Marketplace Fairness Act of 2013 -- Continued

Floor Speech

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Mr. GRASSLEY. Mr. President, over the course of the next several weeks, I hope to come to the floor and visit with my colleagues about the immigration bill that will soon be going through the Judiciary Committee. Today I want to share my thoughts on the parts that deal with the border security section of S. 744.

The immigration bill is very likely to allow millions of people who entered our country illegally or overstayed their visa to receive legal status and eventually green cards. However, it is very unlikely to result in true border security. The bill provides that those in a probationary status--and that is known in this legislation as ``registered provisional immigrant status''--be given green cards as soon as the Secretary of Homeland Security certifies that four conditions have been satisfied.

On page 11 of the bill it lays out the process. The Secretary certifies that the border and fencing strategies, and those strategies are ones that she wrote, are substantially deployed, operational, and completed. She also has to implement a mandatory employment verification program and electronic exit system at airports and seaports. The authors of the bill envision that this will happen in 5 or 10 years down the road.

There are three reasons this process is problematic: First, the Secretary has unbridled discretion to conclude that the four provisions have been satisfied even if they have not been satisfied. The Secretary determines if the strategic plans are substantially deployed, operational, and completed according to requirements of the law. For example, the Secretary could say she is using an electronic exit system by collecting visa and passport information even if that system is not totally effective. The bill establishes no deadline for implementing any of these conditions.

Second, the bar is set very low for certifying that these conditions have been met. One of the four triggers to green card is a summation of a border fencing strategy. The bill defines in one sentence in section 5 the contents of that border fencing strategy condition. At a hearing on Tuesday before our Judiciary Committee, Secretary Napolitano testified that fencing was not a priority of this administration.

Considering how sensitive of an issue this is, one would not think she would say that. She did not really want $1.5 billion to be designated just for fencing. She implied that no more fencing was needed. Well, ask the people down on the border if that is true. She testified that the Department would prefer flexibility to use technologies other than fences. She stated that if she determined that little or no additional funding were necessary for fencing, she might then be able to certify this condition very quickly.

Third, litigation could ensure that legalization could occur in 10 years, regardless of whether any and all of the four border security triggers in the bill are met. The bill does this in four ways: First, green cards can be issued if litigation of any kind prevents any conditions from being met. Second, green cards can be issued if the Supreme Court rules that the implementation of any of the conditions is unconstitutional. Third, green cards can be issued if the Supreme Court grants review of litigation on the constitutionality of the implementation of these conditions. I note that this provision is especially ill-considered because it could trigger green cards merely because the Supreme Court agreed to review the condition's constitutionally, a highly likely event even if the Court later upheld that.

Fourth, the bill restricts litigation challenging one particular decision of the Secretary to a constitutional challenge only. But that limitation expressly does not apply to litigation challenging implementation of the conditions. Litigation brought against the conditions can be based on any legal theory.

Under the bill, if any court in this country issues a stay on implementing one of the conditions, then green cards are to be issued after 10 years.

The bill does not specify what sort of ruling must prevent implementation or even that the ruling be based on the merits, nor does the bill require that appeals run their course, even if the appeal upholds the condition. It says that the Secretary ``shall permit''--and this is mandatory language--``shall permit'' applications for adjustment to LPR status if ``litigation ..... has prevented one of the conditions from being implemented.''

Under the plain language of the bill, 10 days after the day that any court prevents any of the border security conditions from being implemented, then, of course, the floodgates for green cards are to be opened. And nothing in the bill stops the administration from agreeing to a consent decree that prevents one of the conditions from being met.

Because I listened to over 7 hours of testimony on Monday and because on Tuesday the Secretary of Homeland Security shared her thoughts, I summarize to this one statement: During all that time, not one person disputed the fact that legalization begins upon the mere submission of both a southern border security and fencing strategy. Thus, the undocumented become legal after the plans are submitted despite the potential that the plans could be flawed and inadequate.

If enacted today, the bill would provide no pressure on this Secretary or future Secretaries to actually secure the border.

Secretary Napolitano has stated that the border is stronger than ever before. She even indicated that Congress should not hold up legalization by adding border security measures and requiring them to be a trigger for the program.

I am concerned that the bill we will be taking up repeats the mistakes we made in 1986. Maybe people will resent my referring to 1986, but I do that because I went through this before, and we thought we were doing it absolutely right in 1986. We didn't secure the border then and assumed legalization alone would stop the flow of more people crossing the border without papers.

Simply, we screwed up. We need to learn a lesson because the basis of this whole legislation is that the borders will be secured. The people don't want some phony language that allows the Secretary to circumvent congressional intent.

