California Emergency Drought Relief Act of 2014

Mr. Speaker, I thank the gentleman from Florida (Mr. Nugent) for yielding me the customary 30 minutes, and I yield myself such time as I may consume.

(Mr. McGOVERN asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I rise in strong opposition to this convoluted closed rule, which includes a huge defense bill, a partisan anti-immigrant bill, a California water bill, and, from out of nowhere, an Arizona land exchange bill all in one.

The gentleman from Florida is praising this Congress as somehow being open. The fact of the matter is this is the most closed Congress in the history of the United States of America. This is appalling the way this House of Representatives has been run. Routinely, important, vital issues are shut out from debate on the House floor, and what we are talking about here today is no exception.

The rule includes the FY2015 National Defense Authorization Act. I am pleased that the NDAA establishes the Blackstone River Valley National Historical Park, but this version of the NDAA also authorizes over $500 billion for the Pentagon's base budget and, on top of that, includes an additional $63.7 billion for the Pentagon slush fund to finance the continuing war in Afghanistan and the new war in Iraq and Syria against the Islamic State.

Once again, Congress is failing to do its job because, once again, this bill continues to fund two wars for years to come without Congress authorizing either one.

First, Afghanistan. We are ostensibly pulling out of Afghanistan in just 3 weeks, but, in fact, we are leaving about 10,000 troops behind for the next several years. Congress has the responsibility to authorize this new mission. We just can't continue the same-old, same- old.

Mr. Speaker, I will insert, for the Record, a Reuters article, entitled, ``Obama Widens Post-2014 Combat Role for U.S. Forces in Afghanistan.''

It doesn't sound like we are winding down anything.

[From reuters.com, Nov. 23, 2014]

Obama Widens Post-2014 Combat Role for U.S. Forces in Afghanistan

(By Steve Holland and Mirwais Harooni)

President Barack Obama has approved plans to give U.S.

military commanders a wider role to fight the Taliban

alongside Afghan forces after the current mission ends

next month, a senior administration official said.

The decision made in recent weeks extends previous plans by

authorizing U.S. troops to carry out combat operations

against the Taliban to protect Americans and support

Afghanistan's security forces as part of the new ISAF

Resolute Support mission next year.

Obama had announced in May that U.S. troop levels would be

cut to 9,800 by the end of the year, by half again in 2015

and to a normal embassy presence with a security assistance

office in Kabul by the end of 2016.

Under that plan, only a small contingent of 1,800 U.S.

troops was limited to counter terrorism operations against

remnants of al Qaeda. The new orders will also allow

operations against the Taliban.

``To the extent that Taliban members directly threaten the

United States and coalition forces in Afghanistan or provide

direct support to al Qaeda, we will take appropriate measures

to keep Americans safe,'' the official said.

A report by the New York Times late on Friday said the new

authorization also allows the deployment of American jets,

bombers and drones.

The announcement was welcomed by Afghan police and army

commanders after heavy losses against the Taliban this

summer.

``This is the decision that we needed to hear . . . We

could lose battles against the Taliban without direct support

from American forces,'' said Khalil Andarabi, police chief

for Wardak province, about an hour's drive from the capital

and partly controlled by the Taliban.

Afghan government forces remain in control of all 34

provincial capitals but are suffering a high rate of

casualties, recently described as unsustainable by a U.S.

commander in Afghanistan.

More than 4,600 Afghan force members have been killed since

the start of the year, 6.5 percent more than a year ago.

Despite being funded with more than $4 billion in aid this

year, police and soldiers frequently complain they lack the

resources to fight the Taliban on their own.

``Right now we don't have heavy weapons, artillery and air

support. If Americans launch their own operations and help

us, too, then we will be able to tackle Taliban,'' said

senior police detective Asadullah Insafi in eastern Ghazni

province.

The Taliban said it is undeterred by the U.S. announcement.

``They will continue their killings, night raids and

dishonor to the people of Afghanistan in 2015. It will only

make us continue our jihad,'' Taliban spokesman Zabihullah

Mujajhid said.

Twice now, Ranking Member Adam Smith, Congressman Walter Jones, and I have tried to offer an amendment requiring a vote next March to authorize any post-2014 deployment of U.S. troops in Afghanistan, and twice, the leadership of this House has refused to allow our amendments to come to the floor.

What is the leadership afraid of? Why do they refuse to allow a debate and a vote on authorizing America's post-2014 mission in Afghanistan? Don't we owe it to the troops who are going to be there? Don't we owe it to their families?

The gentleman from Florida talks about that we need to be the voice of our troops. Well, we are not the voice of our troops. We are ducking these important debates. It is shameful. We are letting our troops down. We are better than this, and we ought to be debating and voting on these important issues.

We are also at war against the Islamic State. On July 25, this House overwhelmingly passed a resolution that I offered that if the U.S. were involved in sustained combat operations in Iraq, Congress should vote and enact an authorization. Mr. Speaker, 370 Members of this House voted for that resolution.

Two weeks after that vote, we began bombing Iraq. We have been bombing Iraq nearly every day for the past 4\1/2\ months. We have increased the number of U.S. troops in Iraq to around 3,000. On September 22, we started bombing Syria. We have flown scores of bombing missions over Syria over the last 2 months.

We bomb Iraq and Syria as part of our coordinated military operations with the Iraqi military and Kurdish military forces. We bomb to protect infrastructure, and we bomb to target towns and camps harboring Islamic State forces. If that is not being involved in sustained combat operations, I don't know what is.

The war against ISIL began under this Congress. It has escalated under this Congress. It has expanded from Iraq to Syria and now, maybe, to Turkey under this Congress. It is the responsibility, the constitutional responsibility of this Congress, the 113th Congress, to authorize it. And yet while the bill authorizes the money to carry out this war, it does not allow us a ``yes'' or ``no'' vote on actually authorizing the war.

Now, last night in the Rules Committee, I offered amendments to limit funding for the Iraq/Syria war until Congress enacted an authorization to ensure that U.S. ground troops in Iraq would not engage in combat operations. Both were rejected. Both were rejected.

Mr. Speaker, enough is enough. It is the institutional and constitutional duty of the Congress of the United States to decide matters of war and peace. It is time for the leadership of this House to step up to the plate and bring an authorization to the floor. It is time to debate it and vote on it before the 113th Congress adjourns. No more excuses. No more whining. Just do it.

The rule also includes H.R. 5759, the Preventing Executive Overreach on Immigration Act. Give me a break, Mr. Speaker. Give me a break. For over a year and a half, a Senate-passed bipartisan comprehensive immigration reform bill has been awaiting House action. All it needs is a House Republican leadership with the political backbone to take it up because we all know that the votes are there. We could pass it today or tomorrow or next week. We could put an end to all this rancor, all the nasty sound bites by simply doing what we are paid to do: debating and voting on major pieces of legislation.

I would say to my friends on the other side of the aisle, if you don't want the Executive to take administrative action, then start acting like a real Congress. There is still time before we leave town for the holidays. Stop this farce. Take up the Senate bill, pass it, and send it to the President for signature.

Mr. Speaker, whether it comes to issues of war and peace or whether it comes to major issues like comprehensive immigration reform, the answer is simple: all we need to do is our job.

I urge my colleagues to defeat this ridiculous triple-closed rule, and I reserve the balance of my time.

Mr. Speaker, the American people would be better served if we addressed our broken immigration system. And if we defeat the previous question, I will offer an amendment to the rule to bring up H.R. 15, the immigration reform bill.

To discuss our proposal, I yield 2 minutes to the gentleman from Colorado (Mr. Polis), a member of the Rules Committee.

Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman from California (Mrs. Capps).

Mr. Speaker, I yield myself 15 seconds.

Mr. Speaker, I want to just be clear about one thing. The President did not create this problem. The cowardice of the House Republican leadership created this crisis. Over 1\1/2\ years after the Senate passed an overwhelmingly bipartisan, comprehensive immigration bill, this House, Mr. Speaker, has failed to bring it up and debate it. If there is a crisis of leadership, then it is here in this House.

At this point, I yield 1 minute to the gentlewoman from Nevada (Ms. Titus).

Mr. Speaker, I yield 2 minutes to the gentleman from Maryland (Mr. Van Hollen), the distinguished ranking member of the Committee on the Budget.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I appreciate the words of the distinguished chairman of the Rules Committee. And he is correct. We were in a meeting yesterday for quite some time--over 6 hours--in the Rules Committee discussing multiple amendments on the defense bill, on the immigration bill, and on other things as well.

My problem with what happened yesterday is that, after all that talk, we got nothing; not a single amendment is being made in order here. We have yet another closed process.

I appreciate the fact that the Senate can be difficult, but the Senate is not the problem when it comes to the House of Representatives debating and voting up or down on an AUMF on Iraq or Syria--or any other war for that matter. We can do that ourselves. We don't need anybody to tell us we can do it. We don't need the White House to tell us we can do it. It is our constitutional responsibility.

Yes, we had a long meeting. We had a lot of discussion. It was a spirited discussion, but at the end of it all, we got nothing. I regret that very much because the issues that we talked about last night are very, very serious, and we owe it to the American people, we owe it to the men and women who we put in harm's way to have these serious discussions, and we are not having that on the floor today.

With that, I yield 2 minutes to the gentlewoman from Minnesota (Ms. McCollum).

Mr. Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Lee).

I yield an additional 1 minute to the gentlewoman.

May I inquire how many additional speakers the gentleman has?

We have a couple, but they are not here yet. I yield myself such time as I may consume.

Mr. Speaker, I am sad to say that this Congress is kind of ending the way it began, under a very closed and restrictive process. As I said earlier, this is the most-closed Congress in the history of the United States of America.

Routinely important issues, issues that impact not just the American people, but that impact the entire world, are denied a debate on the House floor. We are bringing up multiple bills here today all under a very closed process; yet there are some very important issues that need to be debated and to be discussed and to be voted on.

I have crumbling bridges and sewer and water systems in my district that need repair, and I can't get a penny to repair or replace them. We are told that we don't have any money, but we seem to have billions and billions of dollars to throw at these endless wars in Afghanistan and the Middle East.

Mr. Speaker, I enter into the Record the November 2 New York Times editorial, ``The New War's Rising Cost.''

[From the New York Times, Nov. 2, 2014]

The New War's Rising Cost

(By the Editorial Board)

The Pentagon disclosed last week that America's ever-

shifting new war in the Middle East has cost taxpayers more

than half a billion dollars since it began in August. Yet

Congress has not bothered to hold a vote to authorize the

Obama administration's decision to get into another war.

As the price tag of the military campaign in Iraq and Syria

rises, it might seem reasonable to expect that Congress would

have to consider the state of the effort and appropriate

funding for it. Thanks to the dysfunctional politics of

defense budgeting, it turns out Congress won't have to--at

least not anytime soon.

As of Oct. 16, the air campaign against the Islamic State,

also known as ISIS, had cost $580 million, according to the

Pentagon. The military is paying for the bombing sorties

using the Overseas Contingency Operations budget, a flexible

fund established for the wars in Iraq and Afghanistan. With

the Afghan war drawing to a close this year, the Obama

administration had sought to cut that fund from the nearly

$85 billion appropriated for 2014 to $59 billion for 2015.

But because lawmakers were not able to pass a budget in time,

the fund will continue at last year's level under a

continuing resolution that ends in December and is likely to

be extended until the spring.

Authorizing a new defense budget would force lawmakers to

take stock of the military action that was initially billed

as a limited defensive measure before the White House said

that it was likely to last for years. It would also serve as

an opportunity to revisit the dubious legal authority the

White House is relying on.

American officials continue to be alarmingly vague about a

central unanswered question about the military campaign

against the Islamic State: whether it formally or implicitly

represents a shift in American policy toward the government

of President Bashar al-Assad of Syria. Washington has called

for Mr. Assad's ouster and has provided limited support to

rebel factions fighting the state. But the United States must

clarify what its goals are concerning Mr. Assad, some senior

administration officials believe, including Defense Secretary

Chuck Hagel, as Mark Landler of The Times reported recently.

The Pentagon says the bombing campaign has dealt the

Islamic State setbacks in the battlefield. But the group

remains strong and continues to make inroads in key parts of

Syria and Iraq. Military officials have said curiously little

in recent weeks about Khorasan, a militant group they

described during the early stages of the airstrikes in Syria

as posing an imminent threat to the United States. The vague

and at times contradictory information the government has

provided about that group, and the broader strategy, shows a

distressing level of improvisation.

