How You Know They're Not Serious About "Securing the Border"

Have you seen this ad? We're told that S.744 (the "comprehensive immigration reform" bill that passed the Senate last month) contains "the tough border security America needs." Sen. Marco Rubio (R-Fla.), one of the "Gang of Eight" Senators who supposedly drafted this legislation,  assures us that the bill “puts in place the toughest enforcement measures in the history of the United States, potentially in the world.” Is that a fair statement?

Last week, I posted a critique of S.744 and detailed some of the problems with the bill's approach to immigration reform. I originally endeavored to go into even greater detail about the language of the legislation, but then I decided that the more tedious analysis belonged in a separate post. So, here, I will analyze with greater specificity where and how the Senate's bill comes up short. First, though, a brief passage on the policy lingo of immigration reform is needed.

The principal responsibility for protecting our country's border security, cybersecurity and economic security lies with the Department of Homeland Security (DHS). DHS is also charged with overseeing citizenship and immigration in the United States. The United States Citizenship & Immigration Services (USCIS) oversees legal immigration to the United States and is the agency that grants immigration and citizenship benefits. Immigration & Customs Enforcement (ICE) is "the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration," according to this thing somebody referred me to.
 

When discussing/debating "legalizing" illegal immigrants, it's important to understand that a pathway to legal status is not necessarily a pathway to citizenship. (To some, any legalization is "amnesty", but that's a topic for a separate post.) S.744 speaks of "registered provisional immigrant status," which if granted would then allow an immigrant to stay in the U.S. legally, without receiving all the rights and benefits of a U.S. citizen. In this post, I'll refer to applications for registered provisional immigrant status by the acronym "ARPISs".

It's also important to understand that, as was the case with past efforts toward "comprehensive immigration reform", the end game of S.744 is to legalize immigrants who are currently in the U.S. unlawfully without requiring them to resort to existing legal channels (which, in most cases, would require them to first leave the U.S. and re-enter the country legally). There are some who are categorically opposed to this, but most Americans who have an opinion on this subject are not. Most members of Congress, too, are willing to support legislation that would provide illegal aliens with a path to legal status or even citizenship, but a lot of them want any legislation that provides such a pathway to address the problem of illegal immigration with, inter alia, more border security, enhanced & increased "interior enforcement" and measures that discourage the wrong kind of immigration (to wit, illegal immigration and the immigrants who come here legally with an eye toward living off the government).

Rubio and other Republican proponents of the bill have insisted that it contains multiple security "triggers" that must be met before any immigrant currently in this country illegally can be legalized. Skeptics have contended that these "triggers" are weak, meaningless and/or can be easily manipulated/circumvented to fast-track the legalization process. Many Senators offered amendments to S.744 (discussed herein) that would strengthen the triggers or add additional preconditions to legalization.

You've probably heard of the "border surge" provisions in S.744. In the bill, what some are calling "the Border Surge" is part of the Comprehensive Southern Border Security Strategy. I'll just call it the Border Surge. There's also the "Southern Border Fencing Strategy," which is exactly what it sounds like. (S.744 requires the `Southern Border Fencing Strategy' to identify "where fencing (including double-layer fencing), infrastructure, and technology, including at ports of entry, should be deployed along the Southern border.") "E-verify" refers to a mandatory employment verification system required by current law  that the federal government never got around to implementing (at least not as originally conceived). There is currently a federal employment verification program in place, but it is not very potent or effective.

Now to the "triggers." I haven't read and analyzed the entire bill yet, so I can't tell you exactly what's in it. However, I can say what's not in it, and that's critical. By looking at what the proponents of this legislation voted against, you can see that they're not at all serious about border security.
 

Six weeks ago, the Senate agreed to table (kill) an amendment by Sen. Chuck Grassley (R-IA) that would have allowed DHS to begin processing ARPISs only after the Secretary of Homeland Security has certified to Congress that "the Secretary has maintained effective control of the Southern border for a period of not less 6 months." Such a nebulous standard could hardly be regarded as a serious precondition, so it should come as no surprise that Handsome John Thune's amendment, which contained more specific prerequisites, was also defeated by a vote of 39 to 54. Thune's amendment would have required 350 miles of Southern border fencing to be completed before the Secretary could commence processing ARPISs and conditioned any adjustment in the status of aliens who have been granted registered provisional status on the Secretary's written certification that:

• the Comprehensive Southern Border Security Strategy “has been substantially deployed and is substantially operational;” 

• the Southern Border Fencing Strategy has been submitted to Congress, implemented, and is "substantially completed;"
• 700 miles of Southern border fencing “that is double-layered and constructed in a way to effectively restrain pedestrian traffic” has been completed;

•  the Secretary has implemented E-verify; and
 
• the Secretary is using an electronic exit system at air and sea ports of entry that operates by collecting machine-readable visa or passport information from air and vessel carriers.

