Floor Statements

Has the Senator yielded the floor? I don't think I want to speak until I have it.

Reserving the right to object, Mr. President.

Is there a time limit for me to speak?

Reserving the right to object, and I probably will have to object, but let me explain first of all that this is a rare moment that Senator Landrieu and I might be on the opposite side of the fence. And maybe when this is all done, we will not be on the opposite side of the fence because 99 percent of the time that she and I have conversations, it is about foster care and adoption and all those things. But let me speak to my reservation.

First of all, we have had this list that she speaks of since at least this morning and maybe even earlier than this morning and we have been going through it. I will give a bottom line, but I want further opportunity to explain.

There is now to the chairman's staff a counteroffer that we have that I would like to have Senator Landrieu and other Senators take a look at. I had an opportunity last night to spend some time speaking with Senator Landrieu about this, trying to get a process in place. I guess that process is in place now. We went through these amendments. But let's say, first of all, when there are noncontroversial amendments presented to us by the majority party, it means they have stated that they are noncontroversial and we go through the list. We may have a different judgment on some of them because it is my conclusion that not all of the 27 so-called noncontroversial amendments are, in fact, noncontroversial. Some of them are in

another committee's jurisdiction, and we always take the leadership of other committees, when they are under other jurisdictions, into consideration.

Normally amendments like this would take place in a managers' amendment that comes near the end of the process because it takes time to go through. We could have 100 amendments on a list that somebody thinks are noncontroversial, so it takes some time to clear.

Despite what has been said, many of these on the list of 27 are not necessarily easy, but we worked on them, we presented an alternative, and I ask for that to be discussed. In the meantime, then, I object.

Yes.

The chairman's staff has it, and I ask the Senator to consult the chairman.

I will not submit that list until after the chairman responds.

I object.

Mr. President, I am not going to make a unanimous consent request. I want to speak about a piece of legislation I hope to introduce before we finish the bill on immigration.

This is a Grassley-Kirk amendment numbered 1299, and I am having a difficult time getting it put in place so we can get it brought up. I believe there is a lack of understanding of what my amendment does. I want to take this time to explain it so everyone can fully understand it and get it to a rollcall vote.

I thank Senator Kirk for joining me on this amendment as a cosponsor.

This amendment would address language in the bill that creates a convoluted and ineffective process for determining whether a foreign national in a street gang should be deemed inadmissible or deported. I offered a similar amendment in committee because I believe this to be such a dangerous loophole that requires closing.

My amendment even had the support of two Members of the Group of 8. Specifically, in order to deny entry or remove a gang member, section 3701 of the bill requires the Department of Homeland Security prove a foreign national: one, has a prior Federal felony conviction for drug trafficking or violent crime; two, has knowledge that the gang is continuing to commit crimes; and three, has acted in furtherance of gang activity.

Even if all of these provisions could be proven under the bill, the Secretary could still issue a waiver. That is just one of many opportunities for the Secretary of Homeland Security to forget about what the legislation says. As such, the proposed process is limited only to criminal gang members with prior Federal drug trafficking and Federal violent crime convictions and does not--can you believe this-- include State convictions such as rape and murder.

The trick here is that while the bill wants everyone to believe there is a strong provision, foreign nationals who have Federal felony drug convictions or violent crime convictions are already subject to deportation if they are already here or denied entry as being inadmissible. So the gang provision written in this bill adds nothing to current law and obviously will not be used. It is, at best, a feel- good measure to say we are being tough on criminal gangs while doing nothing to remove or deny entry to criminal gang members.

It is easier to prove someone is a convicted drug trafficker than both a drug trafficker and a gang member. So as currently written, why would this provision ever be used? Simply put, it would not be used.

My amendment would strike this do-nothing provision and issue a new, clear, simple standard to address the problem of gang members. My amendment would strike this do-nothing provision and create a process to address criminal gang members where the Secretary of Homeland Security must prove: one, criminal street gang membership; and two, that the person is a danger to the community. Once the Secretary proves these two things, the burden then shifts, as it should, to the foreign national to prove that either he is not dangerous, not in a street gang, or that he did not know the group was a street gang. It is straightforward and will help remove dangerous criminal gang members.

My amendment also eliminates the possibility of a waiver. Under my amendment, the vast majority of people here illegally who could be excluded based upon criminal gang membership would be able to appeal that determination to an immigration judge. Even if they are found to be a gang member, if they can show they are not a danger to society, they can gain status. This gives the Secretary--in the event they appeal to an immigration judge--the ability to make these two determinations before denying entry or starting deportation. It is a real solution to dangerous criminal gang members who are either here in the country now seeking legal status or who are attempting to enter from abroad.

I urge my colleagues to look at this amendment and hopefully get it on the list of issues we can discuss and vote on before we have final passage.

To summarize, the current bill is simply a feel-good measure that has very limited impact. It will rarely be used because it is written in a way with many loopholes. And, even if it is, the Secretary can waive the deportation.

To a greater extent, we ought to be emphasizing how many waivers there are in this bill, which give too much delegation to the Secretary. We ought to be legislating more in these areas and making more determinations here instead of leaving it up to the Secretary. A vote against my amendment is a vote against commonsense legislation to address criminal gang members.

I am sure somebody is going to argue this might be too high of a burden. My amendment simply requires the Secretary make the initial determination for purposes of admissibility. Under my amendment, the vast majority of people here illegally who could be excluded based upon criminal gang membership would be able to appeal that determination to an immigration judge. So there is review of these decisions to deny status if the Secretary believes the individual to be a gang member.

Criminal street gangs, as everyone knows, are dangerous. They survive by robbing their community of safety. They are involved in drug trafficking, human trafficking, and prostitution. The way the bill deals with criminal gang members would allow gang members to simply say they are no longer a gang member, with no further determination, and they would be able to gain admission.

In reality, it is hard to walk away from a gang, and some will claim they did gain status. The only way to prevent gang members from gaming the system is through my amendment. It provides the Secretary and immigration judges the discretion they need. Even if they are a gang member, if they can show they are not a danger to society, they can gain status. This is a reasonable standard that allows the alien to argue they are not a gang member and/or dangerous.

There is a precedent in the immigration code related to group membership as a bar: namely, membership or association with a terrorist organization. Criminal gangs--although not legally terrorist organizations--can be just as dangerous as terrorists. Why would we not want to give the Secretary this authority?

This bill provides sweeping waiver authority and discretion to the Secretary to make all sorts of decisions. I don't know why the sponsors would oppose discretion to the Secretary to deny gang member admission. A vote against this amendment--if it is brought up--is a vote to allow dangerous gang members a path into our country.

Some may argue that it should be tied to some sort of criminal conviction. Well, criminal gang members are not often convicted of a crime of gang membership. In fact, the Federal crime of being a gang member is almost never used. To only limit gang member restrictions to those convicted would be a huge loophole given the difficulty of prosecuting someone for simply gang membership. The underlying bill doesn't even consider State-level convictions for gang membership as my amendment would.

Simply put, my amendment will help prevent gang members from getting into this country, and the bill will not. I hope we can get this amendment on the list to be voted upon.

I yield the floor.

Mr. President, I want to make a few points in response to the Senator from Louisiana who has been pushing to get a number of so-called noncontroversial amendments adopted. There have been a number of misrepresentations. A major incorrect point made is that our side responded with only a list of controversial amendments. The fact is we sent over, for consideration by the other side, a number of amendments on our list but we did not hear that we could just get a vote. But in addition to sending back a list of noncontroversial amendments we did ask if we could have a vote on a number of our amendments. So talk about breakdowns, we cannot even get a vote on our amendments.

In regard to some of the amendments the Senator from Louisiana has suggested, they are not as easy as appears. Some are badly drafted, so we tried to fix them and send them back. We have not heard yet. The list we sent over does not say we will not agree to more amendments later, but we have to work through these and fix those that are messed up, frankly.

The latest problem is that the Democrats want to pick which Republican amendments we can vote on. I have, for instance, an anti- gang amendment the Democrats do not want to vote on. Their bill allows gang members to become citizens. We should get votes on our amendments in addition to this whole process of approving a list of noncontroversial amendments that can be adopted en bloc.