The past few weeks have also presented reminders of the

risks of the military mission. Officials at the Pentagon are

worried about reports that Islamic State fighters have

acquired shoulder-fired surface-to-air missiles, which could

be used to bring down American aircraft. Those fighters

recently took credit for shooting down an Iraqi military

helicopter; the group posted online a manual instructing

fighters how to use one of the missiles to bring down Apache

helicopters, one of the attack aircraft the Pentagon has been

using.

Congress has a responsibility to take a hard look at the

long-term goal of the military mission and its projected

cost. It has skirted that duty for too long.

We seem to have money for these other things. We heard earlier today about the fact that there are 50,000 ghost soldiers in Iraq that we are funding with our taxpayer dollars; they don't exist. Somebody is stealing that money, and where is the outrage in this Congress? Where is the outrage?

Mr. Speaker, these wars deserve a debate. They deserve our oversight. We are supposed to be a deliberative body. We should be talking about these things, and we are getting more deeply involved in another war in Iraq and in Syria. We have 3,000 troops in Iraq right now. God knows how many are going to be there when we come back in January.

By the way, there is nothing in this bill that prevents the President from adjusting the mission of those troops, so that they are engaged in direct on-the-ground combat. It is something that we ought to be concerned about; yet we are not. We are leaving town without even talking about this stuff.

You don't need an NDAA bill to be able to debate and vote on an authorization. All we need is a Republican leadership with the backbone to bring it to the floor. This is our responsibility. This is our job. This is our constitutional responsibility; yet we are not doing anything.

Mr. Speaker, I would also like to enter into the Record an article by FOX News political analyst Juan Williams entitled, ``Congress ducks its duty on ISIS vote.''

[From TheHill.com, Oct. 6, 2014]

Juan Williams: Congress Ducks Its Duty on ISIS Vote

(By Juan Williams)

Speaker John Boehner (R-Ohio) said recently he would not

even ask his colleagues to vote on an authorization to use

military force against the Islamic State in Iraq and Syria

(ISIS) until next year, when the new Congress is seated.

Boehner told the New York Times, ``Doing this with a whole

group of members who are on their way out the door, I don't

think that is the right way to handle this.''

Then last week he changed his position, telling ABC News he

is willing to call the House into session to debate the U.S.

military action to destroy the terrorists. But the Speaker

said it is up to President Obama to request a Congressional

vote authorizing military action.

Meanwhile, the Speaker said it was wrong of President Obama

to try to beat the terrorists without putting American

military combat ``boots on the ground'' to win the current

fight.

Huh? That makes no sense. When did House Republicans start

taking orders from President Obama?

The hard fact is the GOP House is responsible for its own

failure to act on the central question of authorizing the

U.S. military to put combat boots on the ground.

``Since when do we sit around waiting, using the excuse `He

didn't ask'?'' House Minority Leader Nancy Pelosi (D-Calif.)

asked reporters last week. ``No, if you want to have an

authorization that has any constraints on the president, you

don't wait for him to write it.''

Instead, some Republican House members are busy campaigning

for reelection by appealing to voters' fears about the ISIS

threat.

Rep. Doug Lamborn, a Colorado Republican, told his

constituents that his fellow House Republicans are sharing

political complaints about the president with commanders in

charge of the military.

``A lot of us are talking to the generals behind the

scenes, saying, `Hey, if you disagree with the policy that

the White House has given you, let's have a resignation,' ''

Rep. Lamborn said. He added that any Generals who resigned in

protest would ``go out in a blaze of glory.''

That is an overt effort to undermine civilian control of

the U.S. military, which is required by the Constitution. It

is outrageous. It is a purely partisan effort to win votes by

playing to extremist hatred of the president.

These right-wing attacks are coming from some of the same

people who condemned anyone in disagreement with any part of

the Bush administration's foreign policy as ``soft on

terrorism,'' ``unpatriotic'' or worse.

Is it any wonder that Congress now has an 80 percent

disapproval rating and a 12.6 approval rating, according to

the latest Real Clear Politics average?

Is it any wonder that, according to a recent ABC News/

Washington Post poll, 51 percent of Americans would not vote

to reelect their own representative, the highest figure

recorded on that question in the 25-year history of the poll?

Article I of the Constitution gives Congress, not the

president, the power to declare war. However, Congress has

not made a formal declaration of war since World War II.

Since then, Authorizations for Use of Military Force or

``AUMFs'' have become politically expedient substitutes.

Now, the current Congress is too cowardly to even vote on

that kind of nominal approval. Some say the 2001 and 2002

AUMFs that gave President Bush the authority to use the

military against the perpetrators of 9/11 and Saddam Hussein,

respectively, are still in effect.

As my friend and Fox News Senior Judicial Analyst Judge

Andrew Napolitano has noted, this is ridiculous because ISIS

did not exist in 2001 and 2002, so Congress could not have

intended the AUMFs to apply to the group by any stretch of

the imagination.

Last week, one major Western democracy did call its

legislature back from a weeks-long recess to vote on the

critical, time-sensitive issue of military strikes against

Mr. Speaker, I also want to talk a little bit about the immigration bill. As I said before, the President didn't create this problem. Quite frankly, the House Republican leadership created this problem. We had the Senate that acted in a good faith bipartisan manner and passed a comprehensive immigration reform bill. That was a year and a half ago.

In a year and a half, this House of Representatives has done nothing except come to the floor and demagogue the immigration issue. The debate on the other side of the aisle, quite frankly, has gotten so ugly that it is, I think, beneath the level of dignity of this House of Representatives.

We should expect better in terms of the debate on the issue of immigration. I enter into the Record the November 20 editorial from The New York Times, which concludes by saying:

The right will falsely label Mr. Obama's actions lawless.

They are a victory for problem-solving over posturing, common

sense over cruelty, and lawful order over a chaotic status

quo.

[From the New York Times, Nov. 20, 2014]

At Long Last, Immigration Action

(By the Editorial Board)

President Obama says he will speak to the nation on

Thursday night about making major changes to immigration

policy, including shielding several million unauthorized

immigrants from deportation. He intends to do this under

executive authority, because he has given up waiting for

Congress to act.

The result will not be ideal, but no broad executive action

on immigration was ever going to be. Only Congress can create

an immigration system that rescues workers and families from

unjust laws and creates legal pathways to citizenship. The

best Mr. Obama can offer is a reprieve to people trapped by

Congress's failures--temporary permission to live and work

without fear.

But respite for as many as four million to five million

people, according to some estimates, should be cause for

relief and celebration. The reasons given by Mr. Obama and

his aides are sound and well within the law. The executive

branch has limited means to deport all 11 million people

living here without authorization. It should focus on

expelling serious and violent criminals, and not waste money

and effort on breaking up families, and deporting those who

contribute to society and whose ties to this country are deep

and permanent.

Details have not been announced, but it seems that Mr.

Obama's plan will protect the parents of citizens and legal

permanent residents, and a larger portion of the young people

called Dreamers, who came here when they were children.

Other, smaller groups may qualify as well.

Mr. Obama should draw the circle of inclusion as large as

possible--up to the eight million or so who might have

qualified under an ambitious bipartisan bill that passed the

Senate last year. But Mr. Obama, who wants to bolster his

actions against legal attack, seems unlikely to include

parents whose children lack citizenship or green cards. Tens

of thousands of families will surely be disheartened by this

exclusion and other politically motivated shortcomings--the

plan is expected to bar recipients from health coverage under

the Affordable Care Act, for example. Some immigrant advocacy

groups have already denounced the plan as too cautious and

too small.

The backlash on the right, too, is well underway, with

Republican lawmakers condemning what they see as a tyrannical

usurpation of congressional authority by ``Emperor'' Obama.

They fail to mention, though, that new priorities will put

the vast deportation machinery to better use against serious

criminals, terrorists and security threats, which should be

the goal of any sane law-enforcement regime. Nor did they

ever complain when Mr. Obama aggressively used his executive

authority to ramp up deportations to an unprecedented peak of

400,000 a year.

It has been the immigration system's retreat from sanity,

of course, that made Mr. Obama's new plan necessary. Years

were wasted, and countless families broken, while Mr. Obama

clung to a futile strategy of luring Republicans toward a

legislative deal. He has been his own worst enemy--over the

years he stressed his executive impotence, telling advocates

that he could not change the system on his own. This may have

suited his legislative strategy, but it was not true.

It's good that Mr. Obama has finally turned the page. He

plans to lead a rally in Las Vegas on Friday at a high school

where he outlined his immigration agenda in January 2013.

Legislative solutions are a dim hope for some future day when

the Republican fever breaks. But until then, here we are.

This initiative cannot be allowed to fail for lack of

support from those who accept the need for progress on

immigration, however incremental. Courageous immigrant

advocates, led by day laborers, Dreamers and others, have

pressed a reluctant president to acknowledge the urgency of

their cause--and to do something about it. The only proper

motion now is forward.

The right will falsely label Mr. Obama's actions lawless.

They are a victory for problem-solving over posturing, common

sense over cruelty, and lawful order over a chaotic status

quo.

I also enter into the Record a November 25 letter from 130 legal scholars on why President Obama's action is lawful and has historical precedent.

25 November 2014.

We write as scholars and teachers of immigration law who

have reviewed the executive actions announced by the

President on November 20, 2014. It is our considered view

that the expansion of the Deferred Action for Childhood

Arrivals (DACA) and establishment of the Deferred Action for

Parental Accountability (DAPA) programs are within the legal

authority of the executive branch of the government of the

United States. To explain, we cite federal statutes,

regulations, and historical precedents. We do not express any

views on the policy aspects of these two executive actions.

This letter updates a letter transmitted by 136 law

professors to the White House on September 3, 2014, on the

role of executive action in immigration law.\1\ We focus on

the legal basis for granting certain noncitizens in the

United States ``deferred action'' status as a temporary

reprieve from deportation. One of these programs, Deferred

Action for Childhood Arrivals (DACA), was established by

executive action in June 2012. On November 20, the President

announced the expansion of eligibility criteria for DACA and

the creation of a new program, Deferred Action for Parental

Accountability (DAPA).

Prosecutorial discretion in immigration law enforcement

Both November 20 executive actions relating to deferred

action are exercises of prosecutorial discretion.

Prosecutorial discretion refers to the authority of the

Department of Homeland Security to decide how the immigration

laws should be applied.\2\ Prosecutorial discretion is a

long-accepted legal practice in practically every law

enforcement context,\3\ unavoidable whenever the appropriated

resources do not permit 100 percent enforcement. In

immigration enforcement, prosecutorial discretion covers both

agency decisions to refrain from acting on enforcement, like

cancelling or not serving or filing a charging document or

Notice to Appear with the immigration court, as well as

decisions to provide a discretionary remedy like granting a

stay of removal,\4\ parole,\5\ or deferred action.\6\

Prosecutorial discretion provides a temporary reprieve from

deportation. Some forms of prosecutorial discretion, like

deferred action, confer ``lawful presence'' and the ability

to apply for work authorization.\7\ However, the benefits of

the deferred action programs announced on November 20 are not

unlimited. The DACA and DAPA programs, like any other

exercise of prosecutorial discretion do not provide an

independent means to obtain permanent residence in the United

States, nor do they allow a noncitizen to acquire eligibility

to apply for naturalization as a U.S. citizen. As the

President has emphasized, only Congress can prescribe the

qualifications for permanent resident status or citizenship.

Statutory authority and long-standing agency practice

Focusing first on statutes enacted by Congress, Sec. 103(a)

of the Immigration and Nationality Act (``INA'' or the

``Act''), clearly empowers the Department of Homeland

Security (DHS) to make choices about immigration enforcement.

