U.S. GOVERNMENT PUBLISHING OFFICE

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S. HRG. 113–896 

KEEPING FAMILIES TOGETHER: 

THE PRESIDENT’S EXECUTIVE ACTION 

ON IMMIGRATION AND THE NEED 

TO PASS COMPREHENSIVE REFORM 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

DECEMBER 10, 2014 

Serial No. J–113–78 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

DECEMBER 10, 2014, 2:31 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii ............................ 1 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 

prepared statement .......................................................................................... 99 

WITNESSES 

Witness List ............................................................................................................. 45 

Eastman, John C., Ph.D., Henry Salvatori Professor of Law and Community 

Service and Director, Center for Constitutional Jurisprudence, Chapman 

University School of Law, Orange, California ................................................... 9 

prepared statement .......................................................................................... 60 

Schroeder, Christopher H., Charles S. Murphy Professor of Law and Public 

Policy Studies and Co-Director, Program in Public Law, Duke Law School, 

Durham, North Carolina ..................................................................................... 8 

prepared statement .......................................................................................... 51 

Shuler, Elizabeth H., Secretary-Treasurer, American Federation of Labor and 

Congress of Industrial Organizations, Washington, DC ................................... 6 

prepared statement .......................................................................................... 46 

Silva, Astrid, Student, Nevada State College, Las Vegas, Nevada ..................... 14 

prepared statement .......................................................................................... 96 

Ting, Jan C., Professor of Law, Temple University Beasley School of Law, 

Philadelphia, Pennsylvania ................................................................................. 11 

prepared statement .......................................................................................... 76 

QUESTIONS 

Questions submitted to Prof. John C. Eastman, Ph.D., by Senator Grassley .... 103 

Questions submitted to Prof. Christopher H. Schroeder by Senator Franken ... 101 

Questions submitted to Elizabeth H. Shuler by Senator Franken ...................... 102 

Questions submitted to Elizabeth H. Shuler by Senator Grassley ...................... 106 

Questions submitted to Prof. Jan C. Ting by Senator Grassley .......................... 107 

ANSWERS 

[Note: At the time of printing, the Committee had not received responses 

from Prof. John C. Eastman, Ph.D.] 

Responses of Prof. Christopher H. Schroeder to questions submitted by 

Senator Franken .................................................................................................. 109 

Responses of Elizabeth H. Shuler to questions submitted by Senator Franken 111 

Responses of Elizabeth H. Shuler to questions submitted by Senator Grassley 113 

Responses of Prof. Jan C. Ting to questions submitted by Senator Grassley .... 114 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Advocates for Human Rights, The, Minneapolis, Minnesota, statement ............ 144 

American Civil Liberties Union (ACLU), Washington Legislative Office, 

Washington, DC, statement ................................................................................ 133 

American Federation of Teachers (AFT), Washington, DC, statement ............... 146 
Page

IV 

American Immigration Council, Washington, DC, statement ............................. 148 

American Immigration Lawyers Association (AILA), Washington, DC, statement ...................................................................................................................... 161 

Antle, W. James, III, ‘‘Immigration Doublespeak: More evidence Obama 

appointees talk enforcement in public and administrative amnesty in private,’’ The American Spectator, September 21, 2010, article ............................ 281 

Asian Americans Advancing Justice/AAJC, Washington, DC, statement ........... 140 

Beck, Charlie, Chief, Los Angeles Police Department, Los Angeles, California, 

statement .............................................................................................................. 240 

Bend the Arc: A Jewish Partnership for Justice, New York, New York, statement 165 

Biehl, Richard, Chief of Police, Dayton Police Department, Dayton, Ohio, 

et al., December 9, 2014, letter ........................................................................... 131 

CASA de Maryland, Takoma Park, Maryland, and CASA de Virginia, Falls 

Church, Virginia, statement ................................................................................ 167 

Center for Popular Democracy (CPD), The, Brooklyn, New York, and Washington, DC, statement .......................................................................................... 171 

Cities United for Immigration Action (CUIA), Hon. Kathy Sheehan, Mayor 

of Albany, New York, et al., December 10, 2014, letter .................................... 174 

Church World Service, Elkhart, Indiana, statement ............................................ 176 

Coalition of Black Trade Unionists (CBTU), Washington, DC, statement ......... 169 

Congressional Research Service (CRS), Library of Congress, Washington, DC, 

memorandum on advance parole ........................................................................ 249 

Fair Immigration Reform Movement (FIRM), Washington, DC, statement ....... 186 

Farmworker Justice, Washington, DC, statement ................................................ 177 

First Focus Campaign for Children (FFCC), Washington, DC, statement ......... 184 

Garcetti, Hon. Eric, Mayor, City of Los Angeles, California, statement ............. 196 

Hawkins, James R., Chief of Police, Garden City Police Department, Garden 

City, Kansas, statement ...................................................................................... 237 

Hernandez, Deisy, Outreach Coordinator, American Civil Liberties Union 

(ACLU) of Nevada, ‘‘Stepping Out of the Shadows,’’ ACLU Blogpost, article . 143 

Hispanic Federation, New York, New York, statement ....................................... 188 

Junta for Progressive Action, New Haven, Connecticut, statement .................... 190 

Latino Victory Project, Washington, DC, statement ............................................. 192 

Marek, Stan, President and Chief Executive Officer, Marek Family of Companies, Houston, Texas, statement ......................................................................... 235 

National Asian Pacific American Bar Association (NAPABA), Washington, 

DC, statement ...................................................................................................... 198 

National Center for Lesbian Rights (NCLR), Washington, DC, statement ........ 201 

National Council of Asian Pacific Americans (NCAPA), Washington, DC, 

statement .............................................................................................................. 138 

National Council of La Raza, Washington, DC, statement .................................. 207 

National Immigrant Justice Center (NIJC), Chicago, Illinois, statement .......... 217 

National Immigration Forum, Washington, DC, statement ................................ 122 

National Immigration Law Center (NILC), Los Angeles, California, statement . 223 

National Task Force to End Sexual and Domestic Violence (NTF), Seattle, 

Washington, statement ........................................................................................ 231 

Nebraska Appleseed Center for Law in the Public Interest, Lincoln, Nebraska, 

statement .............................................................................................................. 213 

Nebraska Appleseed Center for Law in the Public Interest, Lincoln, Nebraska, 

Nebraska-based supporting organizations, list .................................................. 215 

Pennsylvania Immigration and Citizenship Coalition (PICC), Philadelphia, 

Pennsylvania, statement ..................................................................................... 232 

United Farm Workers of America (UFW), Keene, California, statement ........... 243 

United States Citizenship and Immigration Services (USCIS) Form I–131, 

Application for Travel Document, Department of Homeland Security, application form ............................................................................................................ 263 

United States Citizenship and Immigration Services (USCIS) Form I–131, 

Application for Travel Document, Department of Homeland Security, 

instructions for application form ........................................................................ 268 

United States Conference of Catholic Bishops (USCCB), Committee on Migration, Washington, DC, statement ........................................................................ 245 

United States Department of Homeland Security (DHS), Washington, DC, 

September 22, 2010, draft memorandum ........................................................... 253 

Wall Street Journal, ‘‘The Alpha and the Obama: The legal memo backing 

his immigration order is a political rush job,’’ November 24, 2014, editorial . 120 

We Belong Together (National Domestic Workers Alliance (NDWA) and National Asian Pacific American Women’s Forum (NAPAWF)), statement ........ 246 
(1) 

KEEPING FAMILIES TOGETHER: 

THE PRESIDENT’S EXECUTIVE ACTION 

ON IMMIGRATION AND THE NEED 

TO PASS COMPREHENSIVE REFORM 

WEDNESDAY, DECEMBER 10, 2014 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:31 p.m., in 

Room SD–226, Dirksen Senate Office Building, Hon. Mazie Hirono, 

presiding. 

Present: Senators Hirono, Durbin, Klobuchar, Franken, Coons, 

Blumenthal, Grassley, Hatch, Sessions, Cornyn, Lee, Cruz, and 

Flake. 

OPENING STATEMENT OF HON. MAZIE HIRONO, 

A U.S. SENATOR FROM THE STATE OF HAWAII 

Chairman HIRONO. This meeting of the Senate Committee on the 

Judiciary will come to order. Before we begin, I would just like to 

remind our audience of the Committee’s rules regarding this, and 

any, hearing. 

Today’s hearing deals with a serious issue and I trust that members of the public here will act accordingly. I want to note at the 

outset that the rules of the Senate prohibit outbursts, clapping, or 

demonstrations of any kind. This includes blocking the view of people around you. Please be mindful of these rules as we conduct this 

hearing. Thank you so much. 

I would like to start with some brief remarks. Just before 

Thanksgiving, President Obama issued an Executive order and 

that order will bring nearly 5 million people in our country out of 

the shadows. It will allow them to work legally and pay their taxes. 

It will also allow them and their families to continue to contribute 

to the vibrancy of their communities. 

Every single President since President Eisenhower has used Executive action to provide discretionary relief from deportation. 

Nonetheless, this President’s critics have relentlessly attacked the 

legitimacy of his action. 

This is not just some abstract discussion about legal theory. It 

is about real people, real families. It is about taking concrete steps 

toward making our families and our economy stronger. It is about 

who we are as a country. 

Family is the cornerstone of our immigration system and the 

President’s commonsense plan helps keep families together. Many 
2 

of these families come to the United States to pursue their 

dreams—dreams like starting their own businesses or working to 

provide for their families in a safe community. 

My mother brought me to this country when I was a young girl 

and while we had very little as immigrants, my mom had a dream 

to provide a better life for herself and her three children. My story 

is like that of so many immigrants and others who come to our 

country. They have a dream. 

The President’s action now allows millions of hard-working parents and students to keep pursuing their American dream today. 

Take for example, a woman named Bianca, and her family in Hawaii. After moving to the United States on a visa over a decade 

ago, Bianca met her husband. They moved to the place they had 

always dreamed of living, Hawaii naturally, and began a family. 

Bianca and her husband’s work visas were temporary and like 

many immigrant families, they faced the tough decision to remain 

after their visas expired and continue building their lives here in 

America. Bianca and her husband started with nothing. Today they 

have two small businesses on Oahu and four American children. 

There businesses employ American citizens. They pay their taxes 

and they work hard to provide for their family and be part of the 

community. 

The President’s order with the new DAPA program will allow for 

Bianca, and her family to no longer live in fear every single day, 

the fear of being torn from the life that they have built in Hawaii. 

Bianca and her family are not alone. Around the country countless 

students and parents can now have some peace of mind that they 

can continue working toward their dreams. 

I would like to acknowledge the many DREAMers and families 

in attendance today. If you would like to wave, stand? Do not 

worry, I will not call you out of order for doing that. 

[Laughter.] 

Chairman HIRONO. Thank you. We are also joined today by 

American workers who recognize that the President’s plan and immigration reform will strengthen our economy. We have heard from 

mayors from cities ranging from New York to Dayton, Ohio will believe that the Executive action is good for their cities and local 

economies. We are a nation of immigrants, except for our native 

peoples who were here long before the rest of us got here. 

Regardless of education or background or financial means, however, immigrants do best when we have our families around us. I 

know that from my own experience and I remember last year when 

we were dealing with immigration reform in the Senate, I met a 

young, very highly educated woman who was an immigrant, became a naturalized U.S. citizen who only wanted to be able to bring 

her brother to this country and her brother was a sole surviving 

member of her family. Both of her parents had passed away. So for 

immigrants strong families and for the rest of us, frankly, equals 

a strong economy and that is what the President’s action is all 

about. 

The President’s plan lets us focus our limited resources on the 

border and on deporting felons, not hard-working families. This action is smart law enforcement. We have heard from police chiefs 

ranging from Los Angeles to Garden City, Kansas, who support the 
3 

President’s plan and believe that the status quo undermines trust 

and cooperation between police and the community. But the President’s action is only temporary. It does not provide a permanent solution to our broken immigration system and it does not help all 

11 million undocumented people living in the shadows in our country. 

We need Congress to pass comprehensive immigration reform 

which the American people overwhelmingly support. It has been 

over a year since this Committee and the full Senate approved our 

comprehensive immigration bill. A bill that has sadly just sat over 

there in the House of Representatives and we must continue working to pass commonsense humane reform that keeps our families 

together and continues to strengthen our economy. 

We have heard, as I mentioned, from many people about their 

support for the President’s Executive order. I would like to ask 

unanimous consent that their statements and letters be entered 

into the record. 

[The information referred to appears as submissions for the 

record.] 

Chairman HIRONO. So just to mention, we have heard from families who are impacted by this Executive action. We have heard 

from 27 mayors who support this Executive action. We have heard 

from law enforcement across the country. We have heard from faith 

leaders like the Conference of Catholic Bishops and the Lutherans 

who support this action. And we have heard from business leaders 

like Stan Merrick, CEO of Merrick Family of Companies in Houston, Texas who also supports the President’s action. 

Before I introduce our witnesses, Ranking Member Grassley, 

would you like to say a few words? 

Senator GRASSLEY. Yes, please. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. This is a very important hearing. The United 

States has served as a haven for those seeking refuge and a chance 

to make a better life. The promise of freedom and opportunity 

guides those who dare to dream 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. 

That rule of law in the United States is being slowly eroded as 

the branch of government charged with faithfully executing the law 

is increasingly abandoning its constitutional duty. Today it is estimated that more than 11 million undocumented immigrants live in 

the country. The question of how to properly handle people already 

in the United States is a challenging one. 

Instead of trusting in Congress’s role and in the democratic process, President Obama has chosen to further erode the rule of law. 

He is now doing what he said he lacked authority to do, he is unilaterally altering our Nation’s immigration policies in one fell 

swoop. 

President Obama’s latest action on immigration is a culmination 

of a pattern of abuse of power. His actions on immigration are contrary to his oath of office. It is a serious blow to our system of 
4 

checks and balances and shows total disregard for the spirit of the 

Constitution and the rule of law. 

The Constitution confers the power to make immigration laws to 

Congress. It charges the President with taking care that these laws 

are faithfully executed. But instead of doing that, the President 

told Federal officials to suspend enforcement and ignore the laws 

on the books in a blanket fashion. 