I yield the floor.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, I want to speak for a few minutes on the progress we are making on the immigration bill. In speaking about the progress, it also gives me a chance to say to my colleagues on this side of the aisle that I hope we can get an agreement to vote on amendments this afternoon, because it is not only Democrats who want amendments, we have got a lot of Republicans who want to put up some amendments. If we can get this tranche of amendments out of the way, then that gives us a chance to put up another tranche of 8 to 10 amendments is what I think we have the possibility of doing.

We have been on this bill for 1 week. We had one vote last week. That was on my own amendment. That dealt with border security. Of course, that vote was not a vote up or down on the amendment, it was a vote to table. We were refused by the majority to have

an up-or-down vote on legislation that is part of the legislation that is some of the most important to the people of this country, securing the border before we have legalization. I quoted yesterday a CNN poll that said 60 percent of the people say border security is the No. 1 issue as far as immigration is concerned. It is a necessary predecessor to legalization.

Yesterday we had three votes. Unfortunately, they were 60-vote thresholds. Obviously, most of the time you have a 60-vote threshold, it is set up so that any amendment under that rule would fail. Yesterday the majority leader threatened again to keep us working all weekend. He stated he could file a cloture motion to cut off debate as early as Friday. Of course, I hope that is not the case, because we need an open and fair amendment process. We do immigration reform about once every 25 years. My colleagues hear me say we made a lot of mistakes in 1986. That is the last time we had a major immigration bill pass the Senate. So we need to get it right. People do not want us to do it in a fast and haphazard way. People want us to be very cautious about something you do once every 25 years.

The chairman of the Judiciary Committee and I had a very good working relationship in committee. We still have a good working relationship with this bill out here on the floor of the Senate. But there are 98 other Senators involved. In committee it is a different situation than on the Senate floor. In committee, we did not limit the ability of any Member to raise an amendment. We had some tough votes we were all forced to take in committee.

But now there are other Members who want their chance to improve the bill. Of course, I said at the beginning of my remarks if we get these eight amendments out of the way that are in this tranche, then we can bring other amendments up, both Republican and Democratic amendments.

I realize there is a bipartisan group of Senators working on a border security amendment. This is supposed to be some grand compromise. The group is trying to find common ground somewhere between the bill as drafted, 1,075 pages in that bill as drafted, and the Cornyn amendment--middle ground.

At this point I am hearing from the other side as well as the Group of 8 that they think the Cornyn amendment goes too far. Some would say the Democrats will not negotiate in good faith because they have the votes to pass the bill as is. It is no secret the Democrats wish to have 70 votes at the end of the day. But even with 70 votes, in my view, that is not a big victory and may very well be a failure. It should not take much to get 15 Republican votes. It does not guarantee the House will take up the bill. In fact, this bill may be dead on arrival in the other body since they have their own approach and they have their own ideas.

It was reported today that this bipartisan group of Senators trying to find middle ground between this big bill and the Cornyn amendment on border security are having trouble finding that consensus. They are having trouble because the Democrats do not want any triggers or roadblocks to legalization. That is clear. In other words, some people are not willing to learn from the mistakes we made in 1986. We thought in good faith we were writing a piece of legislation that would stop people crossing the border without papers. We did that by making it illegal for the first time to hire undocumented workers. We did it by adding a $10,000 fine. So take away the magnet to work, the border is secure, legalize 3 million people at that time.

We found that legalizing illegality brings yet more illegality. So now there are 12 million people who either overstayed a visa or crossed the border without papers. We should learn from that mistake of 25 years ago, the last time an immigration bill was up. We should do something about border security. That something has to be stronger than what is in this piece of legislation. But it is apparent to me--I hear rumors that a lot of people on the other side of the aisle do not want any triggers or roadblocks to legalization. That is not saying you do not want legalization, that is only saying certain preconditions ought to happen before there is legalization. Those ought to be meaningful steps to take.

Yesterday the majority leader, as I said, said he was not in favor of triggers. Secretary Napolitano in this administration made it clear legalization should come first and triggers should not be a roadblock to legalization, the very same mistakes we made in 1986.

The group negotiating this broader amendment is trying to do the right thing, but I have real doubts that the other side of the aisle wants to do anything to secure the border. Because of this, the misguided, mislabeled bill before us could be falling apart. Those of us who question this big government bill appear to be making headway in exposing the bill for what it truly is, legalization first, enforcement later. Despite repeated promises, it is that, legalization first, border security when? Sometime down the road. Sometime never happens.

Sure, the proponents can throw money and dictate how many cameras and drones to buy, but that does not mean the border will be stronger or more secure. We need to do more than give them the capability of achieving specific metrics. We need them to prove their success.

One more thing on the possibility of working this weekend. Since I have been in the Senate, we have had a lot of weekend sessions. Generally what happens is you have a lot of debate and a lot of talk and a lot of wasted time on Saturdays. You have one vote at 2 o'clock on Sunday. For a guy like me, I am going to be here regardless, not because I am manager of this bill solely, but I have not missed a vote in the Senate since July 1993. I have cast about 6,700 votes without missing a vote. If there is only one vote Sunday afternoon I am going to be here. But I would suggest if we are going to have a weekend session, that action be taken to make sure we are actually doing something and voting, that if we are going to be in session, that there is not some sort of accommodation made, usually for the majority party and sometimes the Republican Party, but right now it is the Democratic Party to make a provision so people who want to fly home can do it. Either we are here to work on the weekend or we should not be here.

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

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, yesterday we had the good fortune of receiving the Congressional Budget Office cost estimate of the immigration bill before the Senate, and I would like to mention two findings from the CBO report.

It says the bill will drive down wages. For legal American workers, the CBO estimates the bill would drive down their average wages.

Secondly, it says the bill will not stop illegal immigration. Despite promises of a secure border, the bill would slow future illegal immigration by only 25 percent, according to the CBO. In the next couple of decades, that would mean 7.5 million new undocumented immigrants coming to the country.

Before I dive into these two findings, let me remind my colleagues what was said by the authors of the bill. They said that undocumented immigrants and, hence, illegal migration would be a thing of the past. They said their bill included the toughest enforcement measures in history.

In their framework, the Group of 8 said they would write a bill which would ensure that the problem does not have to be revisited. They implied that their bill--similar to the 1986 bill--would take care of the problems once and for all. The obvious fact there is that the 1986 legislation said it would secure the border, but it never did secure the border. So we see the Group of 8 legislation before us as making the same mistakes we made in 1986.

As to what the Group of 8 said--that they would write a bill that would ensure that the problem does not have to be revisited--we find the Congressional Budget Office thinks entirely differently.

I may not always agree with CBO. I disagree with the fact that CBO has used dynamic economic effects to score this bill, when they do not use it on anything else. Yet they refuse to provide the dynamic scoring particularly on revenue bills. But everyone knows what the CBO says goes.

I always say on the Senate floor, CBO is god. If they say something is going to cost something, and you want to dispute what they say, you have to have 60 votes in this body to overturn a point of order against the CBO. It is very difficult to get 60 votes in the Senate, so that is when if they say something is something, it is something, and that makes them god around this town.

So I ask the proponents about these two key findings that I have pointed

out: What do the proponents say about the fact that the influx of new immigrants would have the effect of bringing down the average wage for America's workforce?

This is exactly the point Peter Kirsanow, a member of the U.S. Commission on Civil Rights, argued before our Judiciary Committee on April 19. He said illegal immigration has a negative effect on the wages and employment levels of low-skilled workers, particularly African Americans.

The second question to the group: Is the fact that S. 744 will drive down wages acceptable to those who support the bill?

In the report, the ``CBO estimates that, under the bill, the net annual flow of unauthorized residents would decrease by about 25 percent relative to what would occur under current law.''

I wish to put in front of that 25 percent my own words: You mean if we pass this legislation, according to CBO, this legislation is only going to have the effect of lowering the illegal immigration by 25 percent, when we are led to believe they are going to overcome the problems we did not foresee in 1986, when we legalized--thought we did it once and for all; that would take care of it--and we find out now it did not take care of it. We legalized 3 million people, and now we have 12 million undocumented people here as well.

