Border Security, Economic Opportunity, and Immigration Modernization Act

Floor Speech

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Mr. LEE. Madam President, this week we continue a very important discussion about how to fix our broken immigration system.

One of the most important concerns we have is that the border is simply not secure. Despite the fact that this assertion is almost universally held on both the left and on the right, the bill we are debating has very little, if anything, to make the border more secure or at least to guarantee that it will become more secure as a result of its passage. Instead, the bill offers more of what the American people are used to from Washington--plans, promises, commissions, studies, and spending lots and lots of money but requires almost no action on border security.

Many on my side of the aisle have placed heavy emphasis on strengthening the border security provisions to ensure that certain goals are met before granting permanent legal status to illegal immigrants. The reason for this is not merely academic; it is based in common sense. Failing to secure the border is the quickest way to repeat the mistakes we have made in the past. It means we will be back here in another 20 years dealing with a much larger and far less manageable problem. That is what we are trying to prevent today and why we need to make sure this bill secures the border.

The problem with this bill isn't just the weak border security measures. Even if we can come to some satisfactory conclusion on the security issues, this bill still would fail to reform many of the challenges we face and it makes most of them worse. If all we do is fix the border security portion, this bill is still considerably weak in four major areas and would still be unworthy of support without major changes.

First, there is no congressional oversight of how the executive branch implements these reforms. By passing this bill, Congress would turn over almost all authority to the executive branch to secure or not secure the border, verify or not verify workplace enforcement, and certify or not certify visa reforms.

Of course, the administration will begin the legalization of 11 million illegal immigrants with no input from Congress as soon as possible regardless of how much progress has been made on border security, fencing provisions, and on the other priorities outlined in the bill.

Congress is the branch of government that is most accountable to the American people. If the people don't believe the border is secure or that our visa system actually works or that the country's economic needs are being met, it is Congress that should be held accountable. It is also Congress that can most readily be held accountable through regular elections that occur every 2 years in both Houses, with each Senator being held accountable every 6 years. Therefore, Congress must play a predominant role in approving, overseeing, and verifying these reforms, as well as ensuring that these reforms are being implemented correctly and achieving desired results. This bill, however, leaves Congress and the American people dangerously out of the loop.

Second, the bill surrenders control of immigration law to the Secretary of Homeland Security, as well as to a handful of other unelected, unaccountable bureaucrats in Washington. This is a problem that permeates the Federal Government in general. For example, last year Congress passed and the President signed into law 1,519 pages of legislation. Meanwhile, the Federal Government published 82,349 pages of new and updated rules and regulations in the Federal Register. That is more than 82,000 pages of rules that never came before Congress, never had a chance to be amended, and never received a vote in this body.

This bill will make that problem worse by granting similarly broad discretion to the Secretary of Homeland Security to create the rules and regulations that will determine how the bill is to be implemented as well as authorize the Secretary in hundreds and hundreds of instances to simply ignore immigration law as it is enacted by Congress. While I can certainly see why Members of Congress might not want to take responsibility for the consequences of this bill, that is not how our Republic is supposed to function.

Third, this bill is inherently unfair to the countless thousands of people who have tried to navigate our current broken immigration system. Let me cite just one example. I received a letter just a few months ago from a constituent in Utah, from a person who immigrated to this country lawfully, a person who was teaching school at American Fork, UT, and here on a nonimmigrant visa. As she explained, she spent years of her life and thousands of dollars making sure that she came to the country legally. But she understands that her visa will expire in a few years, in 2017. She anticipates that she will be unable to get a renewal on that same visa and that she will effectively be deported at that point--voluntarily, but her visa term will expire and she anticipates she will have to go back to her home country.

She explained to me it is very difficult for her to accept the fact that she has been here a few years teaching lawfully, developing friendships, developing her career, and because she did it legally she will have to go home. Meanwhile, those who have broken the law by their illegal presence in the United States will not only be allowed to stay where they are, not only be allowed to live where they now live, not only be allowed to work where they now work, but they will be put on a path toward eventual citizenship at the same time she and many others like her will have to go back to their home country.

This policy seems to be rewarding those who have broken our laws while, in relative terms, punishing those who have attempted to abide by our laws in good faith. So this bill must be fair to those who have tried to come to the country the right way.

As my colleague from Iowa Senator Grassley explained in painstaking detail yesterday, the claims of those who say there will be stiff penalties for those who have broken the law have proven to be almost entirely false. There is no requirement to learn English or to pay all back taxes. And it is quite possible many noncitizens will be eligible for our country's generous benefits, or at least a number of them.

