H.Res. 770

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.

I thank the gentleman for yielding.

Mr. Speaker, I rise with a sense of moral indignation that we would want to block parents from loving their children, children from loving their parents, and deporting persons who have no reason to criminally act in this Nation.

I join with the President in saying let us keep families and deport felons. That is a discretion that is given by the law to allow Presidents to take care and ensure that the laws are enforced properly.

This legislation is wrongheaded and misdirected. Allow me to say that this November 20 executive order is now being retroactively judged by this Congress. That is not the Congress' responsibility. The Congress, if they desire to do so, as they have done on many occasions, is to bring this to the judicial courts. But if they do so, they will find that the law has dictated that courts grant without much interest in deciding whether or not an administrative decision has been made with fault. The President, through his executive order, is making an administrative decision in terms of how laws are prosecuted.

Just yesterday, the State of Texas and a number of other States filed a lawsuit against the executive actions announced by the President on November 20. Much to my surprise--and, of course, with great joy--the Fifth Circuit Court of Appeals appears to have already issued a decision, dismissing such a complaint. It did so in 1997 when Governor George W. Bush was arguing that the Federal Government's failure to enforce our immigration laws violated article I, and the court rejected Texas' argument that the Federal Government had breached a nondiscretionary duty to control immigration under the Immigration and Nationality Act.

Specifically, the court said: ``We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate.'' Why? Because there is an interpretation of the law and an administrative component of the law.

Likewise, in Heckler v. Chaney, the Court said: ``An agency's decision not to take enforcement actions is unreviewable under the Administrative Procedure Act because a court has no workable standard against which to judge the agency's exercise of discretion.''

The President of the United States is not exercising discretion of executive order. He is instructing and giving guidance to administrative agencies who will make decisions accordingly to the framework of making sure that those who are felons are out but families are not.

If you want to stop human trafficking, if you want to have a conscience in this Nation, if you want to protect the vulnerable, if you want to keep young people who are bright-eyed simply to serve in the United States military----

I thank the gentleman for his kindness.

Mr. Speaker, if you want to recognize those individuals who have come here to do what is right and if you want to stop the siege of human trafficking, as I have said, where Houston is the epicenter of such, where we see it every day, where people are out of the shadows, if you want to do that, then you will vote against this misdirected law and you will read the constitutional dictates--first from the Fifth Circuit Court of Appeals, then from the United States Supreme Court in Arizona v. United States--and understand that the President has the executive authority to do just what he has done, to be a moral keeper and to give discretion to the law.

Mr. Speaker, I rise in opposition to the rule governing debate of H.R. 5759, the so-called ``Preventing Executive Overreach On Immigration Act,'' and the underlying bill.

I oppose the rule and the underlying bill because it is nothing more than the Republican majority's latest partisan attack on the President and another diversionary tactic to avoid addressing the challenge posed by the nation's broken immigration system.

Mr. Speaker, H.R. 5759, which by all appearances was hastily introduced on November 20, 2014, without evident deliberation for the ostensible purpose of establishing a retroactive ``rule of construction clarifying the limitations on executive authority to provide certain forms of immigration relief.''

As originally drafted and introduced the bill provided:

No provision of the United States Constitution, the Immigration and Nationality Act, or other Federal law shall be interpreted or applied to authorize the executive branch of the Government to exempt, by Executive order, regulation, or any other means, categories of persons unlawfully present in the United States from removal under the immigration laws (as such term is defined in section 101 of the Immigration and Nationality Act).

Any action by the executive branch with the purpose of circumventing the objectives of this statute shall be null and void and without legal effect.

Although the bill was referred to the Committee on the Judiciary, upon which I have served throughout my ten terms in Congress, no hearing or markup of the bill was ever held. And it shows.

The most obvious and fatal flaw in the bill as introduced and considered by the Rules Committee is its attempt to dictate to the federal judiciary how the Constitution is to be interpreted--``No provision of the United States Constitution . . . shall be interpreted or applied to authorize the executive branch . . .''

Mr. Speaker, it has been settled law for 211 years, since 1803, when the Supreme Court decided the landmark case of Marbury v. Madison that the federal courts, and ultimately, the Supreme Court are the arbiters when it comes to interpreting the Constitution and the laws. As Chief Justice John Marshall stated in Marbury:

``It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.''

Had regular order been followed and this ill-conceived bill been subject to hearing and markup this fatal deficiency would have been revealed and made plain and the bill likely would have died a quiet death.

Mr. Speaker, because H.R. 5759 was so poorly conceived and drafted, it would have embarrassed the Republican leadership to bring the bill to floor in its original form so the bill was amended in the Rules Committee, which made in order an Amendment in the

Nature of a Substitute (ANS) that tries--but does not succeed--in remedying the many deficiencies of the original bill.

As amended and reported by the Rules Committee, H.R. 5759 seeks to prohibit the executive branch from exempting or deferring from deportation any immigrants considered to be unlawfully present in the United States under U.S. immigration law, and to prohibit the administration from treating those immigrants as if they were lawfully present or had lawful immigration status.

The amended bill now includes three exceptions to this prohibition:

1. ``to the extent prohibited by the Constitution:''

2. ``upon the request of Federal, State, or local law enforcement agencies, for purposes of maintaining aliens in the United States to be tried for crimes or to be witnesses at trial''; and

3. ``for humanitarian purposes where the aliens are at imminent risk of serious bodily harm or death.''

