Border Security, Economic Opportunity, and Immigration Modernization Act--Motion to Proceed--

Floor Speech

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Mr. LEE. Mr. President, today I rise in favor of immigration reform. The current immigration system is a travesty. It is inefficient, it is uncompassionate, and it is dangerous. It doesn't serve America's economic or social interests, and it undermines respect for the rule of law while simultaneously undermining respect for our democratic institutions. Comprehensive reform is both badly needed and long overdue.

The comprehensive immigration reform I envision includes real border security, visa modernization, employment verification, robust programs for both high- and low-skilled workers, and a compassionate approach to addressing the needs of those currently in the country illegally. But I believe each of these vital components must be addressed incrementally and sequentially in order to ensure meaningful results. I understand our reluctance to admit it, but Congress is simply very bad at overhauling and creating massive bureaucratic systems all at once.

Every new law, no matter how big, carries with it some unintended consequences. The bigger the law, the more accidental problems we tend to create. History teaches us that trying to fix lots of problems all at once is the surest way to avoid fixing any of them very well. ObamaCare is and will continue to make our health care system worse, not better. It promised to lower health insurance premiums. Yet they are exploding all across the country. The Dodd-Frank financial reform measure was supposed to end too-big-to-fail and prevent another financial meltdown. Yet Fannie Mae and Freddie Mac are still on the taxpayers' books, and today the very biggest banks on Wall Street are bigger than ever.

Do the American people have any idea that the PATRIOT Act would empower the National Security Agency to spy on all Americans through their cell phones and their computers? What makes any of us, least of all any conservative, believe this immigration bill is going to work out any better?

The lesson we should be taking from our recent mistakes is not that we need to pass better, huge, sweeping new laws, but that we should, instead, undertake major necessary reforms incrementally, one step at a time, and in the proper sequence. We need to face the fact that 1,000-page bureaucratic overhauls simply do not achieve their desired goals, and they create far more problems than they tend to solve. We can achieve comprehensive immigration reform without having to pass another 1,000-page bill full of loopholes, carveouts, and unintended consequences.

Therefore, from my perspective there is no one amendment that can fix this bill. Indeed, there is no series of tinkering changes that will turn this mess of a bill into the reform the country needs and that Americans deserve.

The only way to guarantee successful reform of the entire system is through a series of incremental reforms that ensure the foundational pieces, like the border security pieces and an effective entry and exit system, are done first and done directly. Such a commonsense process will allow Congress--and, more importantly, will allow the American people--to monitor policy changes as they are implemented with each step. That way we can isolate and fix unintended consequences before they grow out of control and before we move on to the next phase.

A step-by-step approach would also allow Congress to move quickly on those measures on which Republicans and Democrats both tend to agree. We ought not hold commonsense and essential measures hostage to unavoidably contentious ones, and that is what this bill does. Both sides largely agree on many essential elements. These measures are relatively uncontroversial and could pass incrementally with broad bipartisan support in Congress.

Indeed, the only reason immigration reform is controversial is that Congress refuses to adopt the incremental approach. That is why true immigration reform must be pursued step by step, with individual reform measures implemented and verified in the proper sequence.

Happily for immigration reformers like me, this appears to be the approach being pursued by the House of Representatives. It is the only one that makes sense.

First of all, let's secure the border. Let's set up a workable entry-exit system and create a reliable employment verification system that protects immigrants, protects citizens, and protects businesses from bureaucratic mistakes. 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. There is no good reason why we must, or even why we should, try to do it all at once, all in one bill, all in the same legislative package.

Once these and other tasks, which are plenty big in and of themselves, are completed to the American people's satisfaction, then we can address the needs of current undocumented workers with justice, compassion, and sensitivity. Since the beginning of this year, more than 40 immigration-related bills have been introduced in the House and the Senate. By a rough count, I could support more than half of them. Eight of them have Republican and Democratic cosponsors.

We should not risk progress on these and other bipartisan reforms simply because we are unable to iron out each and every one of the more contentious issues. This is not the bill to fix our immigration system.

I want to pass immigration reform. I want to debate immigration reform. That is exactly why we should not proceed to the Gang of 8 bill. We are being presented with a choice between the Gang of 8 bill or nothing. Common sense, recent history, and the ongoing legislative process of the House of Representatives confirmed that is a false choice. There is another way. It is a more sensible and a more successful way.