That brings me to the final concern that must be addressed before anyone should support this bill: the cost. One study conducted by the Heritage Foundation says the Gang of 8 bill could cost the taxpayers more than $6 trillion. Some on the right and on the left have criticized that study, and I welcome the debate surrounding that criticism. But the proponents of this bill have so far refused to do their own corresponding cost analysis. If they believe the Heritage Foundation is wrong, that is fine, but they should tell us how much they think it is going to cost the taxpayers. So far we have heard nothing. So far we don't have a corresponding study replacing the Heritage Foundation study that responds to the same points.

There are reports some Democrats have asked the Congressional Budget Office to evaluate the bill, but the report won't be published until next week. That is unfortunate. If they are concerned about the cost, and if they want it to be part of the debate, this should have been done a long time ago. These are major portions of the bill that need to be addressed, major aspects of the bill I think we need the full opportunity to debate, discuss, and consider. Even if we are able to come to a deal that makes the security portions incrementally better, as long as it still lacks congressional oversight, grants excessive authority to the executive branch, unfairly penalizes those who are trying to follow the law, and costs taxpayers trillions of dollars, we should reject this reform unless major changes have been made.

Some have suggested by pointing out the flaws of the bill we are letting the perfect be the enemy of the good. That vastly understates the problems in this bill. Far from good, this bill repeats the mistakes of the past. It makes our immigration system worse than the one we have today and will only lead to bigger and less manageable problems in the future. I strongly urge my colleagues to oppose it.

There is one more point I wish to make as we continue this debate. I realize this issue is very personal to some. Moments ago, I recounted a story from a constituent who takes this issue to heart. It has affected her family, her employment, and almost every aspect of her life. I understand when Congress is taking on tough challenges sometimes emotions get heated. That is understandable. But let us not forget we are all on the side of immigration reform. I don't know a single Member of this body or the other body of Congress, anyone on the left or on the right, who is not on the side of immigration reform. Perhaps such a person exists, but if that is the case, I have not met him or her.

As I said last week, and as I have said on countless occasions--in interviews, op-ed pieces, newsletters, and online--I stand here today in support of real and comprehensive immigration reform. And I stand here today as someone who supports legal immigration into our country. I understand, as all of my colleagues do, that immigration is necessary to our country's prosperity and to its ultimate success.

There are those who unfairly suggest that I and my fellow Senators who oppose this bill are somehow ``anti-immigrant'' or ``anti-immigration.'' Unfortunately, those are the voices that are diminishing the prospects of getting real immigration reform done this year. I am well aware if this bill does not pass the Senate we will have an immigration problem that very next day. That is why I have been encouraging

Members of Congress to support a step-by-step approach to immigration reform. Let's not hold hostage the things we can't get done today because we are unable to iron out every contentious issue.

There are more than 40 individual pieces of immigration-related legislation that have been introduced in this Congress alone, half of which I have sponsored, cosponsored, or that I could support. Indeed, the only reason immigration reform is controversial, in my opinion, is because the Senate refuses to take it step by step.

First, let's secure the border. Let's set up a workable entry-exit system and create a reliable employment verification system that protects immigrants, citizens, and businesses. Then let's fix our legal immigration system to make sure we are letting in the immigrants our economy needs in numbers that make sense for our country.

We don't need another 1,000-page bill full of unintended consequences. We need, and the American people deserve, real reform.

Madam President, I yield the floor.

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Mr. LEE. Madam President, reserving the right to object, I would like to explain briefly the overall situation.

We are not objecting to budget. We are not objecting to conference. We just want the debt limit left out. It is a separate issue that warrants its own debate. It is a simple request: no backroom deals on the debt limit.

I would like to focus on one particular argument we have heard from the other side. Critics argue that conference committees are transparent and that they don't involve backroom deals. If this were ever the case, today it is not.

The purpose of conference committees is to reconcile differences in similar bills passed by the House and by the Senate. It is not the only way, but it is one way.

In theory, conference committees are an open, accountable, and trustworthy means of resolving bicameral differences. But in recent years, the conference process--such as so much else in this town and in this Chamber--has become corrupted.

Today, conference committees are just another mechanism to exclude the American people from the legislative process. Secret closed doors, they usually don't even begin until the deal is already completed, as a practical matter.

Speaker Boehner himself said recently: We don't typically go to conference until such time that they are well on their way.

A recent example was the conference last year on the highway bill. The Senate passed its bill in March. The House passed its version in April. On May 8, the conference committee met for about 2 1/2 hours on C-SPAN, but no amendments, no substantive legislating. Members mostly gave just opening statements, but that was just the first meeting, after all--plenty of time to get to the real work.

But then at the end of it all, the Chair of the conference thanked everyone for coming and then said something peculiar: We will be back here, if necessary. Maybe we can do this out of this room, but we may be able to agree and get signatures on a conference report. But, if necessary, we will be back here in 20-some days.

A strange thing that the conference--which hadn't done anything yet--would only meet again, if necessary. How else could they do their work if they didn't meet again?