When announcing this Executive action, President Obama said 

that ‘‘Congress has failed.’’ Just because Congress has not passed 

a comprehensive immigration bill to his liking, it does not make it 

right for the President to bypass Congress in the legislative process. The President has usurped the legislative branch’s responsibility to write the laws and undermined the principle of separation 

of powers that is the very foundation of our constitutional democracy. In doing so, he has damaged relations with Congress and I 

think polls show, lost some trust with the American people. 

Jonathan Turley, a noted liberal law professor, said, ‘‘When a 

President claims the inherent power of both legislation and enforcement, he becomes a virtual government onto 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 has been done in the past. It is unprecedented and 

it is a threat to the Constitution. 

I do not buy the argument that this Administration’s actions are 

similar to those of previous Presidents. In a lame excuse that even 

The Washington Post found fault with—The Post said that President Obama’s unilateral action on immigration ‘‘has no precedent.’’ 

The Post said its comparisons to actions taken by President George 

H.W. Bush in 1990 are ‘‘widely exaggerated.’’ The White House 

numbers are ‘‘indefensible’’ and ‘‘the scale of Mr. Obama’s move 

goes far beyond anything his predecessors attempted.’’ 

The Post concluded that, ‘‘Unlike Mr. Bush in 1990, whose much 

more modest order was instep 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 claims there is a firm legal basis for his actions. It is ironic given his recent claims that—and this is quoting 

the President—‘‘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.’’ 

So there is what, in politics, we consider a ‘‘flip-flop.’’ The President is saying he cannot do something and then he did it. 

The Justice Department’s Office of Legal Counsel whipped up a 

memo taking the position that this action is permissible because of 

the Executive’s ability to exercise prosecutorial discretion. While 

the executive branch has the ability to decide when to prosecute 

and how to prioritize enforcement, that ability is not unlimited. 

The Administration is taking a broad, sweeping approach to 

prosecutorial discretion that amounts to an illegitimate exercise of 

enforcement discretion. Lawful prosecutorial discretion is exercised 
5 

on an individual case-by-case basis. It is not selecting entire categories of individuals and telling them that going forward, the law 

will not be applied to them. 

I have learned that if you reward illegality, you get more of it. 

The President is rewarding illegal behavior and conferring substantive benefits to those who qualify. The individuals who entered 

without inspection or overstayed their visas unlawfully now will receive benefits only afforded to those who abide by laws. 

Unfortunately, when you have non-enforcement of our immigration laws on such a broad scale, you are suspending the enforcement of law. That is unconstitutional. The executive branch cannot 

suspend and dispense of laws by non-enforcement and it cannot 

nullify the laws by unilaterally imposing contradictory directives. 

Instead, it is the duty of the executive branch to take care that 

the laws are carefully executed. I worry if we let the President get 

away with this, then what will come next? The American people 

are outraged by the President’s actions and rightly so. 

The fact is that enacting laws takes time. The Judiciary Committee engaged in a fulsome process on immigration reform in 

2013. It was unfortunate that the Majority Leader refused to have 

an open amendment process on the floor. I ultimately voted against 

the bill because it failed to first secure the border, but at least the 

Chairman recognized the need to debate and consider the issues in 

the Committee. I have complimented Chairman Leahy on that several times. 

This Administration has also failed to enforce the laws in the Interior. The Department of Homeland Security has released 100s of 

alleged murders, kidnappers, rapists and domestic abusers from its 

custody. 

Now, where is the accountability? Instead of being held accountable, the Administration has double downed. With the President’s 

actions, individuals here undocumented will know that even if they 

have committed crimes, they will be exempt from immigration enforcement and released. 

This is unfair to the people who have complied with the law and 

tried to enter legally. It is unfair to the U.S. workers who now 

must compete with this population for jobs in America. Most importantly, it is unfair to the American people and to our system of government. 

I yield. Thank you. 

Chairman HIRONO. Thank you very much, Senator Grassley. 

Chairman Leahy, unfortunately, could not attend today’s hearing, but he has submitted written testimony which I would like to 

ask unanimous consent be entered into the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman HIRONO. I would like to introduce very briefly our witnesses today and thank them for appearing before this Committee. 

We have Elizabeth Shuler who is the secretary-treasurer of the 

AFL–CIO; Chris Schroeder, Charles S. Murphy professor of law 

and public policy studies and co-director, program in public law at 

Duke Law School; Dr. John Eastman, Henry Salvatori professor of 

law and community service and director, Center for Constitutional 

Jurisprudence, Chapman University School of Law; Jan Ting, pro-
6 

fessor of law, Temple University Beasley School of Law; and Astrid 

Silva, student at Nevada State College. 

I would like to administer the oath to our witnesses. If you would 

all stand and raise your right hand. Do you solemnly swear that 

the testimony you are about to give the Committee will be the 

truth, the whole truth and nothing but the truth so help you God? 

Ms. SHULER. I do. 

Professor SCHROEDER. I do. 

Professor EASTMAN. I do. 

Professor TING. I do. 

Ms. SILVA. I do. 

Chairman HIRONO. Thank you. Let the record show that the witnesses have answered in the affirmative. 

We will start with you, Ms. Shuler. 

STATEMENT OF ELIZABETH H. SHULER, SECRETARY-TREASURER, AMERICAN FEDERATION OF LABOR AND CONGRESS 

OF INDUSTRIAL ORGANIZATIONS, WASHINGTON, DC 

Ms. SHULER. Good afternoon, Chairwoman Hirono, Ranking 

Member Grassley, Members of the Committee. Thank you for the 

opportunity to testify and be here with you today. 

My name is Liz Shuler. I am Secretary-Treasurer of the AFL– 

CIO. It is a federation of 56 unions. We represent 12.5 million 

working men and women across the country. The AFL–CIO—our 

very mission: We believe that every person who works in the country should receive decent pay, good benefits, safe working conditions and fair treatment on the job. 

I travel a lot around the country, like all of you, and I talk to 

a lot of working people when I am visiting job sites all across the 

Nation. I have seen firsthand how our broken immigration system 

drives down wages, undercuts employers who play by the rules, 

and chips away at gains made at the bargaining table. We have 

been calling on the Administration to take action on immigration 

for a very long time because we know that the status quo is an invitation for employer manipulation and abuse and our entire work 

force ends up paying the price. 

Now although this fix is temporary, the AFL–CIO supports the 

President’s decision to provide deferred action to nearly 5 million 

people. Deferred action will keep families together and allow millions of people to live and work without fear. 

I want to state clearly for the record that deferred action is not 

amnesty. The new programs simply allow parents and immigrant 

youth who have been in the country for 5 years to come forward 

and apply for work authorization and temporary relief from deportation. 

The individuals who will benefit are longstanding members of 

our communities and our unions and like all workers in this country they deserve the opportunity to work without being exploited. 

It is important to note that 8 million of the 11 million undocumented immigrants in the U.S. are already working. 

Allowing 5 percent of the work force to struggle to support their 

families without full rights and protections is wrong and it creates 

a dangerous environment in which wage theft, sexual harassment, 

death and injury on the job are all too common. When employers 
7 

can hire undocumented workers with a wink and a nod, then fire 

them when they try to organize a union or object to unpaid wages 

or unsafe working conditions, it is not just undocumented workers 

that suffer, but their U.S. citizen coworkers as well. 

So let me bring this down to the ground with a couple of examples. Somewhere today there may be a meatpacking worker who is 

reluctant to complain about consumer safety concerns in a plant, 

a hotel worker who suffers through an injury on the job rather 

than risk seeing workers compensation, and a construction worker 

who is still trying to muster the courage to report to authorities 

that his paycheck does not include the overtime that he worked 

that week. 

The cumulative effect of these abuses all put together harm our 

economy. Again, let me be clear on this point, the current broken 

system harms all workers. 

Take wage theft for example, the National Employment Law 

Project estimates that 68 percent of low-wage workers, many of 

them undocumented, experienced pay violations, 68 percent. We 

are not talking small violations here. They accumulate annually to 

a loss of 15 percent of their income. That means employers steal 

$2600 per year from workers who only earn about $17,000 a year. 

Shockingly, wage theft, the estimates are at around 56 million per 

week if you take them all combined together from workers pockets—in New York City, Chicago and Los Angeles alone. 

So in terms of tax dollars, the President’s announcement will increase payroll taxes by $3 billion in the first year and nearly $23 

billion over 5 years and increase wages for U.S. workers over time 

as well. Workers need status to fight back. They need status to 

fight back against injustice on this scale and we will all benefit 

when they finally have it. 

So for these reasons and many others—I see my time is running 

short—I urge the Committee to support deferred action. Looking 

forward we will continue to urge Congress to work on comprehensive commonsense immigration reform that ensures that all workers, immigrant and native-born, have access to labor, health and 

safety protections and our immigration policies really should be a 

part of a shared prosperity agenda that unites communities and 

keeps families together and creates a roadmap to citizenship for 

those who aspire to be Americans. 

We worked together with the Chamber of Commerce, I know in 

the original bill, the labor movement together, and we know that 

it can be done, this comprehensive approach, if we all put our 

heads together and work to solve the problems. So in conclusion, 

we call on you to reject failed temporary worker models that undermine wages and working conditions and instead enact the type of 

meaningful immigration reform that will help build a stronger economic future for our Nation and support the basic civil and human 

rights and dignity of all workers. 

Thank you again and I look forward to any questions. 

[The prepared statement of Ms. Shuler appears as a submission 

for the record.] 

Chairman HIRONO. Thank you, Ms. Shuler. 

Professor Schroeder. 
8 

STATEMENT OF CHRISTOPHER H. SCHROEDER, CHARLES S. 

MURPHY PROFESSOR OF LAW AND PUBLIC POLICY STUDIES 

AND CO-DIRECTOR, PROGRAM IN PUBLIC LAW, DUKE LAW 

SCHOOL, DURHAM, NORTH CAROLINA 

Professor SCHROEDER. Senator Hirono, Senator Grassley, Members of the Committee, thank you very much. I appreciate the opportunity to be here today to discuss the legal basis of the President’s decisions and the Department of Homeland Security’s policy 

memo of November 20. 

I do so, of course, with the benefit of a 33-page Office of Legal 

Counsel opinion, which I consider to be competent and thorough. 

It reaches the conclusion that the policies announced on November 

20 are legal within the President’s discretionary authority, although, it did reject one proposal that the Department of Homeland 

Security had asked the Office of Legal Counsel to investigate which 

I think demonstrates on its face that OLC does not consider the 

President’s authority unlimited in this regard. 

Now OLC’s view is shared by a wide number of scholars and immigration lawyers around the country. Of course, there are dissenting views which I think will be ably defended today by my two 

distinguished colleagues. My opinion is that on balance the conclusion of the Office of Legal Counsel has the better of the argument. 

Now it is 33 pages long. It is very detailed. I am not going to 

get into the weeds of it in my opening remarks. I will be happy to 

wade at least a little bit into them if you would care to do so in 

questions. 

I want to make three basic points. One is that the approach of 

the Office of Legal Counsel is exclusively, in my judgment, to analyze the sources and limits of DHS’ enforcement discretion under 

the immigration laws. That is language from the opinion. There is 

no assertion of unilateral Presidential authority in this memorandum. There is no reliance upon the ability of the President to 

act outside of the authorities that the statutes have granted him. 

The opinion, then, as the second point also establishes, I think, 

to the satisfaction of a great many people and I will be surprised 

if my colleagues disagree with this. That enforcement discretion is 

a common feature of many statutes and, in fact, is considered to 

be particularly wide in the area of the immigration laws. This includes the ability to provide deferred action even though that particular measure is not explicitly mentioned in the statute. It has 

been endorsed by acts of Congress and is a longstanding administrative practice going back at least until the 1970s. 

The third point I will make in these opening remarks is that 

having established the general background, the Office of Legal 

Counsel then, of course, has to turn to the statute itself because 

under its own brief it has to find that the authorities that are being 

exercised are within the discretionary bounds established by the 

statute. At first it finds nothing in the statute that expressly prohibits granting deferred action under these circumstances. 

In fact, it finds that the deferred action elements of the policy 

guidance produced on November 20 are in fact consonant with a 

longstanding Congressional policy interest which it states in the 

following way—the policy that it thinks underlies these actions is 

the particularized humanitarian interest in promoting family unity 
9 

by enabling those parents of U.S. citizens and legal permanent 

residents who are not otherwise enforcement priorities and who 

have demonstrated community and family ties in the United States 

as evidenced by the length of time they have remained in the country to remain united with their children in the United States. 

Now obviously, there are other policies that are reflected in the 

immigration laws, numerous of them and on particular matters, 

these policies can come into tension with one another. But when 

discretion has been advanced and allocated to the executive branch, 

it falls on the executive branch to make the appropriate balancing 

decisions. 

In one of the seminal separation of powers cases decided by the 

Supreme Court, the Chevron decision, the Court put it this way: 

‘‘An Agency to which Congress has delegated policymaking responsibilities may within the limits of that discretion properly rely upon 

the incumbent Administration’s view of wise policy to inform its 

judgments. When a challenge to an agency construction of a statutory provision fairly conceptualized really centers on the wisdom of 

the agency’s policy rather than whether it is a reasonable choice 

within the gap left open by the Congress, the challenge must fail.’’ 

So I believe what the memorandum shows is that there is a gap 

speaking to the specific issue. Of course, it could have been satisfied in a number of different ways. The status maintained in the 

status quo would have been a perfectly legal approach for the 

President to take, but I believe that the actions that the President 

did take are also within the statutory bounds and it was the judgment of this Administration to take those steps and under Chevron, I think is justified for that reason. 

Thank you very much. 

[The prepared statement of Professor Schroeder appears as a 

submission for the record.] 

Chairman HIRONO. Thank you, Professor Schroeder. 

Dr. Eastman. 

STATEMENT OF JOHN C. EASTMAN, PH.D., HENRY SALVATORI 

PROFESSOR OF LAW AND COMMUNITY SERVICE AND DIRECTOR, CENTER FOR CONSTITUTIONAL JURISPRUDENCE, 

CHAPMAN UNIVERSITY SCHOOL OF LAW, ORANGE, 

CALIFORNIA 

Professor EASTMAN. Thank you Chairman Hirono, Senator Grassley, and other Members of the Committee. Thank you for inviting 

me to be here today. 

The issue for us is not what proper immigration policy ought to 

be. The issue is who under a constitutional system makes it. I cannot disagree with my colleague, Professor Schroeder, more on the 

OLC opinion. I found it both uncharacteristically weak and even 

self-contradictory in its analysis. 