We can do better than another 1,000-page mistake. Haven't we learned our lesson in this regard? Isn't it time that we try?

Rather than fix our current immigration problems, the Gang of 8 bill will make many of them worse. It is not immigration reform, it is big government dysfunction. All advocates of true immigration reform on the left and on the right should oppose it.

I yield the floor and suggest the absence of a quorum.

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Mr. LEE. I certainly would. I would be happy to.

In the Judiciary Committee, on which the Senator from Alabama and I both sit, during the markup session on this bill we were able to propose a number of amendments. One of the amendments I proposed--Lee amendment No. 4--addressed this very problem, the problem inherent in the fact that much of what this bill accomplishes is to outsource and delegate many of the delicate tasks. Many of the delicate decisions that have to be made along the way in the implementation of this bill are outsourced to the Secretary of Homeland Security--the task of coming up with a border security plan and a border fencing plan. Once those plans are in place, and once the Secretary makes the necessary findings under the bill, which she has basically complete discretion to do, then the RPI status begins--the pathway to citizenship commences. And citizenship from that moment forward, for those who meet the basic eligibility standards, becomes more or less a virtual certainty or becomes, at the very least, very likely.

So my concern was Congress would have no subsequent input in this decision. Each of us has been elected to this body, and each of our colleagues in the House of Representatives has been elected to that body, to make decisions, to make law, and not simply to make outside lawmakers who will make incremental pieces of law on the outside. Each of us will stand accountable at regular 6-year intervals in this body and 2-year incremental periods in the other body to the voters who placed us here. Each of us should have the opportunity to decide whether and to what extent the border has adequately been secured and whether and to what extent we have enough fencing along the border in order for us to begin this legalization process and the pathway to citizenship.

So Lee amendment No. 4 to this bill would have said simply the RPI status, this pathway, would not have commenced until such time as Congress had the chance to vote on whether we had made sufficient progress toward securing the border and fencing the border before the period of legalization started.

It is a very simple question, and it is the question that lies at the heart of the concerns surrounding this very bill. It is the question that lies at the heart of the lingering concerns regarding what we did back in 1986. I was only 14 years old at the time that debate commenced, so it was not at the forefront of my mind, although perhaps it should have been. But the lingering concerns surrounding what happened in 1986 relate to the fact that Congress said, in effect, we are going to go ahead and legalize the several million people who are here illegally right now, and then, once and for all, we are going to secure the border. We are going to stop the flow of illegal immigration once and for all. Well, that didn't happen because they sort of put it off and said at some unknown point in the future the border will in fact be secured. That would have solved that problem. At the very least it would have kept Members of Congress on the hook for finding the border was adequately secured by a subsequent vote before a pathway to legalization commenced.

To my surprise, to my dismay, and to my frustration my amendment was rejected, and it was rejected along the lines of a particularly odd argument. The argument went something like this, from those who professed their undying loyalty to the Gang of 8 bill as it was originally drafted. The argument said, in essence: We cannot adopt Lee amendment No. 4 because we can't trust Congress to do the right thing. We can't trust Congress to do what we want Congress to do. In particular, the argument was made that we can't be certain the House of Representatives, currently under the control of the Republican Party, will in fact vote to commence the legalization process.

Well, if that is the case, aren't we saying we can't trust the democratic process? If that is the case, aren't we saying the American people aren't yet comfortable with that?

So I would ask my colleague from Alabama, why should we not trust the elected representatives of the American people to make critical decisions such as these? And why should we, instead, outsource them to someone having been appointed by the President and confirmed by the President, who doesn't respond, at least not directly, to the people at regular intervals in elections?

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Mr. LEE. Yes, that is exactly why I introduced Lee amendment No. 4 in the committee and why I think it should have been passed. Because the whole reason we entrust the legislative power only to people who are elected at regular intervals and stand accountable to their electors at regular intervals is because of the fact it is perhaps the most dangerous power of government. We can do a lot of damage when we make law. And as a result of that potential for damage, that potential for harm we can inflict on the people, we have to stand accountable in incremental time periods of either 6 or 2 years to make sure we don't abuse that power. That is why it is so harmful when we take that very dangerous, potentially destructive power and we outsource it.

