Pelosi Floor Remarks in Opposition to House Republicans’ Dangerous Homeland Security Bill
‘Thank you very much, Mr. Speaker. I thank the gentlelady for yielding. And I join my colleagues who have commended the Appropriations Committee on the fine work they have done under difficult circumstances on the Homeland Security bill. It had been our hope that their fine work would have been rewarded by its passage in December. But the Republican leadership in the House decided that we would not pass the bill, then, to give some certainty to how Homeland Security would be funded in this year, and instead, tossed it over into the New Year.
‘We take an oath to protect and defend the American people. Their safety is essential to everything else. And Homeland Security is a place where we have a very big component for protecting and defending the American people. That’s why we were so disappointed that, of all bills, the Republicans would pull that one bill out of the pack and say: ‘We’re just doing this for a matter of weeks.’ It came with the promise that, after the first of the year, we would of course pass a Homeland Security bill. That was December. In December, the Republicans said: ‘No, we don’t want to have that certainty. Not just yet.’
‘And then, along came January. Paris. Je suis Charlie – around the world it is echoed. Everybody coming together – heads of state, leaders of countries – whether you were present there or not, everybody present in the moment and the time since, in support of protecting people throughout the world from terrorism. It seems like that affected almost everybody, except it didn’t penetrate the walls of this chamber. Because here we are, once again, putting off – by other distractions – how we would pass, as quickly as possible, a Homeland Security bill.
‘And what’s interesting to me is that our colleagues are using immigration – some of our colleagues are using immigration as the excuse. But what further is interesting is that now they’re saying it’s not about immigration – which, of course, it’s always been about, pass an immigration bill and we don’t even need to have this discussion – they’re saying it’s about the Constitution.
‘I don’t remember, and I’ve been here since President Reagan was President, I don’t remember anybody calling up the Constitution when President Reagan used his executive authority, in the Family Fairness executive action. I don’t remember anybody bringing up the Constitution when President George Herbert Walker Bush further expanded protections for people in our country; President Clinton and President George Herbert Walker Bush.
‘So this is very interesting to hear about. But I do want to put this in perspective, and it will take a little time.’
[At this point in her remarks, Leader Pelosi reads from a memorandum prepared by Rep. Zoe Lofgren, Ranking Member on the Subcommittee on Immigration and Border Security, entitled ‘Legal Analysis of Various options for Administrative Action on Immigration’]
“There is strong legal and historical precedent to support an extension of deferred action to a broad category of people who have strong equities to the country. The Immigration and Nationality Act (INA) and the judicial precedent make clear that the executive maintains broad discretion to determine how immigration laws are to be enforced. Such discretion extends to decisions regarding whether to defer enforcement against entire categories of people, whether such categories are defined by nationality or some other common characteristic that makes them particularly deserving of an act of administrative grace.
“This legal authority has existed since the INA was first enacted in 1952 and has been exercised in various ways and under various names over the past 62 years. Based upon the administration’s expansive prosecutorial discretion authority, the President could extend deferred action to persons who would qualify for registered provisional immigrant status under S. 744, which passed the U.S. Senate on June 27, 2013, by a vote of 68-32, and H.R. 15, which remains pending in the U.S. House of Representatives. The President could similarly establish a separate deferred action program for persons deemed ‘essential for agriculture’ in recognition of the fact that our country’s agriculture industry and the millions of job that rely upon it are largely dependent on the labor of unauthorized workers as for the parents of young people who have already received deferred action under DACA.
“When Congress first passed the INA in 1952, it charged the Attorney General with the administration and enforcement of immigration laws and authorized the Attorney General to ‘perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.’ Courts have relied upon this delegation of authority to support the principle that the Act ‘commits enforcement of the INA to [the Attorney General’s] discretion.’
“With the creation of the Department of Homeland Security (DHS) in the Homeland Security Act of 2002 – which many of us were here for – Congress further entrusted the newly created Secretary of Homeland Security with the responsibility of ‘establishing national immigration enforcement policies and priorities.’ In doing so, Congress acknowledged the inherent authority of enforcement agencies to decide whom to investigate, detain, charge, and prosecute under the law. The Supreme Court ‘has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’ That’s the Court’s decision. Courts consistently have applied this principle in the immigration context and, in particular, to grants of deferred action and extended voluntary departure.