There are three basic steps in the President’s recent actions here 

that need to be addressed. Only one of the three is even a close 

call, in my view. That is, can the President use his discretion, 

which everybody concedes he has, not to prosecute every single instance of violations of our law, that traditional prosecutorial discretion—can he use it on a categorical basis to effectively rewrite the 

law which I believe he has done with these actions. 
10 

The Supreme Court has never addressed that question directly 

as a holding, but has intimated on several different occasions that 

such a categorical use of prosecutorial discretion would be a violation of the President’s ‘‘take care that the laws be faithfully executed’’ obligation. Prosecutorial discretion cannot be stretched so 

far as to give a categorical exemption or suspension of the law. 

But even if you assume that this broad categorical use of prosecutorial discretion can be permissible, there are two other steps 

that the Secretary of Homeland Security, both Secretary 

Napolitano in the DACA program and the current program announced by Secretary Johnson on November 20. They first take 

those decisions not to prosecute, not to institute removal proceedings and not to deport as creating somehow a lawful presence 

in the United States while simultaneously speaking out of the 

other side of their mouth that this does not convey a lawful status. 

Now lawful presence and lawful status is a bit too Orwellian of 

a fine distinction for most of us and I think it is here as well. The 

fact that you use prosecutorial discretion not to prosecute an instance of a violation of the law does not mean that you have the 

lawful authority to authorize a continuing violation of that law. 

Think of the comparison here, a group of protesters occupies a 

military base in violation of trespass laws and through the use of 

prosecutorial discretion the base commander says I am not going 

to prosecute or forcibly remove them. That does not give them a 

right to be lawfully present on a continuing basis on that military 

base and yet Secretary Johnson’s claim and the President’s own 

statement on November 20 have repeatedly used phrases like ‘‘lawful presence’’ and ‘‘make you right with the law.’’ That exceeds the 

scope of prosecutorial discretion under any definition. 

And then the third piece of this is whether the President then 

has the authority to take the next step, not just treat them as lawfully present in the United States, but to give them a lawful status, 

a lawful work authorization, Social Security cards, drivers licenses 

and all of the benefits that flow from that which Secretary 

Napolitano announced in June 2012 that she was going to do, and 

Secretary Johnson has now confirmed that as well—that notion 

that they can take the decision not to prosecute or not to remove 

and deport individuals who are here unlawfully and convert that 

into a lawful presence that gives entitlement to work authorization 

is beyond anything that this Congress has authorized in the statute. 

There are four words in one provision of the statute that the Office of Legal Counsel has relied on to find statutory authority for 

this. That statute says that it is illegal to hire somebody who is an 

unauthorized alien in the United States, defined as anybody who 

does not have lawful permanent residence or fall under an exemption under this chapter or given a waiver by the Attorney General. 

‘‘By the Attorney General,’’ those four words the Office of Legal 

Counsel treats as essentially giving unfettered discretion to the Attorney General to issue work authorizations whenever he or she 

sees fit. 

The notion that those four words implies a delegation of such unfettered authority from this Congress when, as we know, every single exemption from the law that has been pushed by Congress over 
11 

the last three decades has been minutely detailed on what the criteria are—the notion that all of that is meaningless, that the President through his Attorney General could just issue work authorizations whenever he or she wants, is beyond the pale of what those 

words can mean. 

More significantly, if, in fact, that is what those words mean, 

then I think there is a complete unfettered and unlawful delegation 

of this body’s lawmaking power to the President. Article I, Section 

1, of the Constitution is very clear, the lawmaking power that we 

the people delegated to the Federal Government is vested in this 

body, in the Congress of the United States, not in the Executive. 

The Supreme Court has routinely allowed you to delegate regulatory, fill-in-the-blank authority. But every time it has recognized 

that, the Court has said you have to convey an intelligible principle 

by which the exercise of that rulemaking authority discretion is exercised. 

If these four words creates the unfettered discretion that the 

President and his Office of Legal Counsel claim, there is no intelligible principle whatsoever, no channeling of the discretion given 

to the Executive. You have handed over, without any restrictions 

whatsoever, complete unfettered discretion to the President. That 

violates the Nondelegation Doctrine and a core provision of the 

Constitution of the United States. 

Thank you, Madam Senator. 

[The prepared statement of Professor Eastman appears as a submission for the record.] 

Chairman HIRONO. Thank you, Dr. Eastman. 

Professor Ting. 

STATEMENT OF JAN C. TING, PROFESSOR OF LAW, TEMPLE 

UNIVERSITY BEASLEY SCHOOL OF LAW, PHILADELPHIA, 

PENNSYLVANIA 

Professor TING. I want to thank Chairman Leahy and Ranking 

Member Grassley and all of the Members of the Committee for the 

privilege of joining this panel this afternoon. 

It was my privilege to serve as the Assistant Commissioner of 

the Immigration and Naturalization Service at the U.S. Department of Justice from 1990 to 1993. And it is my view that the immigration system is not broken as it has become fashionable to say. 

What is broken, I think, is our willingness to choose between two 

mutually exclusive choices, either we are going to have no limits 

on the number of immigrants that we accept into the United States 

given the fact that we all admire and respect immigrants, or alternatively, we are going to enforce some sort of numerical limitation 

on how many immigrations we accept into the United States. 

That is a binary choice. But people do not want to do it because 

trying to enforce any limit means turning away people who are not 

criminals or national security threats, who just want a shot at the 

American dream and who, frankly, remind us of our own ancestors. 

Some people find it hard to do. And they are asking for a third 

choice and I think that is what President Obama has launched us 

on, a third choice which I characterize as let us pretend. Let us 

pretend that we have a limit on immigration, let us keep it in the 

books, but let us not enforce it. Let us have no enforcement within 
12 

the borders of the United States and if we accumulate a large number of illegal immigrants, we will just give them some sort of amnesty here. If you do not want to call it that, call it legalization or 

something. We are going to find a way to let them stay. 

I just want to say that if we do nothing, if we do no reform at 

all, we are left with the most generous legal immigration system 

in the world, bar none. We admit every year into the United States 

more legal, permanent residents with a clear path to full citizenship than all the rest of the nations of the world combined. We give 

out more green cards every year, year after year, after year than 

all the rest of the nations of the world combined. 

In part two of my written testimony—I think I get the prize for 

submitting the longest written testimony. There is a prize is there 

not? So I am going to summarize. 

In part two, I explained why I think the deferred action plan of 

President Obama is both unwise and bad policy. It hurts unemployed and underemployed U.S. workers who are now forced to 

compete with 5 million additional illegal immigrants who are going 

to have work authorization. It encourages more aliens to enter the 

United States illegally in the expectation that they too will receive 

benefits further down the line. And it discourages legal immigrants 

who are going to have to compete with these 5 million illegal immigrants for jobs in the United States and it also discourages them 

because most legal immigrants given our numerical limitation have 

to wait in line for the privilege of coming to the United States. 

Some legal immigrants have been waiting today for more than 20 

years for their privilege to come to the United States. What message does this deferred action send to them? I think it tells them 

that they are fools for respecting American law and that we are 

going to reward instead people that have come illegally to the 

United States as recently as 5 years ago, they will get work authorization. The legal immigrant still waiting in line will not. I think 

that sends a bad message. 

In part three of my written testimony, I want to ask Congress 

to consider the impact on the U.S. Treasury of the refundable 

earned income tax credit on this question of whether the deferred 

5 million will actually pay taxes as claimed or instead will they be 

claiming payments from the U.S. Treasury? I am a volunteer income tax preparer. I have prepared returns for poor people in 

Philadelphia and I have obtained enormous earned income tax 

credits for my clients which is I think pursuant to a statute enacted by the Congress. Do we really mean to extend that privilege 

to 5 million illegal aliens most of whom are parents of children and 

so in position to claim the earned income tax credit? We need to 

look at that. 

In my written testimony I have cited an IRS ruling which is still 

up on the website which allows the deferred 5 million to claim the 

refundable earned income tax credit for prior years worked when 

they did not have Social Security numbers. They are going to be 

able to claim this credit retroactively according to an IRS ruling 

that is in my written testimony. Congress, I hope, will look into 

this. 

In part four, I explain why I think the deferred action for 5 million is unconstitutional and illegal. The President’s referring on 
13 

this 33-page OLC opinion and it was just released less than a 

month ago on November 19, at opinion, relies on the Supreme 

Court decision in Heckler v. Chaney for the proposition that an 

agency’s decision—I think in that case it was the Food and Drug 

Administration—not to take enforcement action should be presumed immuned from judicial review, but the Supreme Court in 

Heckler also said this, ‘‘In so stating, we emphasize that the decision is only presumptively unreviewable. The presumption may be 

rebutted where the substantive statute has provided guidelines for 

the agency to follow in exercising its enforcement powers. Thus in 

establishing this presumption in the APA, Congress did not set 

agencies free to disregard legislative direction in the statutory 

scheme that the agency administers. Congress may limit an agencies exercise of enforcement power if it wishes either by setting 

substantive priorities or by otherwise circumscribing an agency’s 

powers to discriminate among issues or cases it will pursue.’’ 

I believe that each component of the immigration Executive order 

announced on November 19 violates substantive priorities of Congress as expressed by the statute. My time is short. 

I just want to talk about the advance parole issue, which is one 

that has been largely avoided by the President. They do not mention on this deferred action although advance parole is part of the 

DACA program previously announced. I believe advance parole is 

going to serve as an illegal backdoor pathway to citizenship for 

most of the 9 million people that we are talking about here. It is 

clearly a violation of the narrow interpretation of parole under Section 212(d)(5) of the immigration law. 

Here is why. Most of these 5 million will become immediate relatives of U.S. citizens. When those children reach age 21, they cannot claim the visa overseas at a consulate because they are barred 

under 212(a)(9)(B), barred for overstaying in the United States by 

more than a year. They are barred from coming back into the 

United States—— 

Chairman HIRONO. Professor Ting, I am sure you are coming to 

your conclusion—— 

Professor TING. I am coming to a conclusion. There is adjustment 

status under 245 only for aliens admitted or paroled. Advance parole solves all of these problems. It says that the departure is not 

considered a departure and it says that they are paroled backed in. 

Section 245 is only available to people who are admitted or paroled. 

These people—most of them have not been admitted, but they will 

be paroled. 

They are going to qualify for a green card. They are going to get 

a pathway to citizenship. 

I thank the Committee for its attention to these matters. I hope 

you will read my written testimony. Thank you. 

[The prepared statement of Professor Ting appears as a submission for the record.] 

Chairman HIRONO. Thank you, Professor Ting. 

Ms. Silva. 
14 

STATEMENT OF ASTRID SILVA, STUDENT, NEVADA 

STATE COLLEGE, LAS VEGAS, NEVADA 

Ms. SILVA. Madam Chairwoman and distinguished Members of 

the Committee, good afternoon and thank you for the invitation to 

appear before you today to discuss an issue that is of great importance to me and to many families in the United States. 

My personal story is not unique and is typical of millions of immigrants here today. That is why I also want to thank this Committee for working so hard on the comprehensive immigration reform bill last year. I watched from the gallery as the Senate called 

that historic vote and I believed that we were one step closer to 

real change. 

Like many before them, my parents—one of whom is here with 

me today—came to this country and chose to leave everything behind in search of a better life for their children. When I was 4 

years old, my parents brought me across the Rio Grande in a 

homemade tire raft. 

I still have a vague memory of that day. I was holding onto my 

doll very tightly because I was so afraid of what was happening. 

I remember looking down and knowing that I was going to be in 

trouble because I had gotten mud on my brand-new patent leather 

shoes. 

Moving to the United States provided us with many wonderful 

things including my little brother who was born in 1993. But for 

me everything I have ever known is in Las Vegas. I grew up believing that I was just like everybody else. That the only difference 

was that when I was little I did not speak English. The kids used 

to make fun of me, but then I learned English 3 months after getting here, after getting into school because of the dedication of my 

parents and their desire for me to do better. 

When I was in middle school, I received many prestigious honors 

at my school. But still my parents were afraid to let me sign up 

for a magnetic program that I had my heart set on. They believed 

that the school might ask me for my Social Security number and 

that immigration officials would know that I was here without documentation. A teacher who believed in me encouraged me to apply 

and with her help I did and I was accepted to A-TECH. 

I excelled and I thought that I was just like my classmates until 

the time came to apply for colleges. I knew that my status meant 

that I could not drive because I could not get a license without a 

Social Security card, but I did not actually understand that being 

undocumented would hurt my future. My guidance counselors then 

told me that it was the end of the road for my academic career. 

I had worked very hard. I had the good grades. I had all of the 

extracurricular activities, but when I was at my high school graduation when all my friends were called on stage and the school that 

they were going to was announced along with every scholarship 

that they had received, I was devastated. I knew that I could not 

have any of that because I did not have a Social Security number. 

But in 2013 when I received DACA, my life changed completely. 

But my fear continues to exist. I am still afraid that my mom and 

dad will be deported. I am afraid that one day I will come home 

and they will not be there. Our lives will be completely turned upside down and that we will be torn apart and separated. 
15 

No matter how many degrees I am able to get, what is going to 

happen to me if I walk across the stage and nobody is there? My 

parents are hard-working. They are good people and they want 

nothing more than the opportunity to work hard and watch my 

brother and I grow up. My dad works very long hours in the Las 

Vegas heat where as we know it can get up to 120 degrees. He 

never complains. In his free time, he collects can tops to raise 

money for Ronald McDonald house. My mother, who has become a 

community mom and volunteers at a lot of local nonprofit organizations—she is here with me today 

My family knows firsthand the value of the President’s new Executive action. Several years ago, my dad was detained by immigration enforcement officers. It was the most traumatic experience 

of my life. In an effort to get right with the law, my dad had paid 

a notario, a notary, someone who he thought was a lawyer, to file 

an immigration application. Unfortunately like a lot of other people, we were taken advantage of. 

She took advantage of my dad’s lack of immigration knowledge 

and never told us that his application had been denied. She 

dragged us along telling us that immigration just takes a very long 

time in the United States. While she was doing this, she was draining our life savings. 

As a result of that experience, my dad was issued a deportation 

order and picked up for detention. He is just one of thousands of 

parents who have been separated from their children. My family 

spent 1 week without my dad, but it was the longest week of my 

life. We did not know what would happen to him or to us. 

