimated that more than 11 million undocumented immigrants live in the country, with many deliberately bypassing the proper channels and breaking our laws to gain entry. By all accounts, the U.S. immigration system is broken, and we must return to a system where the rule of law applies to our immigration policies -- just as it applies to other sectors of society.

And the question of how to properly handle people already in the United States illegally is a challenging one. But instead of trusting in Congress's role and in the democratic process, President Obama has chosen to further erode the rule of law by doing what he's said for so long he lacked authority to do -- he's unilaterally altering our nation's immigration policy in one fell swoop.

I recently spoke on the Senate floor about this administration's pattern of unconstitutional executive action, including how it has been rebuked by the courts for overstepping its bounds. I've asked and been denied repeatedly, for the legal basis for which this President has made decisions to act unilaterally.

President Obama's latest action on immigration is the culmination of a pattern of abuse of power. The President swore an oath to preserve, protect and defend the Constitution of the United States. Yet, his action on immigration is contrary to that oath. It's a serious blow to our system of checks and balances established by the Framers. Most importantly, it's a total disregard for the Constitution and the rule of law.

Article I, section 8 confers the power to make immigration laws to Congress. And in Article II, Section 3, the President is charged with taking care that these laws are faithfully executed. But the President's action runs counter to these principles. Instead of faithfully executing the laws, he's told agents and officers within the Department of Homeland Security to suspend enforcement and ignore the laws on the books in blanket fashion.

When he addressed the nation on November 20, President Obama said that "Congress has failed." Just because Congress hasn't passed a comprehensive immigration bill to his liking, doesn't make it right for the President to bypass Congress and the legislative process.

Regardless of where one is on how to address the immigration problem, there has to be respect for the laws that we have in place. No one is above the law, including this President. When the executive branch usurps the legislative branch's responsibilities to write the laws, it undermines the principle of separation of powers that is the very foundation of our democracy.

And frankly, President Obama had every intention of usurping Congress. Some of those in the President's own party pleaded with him not to act. But he chose to ignore many, including the American people. In doing so, he's damaged relations with Congress and has lost the trust of the people.

Allow me to cite Jonathan Turley, one noted liberal law professor. "When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid."

The bottom line is this: the President's action goes far beyond anything that's been done in the past. It"s unprecedented. And it's a threat to the Constitution.

I don't buy the argument that this administration and its allies are trying to sell -- that is, that their actions are similar to those of previous Presidents. It's a lame excuse, and one even The Washington Post found fault with.

The Post said that President Obama's unilateral action on immigration "has no precedent." The Post said that comparisons to actions taken by President George H. W. Bush in 1990 are "widely exaggerated," the White House's numbers are "indefensible," and "the scale of Mr. Obama's move goes far beyond anything his predecessors attempted." The Post concluded that "[u]nlike Mr. Bush in 1990, whose much more modest order was in step with legislation recently and subsequently enacted by Congress, Mr. Obama's move flies in the face of congressional intent -- no matter how indefensible that intent looks."

The President also wants to make it appear that there's a firm legal basis for his actions, despite the fact that not long ago, he's made numerous statements that he doesn't have the authority to take such bold action. The Justice Department's Office of Legal Counsel whipped up a memo backing his action. It's ironic given the President's recent claim that "this notion that somehow I can just change the laws unilaterally is just not true. The fact of the matter is there are laws on the books that I have to enforce. ... We live in a democracy. You have to pass bills through the legislature, and then I can sign it."

Why has the President flip flopped? Why has he intentionally damaged relations with Congress rather than work with us to pass real reforms?

The President and his allies take the position that this action is permissible because of the executive's ability to exercise prosecutorial discretion. While the executive branch does have the ability to decide when to prosecute and how to prioritize enforcement, that ability isn't unlimited.

The administration has taken a broad, sweeping approach to prosecutorial discretion that amounts to an illegitimate exercise of enforcement discretion. Lawful prosecutorial discretion is exercised on an individualized, case by case basis. Lawful prosecutorial discretion isn't selecting entire categories of individuals and telling them that, going forward, the law won't be applied to them.

I've always said, if you reward illegality, you get more of it. The President is rewarding illegal behavior and conferring substantive benefits to those who qualify. Individuals who've entered without inspection or overstayed their visas unlawfully now will get work permits, social security numbers, drivers licenses, employment and education opportunities, and many other benefits only afforded to those who abide by the law.

Ultimately, when you have non-enforcement of our immigration laws on such a broad scale, in effect you're not enforcing existing law, you're suspending enforcement of the law. That's unconstitutional. The executive branch can't suspend and dispense of the laws by non-enforcement, and it can't nullify the laws by unilaterally imposing contradictory directives. Instead, it's the duty of the executive branch to take care that the laws are carefully executed.
And if what the President has done is ok, what will come next? What other laws will this President ignore? What other discretionary authority will he abuse?

The American people are outraged by the President's executive action on immigration. And, rightly so. This is a paramount concern that will affect this country for years to come.

In Federalist 51, James Madison wrote that the "separate and distinct exercise of the different powers of government" is "essential to the preservation of liberty."

Well, liberty is now at stake.

The fact is the legislative process takes time. As Ranking Member of this committee, I was pleased that the Chairman engaged in a fulsome process on immigration reform in 2013. We had hearings and committee meetings that allowed us to articulate our positions, and we had the chance to offer amendments at markup. It was unfortunate when we got to the floor that the Majority Leader refused to have an open amendment process.

While I didn't like the end product and ultimately voted against the bill, I was glad that the Chairman recognized the need to have debate and thoughtful consideration of the issues. In my opinion, the bill that the Senate passed wouldn't have solved our immigration problems. Real reform should begin with securing our borders. This administration has failed to recognize that fact.

This administration has also failed to enforce the laws in the interior. In fact, it has been releasing people in the country who pose a threat to public safety. The Department of Homeland Security has released hundreds of alleged murderers, kidnappers, rapists and domestic abusers from its custody -- and without remorse. Where's the accountability we were promised? Instead of being held accountable, the Administration has doubled down.

With the President's actions, individuals here illegally will know that even if they've committed crimes, they'll be exempt from immigration enforcement and released. They'll be granted benefits and a stay of removal. Ultimately, the President's actions will encourage more illegal immigration.

This is unfair to the millions of people who've complied with the law and tried to enter legally. It's unfair to the millions of U.S. workers who now must compete with this population for jobs in the country. It's unfair to those who've played by the rules to live, study, work and visit this country. Most importantly, it's unfair to the American people and to our system of government.

I'm glad that the Chairman is holding this hearing today, and I look forward to hearing from our witnesses.

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