The amended bill seeks to make November 20, 2014 the effective date of these prohibitions--thereby retroactively blocking the executive actions taken on that date by President Obama to address our broken immigration system by providing smarter enforcement at the border, prioritize deporting felons--not families--and allowing certain undocumented immigrants, including the parents of U.S. citizens and lawful residents, who pass a criminal background check and pay taxes to temporarily stay in the U.S. without fear of deportation.

Mr. Speaker, let me briefly discuss why the executive actions taken by President Obama are reasonable, responsible, and within his constitutional authority.

Under Article II, Section 3 of the Constitution, the President, the nation's Chief Executive, ``shall take Care that the Laws be faithfully executed.''

In addition to establishing the President's obligation to execute the law, the Supreme Court has consistently interpreted the Take Care Clause as ensuring presidential control over those who execute and enforce the law and the authority to decide how best to enforce the laws. See, e.g., Arizona v. United States; Bowsher v. Synar; Buckley v. Valeo; Printz v. United States; Free Enterprise Fund v. PCAOB.

Every law enforcement agency, including the agencies that enforce immigration laws, has ``prosecutorial discretion''--the power to decide whom to investigate, arrest, detain, charge, and prosecute.

Agencies, including the U.S. Department of Homeland Security (DHS), may develop discretionary policies specific to the laws they are charged with enforcing, the population they serve, and the problems they face so that they can prioritize resources to meet mission critical enforcement goals.

Executive authority to take action is thus ``fairly wide'', indeed the federal government's discretion is extremely ``broad''; as the Supreme Court held in the recent case of Arizona v. United States, 132 S. Ct. 2492, 2499 (2012), an opinion written Justice Kennedy and joined by Chief Justice Roberts:

``Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. 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. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.'' (emphasis added) (citations omitted).

The Court's decision in Arizona v. United States, also strongly suggests that the executive branch's discretion in matters of deportation may be exercised on an individual basis, or it may be used to protect entire classes of individuals such as ``[u]nauthorized workers trying to support their families'' or immigrants who originate from countries torn apart by internal conflicts:

``Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.

Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.

The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities.''

Mr. Speaker, in exercising his broad discretion in the area of removal proceedings, President Obama has acted responsibly and reasonably in determining the circumstances in which it makes sense to pursue removal and when it does not.

In exercising this broad discretion, President Obama has not done anything that is novel or unprecedented.

Here are just a few examples of executive action taken by several presidents, both Republican and Democratic, on issues affecting immigrants over the past 35 years:

1. In 1980, President Jimmy Carter exercised parole authority to allow Cubans to enter the U.S., and about 123,000 ``Mariel Cubans'' were paroled into the U.S. by 1981.

2. In 1987, President Ronald Reagan used executive action in 1987 to allow 200,000 Nicaraguans facing deportation to apply for relief from expulsion and work authorization.

3. In 1990, President George H.W. Bush issued an executive order that granted Deferred Enforced Departure (DED) to certain nationals of the People's Republic of China who were in the United States.

4. In 1992, the Bush administration granted DED to certain nationals of El Salvador.

5. In 1997, President Bill Clinton issued an executive order granting DED to certain Haitians who had arrived in the United States before Dec. 31, 1995.

6. In 2010 the Obama administration began a policy of granting parole to the spouses, parents, and children of military members.

Mr. Speaker, because of the President's leadership and far-sighted executive action, 594,000 undocumented immigrants in my home state of Texas are eligible for deferred action.

If these immigrants are able to remain united with their families and receive a temporary work permit, it would lead to a $338 million increase in tax revenues, over five years.

Mr. Speaker, the President's laudable executive actions are a welcome development but not a substitute modernizing the nation's immigration laws. Only Congress can do that.

America's borders are dynamic, with constantly evolving security challenges. Border security must be undertaken in a manner that allows actors to use pragmatism and common sense.

And as shown by the success of H.R. 17, the bipartisan ``Border Security Results Act, which I helped to write and introduced along with the senior leaders of the House Homeland Security Committee, we can do this without putting the nation at risk or rejecting our national heritage as a welcoming and generous nation.

This legislation has been incorporated in H.R. 15, the bipartisan ``Border Security, Economic Opportunity, and Immigration Modernization Act,'' legislation which reflects nearly all of the core principles announced earlier this year by House Republicans.

As a nation of immigrants, the United States has set the example for the world as to what can be achieved when people of diverse backgrounds, cultures, and experiences come together.

It is now time to open the golden symbolized by Lady Liberty's lamp to the immigrant community of today so they can participate fully in the American Dream.

These loyal and law-abiding persons have been waiting patiently for far too long for their chance.

We can and should seize this historic opportunity to pass legislation to ensure that we have in place adequate systems and resources to secure our borders while at the same time preserving America's character as the most open and welcoming country in the history of the world and to reap the hundreds of billions of dollars in economic productivity that will result from comprehensive immigration reform.

President Obama has acted boldly, responsibly, and compassionately in exercising his constitutional authority to enforce the immigration laws in an effective and humane manner.

If congressional Republicans, who have refused to debate comprehensive immigration reform legislation for more than 500 days, disapprove of the lawful actions taken by the President, an alternative course of action is readily available to them: pass a bill and send it to the President for signature.

The President has shown responsible leadership. The next step is up to congressional Republicans.

I urge all Members to join me in opposing the rule and the underlying bill.