When we were told that he was going to be deported, they told 

me that I could give him a 10-pound bag with toiletries. I wondered 

to myself how could the country that we love so much be brought 

down in a 10-pound bag. 

My brother, he is United States citizen, he felt like his country 

had betrayed him. He said, Astrid, how can they do this to our 

dad? I understand I may not have rights here because I am undocumented, but my brother was born here. He has lived here his 

entire life. He is as American as any of the Senators in this room. 

He could not believe that day that our data had been taken. 

The latest efforts by President Obama will keep my family together. It will keep millions of other families together. Of course, 

there are many families that will not benefit from this. I have 

many friends whose parents will not qualify. I have many friends 

who do not have children and will also not qualified. I feel tremendously lucky that I first received DACA, but now my parents will 

fall into a category of people that can be legally protected because 

they meet the qualifications. 

But there are so many countless others who are not as lucky, but 

they are just like us. They are people that like my family are only 

making our country a better place. They volunteer in our communities, they go to church with us, they go to school with us, they 

have jobs and take their responsibility seriously. We must continue 

to work with Congress to pass a permanent legislative fix to our 

country’s broken immigration system so all mothers and fathers 

can be home with their children. 
16 

The bipartisan comprehensive immigration reform package that 

passed the Senate in 2013 was certainly not perfect, but it was fair 

and permanent. It was a fix to the problem. I and so many of my 

friends will continue the fight to pass a bill. But in the meantime, 

we will also fight to protect and defend the President’s action. 

When people attack the President for the action or challenge his 

legal authority, the same authority that has been used before, they 

are attacking me, they are attacking my mom, they are attacking 

the hundreds of thousands of children who need their parents to 

take care of them. They need their parents to tell them that there 

are no monsters under the bed. They are attacking the workers 

who are contributing to our economy and they are attacking me 

with every single word that they say. 

You are not attacking a stranger. You are attacking the girl who 

sits next to your grandson in chemistry class. You are attacking 

the man who spends his day making sure that your roses are beautiful every single spring and more importantly, attacking America 

and everything that has made our country this strong. 

I hope that you will continue to see that this action not only 

helps make our country stronger, it makes it a more diverse nation, 

but it also demonstrates what we stand for as the United States, 

the American dream and the belief that if you work hard, you will 

be able to provide for your family and live without fear of persecution. 

Thank you. 

[The prepared statement of Ms. Silva appears as a submission 

for the record.] 

Chairman HIRONO. Thank you, Ms. Silva. 

Members will have 5 minutes each to ask questions of the witnesses. 

I have a question for Professor Schroeder. We have heard testimony that one of the major problems with the President’s Executive order is that this is a categorical—it applies to a category of 

people. Would you agree with that characterization of the Executive order that somehow people who apply through the Executive 

order do not have to go through a whole range of other questions, 

so would you consider that a categorical designation of people who 

will automatically get the status? 

Professor Schroeder. No, Senator. I would not. The Johnson 

memorandum is quite clear that every applicant for the program 

has to be reviewed on a case-by-case basis. It sets up some initial 

qualifications that make you prima facie eligible for consideration, 

but then it instructs the line officers and inspection officers to do 

a case-by-case evaluation of each application. 

Chairman HIRONO. And is that pretty much a process that was 

followed with the other Executive orders in this area by other 

Presidents, Eisenhower, Reagan? 

Professor SCHROEDER. Senator, I assume that to be the case. I 

have not gone back and read the text of each of those INS or Department of Homeland Security guidance documents, but I believe 

that the department in this instance was following deferred action 

practices that have been established over a course of 40 years. 
17 

Chairman HIRONO. Ms. Shuler, we have here testimony that this 

is going to result in 5 million people taking away jobs from American citizens. Do you have a response to that? 

Ms. SHULER. Sure. As I said in my prepared remarks, we believe 

8 million out of the 11 million are already working in the United 

States. But I think the larger point is that when we have workers 

that are working in a shadow economy, that are working for low 

wages because they are afraid to speak out, they are afraid to 

make waves, it actually lowers standards and wages for everyone. 

So we believe that having workers come out of the shadows and 

have a legal way of actually having those protections, we think 

that is going to benefit all workers. 

Chairman HIRONO. Ms. Silva, I know that you fully recognize 

that the President’s Executive order is temporary and so there are 

people who may be afraid to come out of the shadows to register 

to be identified in that way. What would you say to them? 

Ms. SILVA. Senator, when deferred action was announced in 

2012, there were many people who told me to not apply because I 

would be put on a list to be deported even faster. But it has been 

2 years and what deferred action did was change my life. I have 

been able to get a job to save up enough money so that I can finish 

my education now. I have been able to learn how to drive, something that I had never done in my life before. I am able to now 

drive to school. So to me people that are doing this are obviously 

trying to instill fear in people, but I think that this is going to be 

at least a temporary solution to a problem that is much bigger. But 

I will continue to fight in Congress because I know that we need 

a law. 

Chairman HIRONO. So are you saying that you are willing to take 

the risk to come out of the shadows even if this is a temporary kind 

of a stay on potential deportation? 

Ms. SILVA. There is the risk at any moment that if you do not 

have any type of protection that you can be deported. People are 

being deported every single day. People are afraid sometimes to 

call 911 because they think that they are going to get deported. So 

this would just give them that protection to at least know that they 

can contribute and not be afraid. 

Chairman HIRONO. Ms. Shuler, I think you mentioned that the 

positive impact on our economy if all of these people who are impacted by this Executive order can come out of the shadows, pay 

their taxes—could you tell me again what that figure was? 

Ms. SHULER. Well, in the testimony, basically we think that the 

President’s announcement is going to increase payroll taxes by $3 

billion in the first year and nearly $23 billion over 5 years. That 

also applies to overtime as well. 

Chairman HIRONO. Thank you. We met with a number of people 

who wanted to make sure that we focus on family unity as a guiding principle of immigration reform. Ms. Silva, can you just tell us 

how important keeping the family together is for people in your situation, for immigrants. 

Ms. SILVA. To me it is the most important thing. My parents left 

everything that they knew. They left behind their own parents so 

that they could give me a better life. And now to be here with them 

is the most important thing to me. Just to have my dad in a deten-
18 

tion center for 1 week was devastating. I am 26 years old and to 

me it was scary. I cannot imagine a five- or 6-year old coming home 

and not knowing where their mom and dad are. Knowing now that 

we are going to be able to plan our holidays, we did not have that 

3 weeks ago. We did not know if my mom or dad would be deported. My dad has an order of deportation because of the scam 

that he was under. We did not know if this was going to be the 

last Christmas where we were together. 

Chairman HIRONO. Thank you, my time is up. 

Senator Grassley. 

Senator GRASSLEY. I probably will only have a chance for three 

questions. My first question will be to Professors Ting and Eastman. The second one also. The third one I would like to ask Ms. 

Shuler. 

Professors Ting and Eastman, how is the President able to stay 

within the boundaries of the prosecutorial discretion which requires a case-by-case analysis and still grant deferred action to millions of people? Let me ask a second related question, what are the 

outer limits of doctrine of prosecutorial discretion? Do the President’s recent actions exceed those boundaries? And I would like to 

have both of you give me your opinion, but not repeat each other 

so we can move fast. 

Professor EASTMAN. I think the OLC Memo recognizes what the 

line is. It says it has to be on a case-by-case basis and it repeats 

that phrase over and over again. But the conclusion it draws utterly ignores the language. And I do not think you need to take my 

word for it. You can take one of the other witnesses at this panel, 

Ms. Silva, who just announced that her parents now qualify to be 

here legally ‘‘because they meet the qualifications.’’ 

That means that everybody else in the country, despite what 

OLC says in its memo and despite what Professor Schroeder said, 

are ignoring that case-by-case language in the memo because it is 

clear that the memo itself, the directive from Secretary Johnson, 

ignores that case-by-case requirement as well. 

Here is what the memo says, ‘‘With respect to individuals who 

meet the above criteria and are not yet in removal proceedings, 

ICE and CBP should immediately exercise their discretion on an 

individual basis and here is how they shall exercise that discretion 

in order to prevent low-priority individuals from being placed into 

removal.’’ And it goes on, it uses that, ‘‘You should do it this way.’’ 

I mean, woe to the line officers in the immigration services who do 

not take that language on what they should do seriously. 

This is not a case-by-case adjudication. If you meet those criteria, 

you are given the status that these memos set out. That is what 

runs afoul of what the Supreme Court has repeatedly said moves 

from prosecutorial discretion to an utter suspension of the law. 

Professor TING. I would just add to that, summarizing what Professor Eastman has said, that this case-by-case reference in the 

OLC memo strikes me as window dressing. They know they have 

to do it case-by-case, so they say we are going to do a case-by-case, 

end of story. What more do you want? 

I think we demand more than that. The most important thing I 

think is our constitutional system of government which is the notion that the American people govern themselves through our elect-
19 

ed representatives, through a deliberative process of checks and 

balances, that is the most important thing that we ought to be concerned about here. If the President is making up the rules as he 

goes along in defiance of the statute, we are getting away from the 

most important constitutional principle of all. 

Senator GRASSLEY. Without reading a long introduction, I want 

to refer to the fact that the President’s OLC opinion cited things 

that Presidents Reagan and George H.W. Bush did. The question 

is to you two again. We all know that this is a grossly 

mischaracterized comparison. Would you explain how the actions of 

Presidents Reagan and Bush do not provide support for President 

Obama’s actions? Are there other factors distinguishing their actions from those of the President? 

Professor TING. I will take this one. In my written testimony, I 

state that all of the alleged precedence cited are in fact distinguishable. The defenders of the President’s actions say, while numbers 

do not matter, case-by-case or 5 million, the same principle. It 

seems to me that is on its face questionable, if not obviously false. 

Numbers do matter and the small groups that have been deferred 

in the past, while their constitutionality has not been judged by the 

courts so they do not really set a constitutional precedent at all, 

but they are clearly distinguishable because of the numbers concern. 

Now there have been examples of larger groups incorporated by 

category, but I think those are distinguishable to the extent that 

the President, when invoking them, cites the President’s foreignpolicy power. I think the Congress has acknowledged the President 

has significant powers in the area of foreign policy and foreign affairs. 

If the President says I am exercising my foreign affairs power, 

which he did not on November 19, I think that does create a different situation. The numbers are different. There is no citation of 

foreign powers of authority. Now I know people point to the 1990 

Family Fairness example, but I think that is clearly distinguishable because in 1990, as some Members of this Committee know, 

the Bush administration was engaged in active negotiations with 

the Congress leading to the 1990 immigration act which solved this 

problem by statute. 

So I quote Justice Jackson in Youngstown who said that the 

President is at the peak of his authority when he is acting with the 

concurrence of Congress, either explicitly or implicitly. And his 

power is at the lowest ebb when he is acting without the explicit 

or implicit consent of Congress. That is what I think distinguishes 

the 1990 Family Fairness initiative from the November 19 deferred 

action initiative. 

Professor EASTMAN. And Senator Grassley, there is one other 

piece and that is that, at the time, the Immigration and Naturalization Act, Section 242(b), specifically gave discretion to the Attorney General to issue extended delayed voluntary departure. We 

have no statutory authority comparable to that now. That statute 

has subsequently been repealed. It was first limited in time and 

then repealed altogether. But there was specific statutory authority 

for that. The notion that that action then serves as a basis for the 
20 

President to take actions without any statutory authority is not 

correct. 

Senator GRASSLEY. I am done. 

Chairman HIRONO. Thank you. 

Senator Franken. 

Senator FRANKEN. Well, I might as well follow up with this. It 

seems to me what Ms. Silva was sort of saying was that her father 

now fits within a certain set of criteria and it seems to me that 

what the Office of Legal Counsel was doing was defining a set of 

criteria under which people on a case-by-case basis—it could be determined whether they qualify for this. Do I understand that 

wrong, Mr. Schroeder? 

Professor Schroeder [off microphone]. No. I think, Senator, you 

have it exactly right. 

Senator FRANKEN. Say the first part, ‘‘Mr. Senator, you have it 

right.’’ 

[Laughter.] 

Professor SCHROEDER. Yes, Senator Franken, I think you have it 

exactly right. 

Senator FRANKEN. Thank you. Now it is on the record. 

[Laughter.] 

Professor SCHROEDER. And in fact, if you look at the last of the 

criteria that are listed in the memorandum, it is that the applicant 

present no other factors in the exercise of discretion that makes the 

grant of deferred action inappropriate. So I am not going to put 

words in the mouth of Ms. Silva, but I think what she was anticipating is that her parents are not going to trip up on that last criteria. But, of course, they will have to go through the process of 

somebody determining that on a case-by-case basis. 

Senator FRANKEN. Right. That is sort of how I understood it and, 

for example, in DACA there are a lot of people who were denied, 

like 30-some thousand; right? 

Professor SCHROEDER. Yes. I think the latest number on the 

website is 32,000 denials. 

Senator FRANKEN. Okay. And that was done on a case-by-case 

basis, those 32,000? 

Professor SCHROEDER. Yes, Senator. 

Senator FRANKEN. I see. Okay. Thank you. We have clarified, for 

me, something. 

Ms. Silva, thank you for coming here today and having the courage to tell your very powerful story. President Obama’s recent Executive action stands to help a lot of people in Minnesota and a lot 

of people in this country including you and your family. 

In your testimony you mentioned the constant fear of living in 

the shadows knowing that your father could be deported any day. 

I think we need to do everything possible to prevent families from 

being torn apart and children being abandoned. This was a focus 

of mine during the debate on the Senate immigration bill last year 

and that was partly because of an ICE raid on a meatpacking plant 

in Worthington, Minnesota which resulted in many children, many 

of them very young, many of them U.S. citizens, being abandoned 

at home without their parents, without legal guardians. We are 

talking like a 2-year-old being left at home and having her 6-yearold brother come home and not knowing where his parents were 
21 

and having to take care of his sister for a while until his grandma 

came. 

This kind of stuff is repeated over and over again. Can you talk 

a little bit more about what it was like just to grow up in the fear 

that your parents would be separated? 

Ms. SILVA. Thank you, Senator. Also to follow up on that—children, I know as a question—children are not allowed to be given 

to another person who is undocumented which leads to a lot of people—that is why the children are being left alone. 