But then, without meeting again, the conference filed its 670-page report in the early morning hours of Thursday, June 28. As if by magic, without any debate or amendments or votes or public meetings, all the differences simply got ironed out. What is more, the highway bill suddenly included major provisions that had nothing to do with highways. Out of thin air the conference committee had added to the highway bill the flood insurance program and the student loan program. We might call it the miraculous deception.

So Thursday morning they presented to Congress their massive bill--intentionally waiting until only hours before the entire highway program was set to expire. It was a classic cliff deal: negotiated in secret, immune from amendment, including unrelated provisions air-dropped into the bill, presented as a take-it-or-leave-it proposition up against a manufactured deadline crisis.

Faced with this situation, the House and Senate passed the report without reading it and patted each other on the back for their bipartisanship.

This, unfortunately, is how Washington too often works, and it is why the American people hold Washington in such low esteem. People don't trust the government because they know the government doesn't trust them.

If my colleagues truly want a backroom deal on the budget, we will give them their chance to have it. We just ask that they leave the debt ceiling out of it.

But make no mistake, my colleagues and I are not objecting because we don't understand how Washington works, as some have suggested. We are objecting because we know exactly how Washington works in this regard, and we mean to change it.

So I ask unanimous consent that the Senator from Virginia modify his request so it not be in order for the Senate to consider a conference report that includes reconciliation instructions to raise the debt limit.

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Mr. LEE. Madam President, to respond to my distinguished colleague and friend from Virginia, in the first place it is important for us to remember, yes, we are a bicameral Congress. Yes, in order to pass legislation you have to have something pass in the House and pass in the Senate and then be signed into law by the President. But the fact is there are a number of ways to accomplish this.

Yes, it is certainly true that one way we reconcile competing versions of legislation passed in the House and Senate respectively is through conference committee. It is not the only way, it is one way.

It is also true that under Article I, Section 5, Clause 2 of the Constitution, each body of Congress has the power to write its own rules for its own operation. The way the rules of the Senate are written it is such that in our current posture, in order to get to a conference committee it requires unanimous consent. That means all of us have to agree it is a good idea to take that particular route. But we don't have to take that route. There are other ways that, under the rules of the Senate, would allow us to address differences in the House-passed budget and Senate-passed budget without going to conference.
We could, for example, take up the House-passed budget right now. We could debate that and discuss that. That is a way of addressing this that does not require us to go to conference. But going to conference right now under the rules of the Senate as they apply to this set of facts does require unanimous consent.

There are a handful of us who are not willing to grant that consent if in fact the possibility remains that they will use that as a back-room effort to raise the debt limit, a back-room effort that would not require utilization of the Senate's traditional rules, including the 60-vote threshold that often applies.

You are asking us to agree with something with which we fundamentally disagree. My friend from Virginia has also made the argument that it is somehow unreasonable of us to make this objection because of the fact that none of these amendments were brought up in connection with the budget. I actually think the argument goes exactly the opposite way. Because the debt limit was not part of the deliberations in this body on the budget, and because the debt limit was not part of the deliberations or the final text in the other body in connection with the budget, there is no need for the conference committee to address the debt limit. There certainly is no need to circumvent the otherwise applicable rules of the Senate that would govern this in this posture in this context.

Madam President, I ask unanimous consent to engage in a colloquy with my colleague, the junior Senator from Texas.

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Mr. LEE. I ask my colleague from Texas--who has on occasion expressed similar concerns to those I have just expressed with this kind of posture--so I ask my friend from Texas, is it in fact his interest, his objective to be obstructionist? Is he trying to obstruct here and in fact being unreasonable in raising these objections?

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Mr. LEE. The Senator from Texas is a seasoned constitutional scholar, a graduate of Princeton University and of Harvard Law School. He went on to clerk for Judge Michael Ludick on the U.S. Court of Appeals for the Fourth Circuit, now general counsel to Boeing. He later clerked for late Chief Justice William H. Rehnquist on the U.S. Supreme Court.

Having argued a total of nine cases before the U.S. Supreme Court, the Senator from Texas is a seasoned litigator in addition to being a scholar of the Constitution. So I ask my colleague a couple of questions related to that.

It has occurred to me sometimes as a lawyer myself that there are sometimes some similarities between being a Senator and being a lawyer. They are not perfect, but we are retained for a limited period of time, in 6-year increments generally, to represent a group of people. It is our job to do what we can to act in the absence of those people. In my case there are 3 million people from my State, the State of Utah. They cannot all fit inside this Chamber so I am one of the people who is elected to represent them in their absence.