“In Arizona v. United States, the Supreme Court relied upon the ‘broad discretion’ exercised by federal immigration officials, including ‘whether it makes sense to pursue removal at all,’ to strike down almost all of Arizona’s sweeping anti-immigrant law (SB 1070). Because Arizona’s law could result in ‘unnecessary harassment of some aliens’ – that’s their term – ‘(for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed,’ the law ‘violates the principle that the removal process is entrusted to the discretion of the Federal Government.’
“The idea that immigration enforcement efforts should be focused on high priority targets has not always been controversial. Guidance pertaining to the use of prosecutorial discretion in the immigration context has been issued at least as far back as 1976. Under President George W. Bush, in recent memory, the Assistant Secretary for Immigration and Customs Enforcement (ICE) reaffirmed prosecutorial discretion guidance issued during the Clinton administration and reiterated the ‘responsibility of ICE agents and officers to use discretion in identifying and responding to meritorious health related cases and caregiver issues.’
“Indeed, fifteen years ago, Democratic and Republican Members of Congress joined together on a letter to then-Attorney General Janet Reno urging her to issue guidelines that would provide ‘specific instructions’ to agency personnel in order to alleviate some of the hardships caused by our immigration laws. The letter accepted the premise – Democrats and Republicans signed it – that ‘[t]he principle of prosecutorial discretion is well established’ and asked the INS to explain why it would pursue removal in cases that would result in unjustifiable hardship rather than prioritize enforcement efforts against more serious cases.
“Although the Deferred Action for Childhood Arrivals (DACA) program announced two years ago provides the most recent example of temporary relief from removal being offered to a substantial class of persons, it is the ‘Family Fairness’ program adopted by Presidents Ronald Reagan and President George H.W. Bush that proves to be the strongest precedent for building upon DACA and offering deferred action to a larger class of persons who meet certain criteria.
“This is very interesting, I think, my colleagues: In 1986, Congress passed and President Reagan signed into law the Immigration Reform and Control Act of 1986 (IRCA). The law provided a path to legal status for millions of undocumented immigrants, but provided no relief to the children and spouses of such persons who were not themselves able to meet the requirements for legalization. Indeed, when the Senate Judiciary Committee reported the bill to the floor it wrote: ‘It is the intent of the Committee that the families of legalized aliens will obtain no special petitioning right by virtue of the legalization. They will be required to ‘wait in line’ in the same manner as immediate family members of other new resident aliens.’
“But On October 26, 1987—less than one year after IRCA was enacted into law—President Reagan made the decision to defer enforcement against some of the close family members of persons who obtained lawful status under IRCA. Now this is President Reagan acting – President Obama is acting in the absence of Congressional action – President Reagan was acting in the presence of Congressional Action and saying, ‘You didn’t go far enough.’ Under the ‘Family Fairness’ program issued by then-INS Commissioner Alan C. Nelson, the Reagan Administration offered ‘indefinite voluntary departure’—along with the opportunity to apply for employment authorization—to undocumented children residing with their parents if both parents (or, in the case of a single-parent household, the parent with whom the child resides) had obtained lawful status under the Act. Spouses of persons who obtained lawful status also could be granted indefinite voluntary departure and work authorization by demonstrating the existence of certain compelling or humanitarian factors.
“Would you be suing President Reagan for doing that, as some of you are friends of the court in a suit against the president, as you are using the Constitution as your argument here today?
“In response to continuing concerns that the Family Fairness program was too narrowly defined, President George H.W. Bush went further three years later expanded the program to apply to all spouses and children of persons who were legalized through IRCA, provided they met certain requirements. The memorandum issued by then-INS Commissioner Gene McNary clarified that voluntary departure and employment authorization would be granted to such persons for a one-year period and would be subject to extensions without limit. The Reagan Administration. Would you be taking the President to court? Would you be arguing that he acted unconstitutionally on the floor of the House? People didn’t then.
“The INS developed a new form, Form I-817, Declaration, Ineligible Family Member of Legalized Alien, precisely for the purpose of allowing undocumented persons who did not qualify for legalization under IRCA to affirmatively request relief from the threat of deportation and authorization to work lawfully. According to reports at the time, INS Commissioner McNary contemplated that the program could have affected as many as 1.5 million undocumented immigrants. Explaining the rationale for expanding the earlier program, McNary stated that: ‘It is vital that we enforce the law against illegal entry. However, we can enforce the law humanely. To split families encourages further violations of the law as they reunite.’
“In the end, only a fraction of the people eligible for relief under the Family Fairness program obtained such protection, but that is only because the Immigration Act of 1990 (IMMACT) was enacted less than one year after the program was expanded by President Bush. Section 301 of that bill contained a Family Unity Program that largely codified the executive actions taken by Presidents Reagan and Bush.