So let's just see. If the CBO is correct and the net flow of unauthorized residents would only decrease by about 25 percent, does that not indicate we will have to revisit the immigration issue again?

It is obvious this bill will not ensure that we are not back in this same position down the road, contrary to the promises of the Group of 8 that: We are going to write this legislation in a way that we will not have to revisit it. We said that very same thing in 1986, but here we are 25 years later with four times the number of undocumented workers than we had then.

The CBO also reported that while ``enforcement and employment verification requirements in the legislation would probably reduce the size of the U.S. population,'' other aspects of the bill will, in fact, ``probably increase the number of unauthorized residents--in particular, people overstaying their visas issued under the new programs for temporary workers.''

This bill favors legalization before border security and, apparently, will have no noticeable decrease in the net annual flow of unauthorized residents. The CBO says the bill will not stop the flow of illegal immigration.

If proponents are serious about stopping people from living here illegally--contrary to our law, a nation based upon the rule of law-- they need to adopt commonsense legislation that will stop this flow, not merely reduce it by just 25 percent.

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

I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask to speak as if in morning business for 7 minutes.

Mr. President, when I closed last night I posed nine questions to Secretary Napolitano about the immigration bill. She said that when confirmed, she would answer questions that Congress put before her. My questions came at the end of her hearing on the immigration bill, and we have not received an answer now in 49 or 50 days. I would appreciate answers to those questions.

I would like to speak about the entry-exit system in the legislation before us. One of the concerns that has been made about the immigration bill before us is that it weakens current law in several areas. Now, when I go to my town meetings, I invariably get somebody who says: We don't need more legislation; just enforce the laws that are on the books. Those very same constituents of mine would probably be really chagrined at the fact that we have legislation before us that would weaken current law.

Well, we had a lengthy discussion during the Judiciary Committee markup about provisions dealing with criminal activity and deterring illegal immigration in the future. I have found that many existing statutes in this legislation--1,175 pages--have been revised and watered down, which sends exactly the wrong signal that should be sent to the people who seek to intentionally break our laws.

The sponsors of the bill have claimed that the bill will make us safer. They insist that the people will ``come out of the shadows,'' thus allowing us to know exactly who is here, where they are, and whether they are a national security risk.

We have talked a lot about the need for border security in the last week. I think it is the most important thing we can do for our national security and to protect our sovereignty. Border security is what the people demand. This legislation has weak border security provisions.

Amazingly, when I bring up border security, I am told by proponents of the bill that we don't need to put our entire focus on the border. Well, tell that to the people of grassroots America. These authors remind me that about 40 percent of the people here illegally are visa overstays or people who never returned to their home country. I don't dispute that 40-percent figure. I couldn't agree more that visa overstays need to be dealt with as much as people who are here undocumented and did not come here on a visa. We need to know who is in our country and when they are supposed to depart, and then we need to know if they actually leave.

We realized this way back in 1996 when we created the entry-exit system. At that time, Congress--and still today--under the law, called for a tracking system to be created, and this followed the first bombing of the World Trade Center. We knew there were gaping holes in our visa system, and that is why the entry-exit system was set up. Unfortunately--and the people of this country probably don't believe this--we had legislation calling for this system to be in place and it still is not in place. Administration after administration--and that is Democratic, Republican, and now Democratic--dismissed the need to implement an effective entry-exit system, thumbing their noses at the laws on the books. So here we are today--17 years later--wondering when that system and mandate from Congress will be achieved.

When introduced, the bill before us did nothing to track people who left by land. It did nothing to capture biometrics of foreign nationals who departed. We approved an amendment in committee that made the underlying bill a little bit stronger, but it fell short of current law. Current law says we should track all people who come and go by using biometrics. It says the entry-exit system should be in place at all air, sea, and land ports. We already know that anything less than what is in current law will not be effective.

The Government Accountability Office has stated that a biographic exit system, such as the one set forth in the underlying legislation, will only hinder efforts to reliably identify overstays and that without a biometrics exit system, ``DHS cannot ensure the integrity of the immigration system by identifying and removing those who have overstayed their original period of admission--a stated goal of US- VISIT.'' If we don't properly track departures, we won't know how many people are overstaying their visas and we won't have any clue of who is in our country.

Some will say: We can't afford it. Some will say: Our airports aren't devised in such a way to capture biometrics before people board airplanes. They will find any excuse not to implement current law, and that is why this current law hasn't been executed in the last 17 years.

This is a border security and national security issue. Without this system in place, we are not in control of our immigration system.

Senator Vitter's amendment, which is pending, would ensure the current law is met before we legalize millions of people. I encourage my colleagues to understand how this bill weakens our ability to protect the homeland. I also encourage the adoption of the Vitter amendment when we vote at 3 o'clock.

I yield the floor.

I yield 10 minutes of my time to Senator Thune.

Madam President, we will soon be voting on the Thune amendment, and I rise to speak in support of the Thune amendment.

The Thune amendment would strengthen the bill and beef up the triggers that precede the legalization program.

The Thune amendment would ensure that current law regarding double- layer fencing is implemented.

Over the years, administration after administration--and not just Democrat or just Republican but both--has failed to enforce the laws on the books. The American people don't want more laws that will simply be ignored, they want the laws on the books to be enforced. This amendment offered by Senator Thune would ensure that the border is more secure before any legalization program is carried out.

In a new CNN poll released just today, 36 percent of those polled said they favored a path to citizenship for people who have come to this country undocumented. But 62 percent of those polled said it is more important to increase border security to reduce or eliminate the number of immigrants coming into the country without permission from our government. So if we stand with the American people, and if we want the border secured, we will vote for the Thune amendment.

It is this simple: When issues come up in my town meetings in my State of Iowa and people are asking what is going on with immigration, and we sit down and try to explain to the people how this bill is moving along or what it might include, invariably there are a lot of people in the audience who say we don't need more legislation, we need to have the laws on the books enforced. I think this is backed up by this poll we have heard about from CNN today.

In addition to that, I think it very much clarifies that people want the laws on the books enforced. But, more importantly, they expect people who take an oath to uphold the Constitution and the laws would actually carry out the laws they are elected to carry out. So I hope my colleagues will vote for the Thune amendment.

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

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask for the yeas and nays.

Mr. President, I have no problems with this amendment. It ensures that tribal communities are represented.

The bill's task force is a new and independent entity designed to provide recommendations about immigration and border security. Mr. Tester is adding four additional members to the task force to ensure that the tribes are represented; however, this amendment does not fundamentally change the bill.

There is no opposition to making sure that the tribes have a voice in policy. Of course, this task force doesn't have any real power, it only makes recommendations. The Secretary isn't required to address their concerns or enact their recommendations. Too often, the Secretary does not take into consideration our recommendations. Even now she has a hard time implementing laws.

So, again, while the amendment is noncontroversial, Members should know this task force is a figleaf for actual border security.

My colleagues have heard me mention so many times that we tend to delegate more and we ought to be legislating. This bill is another example of delegating too much and giving too much authority to Cabinet-level people, in this case the Secretary of Homeland Security, and not making enough hard decisions on the floor of the Senate.

It is reminiscent of the 1,693 delegations of authority we gave to Cabinet people in the health care reform bill to a point where you can read that 2,700 pages and understand it, but we truly don't know what the health care system in the United States is going to be

until those 1,693 regulations are put in place. That is going to be a long way down the road.

I wish to point out to my colleagues, I think we are making the same mistake in this immigration bill that is before the Senate. I wish to take some time to talk about how important it is to emphasize the need for Congress to legislate, not delegate, especially with this immigration bill before us.

When an immigration bill is nearly 1,200 pages long, the American people should expect that it is their elected representatives writing the legislation and making most of the decisions. They should expect the executive branch and the Secretary of Homeland Security, in particular, to carry out those policies.

There are individual circumstances that Congress cannot fully anticipate, so it is understandable, then, delegating some authority. With direction from Congress, the Secretary should be able to issue regulations to enforce legislative policies in those situations. Those regulations and any discretion the Secretary exercises, such as other delegations of power from Congress, should be subject to judicial review to ensure that the policies Congress established are being carried out according to congressional intent.