I cannot even fully express what it would mean for my parents 

to be deported at this time. Again, to follow up on the actual deportation of them and how this is going to actually make it so that 

our families are at least remaining together. The action is not everything that is necessary right now, but our families cannot continue waiting for a step to be taken by Congress because we need 

it now. 

Senator FRANKEN. Thank you. I would like to thank my Republican colleagues. When we marked this up in Committee, I had an 

amendment to the bill that was unanimously agreed to—on kids in 

deportation proceedings, how they are cared for. I want to thank 

every one of you for voting for that. 

I have run out of time, so I will not ask Mr. Schroeder to repeat 

how he started his testimony. Thank you. 

Chairman HIRONO. We heard him. Thank you. 

Senator Lee. 

Senator LEE. Thank you, Madam Chair. Thanks to each of you 

for joining us today for this important hearing. 

The President of the United States has told us repeatedly that 

his recent Executive actions do not clear the pathway for citizenship and we have heard a repetition of some of those themes today. 

And yet, notwithstanding those denials, it is clear that the President and his Administration are removing certain statutory obstacles to citizenship, obstacles that were put in place by law, by acts 

of Congress. It is clear that the President and his Administration 

know what they are doing and it is also clear that this is illegal, 

that it violates the law. 

Professor Ting, you used to be the Assistant Commissioner of the 

INS. You know this area well, so help me out here if you can. The 

Administration has announced that it will be granting something 

called ‘‘advance parole,’’ that you referred to in your written statement and in your opening remarks, to deferred action recipients. 

This thing called ‘‘advance parole’’ enables them to leave the 

country and then return to the country, crossing back into the 

United States, as parolees as we call it. Now to be clear, if the Administration in fact gives ‘‘advance parole’’ to the new beneficiaries 

of deferred action, new beneficiaries of deferred action who have 

U.S. citizen children, assuming that they are not inadmissible for 

some other reason, will those people who are eligible under that 

program be able to adjust their status, get green cards and eventually citizenship as a result of that? 

Professor TING. My conclusion is that they will. I have also come 

to the conclusion that the Administration is doing this deliberately, 

conscious of the implications and deliberately concealing the fact 
22 

that they are setting forth a path to citizenship for most of these 

5 million for the reasons that you have noted. 

Senator LEE. Okay. But does not Federal law currently say, statute on the books, does not Federal law currently say that if you are 

in the United States unlawfully and you leave the United States 

while here unlawfully and then you try to come back that you will 

be inadmissible for a period of either 3 years or 10 years? 

Professor TING. Right. Ten years if you have been in the country 

illegally for a year or longer. That was the intent of Congress and 

it has been enacted into law. But the Administration is taking the 

position that someone who leaves the country pursuant to an ‘‘advance parole’’ is not making a departure for purposes of 212(a)(9) 

and therefore, they are not subject to the 10-year bar and they are 

able to return to the country on a parole when they come back. 

Senator LEE. Okay. You are familiar with INS action 212(d)(5)(A) 

which is the parole statute. This is the law that defines the circumstances in which the Government can grant parole. Let me 

read the relevant part of that statute. It says, ‘‘The Secretary [of 

Homeland Security] may parole into the United States temporarily 

under such circumstances as he may prescribe only on a case-bycase basis for urgent humanitarian reasons or significant public 

benefit.’’ 

Now, I want to place in the record USCIS form number I–131 

and the accompanying instructions. These have been handed out to 

Members of the Committee and staff. 

[The information referred to appears as submissions for the 

record.] 

Senator LEE. This is the form that deferred action recipients fill 

out in order to receive ‘‘advance parole’’; correct? 

Professor TING. Yes. 

Senator LEE. These instructions say, ‘‘USCIS may in its discretion grant advance parole if you are traveling outside the United 

States for educational purposes, employment purposes or humanitarian purposes. Educational purposes include, but are not limited 

to, semester abroad programs or academic research. Employment 

purposes include, but are not limited to, overseas assignments, 

interviews, conferences, training or meetings with clients.’’ 

Now, Professor, is granting parole for things like conferences or 

meetings with clients, are those things within the lawful meaning? 

Are those things lawful basis upon which this Administration can 

grant parole? 

Professor TING. Absolutely not. It is clearly not within the statute. Indeed, in 1996, when that language that you read was added, 

the House Judiciary Committee, in its report, said that parole 

should only be given on a case-by-case basis for specified urgent 

humanitarian reasons, such as life-threatening medical emergencies or for specified public interests reasons such as assisting 

the Government in a law enforcement activity. It should not be 

used, the House Judiciary Committee said, to circumvent Congressionally established immigration policy or to admit aliens who do 

not qualify for admission under established legal immigration categories. 

Senator LEE. Okay. So let us suppose that an alien approaches 

the border and seeks entry into the United States and announces 
23 

to the officials who greet him at the border, look, I do not have a 

visa. I am not a citizen, but I do have a meeting in Tulsa or Salt 

Lake City or Denver. I have a meeting with a client. May I come 

in? May I be paroled into the country? 

Professor TING. Well, I have no doubt what should happen. I 

hope even this Administration would recognize that is not grounds 

for admission to the United States and would turn the individual 

around. 

Senator LEE. And yet this program that we are dealing with here 

would allow an alien to get ‘‘advance parole’’ and ultimately a 

green card, ultimately potentially citizenship so long as that person 

has a meeting with a client in Toronto, rather than Tulsa. 

Professor TING. Yes. I think that is a correct interpretation. 

Senator LEE. And you think that violates Federal law? 

Professor TING. I am convinced it violates Federal law as enacted 

by the Congress. 

Senator LEE. Thank you, Mr. Ting. Thank you, Madam Chair. 

Chairman HIRONO. Thank you, Senator Lee. 

I am expecting other Members, Democratic Members, to appear, 

but I will exercise a prerogative of the Chair and ask possibly at 

least one more question. 

We were informed that the President’s Executive action places 

our communities at risk because it undermines respect for the law. 

I do have a letter from the LA Police Department Chief, Chief 

Beck, who says in his written testimony that will be part of the 

record of this hearing, ‘‘Many of these undocumented individuals 

have been and continue to be victimized and exploited by others in 

our community. Law enforcement is often unable to take action to 

stop this victimization as the undocumented immigrants and others 

fear that stepping forward will result in their identification and removal.’’ He goes on to talk about being victimized by criminal 

gangs and others who seek to intimidate members of this community. 

[The letter appears as a submission for the record.] 

Chairman HIRONO. I wanted to ask Ms. Silva how has DACA and 

potentially DAPA, that would apply to your parents, change your 

family’s ability to interact with the police, force do you think? 

Ms. SILVA. Thank you, Senator. My family will now be able to 

not fear that if they call, again, 911 or if they call an ambulance 

that something will happen to them. It has been the case in prior 

years where people were asked for a social security number. They 

did not exactly know if they were allowed to answer or not and so 

it instills a fear. 

We have in our very own community—the pin that I am wearing 

today is a Tomasama Ciaz [sic] and she was one of our DREAMer 

moms who was not documented. She passed away on June 9 because she had a stroke and she was afraid that if she called 911, 

they were going to ask her for her social security number. So she 

just took pain medication and thought it would go away. 

Unfortunately, she had a stroke. That is what the pain was and 

she passed away several weeks after from complications due to the 

stroke. 

So I know that it happens. I know that people are afraid and she 

was very well-versed on what she was and was not allowed to do 
24 

as an undocumented immigrant. But it is still the fear that even 

though you can call 911, you are afraid to do it. And that is just 

her case of being afraid to get medical attention. 

There are people that are afraid to report a crime. People, in particular, in domestic abuse cases where people are afraid to denounce their abuser because they are afraid that if they go to the 

police that they are going to be able to look them up and see if they 

have a social security number or not. I have had friends that do 

not report that their license plates were stolen because they are 

afraid to go down there and you have to fill out a form. 

Again, my parents were afraid for me to apply for a magnet 

school because they thought that my social security number would 

be asked. These are questions that the community has and people 

are afraid of it. 

Chairman HIRONO. So it is clear that there is a lot of criminality 

that goes unreported within the undocumented community. And it 

also goes to the testimony that you provided, Ms. Shuler, about exploitation in the workplace of all of these people who are undocumented. 

So when we talk about disrespect for the law, that is already 

happening to 11 million people in our country who are afraid to 

step forward. So thank you. 

We will go to Senator Hatch. 

Senator HATCH. Well, thank you, Madam Chairman. 

My heart goes out to you, Ms. Silva. As you know, I was the 

original author of the DREAM Act. But let me just make this comment, our liberty requires that Government actually obeys the limits on its power including the separation of powers. The Constitution provides authority to establish what it calls a uniform rule of 

nationality to Congress, which means it denies that authority to 

the President. 

The action the President announced last month, in my opinion, 

amounts to exercising power that belongs up here in Congress. 

Now my time is limited, so I would appreciate concise answers to 

just a few questions that I have because I would like to get through 

my questions that I have prepared. 

Professor Ting, the Obama Administration says his Executive action is simply a different way to enforce the deportation rules. But 

I think he is changing the rules themselves. Do you agree with 

that? 

Professor TING. Absolutely. 

Senator HATCH. Okay. Let me just keep going. Under current 

Federal law, Congress put the burden on persons in the country illegally to show that they are entitled to stay. The President’s action puts the burden on the Government to show that those persons must leave. Do you agree that this is not a change in enforcement, but a change in the law and that the President does not have 

that authority? 

Professor TING. Yes I do. 

Senator HATCH. You are not alone. I feel very deeply about these 

issues, about Ms. Silva and others just like her, but my gosh, if we 

do not follow of law, we are in trouble. 

Professor Eastman, the OLC opinion attempting to justify the 

President’s action claims that it is similar to those by past Presi-
25 

dents. Now the opinion, however, concedes that the INS or DHS 

changed enforcement priorities in the past when Congress told 

them to do so. The President today says that he can change enforcement priorities without Congressional authorization. 

Now I may be missing something, but how can receiving prior 

approval by Congress in the past be precedent for not receiving 

prior approval by Congress today? Does that make any sense to 

you? 

Professor EASTMAN. Senator Hatch, that struck me as particularly odd as well. 

Senator HATCH. Well, it is. Immigration activists have long asked 

President Obama to stop deportations until Congress changes the 

law. On July 1, 2010, President Obama said that doing so would 

in his words be unwise and unfair and would lead to a surge in 

illegal immigration. But that is precisely what is new Executive action does. It stops deportations for millions until Congress changes 

the law. 

Does it not appear that the President has taken a step that he 

not only knows, but that he actually predicted could make the 

problem significantly worse, Professor? 

Professor TING. Yes, it does. I think the logic of the President’s 

action—you know, why not extend it to all 11 million undocumented people in the United States? Why not extend it to all of the 

people who will enter illegally in the future? Why should they not 

qualify? 

Senator HATCH. How about all of those standing in line right 

now who played by the rules? 

Professor TING. Yes. I think that the logic we have heard up to 

this point is, well, why not? They need to talk to the police too. 

Even the people who enter next year should qualify because they 

need to talk to police. 

Senator HATCH. Madam Chairman, I ask consent that a Wall 

Street Journal editorial of November 24, be placed in the record. 

Chairman HIRONO. Without objection. 

[The editorial appears as a submission for the record.] 

Senator HATCH. This editorial says that the OLC opinion attempting to justify the President’s action is embarrassing, more political than legal. It makes his abuse of power look even worse and 

I agree. I think it really hurts your case rather than helps it when 

the President does not obey the rule of law. 

Now before I go, I want to say a word about the future of immigration reform. As everybody knows, I voted for the Senate bill. I 

helped to amend that Senate bill and I feel deeply that we have 

got to come up with legislation to resolve these problems the right 

way and I want to talk about the future of immigration reform. 

The President has taken this Executive action, the very step that 

he once said was unwise and unfair, and simply tells Congress to 

pass a bill. But it should be obvious to everyone that the President’s unilateral and unlawful action makes that very goal even 

more difficult. 

Perhaps that is what he intended all along. I do not know. I hope 

not. I believe strongly, however, that we can make real progress on 

immigration reform despite the President’s action. 
26 

Employers in the technology section were told for years that 

high-skilled immigration reform would happen only as part of comprehensive immigration reform. But now that the President has 

taken action, look who is left holding an empty bag, the technology 

industry. 

Well I believe we can find common ground and achieve legislative success in an area like high-skilled immigration. This is a nobrainer. My I-Squared bill has 26 bipartisan cosponsors. We would 

have a lot more—we have not gone out to get them at this point 

in the Senate, including Senators Klobuchar and Coons on this 

Committee and broad support in the technology sector of our economy. 

Now I am calling on everyone from the President and both sides 

of the aisle in Congress to the tech industry to get behind this bill 

and use it as a launching for more progress on immigration reform. 

The President’s action was—as he had previously admitted—unwise and unfair. I also believe that it is unlawful. But we have to 

find ways to make progress and solve some of the real problems 

facing our Nation. 

My I-Squared bill is one of those—I should say Senator 

Klobuchar, Coons, Rubio and myself, our bill is one of those ways. 

I want to work with everyone to get it done. 

Now having said all of that, we have got to solve this problem, 

but it ought to be solved the right way so that everybody in this 

country at least knows what the law is and everybody in this country knows that this country is a decent, righteous country that 

really will live up to the law. I am going to work very hard to get 

this done, but what the President has done is abominable. I am 

telling you. If we can have Presidents do things like that, kiss the 

Separation of Powers Doctrine goodbye. 

Sorry, Madam Chairman. 

Chairman HIRONO. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Madam Chairman. 

Thank you to all of the witnesses. I am sorry we had a Rail Safety 

hearing, so I was a little late here. 

I just wanted to lead by adding my support to the I-Squared bill. 

Senator Hatch and I are the original cosponsor of that bill, along 

with Senator Coons and Rubio. We are very proud of that bill and 

I think we all know that there are a lot of needs here when it 

comes to immigration reform, whether it is issues at the border, 

whether it is issues with the path to citizenship that we had in the 

comprehensive bill that we are so proud of in the Senate and I appreciated Senator Hatch’s support for that bill out of this Committee, but it also is the workers that have really been the backbone of this country. 

