Providing for Consideration of H. Res. Authorizing the Speaker to Appear As Amicus Curiae on Behalf of the House

Floor Speech

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Ms. LOFGREN. Mr. Speaker, I think it is worth reflecting why we are here.

When we had the bipartisan bill passed by the Senate last Congress, the Congressional Budget Office calculated that it would mean almost a trillion dollars to the positive for the American economy, not to mention the human toll that our current broken system inflicts on people.

Now, we failed to act. And when we did, the President went to the Office of Legal Counsel, an independent group, and asked them what he could do, if anything. I thought they were rather conservative, but one of the things they said he could do was to give temporary reprieve to children who had been brought here without their concurrence and to the parents of American citizens. So he did that.

How could he do that? Because the Congress has delegated to the executive the authority to act. In 1952, we did so--it can be found at 8 U.S.C. 1103(a)(3)--and again in 2002. When we created the Department of Homeland Security, we told the Department Secretary that he should establish immigration policies and priorities for removal.

Now, why would that happen? We have only appropriated 4 percent of the funds necessary to remove everyone who is here without their proper papers. So clearly, there needs to be some prioritization. We recognize that. We told the Secretary to do it, and that is exactly what he did. We delegated the authority.

On work authorization, again, we delegated that authority. In 1981, President Reagan went to rulemaking and established that authority, which is actually in practice; it has been in place. And Congress, in 1986, explicitly recognized the authority to give work authorization to those who are in deferred action status.

But even without that delegation, the President has long had the authority to take the action that the President has in this case. It is called prosecutorial discretion and foreign policy.

In United States v. Arizona, Justices Roberts and Kennedy noted that when the executive has broad discretion, a principal feature of the removal system is that it extends, and it extends to whether it makes sense to pursue removal at all.

This isn't new with President Obama. When President Reagan held that office, he sponsored a bill that gave relief--amnesty, if you will--to several million people; but the Congress--and it is reflected in the Judiciary Committee report--specifically excluded the spouses and children of those who had relief. What did Reagan do? He gave deferred action to the spouses and the children who had been specifically excluded from relief by the Congress because he didn't want to break up families. That was about 40 person of the undocumented people at the time--about the same amount that President Obama has dealt with.

Not only is this resolution wrong, it is the wrong process. Democrats went to the Ethics Committee. We got approval to get a volunteer to write a brief, which I will later include in the Record. We read it before we signed it.

In contrast, what are you asking Members to do? You have no idea what you are signing onto, just that you are against it.

Now, does this mean that you are saying that the Administrative Procedure Act applies whenever the President takes a discretionary action? Well, good luck fighting ISIS then. Good luck getting disaster relief if there is a flood.

It is defective for process, too. There is a group called the Bipartisan Legal Advisory Group. I have been involved with that in the past. That group is consulted when there is an issue that relates to the prerogatives of the House. For example, is there a speech or debate issue before the court?

This did not come before the BLAG because this is political. This is not about the prerogatives of the House.

Now, all Members of the House had an opportunity to file a brief, and Republican Members still can if they can meet the time deadlines. But using this process, I think there is a reason why CRS was unable to tell us any other instance where a process like this was used about the prerogatives of the House.

So this is a radical procedure and a radical act because it says the House cannot delegate to the executive, as we have done, because it could cripple the President by requiring the Administrative Procedure Act whenever he takes a discretionary act, because it violates the procedures the House has always used.

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Ms. LOFGREN. But finally, the net result could be this: if the Republicans prevail, we could end up with a roundup of a million kids who did nothing wrong, who were brought here as infants, who don't even remember the country of their birth.

When all is said and done, that is what this is about.

I would urge that our colleagues vote ``no'' on this radical resolution. We will attempt to offer a resolution that, instead, is something you know what you are buying into, not a pig in a poke, but a thoughtful, reasoned brief that outlines what the House has done to delegate to the executive, outlines what the executive's authority has been since Eisenhower.