But this immigration bill takes a different and wrong-headed approach. It provides highly general discretion to the Secretary. It gives the Secretary tremendous, often unilateral, discretion to implement the bill. In many instances, that discretion is not even subject to judicial review.

This, obviously, is not the way power is supposed to work in our representative system of government. Uncontrolled unilateral discretion is not what the Framers of the Constitution envisioned for a government with separation of powers, checks, and balances. We have seen, for instance, and recently with the IRS, what can happen when the executive branch exercises authority with too much discretion and not enough oversight.

By some accounts, there are 222 provisions in the bill that give the Secretary of Homeland Security discretion or even allow her to waive otherwise governing parts of the bill. Other people have counted even more than the 222 provisions I have just referred to. Whether it is more or less, it is still a lot. In some cases, it is not just the delegation, it is how it is delegated.

The Secretary's unbridled waiver authority makes a bill that is already weak on immigration enforcement then even weaker.

Ironically, when the Judiciary Committee marked up the immigration bill, it rejected amendments that I and others offered to limit judicial review of immigration enforcement proceedings against people who are in this country illegally. The majority argued against them by claiming that judicial review, which historically has been limited to these enforcement actions, should be expanded to cover these decisions and that is an expansion of judicial review.

Let me speak of the inconsistency of when they didn't think judicial review should be there. The majority wants unlimited judicial review when the Secretary would take enforcement action against people in the country illegally.

At the same time, the bill provides more judicially unreviewable discretion for the Secretary when she decides not to enforce the law against undocumented immigrants.

The people of this country should be aware of the one-way ratchet for discretion that the bill contains. Then it adds judicial review when the Secretary would enforce the law and does not provide judicial review when the Secretary decides to withhold enforcement of border security and other measures designed to reduce illegal immigration.

I believe it is worth noting some of the specific provisions of the bill that give the Secretary discretion in enforcement, sometimes without judicial review. Some of the specific language that allows her to waive provisions that supporters of the bill claim make this bill even tough on illegal immigration and border security should also be discussed.

When they are contrasted, the legislation's goal is very clear: enact very general border security measures that are said to be tough, while giving the Secretary often unilateral discretion and waiver authority to water down those measures.

For instance, the Secretary can commence processing petitions for registered provisional immigrant status--RPI status we call it--based on her determination of border security plans and how she views the status of their implementation. The fencing that the bill seems to demand can be stopped by the Secretary when she believes it is sufficient.

The Secretary has the ability to decide whether certain criminal offenses should bar someone from the legalization program. She can waive, with few exceptions, the grounds of inadmissibility prescribed in law. She is given discretion whether to bring deportation proceedings against those who do not qualify for RPI status. If they are denied, shouldn't they be deported?

The Secretary is also allowed to waive various requirements when a person adjusts from RPI status to legal permanent resident status, including what counts as passing a background check.

The Secretary has broad authority on how to use the $8.3 billion in upfront funds transferred from the Treasury. On top of that, she has wide discretion on how to use the additional $3 billion in startup costs that don't have to be entirely repaid to the Treasury.

Notwithstanding the constitutional powers of Congress over the purse, she is given authority to establish a grant program for nonprofit organizations.

With respect to the point system, the Secretary is given discretion to recalculate the points for particular petitioners and to decide not to deport inadmissible persons.

She also has the discretion to waive requirements for citizenship that otherwise apply under the bill.

The Secretary is also given a great deal of discretion in the operation of the electronic employment verification system; for instance, which businesses will be exempt from the requirement; which documents can individuals present to prove identity or work authorization. She also has the authority to determine when an employer who has repeatedly violated the law is required to use the system. Those decisions will be vital in determining whether the employment verification system will be effective.

Members of this body can opine all day about what this bill does, but we may not know for years, as in the case of ObamaCare, until these regulations are written or these waivers are used, the extent to which this bill is carried out with the intent that we believe it is carried out.

We don't know that for years. I use the example of the health care law because we are learning, after 4 years that the bill has been passed, there are a lot of unknowns in it. We also learned there is not a lot of certainty. That is the fallout from delegating so much power in one Secretary. We shouldn't repeat that mistake when we pass this bill next week.

I yield the floor.

Mr. President, today, Senator Wyden and I reintroduced the Medicare Data Access for Transparency and Accountability Act. This collaborative effort includes two ideas for making Medicare billing and spending more transparent.

The first provision comes from a bill I introduced in 2011 to enhance the government's ability to combat Medicare and Medicaid fraud. It would require the Secretary of Health and Human Services to issue regulations making Medicare claims and payment data available to the public, similar to other federal spending disclosed on www.USAspending.gov.

That website was created by legislation sponsored by then-Senator Obama and Senator Coburn. It lists almost all federal spending, but it doesn't include payments made to Medicare providers.

That means virtually every other government program, including some defense spending, is more transparent than the Medicare program.

Omitting Medicare spending is especially alarming when you consider the portion of Federal spending that goes through the Medicare program. In 2011, the Federal Government spent $549 billion on Medicare.

Taxpayers have a right to see how their hard-earned dollars are being spent. There should not be a special exception for hard-earned dollars that happen to be spent through Medicare.

Transparency will restore that taxpayers' right.

Also, if doctors know that each claim they make will be publicly available, it might deter some wasteful practices and overbilling.

Our bill accomplishes this by requiring the Secretary of Health and Human Services to make available a searchable Medicare payment database that the public can access at no cost.

The second provision in our bill clarifies that data on Medicare payments to physicians and suppliers do not fall under a Freedom of Information Act, FOIA, exemption.

In 1979, a U.S. District Court ruled that Medicare is prohibited from releasing physicians' billing information to the public.

For over three decades, third parties that tried to obtain physician specific data through the FOIA process have failed. Taxpayers have been denied their right.

Another recent court decision lifted the injunction, but it does not go far enough.

Our bill would make Congress' intent clear and provide the public with the tools to finally gain access to important Medicare data.

I would like to provide one example of how valuable access to Medicare billing data can be.

In 2011, using only a small portion of Medicare claims data, the Wall Street Journal was able to identify suspicious billing patterns and potential abuses of the Medicare program.

The Wall Street Journal found cases where Medicare paid millions to a physician sometimes for several years, before those questionable payments stopped.

That was only one organization using a limited set of Medicare data. When it comes to public programs like Medicare, the Federal Government needs all the help it can get to identify and combat fraud, waste and abuse, and that is why a searchable Medicare claims database should be made available to the public.

I have often quoted Justice Brandeis, who said, ``Sunlight is the best disinfectant.'' That is what Senator Wyden and I are aiming to accomplish with the Medicare Data Act.

Mr. President, today, Senator Wyden and I reintroduced the Medicare Data Access for Transparency and Accountability Act. This collaborative effort includes two ideas for making Medicare billing and spending more transparent.

The first provision comes from a bill I introduced in 2011 to enhance the government's ability to combat Medicare and Medicaid fraud. It would require the Secretary of Health and Human Services to issue regulations making Medicare claims and payment data available to the public, similar to other federal spending disclosed on www.USAspending.gov.

That website was created by legislation sponsored by then-Senator Obama and Senator Coburn. It lists almost all federal spending, but it doesn't include payments made to Medicare providers.

That means virtually every other government program, including some defense spending, is more transparent than the Medicare program.

Omitting Medicare spending is especially alarming when you consider the portion of Federal spending that goes through the Medicare program. In 2011, the Federal Government spent $549 billion on Medicare.

Taxpayers have a right to see how their hard-earned dollars are being spent. There should not be a special exception for hard-earned dollars that happen to be spent through Medicare.

Transparency will restore that taxpayers' right.

Also, if doctors know that each claim they make will be publicly available, it might deter some wasteful practices and overbilling.

Our bill accomplishes this by requiring the Secretary of Health and Human Services to make available a searchable Medicare payment database that the public can access at no cost.

The second provision in our bill clarifies that data on Medicare payments to physicians and suppliers do not fall under a Freedom of Information Act, FOIA, exemption.

In 1979, a U.S. District Court ruled that Medicare is prohibited from releasing physicians' billing information to the public.

For over three decades, third parties that tried to obtain physician specific data through the FOIA process have failed. Taxpayers have been denied their right.

Another recent court decision lifted the injunction, but it does not go far enough.