“The parallels between the Reagan/Bush ‘Family Fairness’ program to what is being proposed at the present time are uncanny. There are several lessons that can be drawn from this past precedent.
“First, the authority to provide temporary relief from removal to a large percentage of the undocumented population has long existed and past presidents have exercised such authority.
“Second, such authority existed even when the executive’s authority would seem to be at its weakest—where Congress specifically declined to legislatively provide the relief granted administratively. The president is now being asked to take administrative action in the face of historic intransigence on the part of House Republicans after the Senate overwhelmingly passed a bipartisan comprehensive immigration reform bill buoyed by popular support. Overwhelmingly supported in a bipartisan way in the Senate – but nothing happening in the House. By contrast, the Reagan administration adopted the family fairness program less than one year after Congress enacted the last comprehensive immigration reform bill that contained specific criteria for legalization and knowingly excluded from protection the very people affected by the administrative action. Just as I said before: even when Congress acted, President Reagan said: ‘We can do better.’ Nobody argued the constitution at the time. Well, if they did, History doesn’t recall.
“Third, the scope of the administrative relief now being considered by the administration is entirely consistent with the Family Fairness program after it was expanded by President Bush. According to demographic work performed by the Pew Research Center, there were an estimated 3.5 million unauthorized immigrants living in the United States in 1990. By extending the Family Fairness program to cover 1.5 million unauthorized immigrants at the beginning of that year, President Bush used executive authority to protect an overwhelming 42.9 percent of the undocumented population from removal and to offer them work authorization. I don’t remember any uproar in the Congress, many of us were here at that time. Earlier this year, the Pew Research Center estimated that there were 11.7 million unauthorized immigrants living in the United States as of March 2012. If the administration takes steps to protect approximately 5 million undocumented immigrants from removal, as a recent article in the New York Times suggests, that would extend temporary relief to 42.7 percent – a lower percentage than President Bush protected.
“Finally, the most important lesson that can be learned from the family fairness program is that bold executive action can sometime help change the legislative dynamic helping to break through gridlock and pave the way to legislative reform. The only reason that the Reagan/Bush Family Fairness program did not provide indefinite voluntary departure and employment authorization for many years without legislative approval—essentially a grant of deferred action—is that Congress took steps to largely codify the program and provide such relief from removal and employment authorization itself.
“At the time that the Bush administration expanded the ‘family fairness’ program, legislation to extend similar protections was stuck in Congress having passed the Senate in July 1989 but having seen no legislative action in the House. Less than 8 months after the administration’s action, the House passed its version of the bill, a conference committee was convened, and IMMACT was quickly signed into law. This same pattern can be observed in many of the cases described in which the administration granted extended voluntary departure, deferred enforced departure, or deferred action to a broad category of people defined by their nationality or some other compelling characteristic and Congress subsequently enacted legislation to permit such people to obtain lawful permanent residence. I hope that will happen. The President has executive orders, hopefully Congress will codify that.
“The Reagan/Bush ‘Family Fairness’ program is just one of many examples of past presidents deciding to defer removal efforts and offer employment authorization to large classes of people. In 1960, the Kennedy Administration granted ‘extended voluntary departure’ or EVD to many Cubans who otherwise would have been subject to deportation. Over the next 20 years, the INS granted similar protections to nationals of more than a dozen other countries. Such grants have sometimes, but not always, resulted in the enactment of special legislation permitting EVD beneficiaries to adjust their status to that of lawful permanent residence. In 1966, Congress enacted such legislation – again President Kennedy acted -- for Cubans granted EVD. Congress did the same in 1977 for Vietnamese, Laotians, and Cambodians permitted to remain in the country on EVD, and again in 1987 for EVD recipients from Poland, Afghanistan, Ethiopia, and Uganda.
“I have personal experience on the next initiative.”
“After Tiananmen Square, there were concerns that Chinese nationals residing in the United States, primarily as scholars and students, would face repression if forced to return home. Congress passed a bill to allow these Chinese nationals to remain which President George H.W. Bush vetoed. This is my bill. Then in 1990, it passed the House, it passed the Senate, it went to his desk, and he vetoed it. It had strong bipartisan support. We could fight the veto in the House. But in the Senate, at the moment of truth, the Senate upheld the veto. Because President Bush promised that he would issue an executive order extending ‘deferred enforced departure’ or DED to an estimated 80,000 Chinese nationals.