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Ms. LOFGREN. Mr. Speaker, this is a political act because this action only comes with President Obama. We never did this with Republican Presidents.

Let me give you an example. After Tiananmen Square, the House of Representatives passed a bill to preclude the deportation of Chinese students. President Bush vetoed that bill. Do you know what he did then? He deferred the deportation of the Chinese students because he had the executive authority.

In 1999, a letter was sent to Janet Reno. It was signed by Henry Hyde, Lamar Smith, Sam Johnson, and many others asking her to use her prosecutorial discretion and citing the fact that the prosecutorial discretion is clear in removal proceedings.

Mr. Speaker, I will include that letter in the Record.

I was shocked to hear Mr. Sessions say that the Court had solicited a brief--maybe I misunderstood him--had asked the House for a brief. If that is the case, I would respectfully request to see a copy of the document soliciting a brief from the House of Representatives. That is a procedure that would be an extraordinary one, and it is certainly news to me.

Finally, I would like to add that the fact that Mr. Goodlatte doesn't agree with the President has nothing to do with the fact that the procedures were not followed in this case. The Bipartisan Legal Advisory Group is the process established in the House to be used when the House takes a step in Court to defend its prerogatives, which is what the majority is suggesting is at play in this case.

This is clearly a political act, and if it succeeds, who will be punished? One million children who did nothing wrong, who will be rounded up and taken from their homes.

I don't know what Republicans think they are doing if they sign on to this resolution because it doesn't give any findings nor does it say what, in fact, they are signing on to.

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Ms. LOFGREN. Will the gentleman yield?

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Ms. LOFGREN. Is it the gentleman's proposition that a vote in this House that does not become law voids an action of the House that does become law, to wit, the 2002 Department of Homeland Security Act that directed the Secretary to establish priorities for removal?

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Ms. LOFGREN. Mr. Speaker, obviously, we all like and honor the Speaker of the House. I was pleased to hear his recognition that this should have gone through the Bipartisan Legal Advisory Group because that is how the House organizes itself before asserting a privilege of the House in court.

What he didn't say is why, since cert was granted on January 19--and today is March 17--he didn't call together the Bipartisan Legal Advisory Group. Certainly, we have met in a much shorter time frame. I know because I have been a participant in that process.

The failure to follow the procedures in this instance can only lead observers to conclude that this is a more politicized action than is traditional in terms of intervening in the court.

Now, the Speaker said: ``All legislative powers are vested in Congress.'' No one can disagree with that. And that the President must ``take care that the laws be faithfully executed.'' No one can disagree with that.

Is the Speaker saying that we did not, in 2002, delegate to the Secretary of Homeland Security the responsibility to establish priorities and policies, the priorities for removal, that we did not fail to provide most of the money that would be necessary to actually remove every single undocumented person in here? I think not. In fact, the President has done exactly what we said he should do in 2002.

To approve this resolution, which says that he has acted inconsistent with his duties, is a mystery. It is a pig in a poke for the Republicans.

The District Court made a finding that in order to take a discretionary action, one would need to comply with the Administrative Procedures Act. That is a very bulky procedure--90 days posting.

Are the Members of the House being asked to say that whenever the President takes a discretionary action, he must post a rule for 90 days? We don't know because this resolution only says we are against it.

If we are saying that a rule must be adopted whenever a discretionary action is taken, that would be an extraordinary departure from the President's power to act, and it is certainly something that Members ought to know they are doing before they vote on this resolution.

Much has been said about the States that filed the lawsuit. They were all States with Republican Governors. But there are States who disagree, including my State of California.

There is a brief filed by the Californians which reads that the discretionary action the President took would generate 130,000 jobs in California and that it would provide $3.8 billion in taxes to California.

So if we are going to use as an excuse the fact that Republican Governors filed a lawsuit to stop it, let's think about the States that have been enjoined unfairly and that are experiencing extreme economic damage because of the Fifth Circuit's misguided opinion.