Our bill would make Congress' intent clear and provide the public with the tools to finally gain access to important Medicare data.

I would like to provide one example of how valuable access to Medicare billing data can be.

In 2011, using only a small portion of Medicare claims data, the Wall Street Journal was able to identify suspicious billing patterns and potential abuses of the Medicare program.

The Wall Street Journal found cases where Medicare paid millions to a physician sometimes for several years, before those questionable payments stopped.

That was only one organization using a limited set of Medicare data. When it comes to public programs like Medicare, the Federal Government needs all the help it can get to identify and combat fraud, waste and abuse, and that is why a searchable Medicare claims database should be made available to the public.

I have often quoted Justice Brandeis, who said, ``Sunlight is the best disinfectant.'' That is what Senator Wyden and I are aiming to accomplish with the Medicare Data Act.

Mr. President, I suggest the absence of a quorum.

Mr. President, I am going to vote for both judges today. But today I want to inform my fellow Senators and American people regarding the facts on judicial nominations. Today, we will confirm two more nominees. I would note that we confirmed two judges just 4 days ago.

After today, the Senate will have confirmed 197 lower court nominees; we have defeated two. That is 197-2. That is an outstanding record. That is a success rate of 99 percent.

And we have been doing that at a fast pace. During the last Congress we confirmed more judges than any Congress since the 103rd Congress, which was 1993-94.

This year, the beginning of President Obama's second term, we have already confirmed more judges than were confirmed in the entire first year of President Bush's second term. Let me emphasize that again--We have already confirmed more nominees this year than we did during the entirety of 2005, the first year of President Bush's second term.

After today, only five article III judges remain on the Executive Calendar--three district nominees and two Circuit nominees.

Two of those were reported out last week, two more about a month ago, and one has been on the calendar for about two months. Yet, somehow Senate Democrats cite this as evidence of obstructionism.

Compare that to the calendar of June 2004, when 30 judicial nominations were on the Calendar--10 Circuit and 20 District. In fact, four of those were from Pennsylvania, as is one of our nominees today. I don't recall any Senate Democrats complaining about how many nominations were piling up on the calendar, nor do I remember protestations from my colleagues on the other side that judicial nominees were moving too slowly.

Last week, when we confirmed two Pennsylvania judges, there were statements made on the floor that we were treating President Obama's nominees very different than those of President Bush. But look at the record. As I said, there were four Pennsylvania nominees on the calendar in June of 2004.

Gene Pratter was nominated in November 2003, had a hearing in the following January, was reported in March, and was confirmed in June.

Lawrence Stengel was nominated in November 2003, had a hearing the following February, was reported in March, and was confirmed in June.

Juan Sanchez was nominated in November, had a hearing the following February, was reported in March, and was confirmed in June.

Those milestones are nearly identical to our Pennsylvania nominee today who was nominated last November. Just like the ones I mentioned, he had a hearing the following February, was reported in March, and now will be confirmed in June.

If we have been unfair to this nominee, as it is now claimed, where was the outcry from Senate Democrats on the Bush nominees I just described? The fact is there is no difference in how this President's nominees are being treated versus how President Bush's nominees were treated.

Remember, now there are only five article III judicial nominees remaining after today's vote. Yet, as I mentioned, in June 2004 there were 30 nominations pending on the calendar. Some of those nominees had been reported out more than a year earlier and most were pending for months. And some of them never got an up or down vote.

The bottom line is that the Senate is processing the President's nominees exceptionally fairly. President Obama certainly is being treated more fairly in the beginning of his second term than Senate Democrats treated President Bush in 2005. It is not clear to me how allowing more votes so far this year than President Bush got in an entire year amounts to ``unprecedented delays and obstruction.'' Yet, that is the complaint we here over and over from the other side.

Last week it was stated that with this President, ``Republicans have never let vacancies get below 72.''

After today's votes there will be 77 vacancies in the federal judiciary. But 52 of those spots are without a nominee. How is it the fault of the Republicans that the President has not sent 52 nominees to the Committee? Obviously, common sense ought to tell you that we can't act on nominees who are not presented to the Senate.

Just one example will illustrate this. Last week the Chairman of the Judiciary Committee singled out the vacancies on the Eastern District of Pennsylvania. We are confirming the third judge to that Court, after the two last week. Four vacancies remain, but there are no nominees pending in the Senate for the Eastern District of Pennsylvania.

It was also stated that the seat we are filling today has been vacant for over 4 years, as if Republicans were to blame for that. The fact is, this seat went vacant on June 8, 2009. President Obama was the President then. He waited over 3 years and 5 months before making a nomination on November 27, 2012. Why did the President make the people of Pennsylvania wait so long? That wasn't the fault of this side of the aisle. Yet now we are accused of obstruction.

So I just wanted to set the record straight--again--before we vote on these nominees. I expect they will both be confirmed and I congratulate them on their confirmations. And as I said at the beginning, I'm going to vote to support these nominees.

Kenneth John Gonzales is nominated to be United States District Court Judge for the District of New Mexico. Upon graduation from the University of New Mexico School of Law in 1994, Mr. Gonzales clerked for Chief Justice Joseph F. Baca of the New Mexico Supreme Court. In 1996 he worked as a legislative assistant to Senator Jeff Bingaman. From 1999 to 2010, Mr. Gonzales served as an Assistant United States Attorney in the U.S. Attorney's Office for the District of New Mexico. His primary responsibility was criminal prosecution including large- scale drug trafficking cases with various Federal agencies and a small number of violent crime cases originating in the Mescalero Apache Reservation. In 2006 Mr. Gonzales transferred to the Albuquerque Violent Crime Section where he prosecuted violent crime occurring on Indian Reservations as well as several bank robbery and firearms- related cases that originated in the Albuquerque area. In 2009 he transferred to the Narcotics section as a designated attorney for the Department of Justice Organized Crime Drug Enforcement Task Force where his work was primarily long-term and complex narcotics trafficking investigations and prosecutions. In 2010 he became the United States Attorney for the District of New Mexico.

Since 2001 Mr. Gonzales has served as a Reserve officer with the United States Army Judge Advocate General's Corps. In November 2008 he was mobilized to active duty and stationed at Fort Bragg, NC with the 18th Airborne Corps where he conducted legal reviews, official responses to Freedom of Information Act requests, Army Regulation 15-6 investigations, and property accountability investigations. Currently he fulfills his annual Reserve requirement as an Adjunct Professor of Criminal Law at the JAG Legal Center & School in Charlottesville, VA.

The American Bar Association's Standing Committee on the Federal Judiciary gave him a ``Qualified'' rating.

Luis Felipe Restrepo is nominated to be United States District Court Judge for the Eastern District of Pennsylvania. Judge Restrepo received his B.A. from the University of Pennsylvania in 1989, and his J.D. from Tulane University Law School in 1986. Upon graduation, he clerked at the ACLU Prison Project in Washington, DC. From 1987 to 1990, he was an assistant defender with the Defender Association of Philadelphia where he represented criminal defendants in State and Federal court. In 1990, he became an assistant federal defender for the Federal Community Defender for the Eastern District of Pennsylvania, appearing at the trial and appellate level.

Judge Restrepo was in private practice with one partner from 1993- 2006. There, he focused primarily on criminal defense, including some death penalty cases. He defended clients on retainer and as a court- appointed counsel. While in private practice the majority of Judge Restrepo's civil cases consisted of Section 1983 actions alleging police abuse and mistreatment. Other civil matters included representation in workplace accident, medical malpractice, wrongful death, and fire cases.

Judge Restrepo was appointed to be a United States Magistrate Judge for the Eastern District of Pennsylvania in 2006. As magistrate judge, he manages all aspects of the pre-trial process in civil cases: conducting evidentiary hearings, ruling on non-dispositive motions, and making reports and recommendations regarding dispositive motions.

The American Bar Association's Standing Committee on the Federal Judiciary gave him a ``Well Qualified'' rating.

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

Madam President, at every confirmation hearing of every Cabinet position, and probably a lot of other positions as well, a Cabinet nominee is invariable asked a question similar to this: Will you come when you are called to a committee meeting for a hearing, and will you answer inquiries made by members of the committee to certain questions you might be asked? Invariably--and I don't know an exception to this--we get the answer that, yes, they will respond to our communiques.

