Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Comprehensive Immigration Reform, S.744
Discretion and Waivers
Thursday, June 13, 2013
Mr. President, I want to talk about how important it is to emphasize the need for Congress to legislate, not delegate – especially with this immigration bill before us.
When an immigration bill is nearly 1,200 pages long, the American people should expect that it is their elected representatives who will write the laws. And they should expect that the executive branch, and the Secretary of Homeland Security in particular, to carry out those policies.
Now, there are individualized circumstances that Congress cannot fully anticipate. With direction from Congress, the Secretary should be able to issue regulations to enforce legislative policies in those situations. Those regulations and any discretion the Secretary exercises, like other delegations of power from Congress, should be subject to judicial review to ensure that the policies Congress established are being carried out.
But this immigration bill takes a different and wrong-headed approach. It provides highly general discretion to the Secretary. It gives the Secretary tremendous, often unilateral discretion, to implement the bill. And in many instances, that discretion is not subject to judicial review.
This is not the way that power is supposed to work in our representative system of government. Uncontrolled unilateral discretion is not what the framers of the Constitution envisioned for a government with separation of powers and checks and balances. We have seen with the IRS, for instance, what can happen when the executive branch exercises authority with too much discretion, and not enough oversight.
By some accounts, there are 222 provisions in the bill that give the Secretary of Homeland Security discretion or allow her to waive otherwise governing parts of the bill. Others have counted even more.
The Secretary’s unbridled waiver authority makes a bill that is already weak on immigration enforcement even weaker.
Ironically, when the Judiciary Committee marked up the immigration bill, it rejected amendments that I and others offered to limit judicial review of immigration enforcement proceedings against people who are in the country illegally. The majority argued against them by claiming that judicial review, which historically has been limited in these enforcement actions, should be expanded to cover these decisions.
So the majority wants unlimited judicial review when the Secretary would take enforcement action against people in the country illegally. At the same time, the bill provides more judicially unreviewable discretion for the Secretary when she decides not to enforce the law against illegal immigration. The people of this country should be aware of the one-way ratchet for discretion that the bill contains. It adds judicial review when the Secretary would enforce the law and does not provide judicial review when the Secretary decides to withhold enforcement of border security and other measures designed to reduce illegal immigration.
I believe it is worth noting some of the specific provisions of the bill that give the Secretary discretion in enforcement, sometimes without judicial review. Some of the specific language that allows her to waive provisions that supporters of the bill claim make this bill very tough on illegal immigration and border security should also be discussed. When they are contrasted, the legislation’s goal is clear: enact very general border security measures that are said to be tough, while giving the Secretary often unilateral discretion and waiver authority to water down those measures.
For instance, the Secretary can commence processing petitions for Registered Provisional Immigrant (RPI) status based on her determination of border security plans and how she views the status of their implementation. The fencing that the bill seems to demand can be stopped by the Secretary when she believes it is sufficient.
The Secretary has the ability to decide whether certain criminal offenses should bar someone from the legalization program. She can waive, with few exceptions, the grounds of inadmissibility prescribed in law. And she is given discretion whether to bring deportation proceedings against those who do not qualify for RPI status. If they are denied, shouldn’t they be deported?
The Secretary is also allowed to waive various requirements when a person adjusts from RPI status to legal permanent resident status, including what counts as passing a background check.
The Secretary has broad authority on how to use the $8.3 billion dollars in up-front funds transferred from the Treasury. On top of that, she has wide discretion on how to use the additional $3 billion in start-up costs that don’t have to be repaid to the taxpayers.
Notwithstanding the constitutional power of Congress over the purse, she is given the authority to establish a grant program for nonprofit organizations.
With respect to the point system, the Secretary is given discretion to recalculate the points for particular petitioners and to decide not to deport inadmissible persons.
She also has the discretion to waive requirements for citizenship that otherwise apply under the bill.
The Secretary is also given a great deal of discretion in the operation of the electronic employment verification system. Which businesses will be exempt from the requirement? Which documents can individuals present to prove identity or work authorization? She also has the authority to determine when an employer who has repeatedly violated the law is required to use the system. Those decisions will be vital in determining whether the employment verification system will be effective.
So, members can opine all day about what this bill does. But, we may not know for years to come about how the executive branch puts it into practice. Take the heath care law, for example. There are still so many unknowns. There’s no certainty. That’s the fallout from delegating so much power in one Secretary. We shouldn’t repeat that mistake today with this bill.
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