I hate to say it, because I do appreciate the Speaker of the House, but there is only one way to look at this resolution--as a highly politicized effort. This is not the way the House has traditionally proceeded when adopting a court proceeding, a court intervention, that deals with the privileges of the House.

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Ms. LOFGREN. Mr. Speaker, I submit the following amici curiae brief: No. 15-674 In the Supreme Court of the United States United States of America, et al., Petitioners, v. State of Texas, et al., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF OF 186 MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES AND 39

MEMBERS OF THE U.S. SENATE AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Kenneth L. Salazar.

Wilmer Cutler Pickering Hale and Dorr, LLP.

Seth P. Waxman, Counsel of Record.

Jamie S. Gorelick.

Paul R.Q. Wolfson.

David M. Lehn.

Saurabh H. Sanghvi.

Ryan McCarl.

John B. Sprangers.

Wilmer Cutler Pickering Hale and Dorr, LLP. INTEREST OF AMICI CURIAE

Amici are 186 Members of the U.S. House of Representatives and 39 Members of the U.S. Senate. A complete list of amici is set forth in the Appendix. Among them are:

U.S. House of Representatives:

Nancy Pelosi, Democratic Leader.

Steny H. Hoyer, Democratic Whip.

James E. Clyburn, Assistant Democratic Leader.

Xavier Becerra, Democratic Caucus Chair.

Joseph Crowley, Democratic Caucus Vice-Chair.

John Conyers, Jr., Ranking Member, Committee on the Judiciary.

Zoe Lofgren, Ranking Member, Subcommittee on Immigration and Border Security of the Committee on the Judiciary.

U.S. Senate:

Harry Reid, Democratic Leader.

Richard J. Durbin, Democratic Whip.

Charles E. Schumer, Democratic Conference Committee Vice Chair and Policy Committee Chair, and Ranking Member, Subcommittee on Immigration and the National Interest, Committee on the Judiciary.

Patty Murray, Secretary, Democratic Conference.

Patrick J. Leahy, Ranking Member, Committee on the Judiciary.

Robert Menendez, Democratic Hispanic Task Force Chair.

As Members of Congress responsible, under Article I of the Constitution, for enacting legislation that will then be enforced by the Executive Branch pursuant to its authority and responsibility under Article II, amici have an obvious and distinct interest in ensuring that the Executive enforces the laws in a manner that is rational, effective, and faithful to Congress's intent. Given their institutional responsibility, amici would not support executive efforts at odds with duly enacted federal statutes. But where Congress has chosen to vest in the Executive discretionary authority to determine how a law should be enforced and the Executive has acted pursuant to that authority--as is the case here--amici have a strong interest in ensuring that federal courts honor Congress's deliberate choice by sustaining the Executive's action. SUMMARY OF ARGUMENT

Congress understands that the Executive is often better positioned to determine how to adjust quickly to changing circumstances in complex fields, particularly ones involving law-enforcement and national-security concerns. Congress therefore regularly gives the Executive broad discretion to determine how to enforce such statutes. Rarely has it done so more clearly than in the Nation's immigration laws.

Recognizing the Executive's institutional advantages in the immigration context, Congress has for more than sixty years granted the Executive broad discretionary authority to ``establish such regulations; . . . issue such instructions; and perform such other acts as [the Secretary] deems necessary for carrying out his authority'' under the Immigration and Nationality Act (``INA''). 8 U.S.C. 1103(a)(3). And in 2002, in the face of a yawning gap between the size of the unauthorized immigrant population and the amount of resources reasonably available for enforcement, Congress charged the Secretary of Homeland Security with ``[e]stablishing national immigration enforcement policies and priorities.'' 6 U.S.C. 202(5). Congress thereby encouraged the Executive to focus its resources in a rational and effective manner on cases in which the Nation's interest in removal is strongest, to provide the maximum return on Congress's sizeable but necessarily finite investment in immigration enforcement.