I ask my colleague from Texas, No. 1, how do the people of Texas feel about the idea of raising the debt limit yet again? In particular, how do they feel about the idea of raising the debt limit yet again without any kind of permanent structural reform put in place as condition precedent to that action? And finally, how do the people of Texas feel as their elected representative, representing those people here in this body, you surrender one of your biggest bargaining chips, you abandon one of the tools that allows you to make sure we do not the raise the debt limit too casually, too cavalierly, without putting in place the adequate precautions?

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Mr. LEE. Is my colleague suggesting that we stop altogether the practice of issuing U.S. treasuries to finance the operations of government or is he suggesting that we go without a budget or that we simply halt the issuance of Treasury instruments altogether or is my colleague suggesting something more long term?

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Mr. LEE. We are talking about a procedural strategy. We are not even talking about an outcome here. We are talking about the full utilization of the procedural rights of each and every Member of this body. We have been asked to give our consent and to effectively vote for a procedure that people on both sides of the Capitol have now admitted could and may well be utilized as a mechanism for raising the debt limit in a way that circumvents the 60-vote threshold of the Senate. It seems to me that is troubling, and if we analogize that yet again to other circumstances where we have to represent someone else, that can be troubling.

Let's suppose the Senator from Texas is representing a client in court--let's say in the U.S. Supreme Court. For example, when the Senator is in the position of the petitioner, he has the right, as the petitioner--meaning the person filing the petition for a writ of certiorari--to seek review by the Supreme Court of the United States, and let's say review is granted.

After review is granted, a briefing schedule kicks in and the petitioner has the opportunity to file the first brief. That is the Senator's prerogative as the petitioner. The other side then has about a month to file its brief, and then the Senator gets something the other side doesn't get to file--the Senator gets a reply brief.

Procedurally, under the rules of the Supreme Court of the United States, that is the Senator's client's right. Once the Senator has a case in front of the Supreme Court and in the middle of the briefing schedule, what would the Senator from Texas say to a client if you came to them and said: My opposing counsel has asked me to waive my right to file a reply brief even though it is my right to do that? The client has asked me to do it. What would the client think if the Senator actually said: I am not going to file a reply brief even though procedurally I have every right to do that?

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Mr. LEE. I would suspect that in most circumstances a lawyer giving up that procedural right would be committing malpractice. Perhaps a lawyer in that circumstance could say to the client: I am going to do this because opposing counsel has asked it of me, and I want to get along with her. I want to make sure I maximize our chances of settling this litigation perhaps before the litigation has been completely resolved. If that were the argument opposing counsel was making to me, I suspect I would tell the client: If that is the case and our objective is to try to settle the litigation rather than wait until the

Court resolves it, then by doing that and giving up that procedural right to file the reply brief, I would be forfeiting a lot of bargaining power that I would otherwise have.

And so too here we would be forfeiting a tremendous amount of bargaining power relative to the budget discussions, relative to the debt limit discussion, a discussion that needs to take place in full sunlight and not under cover of darkness. It needs to take place in the two Chambers and not in some back-room deal. That is what we are talking about. That is why these procedural rights are so important.

People can disagree with the rules of the Senate, and a lot of people do. People can want to change the rules of the Senate, and there are some who do--some even in this body. But the fact is the rules are what they are. We have the power to make those rules under article 1, section 5 of the Constitution, and we have the power to change those rules under article 1, section 5 of the Constitution. But those rules being what they are, those rules being in place as they are today, and those rules having the application they do as of this very moment, people cannot ask someone such as me or my friend from Texas to give our consent to something we think is fundamentally wrong and that we think will substantially diminish the bargaining power we have in undertaking that policy approach we think is most necessary today.

One of the questions I have been asked by some of our friends on the other side of the aisle, and a few of our friends who are even on the same side of the aisle as myself and the Senator from Texas, is: You are a Republican, I am a Republican, so why can't you guys trust that the Republicans who control the House of Representatives will adequately secure your interests? Why don't you therefore feel comfortable effectively forfeiting your right to a 60-vote threshold on the debt ceiling debate?

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Mr. LEE. Indeed, we each have an obligation to utilize our own voice and to make our own judgments with regard to the best course of action to take in any debate and in any discussion.

The problems in this country are significant. There is not one of us in this body who wishes to minimize them. There is not one of us in this body who is not concerned about these problems. Each of us might take, advocate, or firmly believe in a different course of action, but it is precisely because of the diversity of opinion in this Nation that this Nation is great. It is precisely because of the viewpoint and diversity we have in this body that this body has been called the world's greatest deliberative legislative body. We need to make sure that that remains.

In order for that to be the case, it is appropriate that Members of the Senate who have a good-faith, genuine disagreement with an issue as to which a unanimous consent has been made come forward and they object.

On that basis, I object. I will continue to object as long as it remains necessary to ensure that the debate we have surrounding the debt limit occurs under the regular order of the Senate.

I yield the floor.

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