Well, I come to the Senate today to ask why Secretary Napolitano of the Department of Homeland Security hasn't answered inquiries we have made that ought to have been answered by now. And the answers ought to have been made by now because we are dealing with the legislation to which the questions refer.

On April 23, the Judiciary Committee held a hearing to discuss immigration reform and the bill presented by the Gang of 8. Secretary Napolitano was the only witness. The hearing lasted 2 hours and 20 minutes, and most members were able to ask her 5 to 10 minutes' worth of questions. We also submitted questions for the record, which means we submitted questions to her in writing for her to answer. Committee members were given just 24 hours to turn around those questions to present to her. But it has been over 7 weeks--that is more than 49 days--since we submitted those questions to Secretary Napolitano, and we have yet to get answers to those questions.

The questions I asked were genuine and related to the implementation of the bill if it were to be signed into law. I asked questions of the Secretary because she will be responsible for carrying out Congress's intentions. I wanted to know about costs and feasibility, and I asked for data and specifics. So I am concerned I have yet to receive responses.

Keeping information from Congress and the American people is not helpful to ensuring we have the best product coming out of the Senate. Since this bill is right now before the Senate, it is important for Members of this body to have the answers to the questions I am going to describe that I submitted to her.

I will take this opportunity to discuss some of the questions I asked of Secretary Napolitano, although not all of them. Right now I will focus on nine questions I asked about border security because border security is an issue before the Senate as part of this 1,175-page bill. I may discuss other questions later in the week.

Question No. 1 to Secretary Napolitano: You have emphasized that apprehensions at the border are down and in doing so praised the administration's record on border security; however, Customs and Border Protection has just released numbers showing that apprehensions increased 13 percent over the last year. Does the fact that border apprehensions are up mean that the border is becoming less secure?

That was question No. 1 to Secretary Napolitano.

Obviously, is the border more secure or isn't the border more secure? That was the whole basis of the debate over the last week in this body.

Question No. 2 to Secretary Napolitano: The bill only calls for establishing an entry-exit system for air and seaports before implementing the path to citizenship. Aside from cost, what impediments are there to instituting the system at land ports?

Question No. 3: The bill requires your department to establish a strategy to identify where fencing should be deployed along the southern border. During the hearing, you indicated the administration believes that sufficient fencing is in place and that you would prefer not to increase fencing along the southern border. So my question: Do you anticipate that your study will call for any additional physical fencing?

Now that seems to me to be a pretty important question at this time when border security is very basic to whether there will be any legalization. We have not received an answer yet.

Question No. 4: During the hearing we discussed the fact that the northern border was not part of the trigger and did not need to be secured before green cards are distributed. You said the northern border is a different border but that it is a part of the discussion. Can you elaborate? Can you describe how the northern border is ``different''? Please provide a list of ``other than Canadians'' who have crossed the northern border illegally in the last 10 years, including their country of origin.

Question No. 5. Section 1102 of S. 744 requires the Secretary to increase the number of CBP officers by 3,500; however, it does not specify how many of those agents will be used to secure the physical border versus customs enforcement and other mission requirements. How do you envision this section being implemented and how would the Department make decisions with regard to determining how many agents are hired to secure the physical borders?

Talking about border security, that seems to me to be a legitimate question that ought to have been answered by the Secretary a long time before we even started debate on this bill but surely before we get done with it.

The sixth question: Section 1104 provides funding for only the Tucson sector of the southwest border region. Does the administration support only resources to this sector? Are there other sectors that should be included? If so, please provide details.

Seventh question: Section 1105 relates solely to the State of Arizona. Should this provision be expanded to all of the southwest border States?

Question No. 8: Section 1107 provides for a grant program in which individuals who reside or work in the border region and are ``at greater risk of border violence due to the lack of cellular service'' can apply to purchase phones with access to 911 and equipped with GPS. Does the administration believe the Southwest border region is safe and secure, rendering this grant program unnecessary?

Question No. 9, and my last question I will discuss tonight, does the administration have any views on section 1111 on the use of force, including the requirement that the Department collaborate with the Assistant Attorney General for the Civil Rights Division of the Department of Justice?

Those are the nine questions that I think are very pertinent to just the part of the bill we spent the last week debating and we are going to spend a few more days debating. Is the border secure? That is very basic to everything else that goes on in this piece of legislation.

As I said, the questions I have asked the Secretary are meant to ensure that we pass the best bill possible. We ought to know how she will carry out the bill if it is signed into law. I hope she will provide answers to these and the other questions I submitted on April 24.

I yield the floor.

Mr. President, I am pleased to join Senators Moran and King in reintroducing the Veterinary Medicine Mobility Act of 2013. This legislation comes in response to a Drug Enforcement Administration, DEA, interpretation of the Controlled Substances Act, which requires veterinarians to treat animals with controlled substances at the location in which they are registered. This interpretation of the law is very burdensome to both farmers and veterinarians, and it shows a lack of common sense by the DEA. In many cases a sick animal such as a horse, cow or pig cannot be transported to the veterinarian's office, and has to be treated on the farm or even in the pasture. When a larger animal is ill and needs treatment it has been common practice for the veterinarian to make a house call to treat the affected animal. The ability for veterinarians to make house calls is a key component in the ability to effectively treat livestock animals.

I am very concerned about the problems we face in the diversion of controlled substances especially powerful narcotics. However, efforts to control the diversion of controlled substances need to take into account the needs of legitimate patients whether human or livestock. Forcing a farmer to load a sick animal into a trailer for a trip to the veterinarian's office is not a practical solution to ward off the diversion of controlled substances. Rules governing the use and transportation of controlled substances must be practical and not overly burdensome. In the case of veterinary medicine the Veterinary Medicine Mobility Act of 2013 strikes the right balance.

This legislation allows a veterinarian to transport a controlled substance ``in the usual course of veterinary medicine practice at a site other than the registrants registered principal place of business or professional practice.'' The bill also requires the veterinarian to only dispense controlled substances in a State where they are licensed to practice veterinary medicine, which will help to eliminate the transportation of controlled substances across State lines. I have heard from numerous veterinarians and other stakeholders that this bill is needed in order to provide certainty that our veterinarians will be able to use the necessary tools available to them without interference from the DEA. Overly burdensome regulations can have a detrimental impact on businesses in this country. This is an instance of the Federal Government not using common sense, and causing unnecessary problems for the people responsible for maintaining the health of our Nation's livestock herds. I urge my colleagues to join us in supporting this commonsense bill.

Mr. President, I am pleased to join Senators Moran and King in reintroducing the Veterinary Medicine Mobility Act of 2013. This legislation comes in response to a Drug Enforcement Administration, DEA, interpretation of the Controlled Substances Act, which requires veterinarians to treat animals with controlled substances at the location in which they are registered. This interpretation of the law is very burdensome to both farmers and veterinarians, and it shows a lack of common sense by the DEA. In many cases a sick animal such as a horse, cow or pig cannot be transported to the veterinarian's office, and has to be treated on the farm or even in the pasture. When a larger animal is ill and needs treatment it has been common practice for the veterinarian to make a house call to treat the affected animal. The ability for veterinarians to make house calls is a key component in the ability to effectively treat livestock animals.

I am very concerned about the problems we face in the diversion of controlled substances especially powerful narcotics. However, efforts to control the diversion of controlled substances need to take into account the needs of legitimate patients whether human or livestock. Forcing a farmer to load a sick animal into a trailer for a trip to the veterinarian's office is not a practical solution to ward off the diversion of controlled substances. Rules governing the use and transportation of controlled substances must be practical and not overly burdensome. In the case of veterinary medicine the Veterinary Medicine Mobility Act of 2013 strikes the right balance.

This legislation allows a veterinarian to transport a controlled substance ``in the usual course of veterinary medicine practice at a site other than the registrants registered principal place of business or professional practice.'' The bill also requires the veterinarian to only dispense controlled substances in a State where they are licensed to practice veterinary medicine, which will help to eliminate the transportation of controlled substances across State lines. I have heard from numerous veterinarians and other stakeholders that this bill is needed in order to provide certainty that our veterinarians will be able to use the necessary tools available to them without interference from the DEA. Overly burdensome regulations can have a detrimental impact on businesses in this country. This is an instance of the Federal Government not using common sense, and causing unnecessary problems for the people responsible for maintaining the health of our Nation's livestock herds. I urge my colleagues to join us in supporting this commonsense bill.