“And while the President did not want it to be an act of Congress, for fear of the insult it might be to the Chinese government as they were crushing people in the streets in Tiananmen Square and arresting people and the rest, he did promise to do an executive order, which he did. Following the Executive Order, Congress acted quickly to permit Chinese nationals granted protection from removal and employment authorization to adjust their status to that of lawful permanent residence. In 1991, President Bush extended DED to approximately 2,000 Persian Gulf Evacuees of various nationalities who were airlifted from Kuwait the previous year during the Persian Gulf War.
“The persons evacuated were chosen because they had children who were U.S. citizens or because they provided protection to U.S. citizens during the Iraqi invasion of Kuwait. In 2000, Congress enacted a private immigration law to permit those who had not already become permanent residents by other means to obtain permanent residence. In 1992, President George Herbert Walker Bush also extended DED to approximately 200,000 Salvadorans who fled civil war and previously had been protected from removal pursuant to a grant of Temporary Protected Status, or TPS. President Bill Clinton later provided DED to Haitians in 1997 and President George W. Bush extended DED to Liberians in 2007.
“Finally, again, this administration has extended deferred action to broad categories of people on two prior occasions. First, in 2009, U.S. Citizenship and Immigration Services (USCIS) created a process through which the surviving spouses of deceased U.S. citizens and the qualifying children of such spouses could apply for deferred action. The process was created because it was the position of DHS at the time that no immigration relief was available under law to protect surviving family members from removal and that action was needed to ‘address the humanitarian concerns arising from [such] cases.’ The DACA program announced by Secretary of Homeland Security Janet Napolitano on June 15, 2012, represented the second deferred action program created under this administration. As of June 30, 2014, over 580,000 persons had been granted deferred action under the program.
“The use of Presidential ‘parole power’ is one of the oldest and most established provisions of Presidential authority in immigration matters. Parole was first used to allow the entry of refugees who would otherwise be excluded by the national origins quota system. Presidential parole authority was codified in the original 1952 INA, which authorized the use of discretionary authority to parole aliens into the United States ‘for emergent reasons or for reasons deemed strictly in the public interest.’
“In 1956, President Dwight David. Eisenhower first used his parole authority to allow 900 World War II orphans into the country and later paroled approximately 30,000 Hungarians into the country. This use of parole powers marked the first of many mass admissions by future administrations. Presidents Eisenhower, Kennedy, Johnson and Nixon collectively allowed approximately 600,000 Cubans to be paroled into the country, and President’s Ford and Carter paroled approximately 300,000 Indochinese from Vietnam, Cambodia and Laos.
“In response to a concern that the parole power was being used to admit large numbers of persons not covered by international refugee laws, Congress enacted the Refugee Act of 1980 which amended the INA to provide a process for the admission of refugees. The Act also limited the administration’s ability to parole refugees into the country absent compelling reasons in the public interest, but left untouched the general parole authority.
“Nevertheless, several Presidents subsequently used the parole authority to allow the entry of groups of persons who arguably could have been considered ‘refugee populations.’ In 1989, President George H. Bush created a program that allowed individuals in Vietnam who were ineligible for refugee status to enter the country as ‘Public Interest Parolees’ if they were able to prepay their travel expenses and provide affidavits of support from sponsors in the United States. In 1996, President Bill Clinton paroled approximately 7,000 Iraqi Kurds to Guam and allowed them to apply for asylum to the United States. n 2006, President George W. Bush created a program which allowed the United States to parole certain Cuban medical professionals who have been conscripted to study or work in a third country under the direction of the Government of Cuba.
“In 1996, Congress once more amended the statutory parole authority to apply only ‘on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’ Nevertheless, as the terms are not defined by statute they are open to interpretation by the administration. In fact, the several instances in which parole authority was used by past presidents demonstrate that promoting family unity can serve humanitarian goals or provide a significant public benefit.
“The Lautenberg Parole Program, implemented by President George H.W. Bush in 1988, granted parole to individuals whose refugee claims were denied, but who had family reunification concerns. In 2007, President George W. Bush established the Cuban Family Reunification Parole Program to expedite the reunification of Cuban families by paroling into the United States beneficiaries of approved family-based immigrant petitions so that they might wait together with their family members until a visa becomes immediately available. Also in 2007, President Bush created a program to authorize the parole of certain refugee derivative family members who have aged out and therefore are not eligible to be approved for refugee status.
"Given the administration’s broad statutory parole authority, the lengthy visa backlogs that exist in most immigrant visa categories, and the humanitarian interests and significant public benefits that would attach to the unification of families, the president could make parole available to the spouses, sons, and daughters of American citizens and lawful permanent residents who face a separation of a year or more or, in the case of less than a year, when hardship in addition to mere separation is present. This would not permit family members to skip the line, but would allow them to wait in the United States with their family members until a visa number becomes available.