My grandparents on one side were Swiss and the other side Slovenian immigrants. My grandfather on the Swiss side actually 

came through Canada and somehow made it through to Wisconsin 

with $40 in his pocket and here I am a United States Senator. So 

that is the story of our country. 

I think one of the things that I wanted to build off of what Senator Hatch was talking about—maybe I can ask you this, Mr. 

Schroeder, is the bill that I have with Senator Hatch, which was 

basically included in the comprehensive reform is about green 
27 

cards, its about the fact that Mayo Clinic doctors come in and they 

cannot bring their spouse or agriculture workers at the Morris 

Dairy in Morris, Minnesota where the unemployment rate is 2 percent. They come, they work at the dairy, and they bring their 

spouses and then their spouses cannot work for 7 years even 

though they are legal. The spouses coming are legal. There are just 

so many rules right now that we were trying to fix with the comprehensive bill. 

My question is, with the President’s action, does any of that take 

away from what we could do if we actually passed a bill? My point 

is, I know that Senator Hatch and I may have a disagreement on 

what the President did. And that is fine. We have disagreements 

on this Committee. But I just want to make clear, we have some— 

understandable from some people—there is anger about that action. However, does that stop us from taking action on these other 

things that we need to do or, again, passing a comprehensive reform bill? 

Professor SCHROEDER. Senator Klobuchar, no it does not, in any 

way shape or form. As a matter of fact, the President has called 

for comprehensive immigration reform and has quite expressly 

stated that anything about the temporary actions that the Department of Homeland Security took on November 20, can be altered 

by legislation, revised in any way this body sees fit. And I am sure 

he is hoping to continue to be able to work with the Congress on 

such reform going forward. But there is nothing in the temporary 

actions that he has taken that prejudice in any way moving forward on constructive commonsense legislation. 

Senator KLOBUCHAR. Yes and I think that economic impact of the 

reform—I see Senator Durbin is here and Senator Flake—and 

there were so many people that worked hard on getting that comprehensive bill done in the Senate and I think some of the best arguments for it were actually the economic argument for it. We 

know that the nonpartisan CBO report showed that comprehensive 

immigration reform would actually reduce the deficit by $158 billion over 10 years and much, much more, $700 billion, I believe, 

over 20 years and increase the Nation’s gross domestic product by 

3.3 percent in 10 years. That is pretty phenomenal for people that 

want to do something about the debt and that is the CBO that 

brought back that score and that is why Grover Norquest has made 

this such a priority because it brings down the debt. 

So I wondered if you, Ms. Schuler, could just comment on the 

economic reason that the AFL–CIO is behind this bill and how you 

see that as fitting into the arguments that we are talking about 

today. 

Ms. SHULER. Sure. Earlier we had talked about payroll taxes and 

the impact it would have, but I think our main concern is about 

raising wages—raising wages for not just undocumented workers 

but for all workers and the fact that what the President did is a 

beginning step to doing that. Certainly we would prefer comprehensive reform. That is our top priority, but we think that this is a 

step in the right direction and that when we give workers the opportunity to, as we said earlier, kind of come out of the shadows, 

we have an underground economy essentially where workers are 

being paid less because they are afraid to speak out and afraid to 
28 

actually speak out when something unsafe is happening on the job 

or when employers are cutting corners. There is a whole host of 

reasons why they are fearful and you heard it earlier too from Ms. 

Silva. 

We are coming at this from an economic angle because we believe that when we lift the floor and we start providing fair wages 

for all working people in this country that it actually is going to 

benefit everyone, and we need a raise in this country, as you know. 

We have been fighting on many fronts. 

Senator KLOBUCHAR. I think we have seen the sentiment for that 

in a lot of the States. Thank you. 

Before I run out of time here, Mr. Schroeder, do you want to answer that from an economic standpoint? The debt argument, and 

other things we could see if we, one, in part, with some of the work 

from the President’s action but really what we would need was, the 

comprehensive reform, and some of these other things as well, in 

order to realize that full economic benefit with the debt reduction 

and also with the economic—the increase in the productivity and 

the increase in the GDP? 

Professor SCHROEDER. I think it is just undisputable that the 

specific actions that the DHS is taking will have a beneficial impact, but the real impact on the economy will be if we can fix the 

immigration system, solve the problem that you and Senator Hatch 

are working on, solve the other bottlenecks in the immigration system and use the immigration laws to support the engine of economic recovery instead of often frustrating it. 

Senator KLOBUCHAR. And I think some of those things could not 

be done by Executive order. I am sure my colleagues would argue 

should not have been anyway, but let us just put that aside for 

right now. 

Some of these things that we have been working on really hard 

with the green cards and the visas and the agriculture jobs, they 

just simply could not be done by Executive order because of the law 

and it is just another argument for why we need the comprehensive reform. 

Professor SCHROEDER. Absolutely right. 

Senator KLOBUCHAR. All right. Thank you. 

Chairman HIRONO. Senator Flake. 

Senator FLAKE. Thank you madam Chairman. Thank you for 

your testimony. 

Let me just say from the beginning that I am one of those who 

believes we have to have a permanent immigration solution. I was 

part of the Gang of Eight process here to write the Senate bill. 

While in the House, I wrote several bills that would have dealt 

with this in a comprehensive way. We need reform desperately. We 

need people to come out of the shadows. It is no fun being in the 

shadows. It is no fun living in fear. We need a permanent solution, 

one that addresses our situation on the border, one that addresses 

our problems with interior enforcement and employment, one that 

deals with our long-term issues with workers, whether that is high 

tech workers or other workers and also a mechanism that deals 

with those who are here illegally. That is not adequate right now. 

So we desperately need this. 
29 

My problem with what the President did is that he did it the 

wrong way. This is a function that rests with Congress and he has 

made it more difficult to reach a long-term permanent solution by 

taking this action. That is my issue. So I know there is disagreement at this table. I happen to side with those who believe that 

the President did go beyond his constitutional authority for basically a categorical approach to those who are here. 

I should point out that the steps that we took in the Senate bill, 

the steps that we have taken with other legislation actually covered more people who are here in the shadows, if you will, than the 

President’s action did. So it is not that he took action for a group 

that does not need to be dealt with and dealt with in a rational humane way. It is just that in taking this action, he has made it more 

difficult for Congress to move forward and for that I am truly sorry 

because I think it will be more difficult. 

That is not to say that we should not try and I have said more 

than once that I think our approach to the President’s action is not 

to try to stick a finger in his eye, but to put legislation on his desk. 

So that is what I will move forward and try to do. 

It is unlikely that there will be a comprehensive bill like the Senate bill now. I think that it will likely be a more piecemeal approach because that is what the President has done. He has made 

that fashionable, I guess, if you will. To take just one portion and 

try to address it. I think that that is likely the approach that will 

be taken now and I hope we take it. I hope the House moves forward. I hope the Senate does as well and that we can get legislation on the President’s desk that deals with this issue in a more 

permanent fashion and in a better way than the President’s actions. 

I thank you for your testimony. I will not get into the differences 

here. I think they have been aired and we have heard them, but 

I just want the folks here to know and my colleagues to know 

where I am. I hope that we can move meaningful legislation to deal 

with this issue because it is not going away. We need to deal with 

it and we should. So thank you. 

Chairman HIRONO. Senator Durbin. 

Senator DURBIN. Thank you, Madam Chair. We have really come 

down to some pretty stark choices here. I would like to ask you, 

Professor Eastman and Professor Ting, while seated at a table with 

an undocumented person, someone even call illegal person—we 

have three choices and I would like you to tell me which one you 

choose. 

The choices are, number one, stick with the current way we are 

doing things. Agree with the House of Representatives. We do not 

have to do anything. Leave the system as it is. Do not deport people, just leave them where they are. 

Then we have the suggestion by Presidential candidate Mitt 

Romney, self-deportation. Let us tell these people to leave, all 11 

million of them. Just leave. 

Or the President’s approach, create some priorities here. Say to 

people if you want to stay in this country and you are undocumented, you have got to come forward and register. You have to 

submit yourself to a criminal background check and you have to 
30 

pay taxes for a temporary situation where you can work in this 

country. 

So which of those three do you choose? 

Professor TING. Senator, the underlying question is given the fact 

that we admire and respect immigrants, how many immigrants do 

we want to come to the United States every year? Does it matter? 

If it does not matter, we can save $18 billion a year and just not 

enforce immigration laws—— 

Senator DURBIN. Professor? Excuse me. The Executive order does 

not leave the gates open. The Executive order closed the gates 5 

years ago. Five years ago. So this notion of a flood of new immigrants, that is not what the Executive order says. 

Professor TING. We need to decide what we want. Once we decide 

what we want, then we can decide which policies are the best way 

to get us to where we want. Are we prepared to accept unlimited 

immigration into the United States or do we want to enforce a 

limit? That is the question. 

Senator DURBIN. Wait a minute, sir. See you have gone to the 

extreme again. 

Professor TING. No. It is about the numbers. 

Senator DURBIN. It is not unlimited. The President’s Executive 

order has a limitation as did the comprehensive immigration bill. 

Mr. Ting, you said in your testimony and I will add as the son of 

an immigrant, thank God—thank God that this is a nation of immigrants so you and I have a chance to sit here in the United 

States Senate and debate this issue. Let us never forget that this 

is a nation of immigrants and they had made it great nation and 

you and I are damn lucky it is. 

Professor TING. I teach immigration law every week. I am well 

aware of the history of the immigration system in the United 

States and I am well aware of the role that my parents played in 

coming to the United States at a time of Chinese exclusion. 

Professor EASTMAN. Senator, you said this is a nation of immigrants. That is true. It is also a nation of laws. The underlying assumption to your question is choosing an option that ignores those 

laws. The Constitution is—— 

Senator DURBIN. So which option do you choose? You have three. 

Professor EASTMAN. The option that you selected of the President’s policy is one that ignores the laws that this body—— 

Senator DURBIN. Now wait a minute. That leaves you two options. Which option? Which one do you choose, the current situation or mass deportation? 

Professor EASTMAN. Well, the current situation is not one of nonenforcement. The law says, the law has mandatory Section 252, for 

example, specifies that people who are not able to demonstrate a 

lawful presence in the United States shall have removal proceedings initiated against them. 

Senator DURBIN. So you would take the Romney approach. Let 

us deport all of these people. 

Professor EASTMAN. Senator, this body is the one that sets the 

law. If you think that is too draconian then this body ought to 

change the law, but the notion that the executive can unilaterally 

suspend the law is not part of the constitutional system we the 

people agreed to live under when it was adopted. 
31 

Senator DURBIN. Your position is the Romney deportation. Enforce the law. 

Professor EASTMAN. No. My position is to enforce the law that is 

on the books and tell the Congress which has the authority to 

change it, change that law. Otherwise, we live in a lawless society 

and Professor Ting’s claim that if it is lawless, you will be opening 

the doors to an innumerable amount of people to come here because we have already demonstrated no willingness to enforce the 

law and we saw that happen on the southern border in Texas. 

Senator DURBIN. So you are saying enforce the law, deport the 

11 million. That is your position? 

Professor EASTMAN. I am saying, enforce the law until Congress 

changes it, yes, Senator. 

Senator DURBIN. Well I can tell you if you think that we can deport 11 million people without dramatic negative impacts on individuals, families and our economy than I do not believe you are in 

the world of reality. 

Professor EASTMAN. Then change the law, Senator. But do not do 

it by an executive fiat. That is the question. 

Senator DURBIN. We did it in the United States Senate. The 

House refused to act. Now we have three choices. 

Professor EASTMAN. The House had a number of bills that it sent 

up here that you refused to act on. 

Senator DURBIN. Give me an example of one on immigration. 

Professor EASTMAN. Senator, there was a STEM jobs bill that 

passed in the House that was sent here and it died even though 

everyone says they are for STEM jobs. 

Senator DURBIN. That certainly does not address all but a 

part—— 

Professor EASTMAN. No, but it is a bill that dealt with immigration which is what you asked and they sent it up here. You have 

a disagreement between this body and the other body. 

But the notion that the President can unilaterally change the 

law at his will is no part of our constitutional system. That is the 

issue we are dealing with. 

Senator DURBIN. So the 11 Presidents who have done this before 

him over a period of 60 years were all in violation of the law? 

Professor EASTMAN. No. They were not, and let me go through 

that. I am glad you asked because it is significant. 

President Eisenhower, President Kennedy, President Reagan all 

did this in dealing with their Article II powers over foreign affairs 

that deal with international humanitarian crises. That is not what 

the President here has done. 

Senator DURBIN. What about President Bush’s—— 

Professor EASTMAN. President Bush—you were not here when I 

read it, but President Bush acted pursuant to a specific statutory 

authority that gave explicit discretion to the Attorney General. No 

such statutory authority exists here. Those are dramatically different things if we are going to stick with the law that is on the 

books. 

Senator DURBIN. I think you are being selective in the way you 

read this. 

Professor EASTMAN. I am not being selective. 
32 

Senator DURBIN. I would just tell you this, prosecutorial discretion is part of the executive authority. You have come out in favor 

of mass deportation. I do not think that is reasonable and I do not 

think it is good for this country. 

I also accept your challenge to do something. We did with a vote 

of 68 in favor, 14 Republicans. We passed comprehensive immigration reform. The House of Representatives refused to call it or any 

part of it and now you are telling us, well, let us leave the situation 

as it is or deport everyone who is here. Those are not acceptable 

alternatives. 

Professor EASTMAN. Neither is the President doing it on his own. 

Senator DURBIN. What the President has done is to make this a 

safer nation by putting more resources on the border, putting a 

limitation on those who are eligible to come forward, register, submit to a criminal background check and pay their taxes in America 

to work on a temporary basis. That to me is a reasonable response 

to the House’s failure to act when we passed this legislation. 

Professor EASTMAN. Senator, you said it is safer. I challenge you 

to go down to the border States of people who are dealing with the 

massive influx, the humanitarian crisis that were a direct result of 

the President’s lawlessness on the DACA program. People came 

here thinking they had a free ticket. 

Senator DURBIN. With all due respect, Professor Eastman, read 

the law. What the President said in DACA, affecting Astrid Silva, 

had a limitation and deadline on eligibility. Do not blame the 

President for what happened at the border. 

Professor EASTMAN. Well everybody in Central America thought 

that this was the ticket to salvation. 

Chairman HIRONO. I am going to give the last word to the Senator. 