I urge all my colleagues to really understand what the bill does in regard to border security and, in the process, to make sure the same mistakes of 1986 aren't repeated and to insist that the border be secured instead of trusting what the Secretary says.

In regard to this whole issue, there has been a lot of finger-pointing going on in Washington in the past 2 weeks as it relates to immigration. It is a lot like the weeks and months after 9/11. What warning signs were missed about the brothers who bombed the Boston Marathon? Law enforcement and intelligence agencies tell conflicting stories. Bureaucracies are gearing up to do battle over who dropped the ball. They are preparing their defenses. They are leaking bits and pieces of information favorable to themselves.

Meanwhile, Congress and the public have a growing number of questions. I have written to the Department of Homeland Security and the FBI. Senator Paul and I have written on another matter to the FBI. But the Senate Judiciary Committee has not yet received clear answers to our questions, and there are very serious questions about whether our government has forgotten the lessons of 9/11.

The most important of those lessons is this: When extremist fanatics say they want to wage war against us, we should take them seriously. Our government was reportedly warned on multiple occasions that one of these brothers had become a radical jihadist. Do we still have agencies failing to follow up, failing to share information, and failing to connect the dots?

In this morning's Washington Post, the editorial board asked, ``Is the FBI focused enough on the real bad guys?'' The editorial pointed out that in addition to the older brother in Boston, several people who have been investigated by the FBI have gone on to commit attacks. The Post cited 2 examples: the man who shot 2 soldiers at a Little Rock military recruiting office in 2009 and the man who was accused of shooting and killing 13 people at Fort Hood later that year.

According to the editorial, ``Meanwhile, the FBI has devoted considerable resources to sting operations ..... sometimes on what look like dubious grounds.'' For example, the FBI launched an elaborate sting operation in Boston against a man planning to attack the U.S. Capitol with a remote-controlled model airplane loaded with grenades.

The Post concluded:

In [some cases], it's not clear that a sometimes far-fetched plot would have gone forward without the encouragement and help of FBI informants.

That is a very good point. It may be easier for an FBI informant to draw someone into a far-fetched plan, but it is harder to detect the real terrorist plot, such as the one in Boston. Unfortunately, it is connecting the dots that keeps us safe, not those easy sting operations.

Other warning signs about the older brother may have

been missed because tips about him weren't shared between law enforcement. The older brother's best American friend was murdered in an unusual triple homicide. My office has been told that local authorities investigating the murder were unaware of the warnings from Russia about his radicalization. Thus, those local authorities in turn apparently didn't know they should make the FBI aware of the murder.

Four months later the older brother traveled to Russia, just as the Russian Government had warned us. The FBI claims it was unaware of the older brother's trip, even though the Homeland Security Department says its systems alerted them to the travel. Did the Homeland Security Department fail to share that information with the FBI?

The immigration reform bill, with all of its bells and whistles, can't make agencies share information with each other. That bill is supposed to require background checks on the 12 million people who are in our country undocumented. Yet it seems we have a hard time doing successful background checks just on those here legally.

Lack of information-sharing and failure to see real warning signs are probably things that no bill will fix. What has to change is the culture, and, of course, that begins at the top. It requires true leadership.

At the end of the day, this is about much more than who dropped the ball. It is about learning from mistakes and doing a better job next time. In order to do that, we need real transparency about what happened, not just talking points from agencies trying to deflect the blame.

The immigration bill before the Senate will make enforcement of immigration laws more inefficient, time-consuming, and ineffective.

I would refer my colleagues to section 3502 of the bill. That section governs immigration court proceedings. Under current law, people here illegally who are going through removal proceedings are not entitled to legal counsel at government expense, and the Justice Department is not required to provide that. However, this section opens the law wide, making taxpayers foot the bill for attorneys who will represent people here who are undocumented. It provides that ``the Attorney General, in the Attorney General's sole and unreviewable discretion, may appoint or provide counsel to aliens in'' removal proceedings.

The heading of the section implies that court proceedings would run more efficiently, when in actuality the goal is to ensure that people here illegally have every opportunity to fight removal orders. Some of these aliens could be dangerous. They certainly don't deserve free counsel whenever the Attorney General is inclined. Making it harder to deport aliens who should be deported will make it harder to deter aliens from entering the country illegally. Of course, there are organizations, such as law firms, law school clinics, and others, that provide pro bono legal services to aliens at no cost to the taxpayers.

The bill's language is just so astounding. There are very few statutes that say that any government official can do anything in his or her ``sole and unreviewable discretion.'' That means no oversight. However, time and again throughout this bill this language pops up. It means that no court can stop what that official wants to do. That is hard to square with our principles of democracy and a government based on the principles of checks and balances.

