Date: 2014-12-04
Speaker: JACKSON LEE (democrat)
Chamber: H

I thank the gentleman for his kindness. Mr. Speaker. if you want to recognize those individuals who have come here to do what is right and if you want to stop the siege of human trafficking. as I have said. where Houston is the epicenter of such. where we see it every day. where people are out of the shadows. if you want to do that. then you will vote against this misdirected law and you will read the constitutional dictatesfirst from the Fifth Circuit Court of Appeals. then from the United States Supreme Court in Arizona v. United Statesand understand that the President has the executive authority to do just what he has done. to be a moral keeper and to give discretion to the law. Mr. Speaker. I rise in opposition to the rule governing debate of H.R. 5759. the socalled "Preventing Executive Overreach On Immigration Act." and the underlying bill. I oppose the rule and the underlying bill because it is nothing more than the Republican majoritys latest partisan attack on the President and another diversionary tactic to avoid addressing the challenge posed by the nations broken immigration system. Mr. Speaker. H.R. 5759. which by all appearances was hastily introduced on November 20. 2014. without evident deliberation for the ostensible purpose of establishing a retroactive "rule of construction clarifying the limitations on executive authority to provide certain forms of immigration relief." As originally drafted and introduced the bill provided: No provision of the United States Constitution. the Immigration and Nationality Act. or other Federal law shall be interpreted or applied to authorize the executive branch of the Government to exempt. by Executive order. regulation. or any other means. categories of persons unlawfully present in the United States from removal under the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act). Any action by the executive branch with the purpose of circumventing the objectives of this statute shall be null and void and without legal effect. Although the bill was referred to the Committee on the Judiciary. upon which I have served throughout my ten terms in Congress. no hearing or markup of the bill was ever held. And it shows. The most obvious and fatal flaw in the bill as introduced and considered by the Rules Committee is its attempt to dictate to the federal judiciary how the Constitution is to be interpreted-"No provision of the United States Constitution . . . shall be interpreted or applied to authorize the executive branch . . ." Mr. Speaker. it has been settled law for 211 years. since 1803. when the Supreme Court decided the landmark case of Marbury v. Madison that the federal courts. and ultimately. the Supreme Court are the arbiters when it comes to interpreting the Constitution and the laws. As Chief Justice John Marshall stated in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases. must of necessity expound and interpret that rule. If two laws conflict with each other. the courts must decide on the operation of each." Had regular order been followed and this illconceived bill been subject to hearing and markup this fatal deficiency would have been revealed and made plain and the bill likely would have died a quiet death. Mr. Speaker. because H.R. 5759 was so poorly conceived and drafted. it would have embarrassed the Republican leadership to bring the bill to floor in its original form so the bill was amended in the Rules Committee. which made in order an Amendment in the Nature of a Substitute (ANS) that triesbut does not succeedin remedying the many deficiencies of the original bill. As amended and reported by the Rules Committee. H.R. 5759 seeks to prohibit the executive branch from exempting or deferring from deportation any immigrants considered to be unlawfully present in the United States under U.S. immigration law. and to prohibit the administration from treating those immigrants as if they were lawfully present or had lawful immigration status. The amended bill now includes three exceptions to this prohibition: 1. "to the extent prohibited by the Constitution:" 2. "upon the request of Federal. State. or local law enforcement agencies. for purposes of maintaining aliens in the United States to be tried for crimes or to be witnesses at trial". and 3. "for humanitarian purposes where the aliens are at imminent risk of serious bodily harm or death." The amended bill seeks to make November 20. 