Professor EASTMAN. Under DACA—I am coming. It is a humanitarian crisis down there that this thing created. 

Senator DURBIN. If you read the law, you know that is not true. 

Professor EASTMAN. It did not cause it, but by law—— 

Chairman HIRONO. Thank you, gentlemen. 

Senator Cornyn. 

Senator CORNYN. Well, I was kind of enjoying that, myself. 

[Laughter.] 

President Obama—under his Administration we have seen 2.5 

million people deported. No one is suggesting, as my friend from 

Illinois is, that we support mass deportations. But what we recognize is when we have a conflict between what our heart tells us we 

would like to do out of a sense of simple human compassion, when 

we have a conflict between our heart and our head, that it is usually the right choice to let your head prevail. And what it calls for, 

Professor Ting, is exactly what you said, some reasonable, sensible, 

predictable policy on who we are going to allow and under what circumstances to come immigrate into our country. 

I feel like we need to have a reprise of that old ‘‘Schoolhouse 

Rock’’ song, ‘‘How a Bill Becomes a Law.’’ ‘‘Saturday Night Live’’ 

had an interesting parity of that recently because the idea from my 

friends across the aisle is that just because the Senate passed a 

comprehensive immigration reform bill and the House did not take 

it up and pass it without changing one word fast enough, that jus-
33 

tifies the kind of lawlessness that we have seen from this President. And it is just really unfortunate for many, many reasons. 

I think one of the reasons it is so unfortunate is because of the 

damage that it does to people like Ms. Silva. She may not realize 

this, but of course, it is a temporary provision. She has no opportunity under the President’s deferred action to obtain a green card 

and become an American citizen. The only way that could possibly 

happen is for Congress to pass a law allowing that. She came here 

at 4 years old with her parents. She is not culpable. She committed 

no offense in my view or in the view of the law, I believe. And we 

ought to make an accommodation for people like Ms. Silva. 

But what the President did is actually make it harder because 

he poisoned the well creating what is already a very controversial 

subject, very divisive subject and making it worse and making it 

harder for us to do what Senator Flake said he wants to do and 

what I want to do which is to take on a step-by-step basis, try to 

build consensus on different aspects of our immigration system and 

to make progress. 

So the problem with what the President did, of course, is it defied what common sense tells us is going to be required for sustainability of any change to our immigration system and that is consensus—consensus. That is what the Constitution forces us to do 

as Members of Congress working together to pass a law and get 

the President to sign it. But the President did an end run around 

that and leaving the country divided and leaving no consensus. 

And, of course, I think Professor Ting noted this, that by putting 

5 million people ahead of the others who are waiting patiently in 

line trying to play by the rules, I think it would strike people as 

fundamentally unfair for the millions of people who have been 

waiting patiently in line and playing by the rules and I think that 

is not good. 

And as far as the disagreement with Senator Durbin, I think 

what Senator Durbin forgets is what we experienced just last 

spring when 62,000 unaccompanied minor children from October to 

springtime coming across our southwestern border to my State 

where a humanitarian crisis ensued. It is essential in any law enforcement scheme to have some sort of deterrence. We cannot hope, 

the police cannot hope in every instance to capture everybody who 

might be inclined to commit a crime. 

What we do is to create a system of deterrence so people do not 

start down that path in the first place. And of course, the horrors, 

experienced by these children coming up on the back of the beast 

through Mexico into the United States, subject to the tender mercies of the drug cartels and other people who profit from this business model, those are unspeakably horrific. 

So I am really not happy, as you might be able to tell, with what 

the president has done here. I think he has violated his oath. He 

has actually harmed the cause of people like Ms. Silva by making 

it harder for us to do our job. 

Let me just close on this. Under President Obama’s Executive actions, many people who have committed criminal offenses will be 

allowed to receive deferred action and employment authorization. 

Based on my reading of the DHS directive, some people convicted 

of the following crimes will be eligible for the program. 
34 

Are you aware—let me start with Professor Ting and Dr. Eastman—that someone who is guilty of child pornography possession, 

child abuse, assault, abduction, false imprisonment, voter fraud, 

larceny, robbery, harassment, theft, reckless driving and distribution of alcohol to minors, all of them would—according to my reading of the President’s deferred action—be eligible for that program. 

Do you have the same understanding professor Ting? 

Professor TING. I am not aware of any authority that would contradict what you have just said, Senator. 

Senator CORNYN. I think given the decision that Director of ICE, 

Morton, made several years ago in his first memo saying they were 

going to selectively enforce the law to return people who are picked 

up in our jails who have committed other offenses here and this 

whole idea that the President can selectively enforce our immigration laws to the tune of millions of people which in essence represents a nullification of the law, I think the President has made 

our communities much less safe and particularly the communities 

where many immigrants live who are subject to the violence and 

the crimes that the people they purport to be helping, that they 

end up being the victims of those crimes. Thank you. 

Chairman HIRONO. Senator Blumenthal. 

Senator BLUMENTHAL. Thanks very much Madam Chairwoman. 

Thank you for having this hearing. I am hopeful that in the new 

year and in the new session we will put aside some of the differences that we have and come back to the ground that we have 

in common, the legal ground, moral ground, political ground that 

was so powerfully expressed in the bipartisan bill that we passed. 

I want to thank my colleagues across the aisle for their work and 

say to them that I look forward to a new session when we will pass 

a bill, that we will act more than talk, and that we will fulfill the 

promise of this country which is that we take advantage of the 

enormous energy and talent that immigrants bring to our land and 

that we will enable millions of people to emerge from the shadows 

and more fully participate in the greatest, strongest nation in the 

history of the world. We are a nation of immigrants and we are 

strong and great in part because we welcome immigrants. 

I have spent most of the past 40 years in law enforcement, so I 

tend to see this issue through the prism of a law enforcer. I respect 

the President’s Executive action and support it because of its effect, 

in part, on law enforcement enabling people to participate and cooperate in law enforcement and to support the need for more information which they are ready willing to give, but sometimes fear 

doing so because of the retribution that can come to them as a result of the laws that currently are applied. This message has been 

amplified by a number of letters that the Committee has received 

for this hearing. I would ask, Madam Chairwoman, that they be 

entered into the record—from Chief Charlie Black of the Los Angeles Police Department, the chief of the Kansas, Garden City Chief 

of Police James Hawkins and Richard Beale, Dayton Police Department and a number of his colleagues. 

Chairman HIRONO [off microphone]. Without objection with a notation that the Chair has the authority to dispose of—to the extent 

that they are different, without objection they will be included in 

the record. 
35 

Senator BLUMENTHAL. Thank you. 

[The letters appear as submissions for the record.] 

Senator BLUMENTHAL. Ms. Shuler, as you know, there has been 

a lot of criticism of the President’s program because of its supposed 

cutting opportunities of employment for ordinary working people. 

Now I would think if anyone is aware of the negative impact on 

work opportunities for working people, your members and you 

would be aware of them. What do you think of that criticism? 

Ms. SHULER. I think it is a lot about fear. We tend to want to 

paint it in a picture of us versus them and especially as people 

have struggled in recent years with the recession with employment, 

it is easy to sort of use a scare tactic to pit us against each other. 

But what we have seen is that the evidence does not support the 

notion that this will create some kind of mass unemployment. In 

fact, we think it actually will create more opportunities for people. 

I had said earlier that we are all about work opportunities and 

making sure that people who work hard are actually rewarded fairly for their work and that they have access to safety protections 

and benefits. Again, we think this goes a long way. It is a step in 

the right direction to making sure that the 8 million people that 

we think out of the 11 million that are working already can actually come out of the shadows and gain access to those kinds of protections. 

Senator BLUMENTHAL. And many of them already pay taxes, but 

the ones that do not will be required to pay taxes? 

Ms. SHULER. That is right. 

Senator BLUMENTHAL. So, far from driving down wages or working conditions, you would agree, would you not, that it will actually 

enhance opportunities for average Americans and ordinary working 

people? 

Ms. SHULER. Yes, absolutely. And we have seen evidence even 

within our unions, the United Food and Commercial Workers, for 

instance, has cited that they think about 100,000 of their members 

will actually benefit from this memorandum. We know that in the 

construction industry, for example, in the State of Texas, I think 

it is 50 percent of construction is done by undocumented workers, 

20 percent overall in the country. So you can imagine what kind 

of a competitive disadvantage that can place on a contractor who 

is employing union members. We see it as an opportunity to lift the 

floor for everyone so that every contractor is competing fairly in the 

construction industry. 

Senator BLUMENTHAL. Great. Thank you so much. I thank you 

Madam Chairwoman. 

Chairman HIRONO. Senator Sessions. 

Senator SESSIONS. Thank you, Madam Chair. Thank all of you. 

This is a very interesting and important hearing. 

I do believe that, Professor Ting, you are correct. I remember in 

2007 in this room, a professor testifying on immigration said Senators tell me what you want. If you want a policy that serves the 

interests of poor people around the world, I can tell you what it is, 

admit them to the United States. If you have a policy that serves 

a national interest of the United States, then we can work together 

and I can help you craft one. 
36 

So I think that is our first decision. It has to be a lawful system. 

It has to be one that serves the national interest. That is what our 

people have demanded and pleaded with Congress for 40 years for 

and the politicians have refused to give it. 

There was a time, Ms. Shuler, when unions did not see it the 

way you see it today. I think you are incorrect. Professor Borhaus 

at Harvard, probably the premier student of these issues, in April 

2013 concluded—once again, consistent with his previous studies— 

on net, current immigration policy reduces the wages of U.S. workers in competition with immigrants by an estimated $400 billion a 

year while increasing profits of business owners who use immigrant labor by an estimated $437 billion. 

So virtually all of the additional profit that goes to the businesses is paid for by reduced wages. Wages are down since 2000. 

Adjusted for inflation, they are down over $3000 since 2007, over 

$2300 since 2009. This is a huge thing. 

I do not believe we have a shortage of labor when wages are falling. I tell my business friends, you believe in the free market, 

wages are down, I do not believe we have a shortage. That has not 

been disputed. I think you owe it to your members to study this 

issue more carefully as we go forward. 

Now, Professor Eastman, you have talked about the prosecutorial 

discretion issue. As a former Federal prosecutor, I understand that. 

I think you are correct. But it is a separate issue to give work authorization. Would you not agree? 

Professor EASTMAN. I do agree, Senator. And if I could correct 

something in the record before, this notion that because 30,000 of 

the DACA applicants did not receive their DACA status and that 

means it was case-by-case assessment is just wrong. The reason 

there were 30,000 that were denied is because they did not meet 

the eligibility. The numbers I have seen on those who applied and 

met all of the criteria for eligibility is that 99.7 percent of them 

were given it. That is the categorical exemption that suspends the 

law that I was talking about. 

Senator SESSIONS. Professor Ting you have studied this issue, 

you have taught it, you were Assistant INS Commissioner, Harvard graduate. If you move from the discretion to prosecute issue, 

which I believe and Professor Turley has asserted is an overreach 

by this Administration just as you and Professor Eastman have 

said, but let us talk about the idea that the President of the United 

States can provide a photo ID, a Social Security number, the right 

to participate in Social Security and Medicare, to receive earned income tax credits, and child tax credits which are basically direct 

checks from the United States. 

You have suggested we have gone from not enforcing current law 

to the President creating by Executive order a new legal system, 

an alternative that Congress has flatly refused to pass. Would you 

comment on that? 

Professor TING. Yes. Unlike North Korea, this country is not governed by a single great leader who makes policy as he wishes. This 

country is governed by a constitutional process which specifies a 

consultative deliberative process in which a check and balance system prevails, and which even the House of Representatives—even 

the House of Representatives has a role to play in establishing law 
37 

in the United States. That is a process that we should all treasure 

because it is the key to our freedom and our liberty in this country 

and we have to pay attention to it. We do not have a great leader. 

We have a constitution and we have a process. 

Senator SESSIONS. Well, it is time for somebody to stand up for 

working Americans. This country cannot absorb—there are limits 

to the number of workers this country can absorb. We just do not 

have that many jobs. 

When I travel my State, Ms. Shuler, I see robotics everywhere. 

In the next 20 years, I predict we will have twice as many widgets 

and no more workers to produce those widgets. I think that is the 

trend we face. And the idea that certain businesses feel they have 

a right to demand labor at the wages they would like to pay, I 

think should not be a position you should support. I know you have 

questioned the increases in guest workers, but I think the entire 

matter of the legitimate number of people that we can absorb effectively, having the most generous policy in the world which we want 

to maintain as best we can, but I think you should consider that. 

Well, she should probably be given a chance to respond and I 

thank you for listening to me. And I do appreciate the opportunity 

for this hearing. 

Chairman HIRONO. Ms. Shuler, would you like to respond? 

Ms. SHULER. I guess I just get a couple of minutes. Yes, I would 

agree with you that wages are down and I think immigration is not 

to be blamed. I think there are so many other pieces of the economy that are not working. 

Workers have less bargaining power, I would argue, in the economy. So I think it is a bigger piece of the puzzle instead of noting 

that wages are down because you are attributing it to these immigration policies that you think are going to bring in so many more 

workers. 

I think too, in terms of technology, it is something we definitely 

have our eye on and it is something we think that could also be 

an opportunity for workers as we have seen in past revolutions. 

The industrial revolution, it creates new kinds of jobs. So the notion that jobs are going away because of technology that we are not 

going to have enough jobs because of it for everyone who is here 

working, I think is false. 

Senator SESSIONS. I think the challenge for us today, Madam 

Chair, is what can we do to help the American worker. They are 

the ones that have suffered. Professor Borhaus has studied this intensely. He says it does pull down wages. The Federal Reserve in 

Atlanta has found that wages are pulled down by excessive flows 

of labor and if you bring in more iron, the price of iron falls. You 

bring in more labor, the price of labor falls. 

Thank you, Madam Chair. 

Chairman HIRONO. Senator Coons. 

Senator COONS. Thank you, Senator Hirono. I would like to 

thank you and Chairman Leahy for convening this important hearing. 

Looking back on the 113th Congress, it was one of my proudest 

occasions serving in the Senate, working alongside you, Senator 

Hirono, and many of our colleagues, both Democrats and Republicans, to advance a comprehensive immigration reform bill that 
38 

would have provided relief to millions of families who contribute so 

much for our country, to dramatically increase protections of our 

homeland, particularly along the southern border, and to continue 

to sustain robust economic growth. 