Ironically, the title for the section implies that this measure would ``reduce costs,'' but in fact it only increases the costs for taxpayers. This measure to provide legal counsel for people here illegally would be paid for from the newly created fund known as the Comprehensive Immigration Reform and Trust Fund. This fund, on the date of enactment, will have $6.5 billion, which is transferred from the General Treasury. How much will this section cost? We won't know until CBO scores it, but it won't be borne by the people in the removal proceedings, and that is going to be hard for the American people to swallow.

Anything that makes deportation harder or that makes deportation proceedings more likely to be about delaying tactics should be avoided, but the immigration bill appears to desire those results as goals. We should decline that invitation to mischief that is going to be a direct result.

DRUG PREVENTION AND TREATMENT PROGRAMS

Mr. President, I have long been a strong advocate for the responsible stewardship of taxpayer dollars.

Throughout my career I have sent countless requests, letters, and conducted numerous investigations all in the interest of preventing waste, fraud, and abuse of taxpayer dollars. Today, we are confronted with a government that is recklessly spending tax dollars and running up a huge Federal budget deficit and debt. We are also confronted with the need to tighten the government's belt when it comes to this reckless spending.

One area where we need to do a better job of responsibly using taxpayer dollars is through our drug treatment and prevention efforts. I have a strong commitment to ensure drug abuse does not flourish in communities throughout the country. I have championed numerous efforts to prevent drug abuse before it starts including my sponsorship of the Drug Free Communities grant program.

Drug abuse is very costly to society. The National Survey on Drug Use and Health estimates that 22.5 million Americans aged 12 and older used drugs in 2011. This is clearly a problem that needs to be addressed in an aggressive but wise manner.

Senator FEINSTEIN and I requested the Government Accountability Office to conduct a study of the Federal drug treatment and prevention programs that has recently been released. This report and another, which annually reports on the duplication or overlapping of Federal programs, states that out of 76 drug abuse prevention and treatment programs 59 or nearly 80 percent had evidence of overlapping efforts. In Fiscal Year 2012, 4.5 billion taxpayer dollars were allocated to these programs.

The Government Accountability Office reported that some programs, including the Drug Free Communities program, have a low risk for duplication because they have coordinated their efforts among their respective administering agencies. However, 29 of the 76 programs surveyed reported that no staff have coordinated with other agencies or programs to reduce duplication. This is almost 40 percent of all Federal drug prevention and treatment programs. The report further states that the Office of National Drug Control Policy, which is responsible for coordinating the government's anti-drug efforts, has not systematically assessed drug abuse prevention and treatment programs to examine the extent of overlap or opportunities for coordination.

It is with disappointment that I learned that the President has proposed a significant increase in his Budget to many of these programs. Specifically, the President has proposed a $1.5 billion increase for drug treatment programs, which is an increase of 18 percent from fiscal year 2012. Many of these programs have good intentions and may even do good work, but in a time when we are making many painful cuts throughout most federal agencies and programs to rein in spending should we be making such large increases?

Further, should we be spending more taxpayer dollars on programs that are duplicating efforts before they correct their problems? The last thing we need to be doing now is chasing good money after bad, and this is what the President is proposing with his budget.

Before we start increasing any program budget, we must first ensure that program is responsibly tracking and utilizing every taxpayer dollar it currently has and not wasting it by duplicating the work of another program. One example of success in eliminating duplication can be found with the National Drug Intelligence Center.

This center had repeatedly been listed as a duplicating agency for a number of years. The funding for this center was eventually eliminated in fiscal year 2011 while the work of the center has been consolidated.

I am pleased that the Office of National Drug Control Policy agrees with the recommendation of the Government Accountability Office report to assess the extent of overlap and duplication across all drug prevention and treatment programs by identifying where agencies can better coordinate their efforts. Yet these actions should have been taken years ago. However, it is with disappointment that I saw no mention of any effort to assess prevention and treatment programs in the President's recently released 2013 National Drug Control Strategy.

In fact, it appears that the President wants to expand many of the programs that currently do not coordinate efforts in his strategy. An assessment must be done and actions must be taken to eliminate waste before any expansions take place.

Failure to adhere to the Government Accountability Office recommendation will result in more wasted taxpayer dollars and less recipients benefitting from those dollars. The people most vulnerable to drug abuse, our Nation's youth, require our best efforts with the limited resources we have to ensure they receive the proper education and professional help so that they can grow into healthy adults. By failing to carefully safeguard taxpayer dollars, we are failing our children and grandchildren. We must do better.

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