That section provides: ``The Secretary of Homeland Security

shall be charged with the administration and enforcement of

this Act and all other laws relating to the immigration and

naturalization of aliens . . . .'' \8\ INA Sec. 242(g)

recognizes the executive branch's legal authority to exercise

prosecutorial discretion, specifically by barring judicial

review of three particular types of prosecutorial discretion

decisions: to commence removal proceedings, to adjudicate

cases, and to execute removal orders.\9\ In other sections of

the Act, Congress has explicitly recognized deferred action

by name, as a tool that the executive branch may use, in the

exercise of its prosecutorial discretion, to protect certain

victims of abuse, crime or trafficking.\10\ Another statutory

provision, INA Sec. 274A(h)(3), recognizes executive branch

authority to authorize employment for noncitizens who do not

otherwise receive it automatically by virtue of their

particular immigration status. This provision (and the formal

regulations noted below) confer the work authorization

eligibility that is part of both the DACA and DAPA programs.

Based on this statutory foundation, the application of

prosecutorial discretion to individuals or groups has been

part of the immigration system for many years. Longstanding

provisions of the formal regulations promulgated under the

Act (which have the force of law) reflect the prominence of

prosecutorial discretion in immigration law. Deferred action

is expressly defined in one regulation as ``an act of

administrative convenience to the government which gives some

cases lower priority'' and goes on to authorize work permits

for those who receive deferred action.\11\ Agency memoranda

further reaffirm the role of prosecutorial discretion in

immigration law. In 1976, President Ford's Immigration and

Naturalization Service (INS) General Counsel Sam Bernsen

stated in a legal opinion, ``The reasons for the exercise of

prosecutorial discretion are both practical and humanitarian.

There simply are not enough resources to enforce all of the

rules and regulations presently on the books.''\12\ In 2000,

a memorandum on prosecutorial discretion in immigration

matters issued by INS Commissioner Doris Meissner provided

that ``[s]ervice officers are not only authorized by law but

expected to exercise discretion in a judicious manner at all

stages of the enforcement process,'' and spelled out the

factors that should guide those decisions.\13\ In 2011,

Immigration and Customs Enforcement in the Department of

Homeland Security published guidance known as the ``Morton

Memo,'' outlining more than one dozen factors, including

humanitarian factors, for employees to consider in deciding

whether prosecutorial discretion should be exercised. These

factors--now updated by the November 20 executive actions--

include tender or elderly age, long-time lawful permanent

residence, and serious health conditions.

Judicial recognition of executive branch prosecutorial discretion in

immigration cases

Federal courts have also explicitly recognized

prosecutorial discretion in general and deferred action in

particular.\15\ Notably, the U.S. Supreme Court noted in its

Arizona v. United States decision in 2012: ``A principal

feature of the removal system is the broad discretion

exercised by immigration officials. . . . Federal officials,

as an initial matter, must decide whether it makes sense to

pursue removal at all . . . .''\16\ In its 1999 decision in

Reno v. American-Arab Anti-Discrimination Committee, the

Supreme Court explicitly recognized deferred action by name.

This affirmation of the role of discretion is consistent with

congressional appropriations for immigration enforcement,

which are at an annual level that would allow for the arrest,

detention, and deportation of fewer than 4 percent of the

noncitizens in the United States who lack lawful immigration

status.\17\

Based on statutory authority, U.S. immigration agencies

have a long history of exercising prosecutorial discretion

for a range of reasons that include economic or humanitarian

considerations, especially--albeit not only--when the

noncitizens involved have strong family ties or long-term

residence in the United States.\18\ Prosecutorial discretion,

including deferred action, has been made available on both a

case-by-case basis and a group basis, as are true under DACA

and DAPA. But even when a program like deferred action has

been aimed at a particular

group of people, individuals must apply, and the agency must

exercise its discretion based on the facts of each individual

case. Both DACA and DAPA explicitly incorporate that

requirement.

Historical precedents for deferred action and similar programs for

individuals and groups

As examples of the exercise of prosecutorial discretion,

numerous administrations have issued directives providing

deferred action or functionally similar forms of

prosecutorial discretion to groups of noncitizens, often to

large groups. The administrations of Presidents Ronald Reagan

and George H.W. Bush deferred the deportations of a then-

predicted (though ultimately much lower) 1.5 million

noncitizen spouses and children of immigrants who qualified

for legalization under the Immigration Reform and Control Act

(IRCA) of 1986, authorizing work permits for the spouses.\19\

Presidents Reagan and Bush took these actions, even though

Congress had decided to exclude them from IRCA.\20\ Among the

many other examples of significant deferred action or similar

programs are two during the George W. Bush administration: a

deferred action program in 2005 for foreign academic students

affected by Hurricane Katrina,\21\ and ``Deferred Enforcement

Departure'' for certain Liberians in 2007.\22\ Several

decades earlier, the Reagan administration issued a form of

prosecutorial discretion called ``Extended Voluntary

Departure'' in 1981 to thousands of Polish nationals.\23\ The

legal sources and historical examples of immigration

prosecutorial discretion described above are by no means

exhaustive, but they underscore the legal authority for an

administration to apply prosecutorial discretion to both

individuals and groups.

Some have suggested that the size of the group who may

``benefit'' from an act of prosecutorial discretion is

relevant to its legality. We are unaware of any legal

authority for such an assumption. Notably, the Reagan-Bush

programs of the late 1980s and early 1990s were based on an

initial estimated percentage of the unauthorized population

(about 40 percent) that is comparable to the initial

estimated percentage for the November 20 executive actions.

The President could conceivably decide to cap the number of

people who can receive prosecutorial discretion or make the

conditions restrictive enough to keep the numbers small, but

this would be a policy choice, not a legal issue.\24\ For all

of these reasons, the President is not ``re-writing'' the

immigration laws, as some of his critics have suggested. He

is doing precisely the opposite--exercising a discretion

conferred by the immigration laws and settled general

principles of enforcement discretion.

The Constitution and immigration enforcement discretion

Critics have also suggested that the deferred action

programs announced on November 20 violate the President's

constitutional duty to ``take Care that the Laws be

faithfully executed.''\25\ A serious legal question would

therefore arise if the executive branch were to halt all

immigration enforcement, or even if the Administration were

to refuse to substantially spend the resources appropriated

by Congress. In either of those scenarios, the justification

based on resource limitations would not apply. But the Obama

administration has fully utilized all the enforcement

resources Congress has appropriated. It has enforced the

immigration law at record levels through apprehensions,

investigations, and detentions that have resulted in over two

million removals.\26\ At the same time that the President

announced the November 20 executive actions that we discuss

here, he also announced revised enforcement priorities to

focus on removing the most serious criminal offenders and

further shoring up the southern border. Nothing in the

President's actions will prevent him from continuing to

remove as many violators as the resources Congress has given

him permit.

Moreover, when prosecutorial discretion is exercised,

particularly when the numbers are large, there is no legal

barrier to formalizing that policy decision through sound

procedures that include a formal application and

dissemination of the relevant criteria to the officers

charged with implementing the program and to the public. As

DACA has shown, those kinds of procedures assure that

important policy decisions are made at the leadership level,

help officers to implement policy decisions fairly and

consistently, and offer the public the transparency that

government priority decisions require in a democracy.\27\

conclusion

Our conclusion is that the expansion of the DACA program

and the establishment of Deferred Action for Parental

Accountability are legal exercises of prosecutorial

discretion. Both executive actions are well within the legal

authority of the executive branch of the government of the

United States.

Hiroshi Motomura, Susan Westerberg Prager Professor of Law,

University of California, Los Angeles, School of Law*; Shoba

Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Clinical

Professor of Law, Pennsylvania State University, Dickinson

School of Law*; Stephen H. Legomsky, The John S. Lehmann

University Professor, Washington University School of Law*.

David Abraham, Professor of Law, University of Miami School

of Law*; Raquel Aldana, Associate Dean for Faculty

Scholarship, Professor of Law, University of the Pacific,

McGeorge School of Law; Farrin R. Anello, Visiting Assistant

Clinical Professor, Seton Hall University School of Law;

Deborah Anker, Clinical Professor of Law, Director, Harvard

Immigration and Refugee Clinic, Harvard Law School.

Sabrineh Ardalan, Lecturer on Law, Harvard Law School,

Assistant Director, Harvard Immigration and Refugee Clinical

Program; David C. Baluarte, Assistant Clinical Professor of

Law, Director, Immigrant Rights Clinic, Washington and Lee

University School of Law; Melynda Barnhart, Professor of Law,

New York Law School; Jon Bauer, Clinical Professor of Law and

Richard D. Tulisano '69 Scholar in Human Rights, Director,

Asylum and Human Rights Clinic, University of Connecticut

School of Law.

Lenni B. Benson, Professor of Law, Director, Safe Passage

Project, New York Law School; Jacqueline Bhabha, Professor of

the Practice of Health and Human Rights, Harvard School of

Public Health, Lecturer in Law, Harvard Law School; Linda

Bosniak, Distinguished Professor, Rutgers University School

of Law-Camden; Richard A. Boswell, Professor of Law &

Associate Dean for Global Programs, U.C. Hastings College of

the Law; Jason A. Cade, Assistant Professor of Law,

University of Georgia Law School; Janet Calvo, Professor of

Law, CUNY School of Law, New York.

Kristina M. Campbell, Associate Professor of Law, Director,

Immigration and Human Rights Clinic, University of the

District of Columbia David A. Clarke School of Law;

Stacy Caplow, Professor of Law and Associate Dean of

Professional Legal Education, Brooklyn Law School; Benjamin

Casper, Visiting Associate Clinical Professor, University of

Minnesota Law School; Linus Chan, Visiting Associate

Professor of Clinical Law, University of Minnesota; Howard F.

Chang, Earle Hepburn Professor of Law, University of

Pennsylvania Law School; Michael J. Churgin, Raybourne

Thompson Centennial Professor in Law, University of Texas at

Austin.

Marisa Cianciarulo, Professor of Law, Director, Bette &

Wylie Aitken Family Violence Clinic, Chapman University Dale

E. Fowler School of Law; Evelyn Cruz, Clinical Professor of

Law, Director, Immigration Law & Policy Clinic, Arizona State

University, Sandra Day O'Connor College of Law; Ingrid Eagly,

Assistant Professor of Law, UCLA School of Law; Philip

Eichorn, Adjunct Professor--Immigration Law, Cleveland

State--Cleveland Marshall School of Law; Bram T. Elias,

Clinical Visiting Associate Professor, University of Iowa

College of Law; Stella Burch Elias, Associate Professor of

Law, University of Iowa College of Law.

Jill E. Family, Professor of Law, Director, Law &

Government Institute, Widener University School of Law; Niels

Frenzen, Clinical, Professor of Law, Gould School of Law,

University of Southern California; Maryellen Fullerton,

Professor of Law, Brooklyn Law School; Cesar Cuauhtemoc

Garcia Hernandez, Visiting Professor, University of Denver

Sturm College of Law; Lauren Gilbert, Professor of Law, St.

Thomas University School of Law; Denise L. Gilman, Clinical

Professor, Co-Director, Immigration Clinic, University of

Texas School of Law

John F. Gossart, Jr., Adjunct Professor of Law, University

of Baltimore School of Law, University of Maryland School of

Law, United States Immigration Judge 1982-2013, retired; P.

Gulasekaram, Associate Professor of Law, Santa Clara

University; Anju Gupta, Associate Professor of Law, Director,

Immigrant Rights Clinic, Rutgers School of Law--Newark; Susan

R. Gzesh, Senior Lecturer & Executive Director, Pozen Family

Center for Human Rights, University of Chicago; Jonathan

Hafetz, Associate Professor of Law, Seton Hall University;

Dina Francesca Haynes, Professor of Law and Director of Human

Rights and Immigration Law Project, New England Law, Boston.

Susan Hazeldean, Associate Clinical Professor, Cornell Law

School; Ernesto Hernandez-Lopez, Professor of Law, Fowler

School of Law, Chapman University; Laura A. Hernandez,

Professor, Baylor Law School; Michael Heyman, Professor of

Law, John Marshall Law School; Barbara Hines, Clinical

Professor of Law, Co-Director, Immigration Clinic, University

of Texas School of Law; Laila L. Hlass, Clinical Associate

Professor, Boston University School of Law; Geoffrey Hoffman,

Clinical Assoc. Professor, Director, Immigration Clinic,

University of Houston Law Center.