As representatives of diverse communities across the United States, amici have witnessed how an approach to enforcement of the immigration laws that does not focus on appropriate priorities undermines confidence in those laws, wastes resources, and needlessly divides families, thereby exacting a severe human toll. Amici thus regard the DAPA Guidance as exactly the kind of ``enforcement polic[y]'' that Congress charged the Secretary with establishing. Building on the Secretary's decision to prioritize for enforcement threats to national security, border security, and public safety, the DAPA Guidance establishes a ``polic[y]'' that certain nonpriority immigrants may be considered for ``deferred action,'' i.e., memorialized temporary forbearance from removal, which triggers eligibility for work authorization upon a showing of economic need.

This Court has observed that deferred action is a ``commendable exercise in administrative discretion.'' Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (``ADC''). Deferred action is not just a humanitarian exercise. Like other uses of deferred action, the DAPA Guidance facilitates the implementation of the Secretary's priorities and promotes the efficient and effective execution of the immigration laws consistent with the limited enforcement resources available. The Guidance does this by encouraging eligible persons to submit to a background check so they can be identified and classified according to removal priority, and by enabling those with an economic need to support themselves lawfully.

That the Secretary's guidance is within his statutory authority should not be open to doubt. For half a century, the Executive has used deferred action and other forms of discretionary relief in a variety of circumstances, even when not specifically authorized by statute. Congress has approved of those practices, repeatedly amending the immigration laws without foreclosing the Executive's broad discretion to use them--and even enacting provisions that presume the Executive will continue its discretionary practice of deferred action. Similarly, Congress has explicitly recognized the Executive's broad discretion to determine which removable individuals qualify for work authorization and has never disturbed the Executive's decades-long practice of providing work authorization to those granted deferred action.

The court of appeals' holding that the DAPA Guidance is ``manifestly contrary to the INA'' reflects a misreading of the INA and a faulty approach to interpreting complex regulatory statutes like the immigration laws. The court reasoned that the immigration laws' specific references to discretionary relief from removal and work authorization under certain circumstances implicitly foreclosed discretionary relief and work authorization under others. But deferred action is not a substitute for specific statutory statuses and forms of discretionary relief, as it grants none of the legal rights that lawful status provides. Moreover, the court's expressio unius analysis disregards the broad grants of discretion that are explicit in the immigration laws and the long history of undisturbed executive exercise of that discretion. The court's approach would make it virtually impossible for Congress to grant the Executive the broad authority and discretion required to tackle urgent and unforeseen immigration challenges, while retaining the ability to direct specific enforcement action it deems appropriate. More generally, it would hamper Congress's ability to allocate to the Executive the combination of broad discretion and specific responsibilities so often needed to administer sprawling statutory schemes effectively.

Finally, even if a claim under the Take Care Clause is justiciable, and even if such a claim may be asserted against an Executive officer other than the President, the claim must fail here. The States' challenge rises and falls on the proper interpretation of the immigration laws, and thus should be viewed as presenting only a statutory claim. In any event, the Take Care Clause surely does not prevent an agency faced with the task of removing hundreds of thousands of individuals each year from pursuing such removals in a rational rather than haphazard manner in light of its limited enforcement resources.

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Ms. LOFGREN. Mr. Speaker, I submit the following letter: Congress of the United States, Washington, DC, November 4, 1999. Embargoed for release Monday, November 8, 1999. Contact: Allen Kay, Rep. Lamar Smith. Re Guidelines for use of prosecutorial discretion in removal proceedings. Hon. Janet Reno, Attorney General, Department of Justice, Washington, DC. Hon. Doris M. Meissner, Commissioner, Immigration and Naturalization Service, Washington, DC.

Dear Attorney General Reno and Commissioner Meissner: Congress and the Administration have devoted substantial attention and resources to the difficult yet essential task of removing criminal aliens from the United States. Legislative reforms enacted in 1996, accompanied by increased funding, enabled the Immigration and Naturalization Service to remove increasing numbers of criminal aliens, greatly benefitting public safety in the United States.

