Lofgren: President Obama’s actions are legal, it’s time to end the criticism and pass a bill

December 2, 2014
Press Release

WASHINGTON, DC – In a House Judiciary hearing today, U.S. Rep. Zoe Lofgren (D-Calif.) called on House Republicans to end their uninformed and unwarranted criticism of President Obama's Immigrant Accountability Executive Actions and instead work towards passing meaningful comprehensive immigration reform.

H.R. 15, a bipartisan and comprehensive compromise bill, would pass the House today if it Republican leadership allowed a vote.

Lofgren is the leading Democrat on the House Judiciary Immigration and Border Security Subcommittee. Her full statement during the House Judiciary Committee hearing titled "President Obama's Executive Overreach on Immigration" is below.


"Thank you Mr. Chairman. When President Obama spoke from the East Wing of the White House two weeks ago about the steps he would take to improve our broken immigration system he was responding to loud and sustained calls for action from people all over the country.

"He can't change the law, but he can take certain actions within the law.

"The President recognized what we all know: our immigration system is badly broken. Millions of families face the threat of separation by deportation every day—parents from children, husbands from wives. Entrepreneurs and highly skilled immigrants from around the world want to drive innovation and create jobs and opportunities here, but instead we erect barriers and make them to go elsewhere to create their companies. Farmers rely on the work of undocumented immigrants to support their industry, we all rely on their food – I was thinking with my family at Thanksgiving how much we have to be grateful for – but I'm not grateful that the farmworkers who put that food on our table are living in fear.

"Before I entered public service I practiced and taught immigration law. And throughout my 20 years in Congress I have worked across the aisle to enact sensible immigration reforms, and we have come close several times.

"In 2006, the Senate passed a bipartisan bill, but the House Republicans squandered the opportunity to close the deal and instead passed an enforcement-only bill.

"Last year, the Senate again passed a bipartisan immigration reform bill that brought historic adversaries: the Chamber and AFL-CIO, growers and farm workers, everybody together with 68 votes in the Senate and again we did nothing here on the House side. In fact, I was part of our own group of eight here in the House where we tried to craft a bipartisan House bill, and we did actually write a bill but in the end we were unable to move forward.

"So it was only in the face of Congressional inaction that the President decided to do something. He recognized that there are costs to doing nothing and he looked for opportunities that are permitted in current law to avoid some of the costs. There are many things the President can't do to fix our immigration system and nothing the President did either alleviates the need for legislative action or prevents Congress from acting.

"Now, the focus of the President's legal authority is allegedly the topic of this hearing, and I think it is important to remember that the President announced reforms in many different parts of the immigration system, including a new strategy to focus enforcement along the southern border, pay reforms for ICE personnel, several different efforts to make the immigration system work better for entrepreneurs – I haven't heard anybody complaining about those efforts of the President. No, it's only about the families of American citizen children. This talk of executive overreach really is about deporting – I think – the parents of US citizen children and I think it's a darn shame.

"By this point, much has already been said about the legal authority going back to, really, Eisenhower in the 50s, every President has used the similar or same authority in the immigration context. The authority stems from the President's constitutional duty to "take care that the Laws be faithfully executed." In Heckler v. Chaney, the Supreme Court explained that this duty does not require the President to "act against each technical violation" of the law. And when the Supreme Court in Arizona v. United States struck down the majority of Arizona's SB1070 law, the Court specifically reaffirmed that: "broad discretion" exercised by federal immigration officials extends to: "whether it makes sense to pursue removal at all."

"In 1999, Members of Congress from both parties—including members who still serve on this Committee—wrote to then-Attorney General Janet Reno and asked her to issue "specific instructions" to guide in the use of prosecutorial discretion. Several years later, Congress in Homeland Security Act specifically directed the Secretary of Homeland Security to "establish national immigration enforcement policies and priorities." That is precisely what Secretary Johnson has done.

"Now to the Family Fairness program, which serves as an important historical precursor to the Deferred Action for Parental Accountability program: President Reagan's Family Fairness program, was announced at a 1987 hearing before the House Immigration Subcommittee and it offered protection from deportation to certain spouses and children of persons who were legalized in the 1986 Act. When the program was expanded under George H.W. Bush in 1990, the INS Commissioner estimated that as many as 1.5 million people would be eligible for protection from deportation and work authorization.

"I heard the Chairman's comments about Pinocchio's and the Washington Post – but I recently discovered two documents that I would ask unanimous consent to put into the record. The first is the decision memo that announced the Family Fairness Policy, dated February 8, 1990 where the Department estimates that the Family Fairness Policy provides voluntary departure and employment authorization to potentially millions of immigrants. And the other document, also dated February 8, 1990, which indicates that the intent or expectation is that greater than 1 million IRCA-ineligible family members will file for the benefit.

"Now when, then-Commissioner McNary stated in 1990 that the program would begin, he said "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." He understood that a smart enforcement strategy also can be a humane enforcement strategy. That is no different than today.

"If there is one key difference between the Family Fairness program and the deferred action program announced by the President last month, it is that Presidents Reagan and Bush offered protection to people who were knowingly and intentionally denied protection by Congress when they passed the 1986 Act. By contrast, the President is now acting in the face of historic intransigence by House Republicans, who will—if no action is taken by the end of this month—have wasted two opportunities in 8 years to advance immigration reform bills.

"The President's actions are lawful. They are also smart, because they will allow DHS to focus limited resources on serious criminals, recent arrivals, and gang members. Finally, they are consistent with basic American values, like accountability, family unity, and compassion.

"I would note that HR15 is sponsored by 201 Members, both Democrats and Republicans. There is still time to take this bill to the Floor for a vote and I hope that Republicans will do so.

"Finally, I just want to respond very briefly to the argument and the video that we saw of the President making various comments about the limits of his authority. I guess – if the President had said multiple times that 5 + 5 = 15, and then he finally said 5 + 5 = 10, he would not be wrong when he finally said 5 + 5 = 10.

"Second, the timing of the President's statements were important. All of those statements were made before March – those statements were made before the President asked the Secretary of Homeland Security to do a complete review of the immigration system to see what could be fixed administratively, which resulted in his memorandums and resulted the formal opinion of the Office of Legal Counsel.

"Finally, as we will see throughout this hearing, the legal question isn't even a close one. The President has clear legal authority to defer removals when it's in the national interest. Chief Justice Roberts reaffirmed that principle just two years ago – our immigration laws recognize this authority – past Presidents have used this authority regularly. Our President is doing so now and I, for one, am grateful that he is, and I yield back.

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