Just yesterday, the State of Texas and a number of other States filed a lawsuit challenging the executive actions announced by the President on November 20. The lawsuit,

which will be known as Texas v. United States of America, was filed in the U.S. District Court for the Southern District of Texas.

Much to my surprise, the Fifth Circuit Court of Appeals appears to have already issued a decision dismissing the Complaint. In the case of Texas v. United States--sound similar?--the Fifth Circuit in 1997 dismissed a lawsuit by then Governor George W. Bush arguing that the Federal Government's failure to enforce our immigration laws violated Article I, Section 8, Clause 4 of the Constitution--the Naturalization Clause. The Fifth Circuit also rejected Texas's argument that the Federal Government had breached a nondiscretionary duty to control immigration under the Immigration and Nationality Act.

In rejecting the Naturalization Clause argument, the Fifth Circuit wrote that ``A judicial action presents a nonjusticiable political question not amenable to judicial resolution where there is . . . a lack of judicially discoverable and manageable standards for resolving it.'' In this case, the Court stated plainly that ``We are not aware of and have difficulty conceiving of any judicially discoverable standards for determining whether immigration control efforts by Congress are constitutionally adequate.'' Of course the President lawsuit challenges the enforcement actions of the President, not of Congress, but the broader point is the same.

In rejecting the statutory claim brought by Texas, the Court cited the Administrative Procedure Act and Heckler v. Chaney--the Supreme Court's leading case on the non-reviewability of agency decisions not to take enforcement actions--for the proposition that ``An agency's decision not to take enforcement actions is unreviewable under the Administrative Procedure Act because a court has no workable standard against which to judge the agency's exercise of discretion.''

At a time when illegal border crossings was at its peak--1.5 million returns each year in 1996 and 1997--the Court stated: ``We reject out- of-hand the State's contention that the federal defendants' alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty. The State does not contend that federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.''

During this President's tenure, well over 2 million people have been formally removed from this country. Prosecutions for illegal entry and reentry after removal have increased exponentially. And even if 5 million people come forward and receive temporary protection from removal through DACA and the new Deferred Action for Parental Accountability program, there will still be well over 6 million undocumented immigrants who have received no such protection. With funds to deport no more than 400,000 people each year I assure my colleagues on the other side of the aisle that the President is in no danger of ``doing nothing to enforce the immigration laws'' and that he had not ``consciously decided to abdicate [his] enforcement responsibilities.''

The argument that the President has declared that he will no longer enforce our immigration laws is offensive to the 34,000 people-- including thousands of women and children--who are sitting in detention centers today waiting for their day in court. It is also frivolous.

The lawsuit filed yesterday will fail and this bill never will become law. Rather, the President's actions will soon take effect and will bring a small measure of sanity to our broken immigration system.

Mr. Speaker, I rise in opposition to the rule governing debate of H.R. 5759, the so-called ``Preventing Executive Overreach On Immigration Act,'' and the underlying bill.

I oppose the rule and the underlying bill because it is nothing more than the Republican majority's latest partisan attack on the President and another diversionary tactic to avoid addressing the challenge posed by the nation's broken immigration system.

Mr. Speaker, H.R. 5759, which by all appearances was hastily introduced on November 20, 2014, without evident deliberation for the ostensible purpose of establishing a retroactive ``rule of construction clarifying the limitations on executive authority to provide certain forms of immigration relief.''

As originally drafted and introduced the bill provided:

No provision of the United States Constitution, the

Immigration and Nationality Act, or other Federal law shall

be interpreted or applied to authorize the executive branch

of the Government to exempt, by Executive order, regulation,

or any other means, categories of persons unlawfully present

in the United States from removal under the immigration laws

(as such term is defined in section 101 of the Immigration

and Nationality Act).

Any action by the executive branch with the purpose of

circumventing the objectives of this statute shall be null

and void and without legal effect.

Although the bill was referred to the Committee on the Judiciary, upon which I have served throughout my ten terms in Congress, no hearing or markup of the bill was ever held. And it shows.

The most obvious and fatal flaw in the bill as introduced and considered by the Rules Committee is its attempt to dictate to the federal judiciary how the Constitution is to be interpreted--``No provision of the United States Constitution . . . shall be interpreted or applied to authorize the executive branch . . .''

Mr. Speaker, it has been settled law for 211 years, since 1803, when the Supreme Court decided the landmark case of Marbury v. Madison that the federal courts, and ultimately, the Supreme Court are the arbiters when it comes to interpreting the Constitution and the laws. As Chief Justice John Marshall stated in Marbury:

It is emphatically the province and duty of the judicial

department to say what the law is. Those who apply the rule

to particular cases, must of necessity expound and interpret

that rule. If two laws conflict with each other, the courts

must decide on the operation of each.

Had regular order been followed and this ill-conceived bill been subject to hearing and markup this fatal deficiency would have been revealed and made plain and the bill likely would have died a quiet death.

Mr. Speaker, because H.R. 5759 was so poorly conceived and drafted, it would have embarrassed the Republican leadership to bring the bill to floor in its original form so the bill was amended in the Rules Committee, which made in order an Amendment in the Nature of a Substitute (ANS) that tries--but does not succeed--in remedying the many deficiencies of the original bill.

As amended and reported by the Rules Committee, H.R. 5759 seeks to prohibit the executive branch from exempting or deferring from deportation any immigrants considered to be unlawfully present in the United States under U.S. immigration law, and to prohibit the administration from treating those immigrants as if they were lawfully present or had lawful immigration status.