While the President cannot accomplish such a broad and vital 

overhaul of our badly broken immigration system on his own, I believe the President’s recent Executive actions take a step in the 

right direction. Among other benefits, the President’s actions will 

give a measure of peace and comfort to many of our Nation’s children who currently go to bed every night worrying that one or both 

of their parents may be taken away before they wake up in the 

morning and by prioritizing, by outlining enforcement priorities 

that focus on removing convicted criminals rather than hardworking parents, the President’s actions take a step in aligning our 

system with our values. 

I would like to thank all of the witnesses for their time and their 

testimony today. In the few minutes that I have, I would like to 

ask three questions if I might. 

First to Ms. Silva, you have spoken eloquently about the contributions of undocumented people to our country, including your 

parents and their contributions to their communities. Could you 

elaborate on the experiences you have had with members of your 

community who are undocumented and the potential to boost their 

real contributions to our society through the President’s recent actions? 

Ms. SILVA. Thank you, Senator. There are, again, millions of families that are affected by this. We have had people that have wanted to start a business, but have been unable to because they lack 

the Social Security number. With this action they will be able to 

do so. I know that with deferred action we had several of our peers 

who opened up businesses and created jobs. 

The amount of people that are going to be able to go out—I know 

that we have volunteers that come to us every day and they ride 

the bus, three, four buses just to get to help us on whatever the 

issue is. This is dedication that cannot be mirrored in anything else 

and I look forward to seeing what they can apply that to but they 

have not had the opportunity to do so. But with this they will be 

able to come out of the shadows and contribute even more. 

Senator COONS. Thank you. 

Ms. SILVA. Thank you. 

Senator COONS. Ms. Shuler, what has been the AFL–CIO’s experience in advocating for workers facing dangerous work conditions 

when those same workers feared deportation if they raise any concerns or the loss of their jobs or worse? How does the President’s 

Executive action impact the work environment for U.S. citizens 

currently facing a difficult or dangerous or unsustainable or inappropriate work conditions? 

Ms. SHULER. I think this memorandum has a tremendous impact. I had mentioned earlier that as we know, fear that people 

face when they see something on the job either happening to themselves or coworkers, unsafe condition on the job, the last thing they 

want to do is raise it if they are an undocumented worker because 

they know that the employer has no consequence, basically, if they 

fire them at will for speaking out. So we think that this memo-
39 

randum will actually give them the freedom and the security to 

raise the issues and feel that they have those protections in place 

so that they can speak up for themselves. 

Senator COONS. Thank you. Professor Schroeder, if you would, 

the OLC opinion analyzes the immigration laws currently on the 

books and finds that those laws within themselves contain sufficient delegated authority to the President to take the Executive action he has taken with respect to immigration. The OLC does not 

take into account, however, the additional positive benefits that the 

President’s Executive actions will have on enforcement and compliance with Federal tax laws, with labor laws, and with the criminal 

code. Do you believe these additional benefits would buttress the 

OLC analysis that the President is in compliance with his obligation to take care that the laws are faithfully executed? 

Professor SCHROEDER. Senator Coons, I believe that the fundamental question that has to be answered is whether the Department of Homeland Security, within its existing statutory authorities, can balance the competing interests in a situation like this 

and come up with the conclusion that there ought to be some deferred action initiative. To the extent that there are additional payoffs beyond those that are taken into account in the memorandum, 

those I think we count on the favorable side of the balance. 

Senator COONS. Let me ask if I might, Madam Chair, just one 

last question. Professor, if you could just respond to some of the 

criticism from my colleagues that the President’s actions might 

allow a future President to ignore environmental laws or discrimination laws. Is that correct? 

Professor SCHROEDER. Well, Senator Coons, to a certain degree 

the answer is yes. But it is not because of anything that President 

Obama is doing. It is because of the nature prosecutorial discretion. 

We frequently see when the White House changes hands very significant differences in enforcement policies. 

One example would be the Civil Rights Division in the Justice 

Department. Past Republican Presidents have tended to have Attorneys General who give different priorities to the kinds of lawsuits to be brought under the civil rights laws then say President 

Obama or President Clinton. We have seen the same thing under 

the environmental statutes where different presidents have different enforcement priorities. 

Congress can restrict those priorities by passing legislation and 

from time to time, indeed, they have. People have talked a lot 

about our separation of powers system as if this is being torn asunder by what the President here is doing. In fact, enforcement discretion is an integral part of the traditional way our separation of 

powers system has operated and it does result in substantial 

changes in policy and priorities from one White House to another. 

That is entirely within the purview of a proper exercise of the 

President’s authority under the statutes the Congress has enacted. 

If Congress wants to be more precise, channel enforcement priorities with more explicit language. Congress knows how to do that. 

It has done that in the past. And it is perfectly free to do that. 

Senator COONS. All right. Thank you. Thank you, Madam Chair. 

Chairman HIRONO. Senator Cruz. 
40 

Senator CRUZ. Thank you, Madam Chairman. Thank you and 

welcome to each of the witnesses for being here today. I think the 

topic of this hearing is exceptionally important both as a substantive policy matter, but also more importantly as a matter of 

constitutional law and the threat we are seeing to our constitutional system. 

I want to begin on substance. It is my view that the modern 

Democratic Party and to a significant extent, union leadership are 

actively working contrary to the interests of working men and 

women in this country and union members. Indeed, in January 

2013, in a Rasmussen poll 90 percent of union members said that 

the reduction of illegal immigration was important to them. Likewise, Zogby in 2010, polling union members found 72 percent of 

union members said Americans can fill open jobs. 

My question for you, Ms. Shuler, is the AFL–CIO is here testifying in favor of work authorizations for some 5 million people who 

are in this country illegally. That testimony is directly contrary to 

these strong interests and preferences of your millions of members. 

How does leadership reconcile acting against the interests and 

preferences of those millions of union members? 

Ms. SHULER. I will say that polls are subject to interpretation 

and we have seen that since this last November. We can find a poll 

that will support anything essentially. I think the journey that we 

have been on in the labor movement with regard to union members 

and the immigration issue has been a long journey and we have 

had a very diverse debate and diverse set of opinions over time 

that has evolved and I will say that we have a very robust executive council that represents, as I said earlier, 12.5 million working 

men and women and we have broad agreement that this policy that 

we are talking about, the President’s memorandum, will benefit 

workers because of the impact that a low-wage economy of people 

working in the shadows, people who are afraid to speak out and 

advocate for themselves, the impact that that has on all working 

people. 

Senator CRUZ. Thank you, Ms. Shuler. I would note that while 

some opinion polls are open to interpretation, the election we had 

in November was unambiguous. President Obama rightly said his 

policies were on the ballot across the country and the American 

people overwhelmingly rejected amnesty. I feel confident that union 

members across the country would be astonished to know that 

union bosses are more interested in loyalty to the Democratic Party 

than the union bosses are in standing up for the working men and 

women who have been struggling mightily the last 6 years. 

It would like to now turn, Professor Eastman, to the constitutional and legal questions. You and I have known each other a couple of decades now. As troubling as this is on substance, and I 

think this is very troubling on substance, the broader constitutional issue is even more pernicious in my view. 

Now the President, has attempted to justify unilaterally setting 

aside Federal immigration laws under the aegis of prosecutorial 

discretion. Prosecutorial discretion has long been part of what a 

prosecutor does. Prosecutors decide to allocate resources to one 

crime or another. But what the President has done here is far 

broader than prosecutorial discretion. 
41 

The President has not simply said we are going to focus our prosecutorial resources on the most violent illegal immigrants. What 

the President has said is something qualitatively different which is 

that the Administration will issue work authorizations to some 5 

million people who are here illegally. 

Now there is no authorization in law for these work authorizations. The Administration is, for all intents and purposes, counterfeiting immigration documents because Federal immigration law 

says quite clearly that individuals who have come to this country 

illegally are not eligible to work. 

My question to you, as a constitutional scholar: Are you aware 

of any interpretation of prosecutorial discretion that allows the 

Federal Government to issue essentially get out of jail free cards, 

work authorizations that purport on their face to authorize 5 million people to violate the express terms of Federal law? 

Professor EASTMAN. No, Senator I do not. Let me take the example that Professor Schroeder gave a moment ago about an Administration that chooses to provide less enforcement resources or priority to the environmental law. 

Let us make it categorical like this one is. Say if you produce less 

than 10 million tons of pollutants a year, we are not going to prosecute you. That would be pushing the envelope on prosecutorial 

discretion, but it still would not have gone as far as this has. 

To go as far as what happened here we would be giving a license 

to continue to pollute. We would give pollution permits, pollution 

validation licenses for 3 years, renewable infinitely in order to 

match what the President has done here. 

I have never seen anything like it, certainly not under the guise 

of prosecutorial discretion. No Supreme Court decision has even 

hinted that the prosecutorial discretion authority can be used so 

far. 

Senator CRUZ. And there is nothing in Federal law or the Constitution that authorizes it? 

Professor EASTMAN. Nothing whatsoever here. 

Senator CRUZ. Thank you very much. 

Chairman HIRONO. Since the Chair has allowed some latitude in 

terms of the questioning and the time limits, I would like to ask 

Professor Schroeder if you would like to respond to the questions 

by Senator Cruz on the extent of limits of prosecutorial discretion. 

Professor SCHROEDER. Yes, I quite agree that work authorization 

cannot be done under enforcement discretion. And if you read the 

OLC memorandum, they do not think so either. 

They think the employment authorization documents can only be 

issued because of a provision of the statute that allows those documents to be issued if aliens fall into categories acknowledged by 

law or granted by the Attorney General. You then look to a code 

of Federal regulations provision that has been on the books for 

years and you will find that one of the enumerated categories are 

people who have received deferred action. So that is the legal basis 

for the work authorization and I quite agree it is not prosecutorial 

discretion. 

Senator CRUZ. Professor Schroeder, if I might follow up on that. 

You are right. The OLC memo grasps one portion of the statute 

which is a definitional portion that makes reference to an author-
42 

ization by the Attorny General. And yet under ordinary principles 

of statutory interpretation, we do not interpret one element of a 

statute to make the remainder of the statute superfluous. 

Does it strike you as a reasonable legal interpretation that the 

meaning of this one phrase in a definitional section gives the Attorney General the ability to authorize any person on earth illegally 

in this country or who wants to come to this country to work? And 

if that is the case, what is the purpose of the entire remainder of 

the statute if it simply could be rewritten, the Attorney General 

may grant authorization to anybody to work, notwithstanding any 

other provision of Federal law? 

Professor SCHROEDER. No. I quite agree the Attorney General 

could not grant that to anyone. I believe that his discretion is limited by the terms of the code of Federal regulation which specifies 

categories. It does not have a provision in it that says, and anybody 

the Attorney General cares to grant documents to can also be 

granted documents. 

Senator CRUZ. So let me make sure I understand you. You say 

because the CFR, in turn the regs, seek to expand on that and say 

deferred adjudication that the Attorney Geneneral could say we are 

deferring adjudication to 7 billion people, everyone illegally in this 

country and everyone who might seek to come to this country, we 

will defer adjudication to all of them? 

Professor SCHROEDER. No. He could not do that either. But now 

you are back in prosecutorial discretion land. That would be an 

abuse of prosecutorial discretion under the language and analysis 

of the Office of Legal Counsel opinion. 

Senator CRUZ. But how is 5 million not an abuse? 

Professor SCHROEDER. Because there is a humanitarian concern 

that is reflected in Congressional policy embodied in the statute 

that is reflected in the choice that the Department of Homeland Security has made to grant deferred action to those individuals. Once 

they are in the deferred action category, they become eligible for 

work authorization pursuant to the statute and the regs that I 

have just referenced. 

Senator CRUZ. But, Professor Schroeder, I recognize that you 

agree substantively with the policy of granting amnesty and reasonable minds can disagree on that. 

Professor SCHROEDER. Senator, if I may, I agree legally with the 

policy. 

Senator CRUZ. Well, my question was legally. Your answer was 

as a humanitarian matter you support it. 

Professor SCHROEDER. No. Excuse me if I misspoke. I apologize. 

The analysis of the OLC opinion requires that deferred action decisions be consonant with policies that are reflected in the existing 

immigration laws. They, therefore, needed to find a justifiable humanitarian concern which they did in the terms of family unification for the classes of individuals that they are talking about, 

namely people who have one member of the family as a legal citizen or legal permanent resident here and that is the justification. 

You may not like it. You may think it is overweighted by other 

concerns like the kinds that Professor Ting has expressed, but 

there is nothing in the statute that precludes that action. That action is consonant with the stated policy and under the system of 
43 

separation of powers that we have; it is up to the current Administration to make the policy call—with which people can disagre—as 

to how to implement the statute that gives the President that discretionary flexibility. That is the full dress review of the argument. 

Senator CRUZ. Your suggestion is that this—— 

Chairman HIRONO. Senator Cruz. 

Senator CRUZ [continuing]. Executive authority is authorized because it is consistent with the will of Congress? Is that really what 

you are saying? 

Professor SCHROEDER. No. I am saying that executive discretion 

is authorized—— 

Chairman HIRONO. Excuse me. 

Professor SCHROEDER. Pardon me. 

Chairman HIRONO. The Chair believes that she has given wide 

latitude on this matter and clearly there are differences of legal 

opinion that are very deeply held and felt. You can certainly submit questions, further questions, to the witnesses and for the 

record, and make any further statements. 

At this point I would like to thank all of our panelists, our testifiers, and to my colleagues for—— 

Senator LEE. I would inquire of the Chairman, is there an intention for a second round of questioning to address the magnitude of 

the legal issues here? 

Chairman HIRONO. We have been going on for over 3 hours, so 

I would like to close this hearing. 

Senator LEE. So the Chairman does not want a second round of 

questions. Is that correct? 

Chairman HIRONO. The Chair believes that she has given enough 

latitude for a lot of people to go over time, so at this point, the 

Chair is going to exercise her discretion and prerogative to close 

this hearing. 

Senator LEE. Madam Chair, before we close, could I introduce 

two documents into the record? 

Chairman HIRONO. Certainly. In fact, in closing I would like to 

say that the hearing record will remain open for 1 week for the 

submission of written testimony and for the questions for the 

record. 

This hearing is adjourned. 

[Whereupon, at 4:52 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 

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Æ