To some extent, in different ways, this has been going on for many decades. It started more or less during the New Deal era, when Congress discovered as the Federal Government was dramatically expanding Congress physically couldn't come up with the immense and steadily building task of legislating--of doing all the lawmaking and all the rulemaking it needed to do. So it started passing broader pieces of legislation, setting out very broad objectives, and then outsourcing to some outside body--sometimes a Cabinet-level official, other times a so-called independent commission to do the real lawmaking.

During this time period, Congress discovered an interesting and important tool. During this time period it discovered sometimes we, as Members of Congress, are not going to like the way the outside body or the outside official within the executive branch might exercise this delegated lawmaking authority. So they reserved to themselves, they reserved for Congress an out--a legislative veto, as it became known. In some instances, this legislative veto allowed Congress, either the House or the Senate, to undo a rulemaking or an important decision made by an executive branch official or entity. In other cases it required both Houses to act in unison. But these legislative veto provisions did not require subsequent presentment to the President who could then sign or veto that legislative veto.

This went on for several decades. It went on until the mid-1980s when the Supreme Court intervened in a case called INS v. Chada, occurring, interestingly enough, in the immigration context; occurring, interestingly enough, in the specific context of a decision by the Attorney General to exercise delegated authority from Congress to issue a discretionary waiver of deportability to an otherwise removable alien.

The Supreme Court said this legislative veto was itself unconstitutional because it amounted, in essence, to a subsequent enactment by Congress that was not subject to the presentment requirement of article I, section 7 of the Constitution. Thus, the Supreme Court concluded in INS v. Chada the legislative veto provision, as it had been used for many decades, was itself unconstitutional, it was invalid, and was stricken.

Some might have predicted that, as of the moment of the issuance of this decision in INS v. Chada, Congress would say: That is it, we are not going to delegate this much authority anymore because we can't trust these outside officials, these outside entities within the executive branch of government to do the lawmaking. That is our job.

But that is not what happened. Shockingly, in the eyes of some, Congress continued to delegate its lawmaking authority left and right. If anything, it has accelerated its delegation of lawmaking authority. In part because Members of Congress, first and foremost, like to wash their hands of things, in the grand tradition of Pontius Pilate we are sometimes inclined to wash our hands of things and push important decisions off to someone else to make them, someone else who can take accountability for those decisions. It makes it easier for us. And in some ways that is what is happening here. In some ways that is what we are doing here by pushing off to the Secretary of Homeland Security the decision to make a decision we ourselves ought to be making. That decision ought to rest here so we ourselves can be held accountable. We are not sovereigns unto ourselves. We certainly ought not be making sovereigns out of others who do not stand accountable to the people.

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Mr. LEE. I certainly do. I think that would make a big difference. If we had to vote on it, it would have a couple of effects. First of all, the fact that we would have to vote on it would have an impact on the executive branch of government whose job it is to implement laws that we pass. The executive branch of government would normally have a duty--a duty that we would be following up on not just in some amorphous oversight committee hearing context, but we would be exercising oversight in a very real way in the sense that we would have to vote on whether they had done something adequately within a specified period of time. There would be consequences, real consequences, if we were to refuse to exercise that vote.

This vote would go through the normal process. It would be debated, discussed, and acted upon in both Houses of Congress and then submitted to the President for signature or veto and would therefore be wholly consistent with the presentment clause of the Constitution.

Some have suggested this might be a bad idea because it would perhaps get held up through some procedural mechanism or another, but the way the amendment was written, that would not, in fact, be the effect. This would be a privileged motion through which it could come on the floor. It would go through the Senate on a 51-vote threshold and would therefore be able to move through quite quickly. That is why it is important for this kind of mechanism to be in a bill such as this.

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Mr. LEE. The American people are a compassionate people. They are a people who welcome immigrants because we are a nation of immigrants and we always have been. I think most of us hope we always will be. We want people to continue to come to this country. It is this sense of compassion that causes many of us to have some sense of concern about this particular legislation. This legislation goes far beyond simply showing compassion. This legislation in some ways is the opposite of compassion when you consider it from the perspective of those who, like this woman who wrote this letter to me, have come here legally.

And those who, unlike her, have waited--in some cases for years outside the United States. There are many people who have spent a lot of money and time hoping and praying that one day they too will get to immigrate to this country legally. We do them a great disservice when we say the effort, time, blood, sweat, and tears they devoted to this process is all for naught, because all they had to do was come here illegally, and not only were they put on a pathway to legalization but on a pathway to citizenship.