The amended bill now includes three exceptions to this prohibition:

1. ``to the extent prohibited by the Constitution;''

2. ``upon the request of Federal, State, or local law

enforcement agencies, for purposes of maintaining aliens in

the United States to be tried for crimes or to be witnesses

at trial''; and

3. ``for humanitarian purposes where the aliens are at

imminent risk of serious bodily harm or death.''

The amended bill seeks to make November 20, 2014 the effective date of these prohibitions--thereby retroactively blocking the executive actions taken on that date by President Obama to address our broken immigration system by providing smarter enforcement at the border, prioritize deporting felons--not families--and allowing certain undocumented immigrants, including the parents of U.S. citizens and lawful residents, who pass a criminal background check and pay taxes to temporarily stay in the U.S. without fear of deportation.

Mr. Speaker, let me briefly discuss why the executive actions taken by President Obama are reasonable, responsible, and within his constitutional authority.

Under Article II, Section 3 of the Constitution, the President, the nation's Chief Executive, ``shall take Care that the Laws be faithfully executed.''

In addition to establishing the President's obligation to execute the law, the Supreme Court has consistently interpreted the Take Care Clause as ensuring presidential control over those who execute and enforce the law and the authority to decide how best to enforce the laws. See, e.g., Arizona v. United States; Bowsher v. Synar; Buckley v. Valeo; Printz v. United States; Free Enterprise Fund v. PCAOB.

Every law enforcement agency, including the agencies that enforce immigration laws, has ``prosecutorial discretion''--the power to decide whom to investigate, arrest, detain, charge, and prosecute.

Agencies, including the U.S. Department of Homeland Security (DHS), may develop discretionary policies specific to the laws they are charged with enforcing, the population they serve, and the problems they face so that they can prioritize resources to meet mission critical enforcement goals.

Executive authority to take action is thus ``fairly wide,'' indeed the federal government's discretion is extremely ``broad'' as the Supreme Court held in the recent case of Arizona V. United States, 132 S. Ct. 2492, 2499 (2012), an opinion written Justice Kennedy and joined by Chief Justice Roberts:

Congress has specified which aliens may be removed from the

United States and the procedures for doing so. Aliens may be

removed if they were inadmissible at the time of entry, have

been convicted of certain crimes, or meet other criteria set

by federal law. Removal is a civil, not criminal, matter. 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. If removal proceedings

commence, aliens may seek asylum and other discretionary

relief allowing them to remain in the country or at least to

leave without formal removal. (emphasis added) (citations

omitted).

The Court's decision in Arizona v. United States, also strongly suggests that the executive branch's discretion in matters of deportation may be exercised on an individual basis, or it may be used to protect entire classes of individuals such as ``[u]nauthorized workers trying to support their families'' or immigrants who originate from countries torn apart by internal conflicts:

Discretion in the enforcement of immigration law embraces

immediate human concerns. Unauthorized workers trying to

support their families, for example, likely pose less danger

than alien smugglers or aliens who commit a serious crime.

The equities of an individual case may turn on many factors,

including whether the alien has children born in the United

States, long ties to the community, or a record of

distinguished military service.

Some discretionary decisions involve policy choices that

bear on this Nation's international relations. Returning an

alien to his own country may be deemed inappropriate even

where he has committed a removable offense or fails to meet

the criteria for admission. The foreign state may be mired in

civil war, complicit in political persecution, or enduring

conditions that create a real risk that the alien or his

family will be harmed upon return.

The dynamic nature of relations with other countries

requires the Executive Branch to ensure that enforcement

policies are consistent with this Nation's foreign policy

with respect to these and other realities.

Mr. Speaker, in exercising his broad discretion in the area of removal proceedings, President Obama has acted responsibly and reasonably in determining the circumstances in which it makes sense to pursue removal and when it does not.

In exercising this broad discretion, President Obama has not done anything that is novel or unprecedented.

Here are a just a few examples of executive action taken by several presidents, both Republican and Democratic, on issues affecting immigrants over the past 35 years:

1. In 1980, President Jimmy Carter exercised parole authority to allow Cubans to enter the U.S., and about 123,000 ``Mariel Cubans'' were paroled into the U.S. by 1981.

2. In 1987, President Ronald Reagan used executive action in 1987 to allow 200,000 Nicaraguans facing deportation to apply for relief from expulsion and work authorization.

3. In 1990, President George H.W. Bush issued an executive order that granted Deferred Enforced Departure (DED) to certain nationals of the People's Republic of China who were in the United States.

4. In 1992, the Bush administration granted DED to certain nationals of El Salvador.

5. In 1997, President Bill Clinton issued an executive order granting DED to certain Haitians who had arrived in the United States before Dec. 31, 1995.

6. In 2010 the Obama administration began a policy of granting parole to the spouses, parents, and children of military members.

Mr. Speaker, because of the President's leadership and far-sighted executive action, 594,000 undocumented immigrants in my home state of Texas are eligible for deferred action.

If these immigrants are able to remain united with their families and receive a temporary work permit, it would lead to a $338 million increase in tax revenues, over five years.

Mr. Speaker, the President's laudable executive actions are a welcome development but

not a substitute modernizing the nation's immigration laws. Only Congress can do that.

America's borders are dynamic, with constantly evolving security challenges. Border security must be undertaken in a manner that allows actors to use pragmatism and common sense.