Mary Holper, Associate Clinical Professor, Boston College

Law School; Alan Hyde, Distinguished Professor and Sidney

Reitman Scholar, Rutgers University School of Law--Newark;

Kate Jastram, Lecturer in Residence, Executive Director, The

Honorable G. William & Ariadna Miller Institute for Global

Challenges and the Law, University of California, Berkeley,

School of Law; Kit Johnson, Associate Professor of Law,

University of Oklahoma College of Law; Anil Kalhan, Associate

Professor of Law, Drexel University Kline School of Law;

Daniel Kanstroom, Professor of Law, Dean's Research Scholar,

and Director, International Human Rights Program, Boston

College Law School.

Elizabeth Keyes, Assistant Professor, University of

Baltimore School of Law; Kathleen Kim, Professor of Law,

Loyola Law School Los Angeles; David C. Koelsch; Associate

Professor, Immigration Law Clinic, University of Detroit

Mercy School of Law; Jennifer Lee Koh, Associate Professor of

Law and Director, Immigration Clinic, Western State College

of Law; Kevin Lapp, Associate Professor of Law, Loyola Law

School,

Los Angeles; Christopher Lasch, Associate Professor of Law,

University of Denver Sturm College of Law.

Jennifer J. Lee, Clinical Assistant Professor, Legal

Director, Sheller Center for Social Justice, Temple

University Beasley School of Law; Stephen Lee, Professor of

Law, University of California, Irvine; Christine Lin,

Clinical Instructor/Staff Attorney, Center for Gender &

Refugee Studies, Refugee & Human Rights Clinic, University of

California, Hastings College of the Law; Beth Lyon, Professor

of Law, Director, Farmworker Legal Aid Clinic, Co-Director,

Community Interpreter Internship Program, Acting Director of

Clinical Programs, Villanova University School of Law;

Stephen Manning, Adjunct Professor of Law, Lewis & Clark

College.

Lynn Marcus, Professor of the Practice, Co-Director,

Immigration Law Clinic, University of Arizona James E. Rogers

College of Law; Miriam H. Marton, Director, Tulsa Immigrant

Resource Network, Visiting Assistant Clinical Professor of

Law, University of Tulsa College of Law; Elizabeth McCormick,

Associate Clinical Professor of Law, Director, Immigrant

Rights Project, Director, Clinical Education Programs,

University of Tulsa College of Law; M. Isabel Medina, Ferris

Family Distinguished Professor of Law, Loyola University New

Orleans College of Law; Stephen Meili, Vaughan G. Papke

Clinical Professor in Law, University of Minnesota Law

School; Vanessa Merton, Professor of Law, Pace University

School of Law.

Andrew Moore, Associate Professor of Law, University of

Detroit Mercy School of Law; Jennifer Moore, Professor of

Law, Weihofen Professorship, University of New Mexico School

of Law; Daniel I. Morales, Assistant Professor of Law, DePaul

University College of Law; Nancy Morawetz, Professor of

Clinical Law, Co-Director, Immigrant Rights Clinic, NYU

School of Law; Karen Musalo, Bank of America Foundation Chair

in International Law, Professor & Director, Center for Gender

& Refugee Studies, U.C. Hastings College of the Law;

Alizabeth Newman, Clinic Law Professor, Immigrant &

NonCitizens Rights Clinic, CUNY School of Law.

Noah Novogrodsky, Professor of Law, University of Wyoming

College of Law; Fernando A. Nunez, Visiting Assistant

Professor of Law, Charlotte School of Law; Mariela Olivares,

Associate Professor of Law, Howard University School of Law;

Michael A. Olivas, William B. Bates Distinguished Chair in

Law and Director, Institute for Higher Education Law and

Governance, University of Houston Law Center; Patrick D.

O'Neill, Esq., Adjunct Professor of Immigration Law,

University of Puerto Rico School of Law; Sarah Paoletti,

Practice Professor of Law, University of Pennsylvania Law

School.

Sunita Patel, Practitioner-in-Residence, Civil Advocacy

Clinic, American University, Washington College of Law; Huyen

Pham, Associate Dean for Faculty Research & Development,

Professor of Law, Texas A&M University School of Law; Michele

R. Pistone, Professor of Law, Villanova University School of

Law, Luis F.B. Plascencia, Assistant Professor, School of

Social and Behavioral Sciences, Arizona State University;

Polly J. Price, Professor of Law, Emory University School of

Law; Doris Marie Provine, Professor Emerita, Justice & Social

Inquiry, School of Social Transformation, Arizona State

University.

Nina Rabin, Associate Clinical Professor of Law, Director,

Bacon Immigration Law and Policy Program, James E. Rogers

College of Law, University of Arizona; Jaya Ramji-Nogales,

Professor of Law, Co-Director, Institute for International

Law and Public Policy, Temple University, Beasley School of

Law; Renee C. Redman, Adjunct Professor of Law, University of

Connecticut School of Law; Ediberto Roman, Professor of Law &

Director of Citizenship and Immigration Initiatives, Florida

International University; Victor C. Romero, Maureen B.

Cavanaugh Distinguished Faculty Scholar & Professor of Law,

Penn State Law; Joseph H. Rosen, Adjunct Professor, Atlanta's

John Marshall Law School; Carrie Rosenbaum, Professor of

Immigration Law, Golden Gate University School of Law.

Rachel E. Rosenbloom, Associate Professor, Northeastern

University School of Law; Ruben G. Rumbaut, Professor of

Sociology, Criminology, Law and Society, University of

California, Irvine; Ted Ruthizer, Lecturer in Law, Columbia

Law School; Leticia M. Saucedo, Professor of Law and Director

of Clinical Legal Education, UC Davis School of Law; Heather

Scavone, Assistant Professor of Law, Director of the

Humanitarian Immigration Law Clinic, Elon University School

of Law; Andrew I. Schoenholtz, Professor from Practice,

Georgetown Law.

Philip Schrag, Delaney Family Professor of Public Interest

Law, Georgetown University Law Center; Bijal Shah, Acting

Assistant Professor, NYU School of Law; Ragini Shah, Clinical

Professor of Law, Suffolk University Law School; Careen

Shannon, Adjunct Professor of Law and Director, Immigration

Law Field Clinic, Yeshiva University, Benjamin N. Cardozo

School of Law; Anna Williams Shavers, Cline Williams

Professor of Citizenship Law, University of Nebraska College

of Law; Bryn Siegel, Professor, Immigration Law, Pacific

Coast University School of Law; Anita Sinha, Practitioner-in-

Residence, American University, Washington College of Law.

Dan R. Smulian, Associate Professor of Clinical Law, Co-

Director, Safe Harbor Project, Brooklyn Law School; Gemma

Solimene, Clinical Associate Professor of Law, Fordham

University School of Law; Jayashri Srikantiah, Professor of

Law and Director, Immigrants' Rights Clinic, Stanford Law

School; Juliet Stumpf, Professor of Law, Lewis & Clark Law

School; Maureen A. Sweeney, Law School Associate Professor,

University of Maryland Carey School of Law; Barbara Szweda,

Associate Professor, Lincoln Memorial University Duncan

School of Law.

Margaret H. Taylor, Professor of Law, Wake Forest

University School of Law; David Thronson, Associate Dean for

Academic Affairs and Professor of Law, Michigan State

University College of Law; Allison Brownell Tirres, Associate

Professor & Associate Dean of Academic Affairs, DePaul

University College of Law; Scott Titshaw, Associate

Professor, Mercer University School of Law; Phil Torrey,

Lecturer on Law, Harvard Law School, Clinical Instructor,

Harvard Immigration and Refugee Clinical Program, Harvard Law

School; Enid Trucios-Haynes, Interim Director, Muhammad Ali

Institute for Peace and Justice, Professor of Law, Louis D.

Brandeis School of Law, University of Louisville;

Diane Uchimiya, Professor of Law, Director of Experiential

Learning, Director of the Justice and Immigration Clinic,

University of La Verne College of Law; Gloria Valencia-Weber,

Professor Emerita, University of New Mexico School of Law;

Sheila I. Velez Martinez, Assistant Clinical Professor of

Law, University of Pittsburgh School of Law; Alex Vernon,

Acting Director of Asylum and Immigrant Rights Law Clinic,

Visiting Assistant Professor of Law, Ave Maria School of Law;

Rose Cuison Villazor, Professor of Law & Martin Luther King

Jr. Hall Research Scholar, University of California at Davis

School of Law.

Leti Volpp, Robert D. and Leslie Kay Raven Professor of

Law, University of California, Berkeley; Jonathan Weinberg,

Professor of Law, Wayne State University; Deborah M.

Weissman, Reef C. Ivey II Distinguished Professor of Law,

School of Law, University of North Carolina at Chapel Hill;

Lisa Weissman-Ward, Clinical Supervising Attorney & Lecturer

in Law, Stanford Law School; Anna R. Welch, Associate

Clinical Professor, University of Maine School of Law.

Virgil O. Wiebe, Professor of Law, Robins, Kaplan, Miller &

Ciresi Director of Clinical Education, Co-Director,

Interprofessional Center for Counseling and Legal Services,

University of St. Thomas School of Law, Minneapolis; Michael

J. Wishnie, William O. Douglas Clinical Professor of Law and

Deputy Dean for Experiential Education, Yale Law School;

Stephen Yale-Loehr, Adjunct Professor, Cornell University Law

School; Elizabeth Lee Young, Associate Professor of Law,

University of Arkansas School of Law.

Endnotes

\1\ See Letter to the President of the United States,

Executive authority to protect individuals or groups from

deportation (Sep. 3, 2014), https://pennstatelaw.psu.edu/ _file/Law-Professor-Letter.pdf

\2\ See Thomas Aleinikoff, David Martin, Hiroshi Motomura &

Maryellen Fullerton, Immigration and Citizenship: Process and

Policy 778-88 (7th ed. 2012); Stephen H. Legomsky & Cristina

Rodriguez, Immigration and Refugee Law and Policy 629-32 (5th

ed. 2009); Shoba Sivaprasad Wadhia, The Role of Prosecutorial

Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243

(2010), http://papers.ssrn.com/sol3/papers.cfm?abstract _id=1476341.

\3\ Notably, in criminal law, prosecutorial discretion has

existed for hundreds of years. It was a common reference

point for the immigration agency in early policy documents

describing prosecutorial discretion. See Doris Meissner,

Immigration and Naturalization Service (INS) Commissioner,

Exercising Prosecutorial Discretion 1 (Nov. 17, 2000)

[hereinafter Meissner Memo], http:// www.legalactioncenter.org/sites/default/files/docs/lac/ Meissner-2000-memo.pdf; Sam Bernsen, INS General Counsel,

Legal Opinion Regarding Service Exercise of Prosecutorial

Discretion (July 15, 1976), http://www.ice.gov/doclib/foia/ prosecutorial-discretion/service-exercise-pd.pdf. See also,

e.g., Angela J. Davis, Arbitrary Justice (2007); Hiroshi

Motomura, Prosecutorial Discretion in Context: How Discretion

is Exercised Throughout our Immigration System, American

Immigration Council 2-3 (April 2012), http:// www.immigrationpolicy.org/sites/default/files/docs/motomura_- _discretion_in_context_04112.pdf; Stephen H. Legomsky, Legal

Authorities for DACA and Similar Programs (Aug. 24, 2014),

http://www.washingtonpost.com/r/2010-2019/WashingtonPost/ 2014/11/17/Editorial-Opinion/Graphics/ executive%20action%20legal%20points.pdf.

\4\ 8 C.F.R. Sec. 241.6.

\5\ INA Sec. 212(d)(5).

\6\ 8 C.F.R. Sec. 274a.12(c)(14).

\7\ Under INA Sec. 212(a)(9)(B)(ii), a person will not be

deemed unlawfully present during any ``period of stay

authorized by the Attorney General'' (now the Secretary of

Homeland Security). The Department of Homeland Security has

authorized such a period of stay for recipients of deferred

action. See Donald Neufeld, Lori Scialabba, & Pearl Chang,

U.S. Citizenship and Immigration Services (USCIS),

Consolidation of Guidance Concerning Unlawful Presence for

Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)

of the Act (May 6, 2009), http://www.uscis.gov/sites/default/ files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/ revision_redesign_AFM.PDF; U.S. Citizenship

and Immigration Services, Frequently Asked Questions (updated

June 5, 2014), http://www.uscis.gov/humanitarian/ consideration-deferred-action-childhood-arrivals-process/ frequently-asked-questions.