Mr. President, I wish to remind my colleagues that we were promised an open and fair process on this legislation. The fact that the majority is moving to table my amendment proves this so-called open and fair process is a farce. The majority is afraid to have an up- or-down vote on my amendment. They are apparently afraid to have an open debate and vote on a provision that ensures true border security before legalization, and that is what the people of this country want. They claim to be open to improving the bill, but this motion to table shows they are not ready to fundamentally change the bill.

By tabling my amendment, the majority is stifling progress on this bill. They are refusing to have an amendment process to improve it. This is not the right way to start off on a very important bill.

You know, we only do immigration reform once every 25 years. So what is the hurry? Surely, we need an amendment process in which true immigration reform can succeed. There is a lesson to be learned from the 1986 legislation that is now the law of the land. Then, we legalized first and thought we were going to secure the border later, which we never did.

So this amendment is the first of many that will improve the bill and do what the authors of the bill say they want to do, secure the border and do what the American people expect us to do. If the American people are being asked to accept a legalization program in exchange for that compassionate approach, they should be assured that the laws are going to be enforced.

But as we read the details of the bill, it is clear the approach taken is legalize first, enforce later, the same mistake that was made in 1986. My amendment would fundamentally change that. The amendment that is now pending would require the Secretary to certify to Congress that the Secretary has maintained effective control over the entire southern border for at least 6 months before processing applications for legalization.

It is a commonsense approach: border security first, like promised, legalize next. If the bill passes as is, the Secretary only needs to submit two plans before processing people through the legalization program. We do not need to pass any more legislation that tells this administration to do a job that is already required of them that they are not doing. People want laws enforced. Nevertheless, the bill would start legalization even if the strategies the Secretary submits to Congress are flawed and inadequate. What if this Secretary is not committed to fencing? What if this Secretary believes the border is more secure than ever? Well, in fact, this Secretary told the committee she thought the borders were secure. That should concern all of us.

Legalization status is more than probation. This RPI status is, in fact, legalization. Once a person gets RPI, they get the freedom to live in the United States. They can travel, work, and benefit from everything our country offers. RPI status is de facto permanent legalization.

We all know it will never be taken away. People who say 10 years down the road if we do not have the borders secure, that they are going to take

back and classify these people as illegal again, that is naive. Given the history of these types of programs, we know it will never end.

My amendment improves the trigger and fulfills the wish of the American people. My amendment ensures that the border is secured before one person gets legal status.

If we pass this bill as it is, there will be no pressure on this administration or future administrations to secure the border. There will be no push by the legalization advocates to get that job done. We need to work together. We need to secure the border for several reasons, so that we are not back here in the same position 25 years from now saying we made a mistake 25 years ago, like we know now we made a mistake. We need to protect our sovereignty and to protect the homeland and improve national security.

Under my amendment the Secretary would have to prove that we have effective control, as defined in the bill, for 6 months before the applications for registered provisional immigration status are processed. I agree with at least one of the authors of this bill that if the border security title is not improved this bill does not stand a chance of getting to the President.

So my amendment is a first and necessary step to fixing this issue.

I yield the floor.

Mr. President, reserving the right to object----

I have a suggestion: that we agree to everything for the first four amendments on the list.

I object.

Yes.

Reserving the right to object----

I suggest to the majority leader we can agree to what he has suggested except for Heller amendment No. 1227.

Yes.

Mr. President, I urge my colleagues to vote for the nominees who are before the Senate today.

At this point in President Obama's term, when we get done with these two today, we will have approved 195 of the President's judicial appointments, and we have only disapproved 2. That is a 99-plus percent voting record.

It would help if the President would speed up getting his nominees to the Senate. There are 81 vacancies now. The President has only submitted 29. That means there are 52 vacancies that could be filled by the White House that the Senate would have an opportunity to work on as well.

So far this year, the Senate has confirmed 22 lower court nominees. Today, after these nominees are confirmed, we will have confirmed more than twice the number of district and circuit judges that were confirmed at this point in President Bush's second term. In fact, we will have confirmed more lower-court nominees than were confirmed in the entire first year of President Bush's second term.

Think about that--I will repeat it. In the 5 months of this President's second term while we have been in session, we have confirmed more district and circuit judges than were confirmed in the entire first year of President Bush's second term.

The bottom line is that the Senate is processing the President's nominees exceptionally fairly. He is being treated much more fairly than Senate Democrats treated President Bush in 2005.

So I just wanted to set the record straight before we vote on these nominees. I expect they will both be confirmed and I congratulate them on their confirmations.

Judge Quinones received her B.B.A. from the University of Puerto Rico in 1972 and her J.D. from the University of Puerto Rico School of Law in 1975. Upon graduation, she worked as a staff attorney with Community Legal Services in Philadelphia, where she focused on strictly civil and administrative matters, appearing predominately in family court and before administrative judges.

From 1977 to 1979, Judge Quinones wrote opinions in support of decisions rendered by an Administrative Judge at the Department of Health & Human Services. From 1979 to 1991, she was a staff attorney at the Department of Veterans Affairs, VA, where her practice involved the interpretation and application of the VA's administrative rules and regulations. During this time, she also appeared in State court and administrative agencies to represent the VA before the Equal Employment Opportunity Commission and Merit Systems Protection Board. Additionally, from 1980 to 1991, Quinones worked as an arbitrator for the Arbitration Center at the Philadelphia Court of Common Pleas, designed to dispose of small civil cases. In 1991, Judge Quinones left the VA and established a solo practice. During this time she represented a criminal defendant and sat as an arbitrator in insurance matters.

As a practicing attorney, Judge Quinones appeared in court with occasional frequency. She estimates that over the course of her pre- judicial career, she tried 20 cases in family court, 300 commitment hearings before a Mental Health officer, pursuant to her work at the VA, and 600 administrative hearings.

In 1990, Judge Quinones was nominated by then Governor Robert Casey to a judgeship on the Court of Common Pleas for the First Judicial District of Pennsylvania, a court of general jurisdiction. She was confirmed, but also engaged in a judicial election, and secured the first of three 10-year terms in 1992. She won the later terms in November 2001 and 2011.

Judge Quinones has experience in both criminal and civil divisions, has presided over both jury and nonjury trials, and has supervised nearly every step in the trial process. Judge Quinones has presided over approximately 1,500 criminal trials and 300 civil trials.

The American Bar Association's Standing Committee on the Federal Judiciary gave her a Majority ``Qualified'' and Minority ``Not Qualified'' rating.

Judge Schmehl received his B.A. from Dickinson College in 1977 and his J.D. from University of Toledo School of Law in 1980. Early in his career, he focused on criminal law, first as an Assistant Public Defender, then as an Assistant District Attorney. In these capacities, he tried all types of criminal cases, from DUI to murder. During his time as Assistant District Attorney, Judge Schmehl also had his own private civil practice, handling wills, estates, real estate matters, workers' compensation cases, and unemployment compensation cases.

In 1986, Judge Schmehl left private practice and the District Attorney's office to join the private law firm Rhoda, Stoudt, & Bradley. There he worked on insurance defense work and plaintiffs' personal injury cases. As a practicing attorney, he has tried approximately 200 cases to verdict, judgment, or final decision, serving as sole counsel or chief counsel in almost all of them.

In 1997, Judge Schmehl was nominated by both the Democratic and Republican parties for a judicial position in the Berks County Court of Common Pleas and later elected to the bench. In 2007, he was appointed to a 5-year term as President Judge in the same court and remains there today. Judge Schmehl has presided over approximately 180 cases that have gone to verdict.

The American Bar Association's Standing Committee on the Federal Judiciary gave him a majority ``Well Qualified'' and minority ``Qualified'' rating.

I also am going to take a couple minutes to discuss something I would have discussed in the Judiciary Committee meeting this morning, but because of our vote I was not able to do it.