And as shown by the success of H.R. 17, the bipartisan ``Border Security Results Act, which I helped to write and introduced along with the senior leaders of the House Homeland Security Committee, we can do this without putting the nation at risk or rejecting our national heritage as a welcoming and generous nation.

This legislation has been incorporated in H.R. 15, the bipartisan ``Border Security, Economic Opportunity, and Immigration Modernization Act,'' legislation which reflects nearly all of the core principles announced earlier this year by House Republicans.

As a nation of immigrants, the United States has set the example for the world as to what can be achieved when people of diverse backgrounds, cultures, and experiences come together.

It is now time to open the golden symbolized by Lady Liberty's lamp to the immigrant community of today so they can participate fully in the American Dream.

These loyal and law-abiding persons have been waiting patiently for far too long for their chance.

We can and should seize this historic opportunity pass legislation to ensure that we have in place adequate systems and resources to secure our borders while at the same time preserving America's character as the most open and welcoming country in the history of the world and to reap the hundreds of billions of dollars in economic productivity that will result from comprehensive immigration reform.

President Obama has acted boldly, responsibly, and compassionately in exercising his constitutional authority to enforce the immigration laws in an effective and humane manner.

If congressional Republicans, who have refused to debate comprehensive immigration reform legislation for more than 500 days, disapprove of the lawful actions taken by the President, an alternative course of action is readily available to them: pass a bill and send it to the President for signature.

The President has shown responsible leadership. The next step is up to congressional Republicans.

I urge all Members to join me in opposing the rule and the underlying bill.

I thank the gentleman for yielding.

Mr. Speaker, everyone in Congress and most people in this country understand that our immigration system is broken and needs to be fixed. Our colleagues on the other side of the aisle have blocked a bipartisan Senate bill from coming to the floor, and President Obama has taken action that he is legally permitted and morally obligated to take.

Executive orders are not unusual. Every President since President Eisenhower has used this authority to take action on immigration issues, including six Republican Presidents.

So, Mr. Speaker, when the gentleman from Florida said voting against his bill is like voting against the Constitution, I suggest it is just the opposite. The contours for the executive authority of the President are defined in the Constitution and by precedent of the courts. There is no question that the President has the authority to exercise prosecutorial discretion in this regard. So, in fact, voting for this bill undermines the Constitution because the executive authority of the President is set forth in the Constitution of the United States.

We all recognize there are 11 million undocumented residents of this country. We don't allocate resources to deport all 11 million. We allocate resources to deport about 400,000, which means, by definition, we are asking the department to set priorities in deciding whom to deport. Setting those priorities ensures that they deport the most serious offenders, people who pose threats to our communities.

That act of prosecutorial discretion is what is reflected in the President's executive order.

It is very important to understand that there is practically very little question from legal scholars.

I insert in the Record a letter which has the signature of 136 law professors who support the constitutionality of this provision, as well as a separate letter from additional titans in the legal community, beginning with President Lee Bollinger from Columbia University, Adam Cox from New York University, Walter Dellinger, and several other legal scholars.

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. 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. Prosecutorial discretion is a long-

accepted legal practice in practically every law enforcement

context, 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 to

Notice to Appear with the immigration court, as well as

decisions to provide a discretionary remedy like granting a

stay of removal, parole, or deferred action.

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. 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 . . . .'' 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. 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. 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. 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.' 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. 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: 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 . . .'' 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.

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. 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.

Presidents Reagan and Bush took these actions, even though

Congress had decided to exclude them from IRCA. 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, and ``Deferred Enforcement

Departure'' for certain Liberians in 2007.'' Several decades

earlier, the Reagan administration issued a form of

prosecutorial discretion called ``Extended Voluntary

Departure'' in 1981 to thousands of Polish nationals. 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. 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.'' 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. 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.

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, University of

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

Wadhia, Pennsylvania State University Dickinson School of

Law; Stephen H. Legomsky, Washington University School of

Law; David Abraham, University of Miami School of Law; Raquel

Aldana, University of the Pacific, McGeorge School of Law;

Farrin R. Anello, Seton Hall University School of Law;

Deborah Anker, Harvard Law School; Sabrineh Ardalan, Harvard

Law School; David C. Baluarte, Washington and Lee University

School of Law; Melynda Barnhart, New York Law School; Jon

Bauer, University of Connecticut School of Law; Lenni B.

Benson, New York Law School; Jacqueline Bhabha, Harvard Law

School;

Linda Bosniak, Rutgers University School of Law-Camden;

Richard A. Boswell, U.C. Hastings College of the Law; Jason

A. Cade, University of Georgia Law School; Janet Calvo, CUNY

School of Law, New York; Kristina M. Campbell, University of

the District of Columbia David A. Clarke School of Law; Stacy

Caplow, Brooklyn Law School; Benjamin Casper, University of

Minnesota Law School; Linus Chan, University of Minnesota;

Howard F. Chang, University of Pennsylvania Law School;

Michael J. Churgin, University of Texas at Austin; Marisa

Cianciarulo, Chapman University Dale E. Fowler School of Law;

Evelyn Cruz, Arizona State University; Ingrid Eagly, UCLA

School of Law; Philip Eichorn, Cleveland State--Cleveland

Marshall School of Law;

Bram T. Elias, University of Iowa College of Law; Stella

Burch Elias, University of Iowa College of Law; Jill E.