2014 the effective date of these prohibitionsthereby retroactively blocking the executive actions taken on that date by President Obama to address our broken immigration system by providing smarter enforcement at the border. prioritize deporting felonsnot familiesand allowing certain undocumented immigrants. including the parents of U.S. citizens and lawful residents. who pass a criminal background check and pay taxes to temporarily stay in the U.S. without fear of deportation. Mr. Speaker. let me briefly discuss why the executive actions taken by President Obama are reasonable. responsible. and within his constitutional authority. Under Article II. Section 3 of the Constitution. the President. the nations Chief Executive. "shall take Care that the Laws be faithfully executed." In addition to establishing the Presidents obligation to execute the law. the Supreme Court has consistently interpreted the Take Care Clause as ensuring presidential control over those who execute and enforce the law and the authority to decide how best to enforce the laws. See. e.g.. Arizona v. United States. Bowsher v. Synar. Buckley v. Valeo. Printz v. United States. Free Enterprise Fund v. PCAOB. Every law enforcement agency. including the agencies that enforce immigration laws. has "prosecutorial discretion"-the power to decide whom to investigate. arrest. detain. charge. and prosecute. Agencies. including the U.S. Department of Homeland Security (DHS). may develop discretionary policies specific to the laws they are charged with enforcing. the population they serve. and the problems they face so that they can prioritize resources to meet mission critical enforcement goals. Executive authority to take action is thus "fairly wide". indeed the federal governments discretion is extremely "broad". as the Supreme Court held in the recent case of Arizona v. United States. 132 S. Ct. 2492. 2499 (2012). an opinion written Justice Kennedy and joined by Chief Justice Roberts: "Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry. have been convicted of certain crimes. or meet other criteria set by federal law. Removal is a civil. not criminal. matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials. as an initial matter. must decide whether it makes sense to pursue removal at all. If removal proceedings commence. aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal." (emphasis added) (citations omitted). The Courts decision in Arizona v. United States. also strongly suggests that the executive branchs discretion in matters of deportation may be exercised on an individual basis. or it may be used to protect entire classes of individuals such as "[u]nauthorized workers trying to support their families" or immigrants who originate from countries torn apart by internal conflicts: "Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families. for example. likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors. including whether the alien has children born in the United States. long ties to the community. or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nations international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war. complicit in political persecution. or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nations foreign policy with respect to these and other realities." Mr. Speaker. in exercising his broad discretion in the area of removal proceedings. President Obama has acted responsibly and reasonably in determining the circumstances in which it makes sense to pursue removal and when it does not. In exercising this broad discretion. President Obama has not done anything that is novel or unprecedented. Here are just a few examples of executive action taken by several presidents. both Republican and Democratic. on issues affecting immigrants over the past 35 years: 1. In 1980. President Jimmy Carter exercised parole authority to allow Cubans to enter the U.S.. and about 123.000 "Mariel Cubans" were paroled into the U.S. by 1981. 2. In 1987. President Ronald Reagan used executive action in 1987 to allow 200.000 Nicaraguans facing deportation to apply for relief from expulsion and work authorization. 3. In 1990. President George H.W. Bush issued an executive order that granted Deferred Enforced Departure (DED) to certain nationals of the Peoples Republic of China who were in the United States. 4. In 1992. the Bush administration granted DED to certain nationals of El Salvador. 5. In 1997. President Bill Clinton issued an executive order granting DED to certain Haitians who had arrived in the United States before Dec. 31. 1995. 6. In 2010 the Obama administration began a policy of granting parole to the spouses. parents. and children of military members. Mr. Speaker. because of the Presidents leadership and farsighted executive action. 594.000 undocumented immigrants in my home state of Texas are eligible for deferred action. If these immigrants are able to remain united with their families and receive a temporary work permit. it would lead to a $338 million increase in tax revenues. over five years. Mr. Speaker. the Presidents laudable executive actions are a welcome development but not a substitute modernizing the nations immigration laws. Only Congress can do that. Americas borders are dynamic. with constantly evolving security challenges. Border security must be undertaken in a manner that allows actors to use pragmatism and common sense. And as shown by the success of H.R. 17. the bipartisan "Border Security Results Act. which I helped to write and introduced along with the senior leaders of the House Homeland Security Committee. we can do this without putting the nation at risk or rejecting our national heritage as a welcoming and generous nation. This legislation has been incorporated