\8\ INA Sec. 103(a).

\9\ INA Sec. 242(g); see also Reno v. American-Arab Anti-

Discrimination Committee, 525 U.S. 471 (1999).

\10\ INA Sec. 237(d)(2); 204(a)(1)(D)(i)(II,IV).

\11\ 8 C.F.R. Sec. 274a.12(c)(14).

\12\ Bernsen, supra note 3.

\13\ Meissner Memo, supra note 3. Notably, the Meissner

memorandum was a key reference point for related memoranda

issued during the Bush administration, among them a 2005

memorandum from Immigration and Customs Enforcement legal

head William Howard and a 2007 memorandum from ICE head Julie

Myers on the use of prosecutorial discretion when making

decisions about undocumented immigrants who are nursing

mothers.

14 John Morton, Director, U.S. Immigration &

Customs Enforcement, Exercising Prosecutorial Discretion

Consistent with the Civil Immigration Enforcement Priorities

of the Agency for the Apprehension, Detention, and Removal of

Aliens (June 17, 2011), available at http://www.ice.gov/ doclib/secure-communities/pdf/prosecutorial-discretion- memo.pdf. [hereinafter Morton Memo].

15 See e.g., Lennon v. Immigration &

Naturalization Service, 527 F.2d 187, 191 n.5 (2d Cir. 1975);

Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 197 6);

Vergel v. INS, 536 F.2d 755 (8th Cir. 1976); David v. INS,

548 F.2d 219 (8th Cir. 1977); Nicholas v. INS, 590 F.2d 802

(9th Cir. 1979).

16 See Arizona v. United States, 132 S. Ct.

2492, 2499 (2012).

17 525 U.S. 471 (1999). One source suggests that

DHS has resources to remove about 400,000 or less than 4% of

the total removable population. See Morton memo, supra note

14.

18 For example, of the 698 deferred action cases

processed by Immigration and Customs Enforcement between

October 1, 2011, and June 30, 2012, the most common

humanitarian reasons for a grant were: Presence of a USC

dependent; Presence in the United States since childhood;

Primary caregiver of an individual who suffers from a serious

mental or physical illness; Length of presence in the United

States; and Suffering from a serious mental or medical care

condition. See Shoba Sivaprasad Wadhia, My Great FOIA

Adventure and Discoveries of Deferred Action Cases at ICE, 27

Geo. Immigr. L.J. 345, 356-69 (2013), http://papers.ssrn.com/ sol3/papers.cfm?abstract_ id=2195758. See also, Shoba

Sivaprasad Wadhia, Relics of Deferred Action, The Hill

(2014), http://thehill.com/blogs/congress-blog/civil-rights/ 224744-relics-of-deferred-action.

19 See Marvine Howe, New Policy Aids Families of

Aliens, N.Y. Times (March 5, 1990), http://www.nytimes.com/ 1990/03/05/nyregion/new-policy-aids-families-of-aliens.html.

20 See 67 Interpreter Releases 204 (Feb. 26,

1990); 67 Interpreter Releases 153 (Feb. 5, 1990). Bush's

policy followed a narrower 1987 executive order by President

Reagan's immigration commissioner that applied only to

children. 64 Interpreter Releases 1191 (Oct. 26, 1987).

Congress later in 1990 legislatively provided some of them a

path to legalization. Immigration and Nationality Act of

1990, Pub. L. 101-649, 301, 104 Stat. 4978, http:// www.justice.gov/eoir/IMMACT1990.pdf.

21 See Shoba Sivaprasad Wadhia, Response, In

Defense of DACA, Deferred Action, and the DREAM Act, 91 Tex.

L. Rev. See Also 59, n.46 (2013), http://papers.ssrn.com/ sol3/papers.cfm?abstract__id=2195735, citing Press Release,

U.S. Citizenship and Immigration Services, USCIS Announces

Interim Relief for Foreign Students Adversely Impacted by

Hurricane Katrina (Nov. 25, 2005), http://www.uscis.gov/ sites/default/files/files/pressrelease/ F1Student_11_25_05_PR.pdf.

22 DED Granted Country-Liberia, U.S. Citizenship

and Immigration, http://www.uscis.gov/humanitarian/temporary- protected-status-deferred-enforced-departure/ded-granted- country-liberia/ded-granted-country-liberia (last visited

Nov. 22, 2014).

23 Legomsky & Rodriguez, Immigration and Refugee

Law and Policy, supra note 2, at 1115-17; See also David

Reimers, Still the Golden Door: The Third World Comes to

America 202 (1986).

24 For a broader discussion about the

relationship between class size and constitutionality, see

Wadhia, Response, In Defense of DACA, Deferred Action, and

the DREAM Act, supra note 20.

25 U.S. Const. art. II, 3.

26 U.S. ICE, FY 2013 ICE Immigration Removals,

http://www.ice.gov/removal-statistics/ (last visited Nov. 22,

2014); Marc R. Rosenblum & Doris Meissner, The Deportation

Dilemma: Reconciling Tough and Humane Enforcement, Migration

Policy Institute (April 2014), http:// www.migrationpolicy.org/research/deportation-dilemma- reconciling-tough-humane-enforcement.

27 For a broader discussion of the

administrative law values associated with prosecutorial

discretion, see Hiroshi Motomura, Immigration Outside the Law

19-55, 185-92 (2014); Shoba Sivaprasad Wadhia, Sharing

Secrets: Examining Deferred Action and Transparency in

Immigration Law, 10 U. N. H. L. Rev. 1 (2012) (also providing

a proposal for designing deferred action procedures), http:// papers.ssrn.com/sol3/papers.cfm?abstract_ id=1879443.

* all institutional affiliations are for identification

purposes only

I enter into the Record a November 29 letter to Senate and House Judiciary Committee Chairmen Leahy and Goodlatte and the ranking members, Grassley and Conyers, from four former INS general counsels from the George W. Bush and Clinton administrations on the President's authority to take lawful executive action on immigration.

Four Former INS/USCIS General Counsels on President's Authority To Act

on Immigration

Nov 29, 2014.

Hon. Patrick Leahy

Hon. Chuck Grassley

Hon. Bob Goodlatte

Hon. John Conyers, Jr.

We are writing as former General Counsels of the

Immigration and Naturalization Service or former Chief

Counsels of U.S. Citzenship and Immigration Services. As you

know, the President on November 20 anounced a package of

measures designed to deploy his limited immigration

enforcement resources in the most effective way. These

measures included an expansion of Deferred Action for

Childhood Arrivals (DACA) and the creation of Deferred Action

for Parental Accountabilty (DAPA). We take no positions on

the policy judgments that those actions reflect, but we have

all studied the relevant legal parameters and wish to express

our collective view that the President's actions are well

within his legal authority.

Some 135 law professors who currently teach or write in the

area of immigration law signed a November 25, 2014 letter to

the same effect. Rather than repeat the points made in that

letter, we simply attach it here and go on record as stating

that we agree wholeheartedly with its legal analysis and its

conclusions.

Respectfully,

Stephen Legomsky,

The John S. Lehman University Professor, Washington

University School of Law, Former Chief Counsel, U.S.

Citzenship and Immigration Services.

Roxana Bacon,

Former Chief Counsel, U.S. Citzenship and Immigration

Services.

Paul W. Virtue,

Partner, Mayer Brown LLP, Former General Counsel,

Immigration and Naturalization Service,

Bo Cooper,

Partner, Fragomen, Del Rey, Bernsen & Loew, Former General

Counsel, Immigration and Naturalization Service.

Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Garcia).

Mr. Speaker, I ask unanimous consent to insert the text of the amendment along with extraneous material that I will offer in the Record if we defeat the previous question immediately prior to the vote on the previous question.

That basically will be the text of H.R. 15, the Senate- passed comprehensive immigration reform bill. We could bring this issue to a close right now.

I reserve the balance of my time.

Mr. Speaker, there is some confusion here that the gentleman may be offering to amend the rule. I am just trying to get a sense for what is going on over there before I yield back all of my time.

Mr. Speaker, we have one additional speaker that just showed up, and so I yield 1 minute to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Speaker, how much time do I have remaining?

Mr. Speaker, let me close by again asking my colleagues to vote against this closed rule--triple closed rule. It unfortunately has become a pattern in this Congress, the most closed Congress in the history of the United States of America.

I would urge my colleagues to vote ``no'' as well because we are talking about a defense bill, but we are not allowed to have a debate or a vote on any of these wars that we are involved in. If we truly care about our troops, if we are truly living up to our constitutional responsibilities, we ought to have a debate and a vote. We ought not to duck it. We ought not to leave town without talking about these serious issues.

On the issue of immigration, rather than this silly, petty, ugly, symbolic bill that is being brought to the floor, if my colleagues don't approve of the President's executive action, then help me defeat the previous question and we will bring up H.R. 15, the comprehensive immigration reform bill that the Senate passed in a bipartisan way, and we can get that job done and end all this nonsense and end all this rancor that we have seen unfold here in the House.

We could do better than what is on display today. I regret very much that the Republican leadership continues to insist on this closed process which stifles debate and prevents us from debating and voting on important issues.

I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, pursuant to House Resolution 770, I call up the bill (H.R. 5781) to provide short-term water supplies to drought-stricken California, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on H.R. 5781.

Mr. Speaker, I yield myself as much time as I may consume.

Mr. Speaker, I rise in strong support of H.R. 5781, the California Emergency Drought Relief Act of 2014, as introduced by our colleague from California (Mr. Valadao).

Today the House meets once again to provide a solution to the ongoing water crisis in California. The House has been on record twice to provide solutions, and here we are, and we must act again. Although this bill is different from the two prior attempts and reflects significant bipartisan progress towards enacting a solution, we must provide relief, even if it is short-term relief before this Congress adjourns. It is unacceptable for us to give up when Californians are starving and their communities are literally drying up.

Like California, my central Washington district is heavily dependent on irrigated water to support our local economy and our agriculture industry. I understand the importance of having a stable, reliable water source, and I also understand the economic devastation that is caused when the water supply is shut off, particularly when the shutoff is avoidable.

California is in an emergency situation. For years San Joaquin Valley farmers have been fighting against Federal regulations and environmental lawsuits that have diverted water supplies in order to help a 3-inch fish. In 2009 there was a deliberate diversion of over 300 billion--Mr. Speaker, that is billion with a B--gallons of water away from farmers.

Mr. Speaker, let me equate that: 300 billion gallons of water is nearly 1 million acre-feet of water. What is an acre-foot? An acre-foot of water--for 1 year, that is 12 inches of water for a year that was diverted from these farmers.

As a result, thousands of farmworkers lost their jobs, unemployment reached 40 percent in some communities, and thousands of acres of fertile farmland dried up. The same thing is happening today.

As chairman of the House Natural Resources Committee, I have traveled to Fresno, California, twice and have seen the effects of natural and manmade drought firsthand. We have held multiple hearings and heard the pleas of communities that simply want the water turned back on and their livelihoods restored.

We have seen farmers who normally help feed the Nation being sent to wait in line at food banks and, in some cases, Mr. Speaker, being served carrots imported from China.

I want to stress that this crisis does not just impact California, but it has a rippling effect across the entire Nation.

California's San Joaquin Valley is the salad bowl for the world and provides a significant share of fruits and vegetables for our country.

Food grows where water flows. When there is no water, our food supply suffers, resulting in higher food prices across the country, higher unemployment, and increased reliance on foreign food sources.

Unlike the last time this body acted on this issue, the Senate did pass its version of the bill in June of this year. I commend Senator Feinstein for her efforts to pass that short-term bill. However, since the bills were so different in their scope, those interested in productive conversations to bridge differences have negotiated in good faith over the last 6 months.

We got very close to a resolution but more time was necessary on agreeing to a long-term bill. In the interim, the measure before us today reflects much of what the Senate passed earlier this year and agreed to in our negotiations to bring some short-term water supply relief to many of those communities in need.

This bill simply allows us to capture some water from storms in this and the next water year and improves data quality when it comes to the existing biological opinions on smelt and salmon. It also protects those communities in the north that are in relatively abundant water areas.

The entire bill, Mr. Speaker, sunsets in September of 2016 to allow more time to negotiate a longer-term solution that not only could help California but other States in the West as well.