Family, Widener University School of Law; Niels Frenzen,

University of Southern California; Maryellen Fullerton,

Brooklyn Law School; Cesar Cuauhtemoc Garcia Hernandez,

University of Denver Sturm College of Law; Lauren Gilbert,

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

University of Texas School of Law; John F. Gossart, Jr.,

University of Maryland School of Law; P. Gulasekaram, Santa

Clara University; Anju Gupta, Rutgers School of Law--Newark;

Susan R. Gzesh, University of Chicago; Jonathan Hafetz, Seton

Hall University; Dina Francesca Haynes, New England Law,

Boston; Susan Hazeldean, Cornell Law School;

Ernesto Hernandez-Lopez, Chapman University; Laura A.

Hernandez, Baylor Law School; Michael Heyman, John Marshall

Law School; Barbara Hines, University of Texas School of Law;

Laila L. Hlass, Boston University School of Law; Geoffrey

Hoffman, University of Houston Law Center; Mary Holper,

Boston College Law School; Alan Hyde, Rutgers University

School of Law--Newark; Kate Jastram, University of

California, Berkeley, School of Law; Kit Johnson, University

of Oklahoma College of Law; Anil Kalhan, Drexel University

Kline School of Law; Daniel Kanstroom, Boston College Law

School; Elizabeth Keyes, University of Baltimore School of

Law; Kathleen Kim, Loyola Law School Los Angeles; David C.

Koelsch, University of Detroit Mercy School of Law; Jennifer

Lee Koh, Western State College of Law;

Kevin Lapp, Loyola Law School, Los Angeles; Christopher

Lasch, University of Denver Sturm College of Law; Jennifer J.

Lee, Temple University Beasley School of Law; Stephen Lee,

University of California, Irvine; Christine Lin, University

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

Villanova University School of Law; Stephen Manning, Lewis &

Clark College; Lynn Marcus, University of Arizona James E.

Rogers College of Law; Miriam H. Marton, University of Tulsa

College of Law; Elizabeth McCormick, University of Tulsa

College of Law; M. Isabel Medina, Loyola University New

Orleans College of Law; Stephen Meili, University of

Minnesota Law School; Vanessa Merton, Pace University School

of Law; Andrew Moore, University of Detroit Mercy School of

Law; Jennifer Moore, University of New Mexico School of Law;

Daniel I. Morales, DePaul University College of Law; Nancy

Morawetz, NYU School of Law; Karen Musalo, U.C. Hastings

College of the Law; Alizabeth Newman, CUNY School of Law;

Noah Novogrodsky, University of Wyoming College of Law;

Fernando A. Nunez, Charlotte School of Law; Mariela Olivares,

Howard University School of Law; Michael A. Olivas,

University of Houston Law Center; Patrick D. O'Neill, Esq.,

University of Puerto Rico School of Law; Sarah Paoletti,

University of Pennsylvania Law School; Sunita Patel, American

University, Washington College of Law; Huyen Pham, Texas A&M

University School of Law; Michele R. Pistone, Villanova

University School of Law; Luis F.B. Plascencia, Arizona State

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

Doris Marie Provine, Arizona State University; Nina Rabin,

James E. Rogers College of Law, University of Arizona;

Jaya Ramji-Nogales, Temple University, Beasley School of

Law; Renee C. Redman, University of Connecticut School of

Law; Ediberto Roman, Florida International University; Victor

C. Romero, Penn State Law; Joseph H. Rosen, Atlanta's John

Marshall Law School; Carrie Rosenbaum, Golden Gate University

School of Law; Rachel E. Rosenbloom, Northeastern University

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

Irvine; Ted Ruthizer, Columbia Law School; Leticia M.

Saucedo, UC Davis School of Law; Heather Scavone, Elon

University School of Law; Andrew I. Schoenholtz, Georgetown

Law; Philip Schrag, Georgetown University Law Center; Bijal

Shah, NYU School of Law; Ragini Shah, Suffolk University Law

School; Careen Shannon, Yeshiva University, Benjamin N.

Cardozo School of Law; Anna Williams Shavers, University of

Nebraska College of Law; Bryn Siegel, Pacific Coast

University School of Law;

Anita Sinha, American University, Washington College of

Law; Dan R. Smulian, Brooklyn Law School; Gemma Solimene,

Fordham University School of Law; Jayashri Srikantiah,

Stanford Law School; Juliet Stumpf, Lewis & Clark Law School;

Maureen A. Sweeney, University of Maryland Carey School of

Law; Barbara Szweda, Lincoln Memorial University Duncan

School of Law; Margaret H. Taylor, Wake Forest University

School of Law; David Thronson, Michigan State University

College of Law; Allison Brownell Tirres, DePaul University

College of Law; Scott Titshaw, Mercer University School of

Law; Phil Torrey, Harvard Law School; Enid Trucios-Haynes,

Louis D. Brandeis School of Law, University of Louisville;

Diane Uchimiya, University of La Verne College of Law;

Gloria Valencia-Weber, University of New Mexico School of

Law; Sheila I. Velez Martinez, University of Pittsburgh

School of Law; Alex Vernon, Ave Maria School of Law; Rose

Cuison Villazor, University of California at Davis School of

Law; Leti Volpp, University of California, Berkeley; Jonathan

Weinberg, Wayne State University; Deborah M. Weissman,

University of North Carolina at Chapel Hill; Lisa Weissman-

Ward, Stanford Law School; Anna R. Welch, University of Maine

School of Law; Virgil O. Wiebe, University of St. Thomas

School of Law, Minneapolis; Michael J. Wishnie, Yale Law

School; Stephen Yale-Loehr, Cornell University Law School;

Elizabeth Lee Young, University of Arkansas School of Law.