in H.R. 15. the bipartisan "Border Security. Economic Opportunity. and Immigration Modernization Act." legislation which reflects nearly all of the core principles announced earlier this year by House Republicans. As a nation of immigrants. the United States has set the example for the world as to what can be achieved when people of diverse backgrounds. cultures. and experiences come together. It is now time to open the golden symbolized by Lady Libertys lamp to the immigrant community of today so they can participate fully in the American Dream. These loyal and lawabiding persons have been waiting patiently for far too long for their chance. We can and should seize this historic opportunity to pass legislation to ensure that we have in place adequate systems and resources to secure our borders while at the same time preserving Americas character as the most open and welcoming country in the history of the world and to reap the hundreds of billions of dollars in economic productivity that will result from comprehensive immigration reform. President Obama has acted boldly. responsibly. and compassionately in exercising his constitutional authority to enforce the immigration laws in an effective and humane manner. If congressional Republicans. who have refused to debate comprehensive immigration reform legislation for more than 500 days. disapprove of the lawful actions taken by the President. an alternative course of action is readily available to them: pass a bill and send it to the President for signature. The President has shown responsible leadership. The next step is up to congressional Republicans. I urge all Members to join me in opposing the rule and the underlying bill. Just yesterday. the State of Texas and a number of other States filed a lawsuit challenging the executive actions announced by the President on November 20. The lawsuit. which will be known as Texas v. United States of America. was filed in the U.S. District Court for the Southern District of Texas. Much to my surprise. the Fifth Circuit Court of Appeals appears to have already issued a decision dismissing the Complaint. In the case of Texas v. United Statessound similar?the Fifth Circuit in 1997 dismissed a lawsuit by then Governor George W. Bush arguing that the Federal Governments failure to enforce our immigration laws violated Article I. Section 8. Clause 4 of the Constitutionthe Naturalization Clause. The Fifth Circuit also rejected Texass argument that the Federal Government had breached a nondiscretionary duty to control immigration under the Immigration and Nationality Act. In rejecting the Naturalization Clause argument. the Fifth Circuit wrote that "A judicial action presents a nonjusticiable political question not amenable to judicial resolution where there is . . . a lack of judicially discoverable and manageable standards for resolving it." In this case. the Court stated plainly that "We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate." Of course the President lawsuit challenges the enforcement actions of the President. not of Congress. but the broader point is the same. In rejecting the statutory claim brought by Texas. the Court cited the Administrative Procedure Act and Heckler v. Chaneythe Supreme Courts leading case on the nonreviewability of agency decisions not to take enforcement actionsfor the proposition that "An agencys decision not to take enforcement actions is unreviewable under the Administrative Procedure Act because a court has no workable standard against which to judge the agencys exercise of discretion." At a time when illegal border crossings was at its peakil.5 million returns each year in 1996 and 1997the Court stated: "We reject outofhand the States contention that the federal defendants alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty. The State does not contend that federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty." During this Presidents tenure. well over 2 million people have been formally removed from this country. Prosecutions for illegal entry and reentry after removal have increased exponentially. And even if 5 million people come forward and receive temporary protection from removal through DACA and the new Deferred Action for Parental Accountability program. there will still be well over 6 million undocumented immigrants who have received no such protection. With funds to deport no more than 400.000 people each year I assure my colleagues on the other side of the aisle that the President is in no danger of "doing nothing to enforce the immigration laws" and that he had not "consciously decided to abdicate [his] enforcement responsibilities." The argument that the President has declared that he will no longer enforce our immigration laws is offensive to the 34.000 peopleincluding thousands of women and childrenwho are sitting in detention centers today waiting for their day in court. It is also frivolous. The lawsuit filed yesterday will fail and this bill never will become law. Rather. the Presidents actions will soon take effect and will bring a small measure of sanity to our broken immigration system.