This bill is not perfect, but it is a short-term bridge based on productive negotiations between those who want sensible solutions to the California water crisis. This bill, while very limited in scope, helps protect the jobs and economic livelihoods of farm families and workers and communities that are in dire need of water.

The people of the San Joaquin Valley cannot wait any longer for Congress to act. As the title of this bill suggests, it is truly an emergency for many, and time is running out. Those communities facing massive unemployment deserve nothing less.

Mr. Speaker, I commend my colleagues in the last two Congresses for working together to get us this solution. This is the latest iteration of that, and I want to commend them.

With that, I reserve the balance of my time.

Mr. Speaker, I am very pleased to yield 4 minutes to the gentleman from California (Mr. Valadao), the author of the previous bill that I had mentioned in my opening remarks.

Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from California (Mr. McClintock), a member of the Natural Resources Committee.

I yield an additional 1 minute to the gentleman.

Mr. Speaker, I am pleased to yield 1 minute to the gentleman from California (Mr. McCarthy), the distinguished majority leader.

Mr. Speaker, I am very pleased to yield 2 minutes to the gentleman from California (Mr. Nunes), author of the original, long-term bill that passed in the last Congress.

Mr. Speaker, I yield an additional 1 minute to the gentleman.

Mr. Speaker, I am very pleased to yield 1 minute to the gentleman from Illinois (Mr. Rodney Davis).

Mr. Speaker, I am very pleased to yield 3 minutes to the gentleman from California (Mr. LaMalfa), a member of the Natural Resources Committee.

Mr. Speaker, may I inquire how much time I have remaining?

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, let me just make a couple of points here before I yield back my time. This has been a very interesting debate. As I mentioned in my opening remarks, I attended two hearings in Fresno, California, particularly on this issue, and saw firsthand the impact of what the natural drought and the manmade drought has done to the San Joaquin Valley.

My friends on the other side of the aisle stated a number of newspapers that editorialized against this. Mr. Speaker, I will insert into the Record a Fresno Bee editorial of December 6 saying that the Valadao bill, which is H.R. 5781, should be passed.

[From The Fresno Bee, Dec. 6, 2014]

Facts Support Passage of Drought Relief Legislation

One of the oldest rules in politics is, when the facts are

on your side, you cite the facts; when the facts aren't on

your side, you pound the table.

Over the last few days, opponents of The California

Emergency Drought Relief Act, which was introduced in the

House of Representatives on Tuesday, have been yelling about

water grabs, protesting the timing of the bill's introduction

and doing all they can to divert attention from the facts--

both pertaining to this legislation and to the cruel

realities of our state's prolonged drought.

So, let's start with the facts.

This drought is the worst that California has experienced

in at least 1,200 years. So says a study published by the

American Geophysical Union and cited by a Washington Post

blog Thursday. Not only have we received little rain, but the

lack of precipitation has been intensified by record-breaking

high temperatures. Moreover, the fertile agricultural fields

of the San Joaquin Valley are suffering through an

``exceptional drought,'' the most severe classification.

Yes, it has rained lately in California. Thank goodness it

has. But much more rain is needed to restore our aquifers,

fill our reservoirs reverse the economic hardship inflicted

on our state and, in particular, the Valley, by the drought.

The bill (H.R. 5781) introduced by Rep. David Valadao, R-

Hanford and supported by GOP leadership provides the

flexibility and resources to give farmers in the Valley and

elsewhere a fighting chance to grow their crops and put

people back to work in 2015. In a nutshell, the bill would

allow the Bureau of Reclamation the freedom to hold more

winter rain and snow and then distribute it to areas in need.

Not only would this flexibility help farmers and rural

communities, but it would benefit the environment as well.

This legislation is the product of months of talks and

negotiations earlier this year involving Republican and

Democrats in both the House and the U.S. Senate and is the

result of thoughtful compromise. The bill doesn't amend the

Endangered Species Act or existing biological opinions. It

leaves decision-making about habitat, protected species and

water quality to federal environmental agencies. But it would

reduce the flow of water through the Sacramento-Joaquin River

Delta to the Pacific Ocean and pump more water to the south--

as long as that pumping doesn't harm protected fish such as

delta smelt, salmon and steelhead.

Moreover, these changes would be temporary, as they would

end in September of 2016 or upon the governor ending

California's drought declaration.

Opponents are trying to paint this bill as detrimental to

the environment and the result of secret negotiations. Again,

let's examine the facts. In a phone interview with The

Editorial Board on Friday, Rep. Jim Costa, D-Fresno, pointed

out that this proposal is similar to Sen. Dianne Feinstein's

bill that was passed under unanimous consent by the Senate in

February.

Passage of Feinstein's Emergency Drought Relief Act then

set the stage for negotiations--and compromise--with Valadao,

who

earlier had received partisan House approval of a bill that

was extreme and over the top. Early on, Northern California

Democrats, many of which are supported by environmentalist,

were involved in the negotiations. But they drew firm lines

in the sand and quit the talk.

Valadao's bill is reasonable and much needed. It deserves

the support of Sen. Feinstein and Sen. Barbara Boxer and the

California delegation in the House of Representatives.

Let me address another issue.

We heard a number of times from the speakers on the other side of the aisle that there has been no hearing on this bill; it came out of the blue, blah, blah, blah. We heard that over and over. Maybe it is because when my friends on the other side of the aisle were in the majority, they didn't follow regular order, so let me say this as slowly or plainly as I can.

In the last Congress, Congressman Nunes introduced a long-term bill that we had a number of hearings on in the National Resources Committee. We marked up the bill in the Resources Committee, and we had it on the floor, where there were amendments that were offered to that bill; and, finally, in the last Congress, it passed with bipartisan support.

That was in the last Congress, Mr. Nunes' bill. In this Congress, Mr. Valadao took that bill, dusted it off, and made two minor changes. We brought it to the floor, and once again, it passed with bipartisan support.

Mr. Speaker, that is a pretty good example of what regular order is, and all we said, by the way, is, ``Okay. This is our position. This is the House's position. If the Senate has a different position, pass a bill.'' There was nothing complex about that, and to the credit of Senator Feinstein, primarily, there was a bill that passed with unanimous consent.

I might add, however, Mr. Speaker, that there were no hearings held on the Senate bill in the Senate. There were no hearings held on the Senate bill; however, because of the drought in California, many Western senators--primarily, Republican Western senators--when asked, presumably by Senator Feinstein, if this bill could go by unanimous consent, they said, ``Yes, but there are some conditions that we ought to look at before it finally becomes law.'' Their principal concern was in the area of the Endangered Species Act.

Now, in the 20 years that I have been here, I have been a vocal critic of how the Endangered Species Act has been implemented, and I hope that we have made some movement in that with the passage of three bills that we did later on.

My point is this, Mr. Speaker: the Senate then passed their bill. The normal process under regular order is when the House has a position and the Senate has a position, then you get together to negotiate the differences.

Now, there are a lot of differences between those two bills, and for the last 6 months, there has been a good faith effort to try to negotiate the difference.

A week ago, Senator Feinstein said: We just can't get it done at this point; and, at that point, my colleagues here in the House--Mr. Valadao, principally, but the other colleagues that spoke--said: I think what we ought to do is to put into bill form what we had principally agreed to in this conference--although it wasn't a formal conference, it was an informal conference--and put it in bill form.

Mr. Speaker, I just want to say what we have before us is legislation that has been largely agreed to in this informal conference that has been going on for some time with the California water issue.

This isn't something that came out of the dark. As a matter of fact, in the 4 years that my colleagues controlled this House, there was no California water legislation whatsoever. So to come up here and talk and say there are other things and they should be involved, of course, they should be involved. They were involved with the Senate action on the Senate bill.

Mr. Speaker, I just want to say that this is good legislation. It represents a broad consensus that could be done in the informal conference, so I urge my colleagues to pass this legislation. Hopefully, the Senate can take it up before we adjourn. If we don't, the consequences are that we are going to have to start all over again in the next Congress.

There has been so much work that has been done in the informal conference that to let that go and not have some positive action on it, I think, would be wrong for us to do.

With that, I urge my colleagues to vote ``yes'' on this legislation, and I yield back the balance of my time.

Mr. Speaker, I thank the gentlewoman.

Some of our colleagues from other States may be experiencing a sense of deja vu right now. Yes, this is the second time this year that the House has voted on a California water bill that would harm northern California fisheries, tribes, and communities; that would undermine State law; that would deprive water managers of the flexibility they need; and it would micromanage the complex water system of California.

To make sure we are all dealing with the same facts, I want to remind my colleagues that the State and Federal water export pumps in the delta right now are operating at more than 5,000 cubic feet per second.

The only reason they are not pumping even faster is not to protect fish and wildlife, not because of the Endangered Species Act, none of the other bogeymen that we hear as a justification for this bill. No, the reason those pumps are not going even faster is because of standards set by the State of California to protect water quality from municipal and industrial and agricultural and other uses in the system.

So the only way that this bill could deliver more water today--well, there is no way it could deliver more water today--and the only way it could deliver more water in other times of the year is by taking it away from other water users and other beneficial uses in our State.

With that inconvenient fact out of the way, let's talk about the process that brought us here today. H.R. 5781 has never been reviewed by the authorizing committee, let alone marked up in open session. Nor have we received the input of State or Federal agencies that have the responsibility over clean water and fisheries management. Nor have we received the input of affected local water agencies, of commercial and recreational fishing interests, of tribes--including ones that I represent--or other communities that will surely be impacted negatively if this were to become law.

The proponents of this bill say that it is the result of bipartisan collaboration. Really? Those of us who represent northern California's fishing industries, tribes, farmers, and communities have been systematically kept out of the room and even kept out of the conversation.

Last month, we learned that members of our State's Republican delegation refused to even brief Senator Barbara Boxer if northern California Democrats like me were even in the room.

This is no way to negotiate something this important. It is a terrible precedent for other States as well, and that is why I am glad that Senator Boxer has been so clear in stating her opposition to it, that it would ignite water wars in California, not solve problems, and I am glad that over the weekend we received a veto recommendation from the Obama administration.

Now, on Saturday, the Pacific Fishery Management Council sent me a letter about the bill. I asked them how they felt it would affect western fisheries in this country. Here is what they said:

H.R. 5781 would override Endangered Species Act protections

for salmon, steelhead, and other species in the Bay Delta in

order to allow increased pumping from the delta in excess of

scientifically justified levels.

In 2008 and 2009, $158 million in congressional aid was

provided to deal with the disaster of the closure of ocean

salmon fisheries off California and Oregon south of Cape

Falcon due to a collapse of the Sacramento River salmon

stocks. These fisheries are an important source of jobs for

coastal communities, which cannot be replaced simply through

disaster relief. Without adjustments to this bill, we fear

such a disaster could be repeated in the reasonably near

future.

Mr. Speaker, I will include this letter in the Record at this time.

Pacific Fishery

Management Council,

Portland, OR, December 6, 2014.

Hon. Jared Huffman,

House of Representatives,

Washington, DC.

Dear Mr. Huffman: Thank you for your letter of November 17

and follow-up on December 3 requesting Pacific Fishery

Management Council (Pacific Council) comment on legislation

related to operation of the State Water Project and Central

Valley Project in California (HR 5781) and its potential

impacts to fisheries. Although the timing of the bill did not

allow for full Council deliberation, we present the following

concerns, which are consistent with previous comments the

Council has made on similar legislation. Absent changes in

the legislation to address these concerns, the Pacific

Council does not support HR 5781 moving forward.

HR 5781 would override Endangered Species Act protections

for salmon, steelhead, and other species in the Bay-Delta in

order to allow increased pumping from the Delta in excess of

scientifically justified levels. These measures also protect

salmon stocks not currently listed under the ESA, which are a

primary source of healthy sport and commercial fisheries from

Central California to Northern Oregon. The bill introduces a

new standard for implementing the Endangered Species Act

concerning Central Valley salmon and Delta smelt, a keystone

species in the Bay-Delta ecosystem. (See Sec 101(3), and

102(b)(2)(a).) It is unclear how severe the negative effects

of this new standard might be, but it would certainly impact

current water management policy that protects ESA listed

salmon stocks from further decline and helps prevent

currently healthy stocks from becoming listed under the ESA.