“The legal authority for ‘parole in place’ was first formally recognized in a 1998 opinion by the General Counsel of the INS. Well-settled in past INS legal memoranda. That opinion was endorsed the following year by the Commissioner of the INS, and it was reaffirmed in 2007 by the DHS General Counsel under President Bush. According to these legal opinions, INA § 212(d)(5)(A) grants discretion to parole ‘any alien applying for admission to the United States,’ and INA § 235(a)(1) expressly defines an applicant for admission to include ‘an alien who is present in the United States who has not been admitted.’ As a result, parole can be granted to persons who are present in the country without having previously been admitted to the country.
[Leader Pelosi concludes her reading from the memorandum at this point in her remarks.]
“The list goes on and on. I have so much more that I want to tell our colleagues. But what I’m saying to you is: there is legal authority for the President to take action under the law. There is presidential precedent – bipartisan since President Eisenhower, since these laws were passed, to do so.
“So to all of a sudden say: ‘We’re having a debate now about the Constitution,’ when we’re supposed to be passing a law to protect and defend the Constitution, and instead we’re taking an exception to the interpretation of it – as I said, President Eisenhower, every president, President Eisenhower, President Kennedy, President Nixon, the list goes on and on.
“All of the presidents since President Eisenhower, and certainly since President Reagan and both President Bushes, and President Clinton, all acted in this way. Many of us were Members of Congress in those presidencies. None of us – if somebody wants to come forward and say that he was a voice in the darkness – but nothing significant ever emerged to challenge the constitutionality of what the presidents did.
“So why now? Especially now. December – ‘We’re not going to protect and defend by extending this bill with certainty for Homeland Security.’ Paris. The whole world is in unity, galvanized by wanting to stop terrorism and to do everything in our power to do so. And we in this House are hesitating too do that? If we want to take up an immigration bill, and argue that the President doesn’t have the authority to do what he has done – but with an intention to act ourselves – that would be the appropriate place to have this debate.
“But to hold up the Homeland Security bill, which Chairman Rogers and Ranking Member Lowey, and the subcommittee chairs, and we’re very proud of David Price on our side on that, and I’m sure that the Republicans are very proud of all of their Members on their side – because they came up with, under difficult circumstances, a good bill. Let’s just pass it, why don’t we? And then let’s get on with passing an immigration bill, and debate what authorities the President has. And if we don’t like them, then debate the merits of what he did, and pass some of that into law. But to say that he doesn’t have the authority to do it, and that this is about the Constitution, really raises some questions – serious questions.
“And, again, we should be talking about how we’re creating good-paying jobs in our country. That’s what people want us to be doing. Let’s just pass this bill, get it done, and go on to how we can best invest in better infrastructure and bigger paychecks for the American people. Lifting the economy, and the purchasing power of our workers, really creates an atmosphere where immigration and other humanitarian initiatives are better received.
“So I took the time tonight because I just was listening to this debate and how people were saying that the President was acting outside the scope of the Constitution, that he had overreached. Then I ask my colleagues, what are you thinking – that you would hold up the Homeland Security bill, and that you would not question the authority of Republican presidents, or even of Democratic presidents when they have done this – but you are questioning the constitutionality of actions taken by President Obama.
“The time is not right for this. The time is right for us to pass an immigration bill. The time is right for us to right now, tonight, to pass a clean – tomorrow morning – to pass a clean – reject these amendments and pass a clean Homeland Security bill so we can get on with that and then have a clear debate on immigration.
“I want to thank the staff of the Judiciary Committee for the important work that they have done – Congresswoman Zoe Lofgren, Ranking Member John Conyers – the work that they have done educating Members about what the history is on this subject, and it’s a recent history. I think them for their leadership and their service, and I ask our colleagues to reject these amendments, disabuse yourselves of any notion – because it isn’t a full-fledged idea – but any notion that the President is acting in an unconstitutional way.
“Let’s get on with our work. And when we say, ‘Je Suis Charlie,’ we’re not just identifying with a magazine office in Paris. That would be important enough. But we’re identifying with the entire effort to protect people from terrorism. That’s what the Homeland Security Committee was established to do. That’s what this legislation will fund. Let’s remove all doubt that we’re going to do it as soon as possible. I urge a ‘No’ vote on the amendments, and yield back the balance of my time.”