However, cases of apparent extent hardship have caused concerns Some cases may involve removal proceedings against legal permanent residents who came to the United States when they were very young, and many years ago committed a single crime at the lower end of the ``aggravated felony'' spectrum, but have been law-abiding ever since, obtained and held jobs and remained self-sufficient, and started families in the United States. Although they did not become United States citizens, immediate family members are citizens.

There has been widespead agreement that some deportations were unfair and resulted in unjustifiable hardship. If the facts substantiate the presentations that have been made to us, we must ask why the INS pursued removal in such cases when so many other more serious cases existed.

We write to you because many people believe that you have the discretion to alleviate some of the hardships, and we wish to solicit your views as to why you have been unwilling to exercise such authority in some of the cases that have occurred. In addition, we ask whether your view is that the 1996 amendments somehow eliminated that discretion. The principle of prosecutorial discretion is well established. Indeed, INS General and Regional Counsel have taken the position, apparently well-grounded in case law, that INS has prosecutorial discretion in the initiation or termination of removal proceedings (see attached memorandum). Furthermore, a number of press reports indicate that the INS has already employed this discretion in some cases.

True hardship cases call for the exercise of such discretion, and over the past year many Members of Congress have urged the INS to develop guidelines for the use of its prosecutorial discretion. Optimally, removal proceedings should be initiated or terminated only upon specific instructions from authorized INS officials, issued in accordance with agency guidelines. However, the INS apparently has not yet promulgated such guidelines.

The undersigned Members of Congress believe that just as the Justice Department's United States Attorneys rely on detailed guidelines governing the exercise of their prosecutorial discretion, INS District Directors also require written guidelines, both to legitimate in their eyes the exercise of discretion and to ensure that their decisions to initiate or terminate removal proceedings are not made in an inconsistent manner. We look forward to working with you to resolve this matter and hope that you will develop and implement guildelines for INS prosecutorial discretion in an expeditious and fair manner. Sincerely, Henry J. Hyde; Lamar Smith; Bill McCollum; Bill Barrett; Barney Frank; Sheila Jackson Lee; Martin Frost; Howard L. Berman; Brian P. Billbray; Charles T. Canady; Nathan Deal; David Dreier; Eddie Bernice Johnson; Patrick J. Kennedy. James P. McGovern; F. James Sensenbrenner, Jr.; Henry A. Waxman; Gene Green; Corrine Brown; Barbara Cubin; Lincoln Diaz-Balart; Bob Filner; Sam Johnson; Matthew G. Martinez; Martin T. Meehan; Christopher Shays; Kay Granger; Ciro D. Rodriguez.

The material previously referred to by Ms. Slaughter is as follows: An Amendment to H. Res. 649 Offered by Ms. Slaughter

At the end of the resolution, add the following new sections:

Sec. 2. Immediately upon the adoption of this resolution it shall be in order without intervention of any point of order to consider in the House the resolution (H. Res. 646) expressing the position of the House of Representatives in the matter of United States, et al. v. Texas, et al., No. 15- 674. The resolution shall be considered as read. The previous question shall be considered as ordered on the resolution to adoption without intervening motion or demand for division of the question except one hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary.

Sec. 3. Clause 1(c) of rule XIX shall not apply to the consideration of House Resolution 646. ____ The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Republican majority agenda and a vote to allow the Democratic minority to offer an alternative plan. It is a vote about what the House should be debating.

Mr. Clarence Cannon's Precedents of the House of Representatives (VI, 308-311), describes the vote on the previous question on the rule as ``a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that ``the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: ``The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''

The Republican majority may say ``the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution . . . [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: ``Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule . . . When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

In Deschler's Procedure in the U.S. It is one of the only available tools for those who oppose the Republican majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.

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