The bill contains several provisions that override the

salmon and Delta smelt biological opinions (for example

Section 103(d)(2), Section 103(c), and others). Section 103

could result in dramatically higher pumping than is

authorized under the biological opinions, and would cause

significant harm to migrating salmon and steelhead and other

native species. The 1:1 inflow to export ratio for the San

Joaquin at Vernalis overrides the `reasonable and prudent

alternatives' to standard operations that were set out in the

2009 Central Valley biological opinion in order to protect

Sacramento River winter-run Chinook and other salmonid

species. Further degradation of salmon habitat is contrary to

the provisions of the Magnuson Stevens Act

(Sec. 305(b)(1)(D)) and something the Pacific Council

strongly opposes.

Section 103(f)(2) provides exemptions for mitigation of

negative effects on listed fish species, which alleviates the

project from compensating fisheries for negative effects of

its operations; it is unclear if there is an exemption for

mitigation of negative effect on non-listed salmon stocks.

Exempting mitigation responsibility for harm to salmon

populations provides the exact opposite incentive to the kind

of salmon protection and enhancement advocated by the

Council, and essentially amounts to redistributing the value

of salmon fisheries to agricultural or municipal interests,

as well as increasing the risk to ESA listed fish stocks

threatened with extinction. Additionally, the Pacific Council

is concerned about whether Central Valley projects are

achieving their current mitigation responsibility, and

providing these exemptions could preclude seeking remedy. If

this bill moves forward, it should provide direct mitigation

for the proposed actions and risks to which it would subject

fish populations and fishing communities, not avoiding this

appropriate responsibility.

In 2008 and 2009 $158 million in Congressional aid was

provided to deal with the disaster of the closure of ocean

salmon fisheries off California and Oregon south of Cape

Falcon due to a collapse of the Sacramento River salmon

stocks. These fisheries are an important source of jobs for

coastal communities, which cannot be replaced simply through

disaster relief. Without adjustments to this bill, we fear

such a disaster could be repeated in the reasonably near

future.

Thank you again for the opportunity to comment on this

legislation; please don't hesitate to contact me or Ms.

Jennifer Gilden of the Pacific Council office if you have any

further questions.

Sincerely,

D.O. McIsaac, Ph.D.,

Executive Director.

In addition, California's recreational and commercial fishing interests sent a letter on Friday with their concerns that this legislation would ``harm, potentially disastrously, the communities, families, and thousands of fishing jobs in California and Oregon that depend on the health of the Bay Delta and its salmon runs.''

Mr. Speaker, I will include their letter in the Record at this time as well.

Opposition to H.R. 5781

December 5, 2014.

Dear Representative: On behalf of the undersigned

organizations, we write to urge you to oppose H.R. 5781

(Valadao, R-CA), a bill that would dramatically weaken

protections for salmon and other fish and wildlife in

California's Bay-Delta estuary and its tributaries. This

legislation would harm, potentially disastrously, the

communities, families and thousands of fishing jobs in

California and Oregon that depend on the health of the Bay-

Delta and its salmon runs.

H.R. 5781 would undermine existing legal protections for

salmon, endangered species, and other species in the Bay-

Delta ecosystem, in order to pump more water out of the most

important salmon producing system south of the Columbia

River. For example, the bill would rewrite and override

protections required under the Endangered Species Act and

replace the best available science with political micro-

management. Those ESA protections also benefit fall run

Chinook salmon, the backbone of the salmon fishery. This

legislation would also undermine existing federal law, which

establishes fish and wildlife protection and salmon

restoration as a co-equal goal of the Central Valley Project.

It would attempt to redirect water dedicated by law to

restoring fisheries and ecosystem heath. By requiring a

massive new groundwater development project, this legislation

has the potential to divert tens of millions of dollars away

from ecosystem restoration, including salmon restoration

projects. Such groundwater development would likely also

reduce surface waters needed by salmon.

This damaging legislation has never been subject to a

single committee hearing or input from the State, hunting

organizations, sport and commercial fishermen, tribes, and

conservation groups. Frankly put, this last-minute

legislation is a cynical water grab. It doesn't address the

cause of the drought, nor does it offer solutions. Instead,

it is simply an effort to legislate the destruction of the

environment and the salmon industry.

The very real water shortages experienced in parts of

California this year are a result of three dry years, not

environmental protections. Real solutions to the impacts of

the drought include agricultural and urban water use

efficiency, water recycling and other tools that can meet our

needs and that don't sacrifice our environment and fisheries.

This legislation addresses none of those solutions.

This legislation could not come at a more damaging time.

2015 represents the first year that drought affected salmon

year classes will return as spawning adults. We anticipate a

significant, perhaps dramatic, reduction in returning salmon

during 2015-2017. The coming three years will be a critical

time for the salmon industry. This is not a theoretical

concern. In 2008-2009, three years after record diversions

from the Bay-Delta, low salmon populations led to the

complete closure of the salmon fishery. This legislation

could help lead to a repeat of that disastrous closure. The

standards protecting salmon today are too low already.

Further rollbacks could have a devastating impact on salmon

runs that have already been harmed by drought.

Our salmon industry is valued at $1.4 billion in economic

activity annually. The industry employs tens of thousands of

people from Santa Barbara to northern Oregon, including in

California's Central Valley. This industry consists of

commercial fishermen, recreational fishermen, fish

processors, marinas, coastal communities, equipment

manufacturers, tackle shops, the hotel and food industry,

tribes, and the salmon fishing industry at large. All of

these economic sectors and individuals could be harmed by

damaging federal legislation. We all respectfully request

your leadership to protect our future.

For these reasons, we respectfully urge you to oppose H.R.

5781 and any other last-minute attempts to undercut the

existing balance of rights and protections among the users of

the California Bay-Delta watershed. California's drought

requires real solutions, not a return to the imbalanced

policies of the 1940s and 1950s.

Thank you for your consideration.

John McManus,

Golden Gate Salmon Association.

Zeke Grader,

Pacific Coast Federation of Fishermen's Associations.

Dick Pool,

Water4Fish.

Roger Thomas,

Golden Gate Fishermen's Association.

Mark Gorelnick,

Coastside Fishing Club.

Larry Collins,

San Francisco Crab Boat Association.

At the Rules Committee debate, I raised a series of important technical questions about flaws in this bill. Unfortunately, the House majority has decided that it cannot be amended through an open rule.

If we did have the benefit of a hearing or even just an opportunity to amend through an open rule, we may be able to address some of these, but so far, nobody has answered some of these key technical questions.

First, does the bill allow the State water board, basically, to do its job if we head into a fourth year of a critical drought, doing things like issuing curtailment orders and possibly rationing orders? These are tough calls that our State's water referee has to make. This bill does not appear to allow them the flexibility to do that.

Does the bill, which directs the Federal Government to ``provide the maximum quantity of water supplies possible'' next year, allow the Federal Government to do other things necessary to operate the system, like filling reservoirs, holding water for public health purposes, or-- when it might be needed--even for other water contractors?

Does the bill put additional pressure on the Trinity River, which I represent, and the tribes that have depended on it for their traditions and their subsistence on healthy salmon populations for millennia?

There are many other questions that are unanswered about this bill. It is not ready for prime time, it is not good policy, and I urge my colleagues to vote ``no.''

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 770 and ask for its immediate consideration.

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Massachusetts (Mr. McGovern), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

General Leave

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks.

Mr. Speaker, House Resolution 770 provides for the consideration of the National Defense Authorization Act for fiscal year 2015. It also allows for the consideration of the Executive Amnesty Prevention Act and for the California Emergency Drought Relief Act, a bill that would provide short-term water supplies to drought-stricken California. This combined rule is necessary because Congress is coming to a close, and we need to get our work done.

One of the outstanding items that is most important to me is the 2015 NDAA. Mr. Speaker, I was proud to stand on the House floor in May when the House passed its version of the 2015 NDAA. I was happy to highlight the inclusive and transparent process that

the Armed Services Committee and the House, as a whole, took in crafting this year's National Defense Authorization Act.

We held countless hearings and heard hours of testimony from our combatant commanders. We worked a lot of late nights within the House Armed Services Committee. In the committee alone, the NDAA was amended 155 times. When the bill moved to the House floor, it was again amended, and another 160 amendments were considered.

It was careful. It was deliberate. It was an open process. It is precisely how the House and this Congress should work. When the NDAA passed this body, I was proud of what we produced, and I was really proud of the process that we took to get there.

The Senate, though, is absolutely different. As is so often the case, they didn't act. They either couldn't pass a bill, or they just chose not to; either way, it is a shame. They left us with a mess now that we have to resolve. Eventually, a final product was crafted at the last minute between House and Senate staffers.

It was not done in conference because the Senate never passed a bill. It was not done in conference because the Senate just ignored the fact that the NDAA was a priority for this country in order to make sure that we funded and equipped those soldiers and airmen and sailors and marines who fight the fight for this country. They ignored it.

When you don't get to conference, which is where you have Members argue the points of either piece of legislation--whether it is a Senate bill or a House bill--it really does a disservice to our men and women who fight for this country because they don't get to hear the arguments and they don't get to see the arguments. That is unfortunate.

We go through all of the motions. In the House, we get it right, in the House, through the appropriations process, but then again, through the process of the NDAA, we get it right. We have those hearings. We take the testimony, and we listen to those who are most affected. The Senate, I don't know what they do, but they honestly, in my estimation, didn't care enough to get it done for whatever reason.

As a member of HASC, we did an awful lot of work just to get a product to the floor, and when it left HASC, it was unanimous. When it came to the floor, there were 160 times that people had the opportunity to amend it and change it and prove it and add things that they thought were necessary for the defense of their country. Once again, the Senate just ignored that process, and that is unfortunate.

Congress, as a whole, is harmed by this process. More importantly, it is the troops who are harmed by a process that is broken. It is the troops. We are not out there in harm's way, but they are. We owe them better. I think the House has done that. I think the House has actually done everything in its power to make it right with the troops whom we put in harm's way, but the Senate doesn't seem to care, and that is troubling to me.

I am concerned about our warfighters. We are their voice. As Members of Congress, we are their voice. We are the elected Representatives of the people, but they are citizens, too, so we are representing them. We are their voice, and they need to be heard on every issue.

Unfortunately, the NDAA is not everything that everybody wants, and I get it. It is always a compromise, and I get that, but we need to show more solidarity with our warfighters, so they know that their voice is being heard here in the Capitol. I fear that, because the Senate botched the process, their voice didn't come through as loudly as it should have.

Mr. Speaker, the rule also allows the House to consider the Executive Amnesty Prevention Act. This legislation, if enacted, would nullify the President's recent executive action.

Regardless of whether you agree or disagree with the policy goal of the President's, every Member of Congress ought to be concerned about what it means when he takes that type of action, of unilaterally ignoring Congress. If you look at our article I powers, we are elected to pass laws. We are elected to do that.

The President is elected to faithfully execute the laws that are passed by Congress. It doesn't matter if the House did or did not do what the President requested. It doesn't give him the unilateral action to go ahead and say, ``Do you know what? I can just do it on my own.'' That is what this bill addresses.

This Nation has benefited by this delicate balance that we have in our government. It benefits every day when we do things the right way. The Constitution is our guiding principle. It is our guiding document.

You just can't say, ``Do you know what? I want to do it differently because I disagree with what the legislative branch is or is not doing.'' That is not appropriate. It is not the way the Founding Fathers crafted it.

The Executive does not have the power to write law; we do. We need to reestablish our rights as elected Representatives of the people to craft laws that affect the people of the United States of America.

It is really just beyond frustrating as all of us, Democrats and Republicans alike, should be jealously guarding our article I powers because it matters not whether it is a Republican President or a Democratic President. This institution matters. Otherwise, what are we doing here? Otherwise, why are the American people voting every 2 years to send Representatives to this body to ensure that the Constitution is upheld and followed?

It is not meaningless. It is important. As I said before, the legislative versus the Executive issue shouldn't be a Democrat versus a Republican issue. It should be the fact that we should guard the rights and privileges that have been extended to us because of our being elected to this body.

I support the rule because it is important that we have a healthy debate on all of the issues that have been outlined, and I urge my colleagues to do the same.

I reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentleman from Oklahoma (Mr. Cole).

Mr. Speaker, I yield 2 minutes to the gentleman from Kentucky (Mr. Massie).