First, I want to talk about the nominations hearing we had earlier this week on B. Todd Jones.

There is an open investigation in the Office of Special Counsel regarding very troubling allegations that Mr. Jones retaliated against a whistleblower in the U.S. Attorney's Office.

He is now up for confirmation for the Bureau of Alcohol, Tobacco, and Firearms.

Mr. President, how much time remains until the vote?

Last week Carolyn Lerner, the special counsel who leads the office, wrote us a letter explaining the status of the matter. She wrote that the parties had agreed to participate in mediation. She also wrote, ``If mediation is unsuccessful, the case would return to the Office of Special Counsel's Investigation Prosecution Division for further investigation.''

On Monday, she wrote us another letter confirming that the case was still open. We were told the reason we had to move forward with the hearing was because an April letter from the Office of Special Counsel was made public. The justification for holding the hearing was since that issue was made public, the nominee should have had an opportunity to respond at the hearing.

But, of course, there was nothing confidential in the Office of Special

Counsel's letter. I am not about to hide this issue from the public. It is relevant to our inquiry as to the qualifications of the nominee. Moving forward under these circumstances is not consistent with past committee practices. Of course, there are sensible reasons for that committee practice.

First, none of us knows what the results of that investigation might be. How are we supposed to make an assessment of the matter while it is still open? Second, how are we supposed to ask the nominee about the results of the investigation when the investigation has not been completed? And, third, how are we supposed to ask the nominee about an open investigation when the nominee will claim he cannot talk about it for that exact reason?

I would also note that an assistant U.S. attorney who filed the complaint against Mr. Jones gave his consent on Monday for the Office of Special Counsel to provide the complaint to the committee. I must say the allegations in the complaint are extremely troubling. So I began my questions by asking Mr. Jones about these allegations.

Here is what he had to say:

Because those complaints are confidential as a matter of

law I have not seen the substance of the complaints nor can I

comment on what they are. I have learned more from your

statement today--

meaning, from this Senator,

than what I knew before I came here this morning about the

nature and substance in the complaints.

In other words, Mr. Jones said he could not answer questions about the Office of Special Counsel investigation because it remains open. This is precisely why it is imprudent to move forward with a hearing in this way. At his hearing, I followed up with another question to Mr. Jones, had he ever taken adverse personnel action? He responded:

I'm not familiar with the OSC complaint. I'm at somewhat of

a disadvantage with the facts. I can say that the privacy act

considerations do fit into the picture.

As another followup, I asked him how we were supposed to ask about the complaint if he would not answer it. Here is what Mr. Jones said:

Well, quite frankly, Senator, I'm at a disadvantage with

the facts. There is a process in place. I have not seen the

OSC complaints.

So we have a problem.

So again, even though there is an open investigation, we were told we were going forward with the hearing so that Mr. Jones had an opportunity to answer the allegations. But whenever he was asked about it, he said he could not answer our questions because he had not seen the Complaint.

So, my point about the hearing being premature was overwhelmingly proven.

I also want to make a few comments about Tony West, nominated to be the Associate Attorney General. He is currently the Acting-Associate Attorney General and has generally done a good job. However, I remain concerned about his time serving as the Assistant Attorney General for the Civil Division.

He was involved in the quid pro quo deal between the Department and the City of St. Paul, Minnesota that was orchestrated by Assistant Attorney General Tom Perez. That quid pro quo involved the Department agreeing to decline two False Claims Act cases pending against the City of St. Paul in exchange for the City dropping a case pending before the Supreme Court.

Perhaps the most concerning part to me is that Mr. West essentially let Tom Perez take control of the Civil Division and cut this deal which hurt the whistleblower, Frederick Newell, leaving him to fight his case all alone. This is not how I expect the Department to treat good faith whistleblowers.

On top of all that, I believe it is contrary to the assurances that I was given by Mr. West that he would protect whistleblowers and vigorously enforce the False Claims Act when we held his confirmation hearing in 2009. If this nominee is ultimately confirmed, I sincerely hope he does not let politics within the Department control, instead of supporting good faith whistleblowers who stick their necks out.

I also wanted to address the nomination of Ms. Caproni, to be a District Judge. I have concerns over the fact that I made a request to the FBI over 6 years ago, asking for documents regarding exigent letters. In March 2007, Chairman Leahy and I requested copies of unclassified emails related to the use of National Security Letters issued by the FBI.

I only received a few of these emails, and they were heavily redacted, so in 2008 I asked for the rest. Ms. Caproni, was general counsel of the FBI at the time and told me that the documents I was waiting for were on her desk, awaiting her review.

Well, it is now 2013 and as of her hearing, I had never received these documents.

I asked Ms. Caproni about this in her hearing and she had no specific recollection of this request. So, I asked her again in writing. This led to a set of FOIA documents being produced, which are a poor substitute for properly answering a committee request. It also raises further questions as to why it took 6 years and why Ms. Caproni told me years ago that she was working on responding to our request.

I have followed up with the FBI with specific requests regarding Ms. Caproni's involvement in the matter. Therefore, while I did not hold Ms. Caproni's nomination in committee, I reserve my right to do so on the Senate floor.

Concerning S. 394, the metal theft bill that we reported out this morning, I appreciate the changes that the sponsors made at my request to the criminal portion of the bill. The nature of the offense is clarified, and limited to the federal interest of critical infrastructure.

The bill also now requires criminal intent as an element of the proposed offense. The negligence standard in the bill has been eliminated.

However, I still have a number of concerns with this bill. The reality is that theft is already illegal everywhere in the country.

So is receipt of stolen goods. That raises questions about the necessity of a new federal offense.

The civil provisions are also duplicative of many State laws. The regulatory elements of this bill apply to any transaction in specified metal products exceeding $100. In my opinion, $100 seems to be a very low threshold.

We should not impose federal obligations unless the transaction is of a significant amount.

States can enforce their own laws if they have enacted a lower threshold.

Some of the recordkeeping requirements are of questionable value. For instance, the recipient must record the license plate number and make of the car used to deliver the metal.

Although the sponsors agreed to reduce the maximum amount, the dealer still faces up to a $5,000 penalty if he knowingly commits a paperwork violation, unless it is minor. This is true even if the metal is not stolen. That strikes me as excessive.

And the sponsors declined to accept the changes that I sought in the civil provision, especially as enforced by the state attorneys general.

Those provisions effectively allow a private right of action, even a class action, to enforce these paperwork violations at up to $5,000 per violation.

Not only can federal authorities enforce the bill's civil authorities, but so can the States. If metal theft continues, then that diffuse authority undermines the ability of citizens to hold accountable the responsible level of government.

This would allow the States to bring these cases in friendly State courts and expand the number of cases by outsourcing them to private lawyers paid under contingency fees.

This leads to more enforcement than would occur if these cases had to compete for attention with other priorities that state attorneys general would bring.

Excessive government can derive not only from broad laws, but from overzealous enforcement. The bill sponsors rejected my request that suits by the State AGs be filed only in federal court, and that any federal actions would supersede them.

There should be transparency and accountability for these lawsuits that are brought under authority of federal law.

I had amendments to discuss in markup, but will not do that here. However, when the full Senate takes up the bill, I will not be able to support it in its current form. I hope to work with the sponsors to address the concerns I have with this bill.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on June 13, 2013, at 9:30 a.m.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on June 13, 2013, at 10 a.m., to hold a International Operations and Organizations, Human Rights, Democracy and Global Women's Issues & European Affairs joint subcommittee hearing entitled, ``A Dangerous Slide Backwards: Russia's Deteriorating Human Rights Situation.''

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on June 13, 2013, at 10:30 a.m., in S-216 of the Dirksen Senate Office Building, to conduct an executive business meeting.

Mr. President, I ask unanimous consent that the Committee on Small Business and Entrepreneurship be authorized to meet during the session of the Senate on June 13, 2013, at 10 a.m. in room 428A Russell Senate Office Building.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on June 13, 2013, at 2:30 p.m.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs Subcommittee on Housing, Transportation, and Community Development be authorized to meet during the session of the Senate on June 13, 2013, at 10 a.m., to conduct a hearing entitled ``Lessons Learned From the Financial Crisis Regarding Community Banks.''