Mr. Speaker, the President's executive order will ensure that we have a safer country, that we will grow our economy, and that we will keep families together. I strongly urge my colleagues to reject this Republican proposal and to allow the President's executive order to remain.

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, pursuant to House Resolution 770, I call up the bill (H.R. 5759) to establish a rule of construction clarifying the limitations on executive authority to provide certain forms of immigration relief, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 5759.

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

Mr. Speaker, I urge my colleagues to support Mr. Yoho's important bill, the Preventing Executive Overreach on Immigration Act of 2014.

President Obama has just announced one of the biggest constitutional power grabs ever by a President. He has declared unilaterally that, by his own estimation, more than 4 million unlawful immigrants will be free from the legal consequences of their lawless actions.

Not only that, he will, in addition, bestow upon them gifts such as work authorization and other immigration benefits. This despite the fact that President Obama has stated, over 20 times in the past, that he does not have the constitutional power to take such steps on his own and has repeatedly stated, ``I'm not a king.''

Pursuant to article I, section 8, of the Constitution, only Congress has the power to write immigration laws. Our Founding Fathers established this separation of powers to prevent tyranny. As James Madison wrote:

No political truth is certainly of greater intrinsic value

or is stamped with the authority of more enlightened patrons

of liberty than that . . . the accumulation of all powers

legislative, executive, and judiciary, in the same hands,

whether of one, a few, or many, and whether hereditary, self-

appointed, or elective, may justly be pronounced the very

definition of tyranny.

President Obama is, in effect, rewriting our immigration laws by granting deferred action to more than 4 million unlawful aliens.

Pursuant to article II, section 3, of the Constitution, the President is required to ``take care that the laws be faithfully executed''; yet President Obama is refusing to enforce our immigration laws for these millions of unlawful aliens.

President Obama justifies his actions by claiming that his administration is merely exercising the power of prosecutorial discretion; yet as Clinton administration INS Commissioner Doris Meissner told her agency, ``Exercising prosecutorial discretion does not lessen the INS' commitment to enforce the immigration laws to the best of our ability.''

While previous Presidents have provided immigration relief to groups of aliens, usually their actions were based on emergencies in foreign countries, thereby relying upon the broad constitutional power given to a President to conduct foreign affairs.

Without any such foreign crisis and in granting deferred action to a totally unprecedented number of aliens, President Obama has clearly exceeded his constitutional authority.

I commend Mr. Yoho for introducing his bill, which undoes the damage to our constitutional system that President Obama's actions are causing. The bill reaffirms the constitutional principles that only Congress has the power to write immigration laws and that the President must enforce those laws.

Mr. Yoho's bill prevents President Obama or any future President from exempting or deferring the removal of categories of unlawful aliens, except to the extent that the President is relying on his constitutional powers over foreign affairs or utilizing exceptions provided for in the bill for exceptional humanitarian and law enforcement circumstances.

The bill prevents President Obama or any future President from considering such aliens to be lawfully present in the United States and thus ineligible for the rights and privileges available to lawfully present aliens.

It prevents President Obama or any future President from granting work authorization to such aliens.

Finally, the bill takes effect as if enacted on November 20, 2014, thus nullifying the President's recent executive actions. I, again, urge my colleagues to vote for this necessary bill.

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

Mr. Speaker, I yield myself 30 seconds to clarify a couple of things.

First of all, it is not true that the House of Representatives has not acted to fix our broken immigration system. First of all, last summer, we passed two bills, one from the Appropriations Committee and one under the jurisdiction of the Judiciary Committee, that did just that, that provided resources to secure our borders to stop the surge of illegal immigrants coming into our country and make sure that the similarly unconstitutional DACA program that the President implemented earlier was frozen and could not proceed further. So, to me, that is simply not true.

I yield myself an additional 15 seconds to say that the fact of the matter is that when you talk about taxes, there is no requirement in the President's executive order that anyone who qualifies as an unlawful alien must get this administrative legalization to pay back taxes. There is none.

They have to pay taxes moving forward, but one of the benefits is they qualify for the earned income tax credit. So this could cost the taxpayers of the country even more.

Mr. Speaker, I yield 5 minutes to the gentleman from Florida (Mr. Yoho), the chief sponsor of the legislation.

Mr. Speaker, I yield myself 30 seconds.

I would point out that the Supreme Court decision in Heckler v. Chaney in no way justifies the claim that the President of the United States has this authority to issue this enormous order.

Nor do we have a situation where it could justifiably be

found that the agency has consciously and expressly adopted a

general policy that is so extreme as to amount to an

abdication of its statutory responsibilities.

That is what has happened here. The President has abdicated his statutory responsibilities in enforcing the law and changed the law, and that is why it cannot be upheld.

I yield 2 minutes to the gentleman from Missouri (Mr. Smith), a member of the Judiciary Committee.

Mr. Speaker, it is my pleasure to yield 3 minutes to the gentleman from Louisiana (Mr. Scalise), the majority whip.

Mr. Speaker, at this time, it is my pleasure to yield 2 minutes to the gentleman from Tennessee (Mr. Duncan).

Mr. Speaker, may I inquire how much time is remaining on each side.

Mr. Speaker, at this time, it is my pleasure to yield 2 minutes to the gentleman from California (Mr. McClintock).