Mr. Speaker, I yield 2 minutes to the gentleman from Iowa (Mr. King).

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Sessions), the chairman of the Rules Committee.

I yield the gentleman an additional 30 seconds.

Mr. Speaker, I think Mr. Cole really addressed the issue. In regards as to how it went down in the Rules Committee, he clearly addressed the issue on this floor in regards to his support of the rule, even though he didn't get everything that he wanted.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I continue to reserve the balance of my time.

I have none.

If I could inquire, I thought the gentleman was closing.

Mr. Speaker, shortly, I will be offering an amendment to the rule, which is necessary to alleviate the budgetary point of order that currently lies against the defense bill. In addition to clearing a point of order, we hope it will expedite the consideration in the Senate of this critically important bill.

Mr. Speaker, I yield myself such time as I may consume.

I think I have made my frustrations readily clear in regards to how we got to the current NDAA. It is troubling to see how the Senate's failure to act is going to end up costing our troops. To me, it is just not right to the men and women, the 1 percent of America that put their lives on the line for this country the Senate has turned a blind eye to.

I am optimistic, though, that with the changing of the guard in January, that we are actually going to get things done. We are actually going to pass legislation to address the issues that are so confronting this Nation that deserve to have discussions in both Houses. It is important that the Senate act. It is important that the Senate has debate. So I think that at the end of the day, in January with the changing of the guard, we are going to see a different set of facts as Congress moves forward.

I am really hopeful that Congress takes the steps, and Mr. McGovern talks about it, but we need to talk about the AUMF. We need to talk about those guiding principles that set up where we are today, things that were passed long before I came to Congress, authorizations that go back 12 to 13 years ago.

The landscape has changed, and we need to absolutely have a strong and long, hard debate in regards to how we authorize the use of force in the future in specific instances, as the Constitution requires.

When we talk about the Constitution, we talk about the President just ignoring it, the administration sidestepping Congress whenever it sees fit, the use of force is one of those areas, I think. And the same with what this administration has done in the underlying bills that this bill allows us to address in the President's recent executive order. The bill reaffirms that Congress--Congress--has the power to write the immigration laws. It reaffirms that the President must enforce the laws that are currently on the books, not something that he wishes, but what is currently law of the land.

Mr. Speaker, the President's actions have gotten so out of hand that we now must pass bills to remind him of what the Constitution sets, and that is a shame. We even have to remind the President of what he, himself, has said in the past about what is the appropriate role of the office of President.

Speaking in 2011 in a Univision town hall, the President stated:

With respect to the notion that I can just suspend

deportations through executive order, that is just not the

case because there are laws on the books.

He also said that Congress passes the laws, and it is the executive branch's job to enforce and implement those laws, and then it is up to the judiciary to interpret those laws if there is a question.

The President even said that there are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system. That, for me, is simple enough. And the President said that: through executive order, to ignore those congressional mandates would not conform with my appropriate role as President. I didn't say that; he said that. I am not a lawyer; he is a lawyer, a constitutional lawyer.

What he hasn't said to us, the American people, is in those 22 utterances where he said those things, why hasn't he justified to the American people that maybe he was wrong when he said that, he didn't get it right, he didn't understand. He never said anything like that. What he has done is come back and to say: Do you know what--and he said it before that--I have a pen and a phone. And he can do what he pleases.

Mr. Speaker, this is an unfortunate time when we have to call the President out for not following the Constitution. This is not something that I look forward to. It is not something that I want to do. But it is so important, as I have said before, that we respect the article I power that this body has in the Constitution, that our

Founding Fathers thought it was so important that there be a separation of powers so that there was no monarchy, so there was no one person that can call all the shots. They sought it because they needed to because of what the impression is that they left that they were under.

We are merely standing up for our rights as citizens of the United States, as I believe we should be enforcing the constitutional requirements, that founding document. Maybe I am wrong, but I don't think so. I have been wrong in the past, but on this particular issue, the Constitution is the document that we should live by. The Constitution sets forth the operation of this government, not by whim and not by decree, but by law. We are a nation of laws.

You have heard me talk about the NDAA, and I will say this to Mr. McGovern as it relates to authorization of military force. I agree wholeheartedly that we need to have a separate debate. We need to have it when we have a partner across the other side of the Capitol that will join in that debate about what we should be doing with the use of force and what we do as it relates to our men and women that serve.

Mr. Speaker, I urge my colleagues to support this rule and to support the checks and balances our Founders so thoughtfully crafted.

Amendment Offered by Mr. Nugent

Mr. Speaker, I offer an amendment to the resolution.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the amendment and on the resolution.

Mr. Speaker, I thank the gentlewoman for her remarks, and I thank the gentlewoman for yielding me this time.

Mr. Speaker, once again, we find ourselves in a situation where a group of people in the Central Valley--a small number of farmers in the Central Valley--have decided that if they can't have it their way, they are just going to roll over the process.

Now, we are confronted with a piece of legislation that was, in fact, much of it was withdrawn by the Senator from California because it became apparent to all of the interests in the State that there were no public hearings, there was no public participation, and it was a very narrow group of people sitting in the back room in the Capitol of the United States drafting legislation, where essentially everybody except the people in that room take a hit. The people in the room get a benefit.

How do they get the benefit? Because they extract more water than you can currently extract and still keep the State whole. They extract more water from a vibrant, commercial fishing industry. That is why the Senators in Oregon and the Pacific Fisheries Association are against this legislation.

This is a fishing industry that is worth hundreds of millions of dollars, and they are at risk if you operate under this legislation because this legislation overrides what the State agencies, what the Governor, what the Federal agencies, and what the Secretary of the Interior did this last time.

Mr. Speaker, when we got two surprise storms in March of this year, we went back to the drawing table, and we figured out how we could get more water out of this system to help these farmers in the Central Valley. That was a good faith effort. That was done within the law.

Now, what they want to do is eviscerate that law, take away those safeguards, and say, ``We are going to take additional water out this system.'' When they take that additional water out of the system, they take that additional water out of the water quality of hundreds of thousands of people who drink the water from the delta and rely on a fresh water supply.

We are quite aware of what happens in these dry years, and if you keep turning the pumps on, those people are going to start sucking-- those water districts are going to start taking saltwater out of the delta. They take it at the expense of the delta farmers who pump water in the delta. That water will become saltier and saltier, and they will not be able to plant their crops. They have limited time to plant their crops, as it is, under these droughts.

Everybody in this State is paying a price for this drought, but now, in the eleventh hour of this Congress, this group of farmers, these very powerful, small people--these very powerful, small people--have decided they are going to do it this way. We have seen this before.

We have worked year after year to get agreement, and when they can't get their way, they go off to a private meeting, they draft legislation, and that collapses all those talks, and then we start over again. This is about the third or fourth time we have been here because it is their way or the highway, and they absolutely expect that they can take water.

These are people who have a contract right. They have a contract right that is variable because they have the lowest water rights in the State, and so what they are trying to do is to say they get to get in line in front of everybody else in the State in exercising their water rights.

The fact of the matter is we understand exactly what this is going to do. That is why The Sacramento Bee, the Central Valley newspaper, the Fresno Central Valley newspaper said that this bill deserves to die. This bill deserves to die.

Mr. Speaker, I want to praise Senator Boxer for alerting the Members--they talked about working across the aisle. They worked across the aisle, but not with members of the House delegation who represent this impacted area who stand to lose these jobs and who stand to lose millions of dollars of economic activity.

I am not suggesting things are right for the people in the Central Valley or right for people in the State. Our whole State is suffering from a drought, but now, this is an eleventh hour attempt to say that we don't like the way you are coming together to do this, and we are going to take ours first.

This is contrary to what the State legislature did on a bipartisan basis and with the participation of legislatures from the Central Valley, from Southern California, from the Imperial Valley, and from north California.

This is contrary to what the State and Federal agencies did to try and work out and to get additional water, as we did in March. This is contrary. This is contrary to what the State legislature said about these being coequal values.

You have to protect the northern delta region, the origins of this water, and you have to try to have sustainable water deliveries to southern California. The legislature, again, on a bipartisan basis agreed to that.

Then, on the bond issue, overwhelmingly, State legislatures voted to put a bond on to try to deal with the drought, a rather remarkable issue, with the support of the Governor. Legislatures from southern California, from the Central Valley, and from north California voted to put it on the ballot.

The public across the State--Democrats, Republicans, and Independents from every region of the State--voted overwhelmingly to support the bond issue, and now, in the eleventh hour, this small group of people think that they can come and turn those expressions of State legislative intent, of State law, of Federal law, and of State environmental quality laws.

Mr. Speaker, we cannot let this happen. The suggestion is that, somehow, there is free water floating around out in that system and somebody is denying it. All of the water in this current system, especially in this drought, is for purposes to try to maintain a great Pacific coast salmon run that is tens and tens and tens--hundreds of millions of dollars in economic activity from the mouth of San Francisco Bay almost to Santa Barbara and from the mouth of San Francisco Bay almost to the Washington-Oregon border.

This impacts across State lines and the economy that that generates, the economy that that generates in the hospitality industry and the tourism industry, and the economy that generates in the delta. Yes, there have been cutbacks. There have been cutbacks. We have all had cutbacks, all of us; but now, you just don't get to go take your neighbor's water. You don't get to go do that.

We will try and try again, and with these storms, I assume there is going to be a renewal of the effort that was successful. It was successful for the Central Valley, it was successful for the biological opinions, and it was successful for the delta farmer; yet we moved a little additional water that we hadn't anticipated.

Now, with these storms, hopefully, we will be able to do the same things, but to write into the law that all of that water must always be moved as long as this law is in place is absolutely contrary to the interests of the rest of the State of California, whether they are in northern California or whether they are in the Central Valley or whether they are in southern California.

That is how we try to move this policy forward. It is a much better policy today than it has been in the past, but we have got to have this open hearing. We have got to discuss this among all of the members of the California delegation, among all of those who represent the taxpayers of this Nation.

The idea that you can just go into a room in the eleventh hour because you know the session is ending, and you are going to say, ``we have greater merit than anybody else, we are going to change this law,'' that is not the democratic process.

That is not the proper representation of the people we represent in the State of California, and it is absolutely contrary to what the State government has done and accomplished, what they have done and accomplished together with the Federal agencies, to try and make this work recognizing the incredible hardship that every region in our State is under.

The State is investing billions of dollars, and the private sector is investing billions of dollars to try to make us water efficient, to try to capture more

water and anticipate the building of dams.

All of these things are being done, but the idea that you can just come in and say: Well, you know what, we are tired with the process, we are impatient, even though we just voted for the bond issue, we are going to take our water now, and you do the best you can.

They are saying: You do the best you can. You do the best you can if that is your drinking water in towns across Alameda County. You do the best you can if that is the water you farm with. You just do the best you can. If it is too salty and raises health concerns and you can't grow your crops, that is tough because we are coming in line first. We are going to step in front of everyone else.

What you are going to ignite here with the passage of this bill, you are going to take us all back in time. As Senator Boxer pointed out, this reignites the California water wars, something that we tried to move away from, and we have made progress. I appreciate that those who are impatient and who think that they are given a greater right than in fact they are to water, that they believe now that they can just take it from their neighbor--just take it from their neighbor--that is an unacceptable process.

That is why Senator Feinstein withdrew from these negotiations, said she would come back next year and go through regular order and have the hearings that the people of California are entitled to so they know what is going on. And those of us who represent very disparate parts of the State will be able to participate and have hearings and understand how California together cannot only solve the current problem in terms of impacts, but also prepare the State for what most people tell us will be a series of droughts by changing the manner in which we manage water.

Everybody has to put into that pot, but this is somebody just reaching into the pot and saying: I am taking mine first and you all do whatever you want because we have changed the laws of the State, we have changed the laws of this Nation, we have overwritten the biological opinions from the courts, and we have overwritten the basic environmental laws of the State and the Nation. So we are going to get ours first, and then you do the best you can after that.

Those ramifications ripple across billions of dollars in our economy, just as this drought has rippled across billions of dollars in our economy because of the hardships in agriculture and the shortening of seasons in fishing.

I urge my colleagues not to support this legislation and demand that we have an open process and that we do not cave in to the same group of people who have been trying to do this for 50 years.