One of the more enlightening moments in the Senate Judiciary Committee during the markup of this bill was when our friend and colleague, the junior Senator from Texas, introduced an amendment which would have done one simple thing to adjust that process. All hell broke loose.

Senator Cruz introduced an amendment which would have left everything
else about the bill intact and kept everything else in the bill identical to what it says now with only one change. It would have said those people who entered into RPI status--entered into the pathway of legalization--would not ultimately become citizens. They could ultimately become lawful, permanent residents or the functional equivalent thereof, but they would not become citizens under the bill. Everything else would be left intact. They still would be allowed to come out of the shadows, stay here, work here, and we could have a separate debate and discussion over whether that would be the right approach in and of itself.

This particular amendment focused simply on the citizenship aspect of it, and yet one would have thought by the reaction that it was offering up something horrible and Draconian. The proponents of this bill could not even handle the change that would have said: Let's have there be some consequence, at least, for the fact that this group of people entered here illegally. At least at this point let's not put them on a pathway to citizenship so they can vote and all the other rights which accompany citizenship to this great country.

Yes, I do think this is strange. I do think the American people--not in spite of the fact they are compassionate, but because of the fact they are compassionate--deserve more than to have the rule of law turned on its head and deserve more than to have those who have taken the time and expended the energy and financial resources to immigrate here legally, to have their sacrifice denigrated to the point that it means nothing or less than nothing.

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Mr. LEE. As surely as past is prologue, this will happen again if we do it in the wrong sequence. Sequencing matters.

When I was 6 or 7 years old, my mother pointed out to me that you don't try to butter the toast before you toast it. You toast it first and then put the butter on top.

There are all kinds of examples where we need to follow the right sequence. If they don't follow the right sequence, they don't get the results they want. This is another area where sequence matters.

I am convinced we can treat those 11 million people who are currently here illegally with the dignity, respect, and compassion we want to treat them with as Americans. I am convinced we can find a way to do that. I am convinced we can find a broad-based bipartisan solution to do that. I am less convinced that it makes any sense to do that now before we fix the underlying problem.

Again, it is a matter of simple sequencing. We have to first stop the flow of illegal immigration. After that, we will be in a better position to ascertain the needs of those who are currently here illegally. It is only in that circumstance that we will know best how to address that.

Along those lines, I would like to address an issue which sometimes comes up. Sometimes arguments are made by the proponents of this bill that if we don't support this bill--not just if we don't support immigration reform generally, but if we don't support this particular bill--we are somehow anti-immigrant or uncategorically uncompassionate people. If we don't support the bill, our hearts are made of stone, our ribs are made of concrete, and we have no heart. I think that is a reckless argument and an argument beneath the dignity of this august body.

During the markup, one of my colleagues--I think the junior Senator from Texas--introduced another amendment. It was an amendment which would have in some way limited the ability of those currently illegally in the country to participate in certain entitlement benefits, certain antipoverty benefits that would otherwise be available to them. Perhaps it was the earned-income tax credit. I don't remember the exact information, but it would have had some broad application to make sure that those who are currently here illegally would not--during this RPI period--be able to benefit from federally funded entitlements.

To my great dismay, one of our colleagues on that committee--who was a devout supporter of this bill--personally attacked the junior Senator from Texas simply for having introduced that amendment. It wasn't enough for him to say: I disagree with this amendment or that this amendment is bad policy. He attacked with something like this: You don't care about these people. You don't care about their children. You are willing to let their children remain hungry and uneducated. You don't care about them. You are not compassionate.

With respect, I think that kind of comment has no place here. It is not helpful. It is not productive, and it is something that completely clouds the issue. It is because we are compassionate that we do need to ask these questions.

Look, we are in a difficult spot as a country. We are trying to do everything we can to make those programs solvent which are designed specifically to alleviate some of the needs of the most vulnerable in our society. Unless we make sure we are in a position economically to be able to sustain those programs, we are going to run out of money. And when we run out of money, it will be the poor and the vulnerable who suffer most as a result of our inability to pay for those programs.

So with respect, I advise all of my colleagues--particularly those who have made comments like that one--to resist the temptation that some of them have succumbed to in recent weeks to say that anyone who opposes this bill is somehow uncompassionate. It is because we are compassionate that we have to ask these difficult questions. It is because we are compassionate that we have to propose amendments we think are necessary in order to make the programs upon which our society's most vulnerable have come to depend on more sustainable.

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