Mr. Speaker, at this time, I am pleased to yield 3 minutes to the gentleman from Pennsylvania (Mr. Barletta).

Mr. Speaker, at this time, it is my pleasure to yield 1\1/2\ minutes to the gentleman from South Carolina (Mr. Sanford).

Mr. Speaker, at this time, it is my pleasure to yield 2 minutes to the gentleman from Georgia (Mr. Collins), a member of the Judiciary Committee.

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, it is always a pleasure to me to see former President Ronald Reagan, especially here in the House Chamber. I, in fact, voted for President Reagan twice and was proud to support him.

One of the things that I remember most about President Reagan was that great debate with his opponent in one of the Presidential debates in which he said, ``There he goes again,'' pointing out when his opponent said something inaccurate about him.

Well, there they go again because what we have today is something that is very, very different than what President Reagan did. President Reagan signed a law--a bill passed by the Congress and signed it into law, and then he found some things that he didn't think were correct, so he then took action.

In today's Washington Post, which I would cite for the gentleman from Illinois, its headline, The Washington Post editorial today, ``An action without precedent,'' so when he cites President Reagan as a precedent here, The Washington Post clearly refutes that by pointing out how small that was and how it was done in response to a specific, identifiable concern about legislation that had been passed. Guess what? The Congress then subsequently fixed it as well.

That is not what is occurring here today, and as The Washington Post notes, it is plain that the White House's numbers--the 1.5 million claim--are indefensible, and it is similarly plain that the scale of Mr. Obama's move goes far beyond anything his predecessors attempted and without legislation that had been passed to found it upon.

No, this is power grab of enormous proportion. It is unconstitutional. It is clearly what he said he was going to do when he came to this body.

I yield myself an additional 1 minute.

When he came to this body almost 3 years ago with his list of things that he wanted done, he said, ``If you don't do it, I will.'' On that occasion, some Members on that side of the aisle stood up and applauded.

Guess what? Since then, in health care reform, in the environment, in enforcement of our drug laws and in a whole host of other things, that is exactly what he has done, and he said he was going to do it. He said, ``I have my pen and my phone, and I will do it myself.''

Well, in this case, he has, on more than 20 occasions, said he did not have the authority to do it. Now, the folks on the other side of the aisle are saying, ``Oh, he didn't change the law.''

I yield myself an additional 30 seconds.

He didn't have the authority to change the law, but guess what? When he signed the order, here is what he said:

What you are not paying attention to is that I just took

action to change the law.

To change the law. Article I of the Constitution says the law is only changed by the United States Congress. Article III says the President shall faithfully execute the law. His actions are unconstitutional and they are unprecedented.

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

Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from Georgia (Mr. Kingston).

I yield an additional 30 seconds to the gentleman.

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

Mr. Speaker, I have one speaker remaining, and so I reserve the balance of my time to close.

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

Mr. Speaker, it has been said repeatedly that we need to do immigration reform, and I certainly don't disagree with that, but the United States Constitution says that immigration reform must be done by the United States Congress, and the President doesn't say, nor does the Constitution say, ``Hey, if the Congress doesn't do it or doesn't do it the way I like it, then I get the opportunity to do it myself.'' That is not what the Constitution says. It says the President shall faithfully execute the laws.

Now, the gentleman from New York, in talking about the impact of the President's executive action here says, ``Oh, the people who are here illegally and are taking jobs, they are taking jobs that Americans don't want.''

Well, maybe there is some truth to that, maybe some of them are not, but the fact of the matter is the President has unilaterally taken an executive order that would give every single one of the 4 million to 5 million undocumented people in the United States who take jobs, to take any job in the country they want to, as good a job, as high-paying a job as they want.

So, yes, we need to do immigration reform. The American people want us to do immigration reform, but they want us to start with enforcement first.

Instead, what the President has done, he has taken the law into his own hands. That is the real issue in this case and the real matter before the Congress and the real import of this legislation. It is not about where you are on immigration reform; it is about where you are on protecting the United States Constitution. Because this President's actions are unprecedented; this President's actions are beyond the pale; this President's actions are unconstitutional.

This legislation offered by the gentleman from Florida (Mr. Yoho) stops that. That is why every Member of the House should support this good legislation and make sure that we preserve what we are sworn under an oath to preserve, and that is the Constitution of the United States.

Ladies and gentlemen, I urge adoption of this legislation, and I yield back the balance of my time.

Mr. Speaker, I reserve a point of order against the motion to recommit.

Mr. Speaker, I withdraw my reservation of a point of order, and I claim the time in opposition to the gentleman's motion.

Mr. Speaker, first, I want to thank the gentleman from Florida (Mr. Yoho), also the gentleman from Idaho (Mr. Labrador) for the contribution he made to the language that is in this important bill to stop the President's unilateral action that is unconstitutional.

The gentleman offering the motion to recommit should note that the bill takes effect as if enacted on November 20, 2014. It nullifies the President's unlawful, unconstitutional executive order. It does not change all immigration law that provides already considerable statutory protection for our members of the Armed Forces of the United States and their families. It protects victims of domestic violence who successfully petition for relief; and Cuban nationals, as has been noted during the debate here, are already protected under the law, and this bill in no way, shape, or form harms any of those protections under the law.

I would urge my colleagues to oppose this motion to recommit and support the underlying legislation, which is needed to stop the unconstitutional actions of the President of the United States in writing an executive order that is unprecedented in its scope.

I yield back the balance of my time.

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