Lofgren warns against DHS shutdown, cites authority for Executive Immigration Action

February 25, 2015
Press Release
WASHINGTON, D.C. – In a House Judiciary Committee Hearing today, U.S. Rep. Zoe Lofgren (D-Calif.) warned of the potential consequences of a Republican-led Department of Homeland Security shutdown, and laid out the clear constitutional and statutory authority of President Obama's Immigrant Accountability Executive Actions.

Lofgren, the Ranking Democrat on the House Judiciary Immigration and Border Security Subcommittee, delivered the following statement today during the House Judiciary Committee hearing titled "The Unconstitutionality of Obama's Executive Actions on Immigration"
Text as delivered:

"The 113th Congress is considered to have been one of the most do-nothing Congresses in history. The biggest symbol of the Republicans' failure to govern was the unnecessary and irresponsible shutdown that lasted from October 1 through October 16. Federal employees were furloughed for a combined total of 6.6 million days, $2 billion was spent on payroll to these furloughed employees for work that they were prevented from doing, the recovering economy took a hit, and millions of Americans were denied access to programs and services that they rely on.

"Perhaps it is fitting, then, that the 113th Congress ended with the so-called CRomnibus — a spending bill that promised to yet again put us on the path toward a government shutdown.

"We're only two months into the 114th Congress, but already it seems like the Republican majority in the House and Senate is trying to outdo itself. For the past 6 weeks, rather than proceed with the DHS funding bill that Democrats and Republicans in the House and Senate agreed to last year, Republican leaders in the House and Senate have insisted that funding be contingent on a series of poison-pill immigration riders demanded by the most extreme Members and supported by all but a few.

"Since the CRomnibus was first hatched, many Republicans have argued that the President acted unconstitutionally on November 20, when he and the Secretary of Homeland Security announced a series of measures designed to bring a measure of sense to our broken immigration system. We have been told these measures cannot be permitted to take effect.

"Last week, of course, a federal judge issued a preliminary injunction halting two of those measures: the Deferred Action for Parental Accountability and the expansion of the Deferred Action for Childhood Arrivals program. These efforts are designed to offer temporary protection from deportation to certain parents of U.S. citizens and lawful permanent residents and to DREAMers with long ties to our country.

"The Department of Justice this week requested a stay of the injunction and noticed an appeal. The matter is firmly in the hands of the federal courts, the branch of government that the Constitution entrusts to settle disputes arising under the Constitution and the laws of the United States.

"Some people—including some Republicans in the House and Senate—have speculated that a court injunction would convince Republican leadership to stop holding the spending bill hostage. What we have seen over the past two weeks, however, is that many Republicans are even more determined to take us over a cliff and once more shut down the government.

"Several points are worth noting.

"First, we continue to hear Republicans minimize the impact of a shutdown on national security by arguing that 85% of DHS employees were deemed "essential" during the last government shutdown. I just can't understand how we in Congress would take comfort at the idea of forcing Border Patrol agents to secure our borders, Coast Guard personnel to patrol the seas, and ICE officers and agents to conduct law enforcement investigations and secure detention facilities without receiving their paychecks. It is unconscionable, really.

"Further, it's bizarre that we will defund the E-verify program, stop the immigration enforcement efforts, but at the same time, because they're fee supported – the processing of immigration petitions will be unimpeded. So the effort stops immigration enforcement efforts but does nothing to actually stop the processing of immigration petitions.

"Second, since we know the Court already temporarily halted implementation of DAPA and expanded DACA, it is important to remember what other initiatives congressional Republicans are trying to block as part of the DHS funding:
  • They voted overwhelmingly to eliminate the DACA program itself, stripping protection from more than 600,000 DREAM Act kids and subjecting them once more to deportation.
  • They voted to prevent DHS from implementing a new enforcement strategy along our southern border and creating three new law enforcement Task Forces. 
  • They voted to block DHS and DOD from working together to ensure that U.S. citizens who wish to enlist in the military would be able to do so notwithstanding immigration status of close relatives. 
  • And they voted to stop DHS from taking important steps to capitalize on the talents of entrepreneurs, to help companies attract and retain highly-skilled immigrants, and to promote citizenship. Just yesterday, USCIS issued a final rule extending work authorization to the spouses of certain H-1B visa holders who are beneficiaries of an approved employment-based immigrant visa petition. If the appropriations bill passed by the House were to have become law, USCIS would have been prevented from finalizing that rule. 
"Republicans don't talk about the fact that they are refusing to fund DHS unless they block each of these efforts but that is what they voted to do.

"Turning to today's hearing, I note that although the title of this hearing – as has been mentioned – presumes that the president's executive actions are unconstitutional, no court—including the Texas District Court that issued the preliminary injunction—has found that these actions unconstitutional. In fact, a challenge to the original DACA program brought by the State of Mississippi was thrown out of court for lack of standing and a challenge to the administration's recent executive actions brought by Maricopa County Sheriff Joe Arpaio also was dismissed for lack of standing.

"Of course, I am disappointed by the court's ruling and I know millions of American families across the country are also greatly disappointed. Still, I expect that both programs will be upheld as fully within the president's legal authority by appellate courts.

"I say this because there is ample legal and historical precedent supporting the President's actions. The Supreme Court has long recognized the administration's authority to exercise prosecutorial discretion when enforcing our immigration laws and has specifically recognized that granting deferred action is a legitimate exercise of that authority. Congress directed the Secretary of Homeland Security to establish national enforcement policies and priorities and policies and empowered the Secretary to perform acts that "he deems necessary" for carrying out his authority under the Immigration and Nationality Act.

"Every year Congress gives the administration only enough money to apprehend, detain, and remove a fraction of the people in this country who are removable and additionally directs the Department to prioritize the removal of people with criminal convictions based on the severity of the offense.

"Although the Texas court's ruling seems to turn on the fact that DACA recipients may apply for work authorization and Social Security cards, it fails to acknowledge that the legal authority for granting work authorization and Social Security cards is entirely distinct from the authority to grant deferred action, and in fact, is statutorial. All of those authorities long pre-dated DACA and Congress has never taken any action to limit the administration's discretion in these areas.

"This is arguably the fourth hearing, Mr. Chairman we have held on the legal authority for the president's actions on immigration.

"I will conclude by saying the Courts will ultimately decide whether the Administration's programs can take effect. It is our responsibility to reform the law and it would be irresponsible of us to shut the government down.

"We should allow the courts to do their job, and we should do our own."

# # #