Note that both Grassley's and Thune's amendments suffer from the same flaw: The predicate for legalizing illegals is not actually securing the borders but rather the Secretary of Homeland Security's certification that the southern border is secured. (Grassley's amendment also contained a special carve-out for aliens granted blue card status, which is a special legal status for agricultural workers; Grassley’s home state of Iowa is about 95% farmland.) We already know that members of Obama's cabinet have no compunction about lying to Congress, so what good is the DHS Secretary's word on anything?

Later that same day,  Sen. Rand Paul, R-Ky., offered a good fix: require Congress to vote annually for five years on whether the border is secure. "If Congress believes that the border is not secure," the Senator explained in a speech on the Senate floor, "then the processing of undocumented immigrants stops until it is secure." As David Nakamura of the Washington Post reported it:

Paul’s amendment would require the Department of Homeland Security to implement specific border security measures, including hundreds of miles of additional fencing along the U.S.-Mexico border, and provide a report to Congress each year on its progress.

Then Congress would vote annually as to whether the agency had met its goals. Each year, another group of illegal immigrants would earn legal work visas if the metrics are met, Paul said.

This short summation--while accurate and concise--does not do Paul's amendment (styled the "Trust But Verify Act of 2013") justice. Indeed, those who crafted this particular legislation appear to have thought of everything. The bill specified what the Secretary must conduct an annual comprehensive review of and provided specific border security metrics, the progress toward which must be reported on. It stated what the joint resolution affirming that the border is secure must say and prevents the resolution from being amended. It even contained a provision limiting debate on the joint resolution "and on all debatable motions and appeals in connection with such resolution" and curtailing the ability of would-be obstructionists to use parliamentary shenanigans to delay a vote on the resolution or dispose of it without a vote. 

Paul's amendment also addressed the problem of DHS officials using their administrative authority to not enforce the law (as discussed in my earlier post) by prohibiting the Secretary from making "any alteration to the Border Patrol sectors in operation or the boundaries of such sectors" without first notifying both the House and Senate Homeland Security Committees of the proposed change "not later than 120 days before any such change would take effect," by which time Congress could act to thwart any undesired changes. It also required the Secretary to establish a Student Visa National Security Registration System and submit an annual report to Congress that describes the effectiveness with which DHS is screening student visa applicants through the System and "indicates whether the System has been implemented in a manner that is overbroad or results in the deportation of individuals with no reasonable link to a national security threat or perceived threat." And, the amendment capped the number of  applicants who may be granted registered provisional immigrant status under the law in any calendar year at 2,000,000 (a ridiculously high limit, but apparently too low for some people). 61 Senators voted to table Paul's "Trust But Verify" amendment.

Maybe Senator Paul was just asking for too much. (I don't think so, but reasonable minds can differ.)  Sen. David Vitter (R-LA) had a simpler request: Hey, remember that integrated entry & exit data system (a system to track the border comings and goings of foreigners) that was supposed to be developed and implemented under a 1996 law? You know, the one we're still waiting on? Well, forget all the stuff that Paul wanted. Let's just condition the temporary grant of legal status to, or adjustment to citizenship status of, any individual who is unlawfully present in the United States on the Secretary's written certification that that biometric border check-in/check-out system (officially the US-VISIT System) has been fully implemented at every land, sea and airport of entry. Oh, and Congress has to pass a joint resolution stating that this integrated entry and exit data system has been sufficiently implemented, because, you know, we don't trust this administration's word. Senator Vitter proposed an amendment to that effect over a month ago. It even included "fast track" procedures for getting the requisite joint resolution through Congress without unnecessary delay.

Now, it seems that a piece of legislation that basically just says, "Hey, let's incentivize the executive branch to do what they're already required to do by conditioning something that they want but that nobody really needs on them doing that thing they're supposed to do." shouldn't be something that a lot of Senators would find a reason to vote against, but if you view their votes on Senator Vitter's amendment, which was rejected by a vote of 36 to 58, in the context of most of them not giving a damn about securing our borders, then it makes sense. Another amendment, proposed by Sen. Mike Lee (R-Utah), that would have required “fast-track congressional approval” of what the Gang of 8 legislation merely requires the Secretary of Homeland Security to certify was also voted down, 39 to 59.

Enter Sen. John Cornyn (R-Texas), tall, learned and circumspect, a conservative Republican from a state with a large population of illegal immigrants. As the Senate Minority Whip, it's his job to make sure GOP Senators vote the party line on critical pieces of legislation. Cornyn, who was Texas Attorney General before being elected to the U.S. Senate, had criticized the "border-security triggers" in S.744 as "talking points disguised as policy." Could he offer a serious bill for predicating any legalization of illegal immigrants on actual, verified border security measures? Well, a little over a month ago, after the amendments proposed by Senators Grassley, Thune, Paul, Vitter and Lee had all been voted down, Senator Cornyn offered an amendment to the immigration bill that would have kept newly legalized immigrants from becoming permanent residents or pursuing citizenship until certain border goals were met. Those goals were:

• to achieve and maintain operational control of the Southern border;
• to achieve and maintain full situational awareness of the Southern border;
• to fully implement a biometric entry and exit system at all land, air and sea ports of entry; and
• to implement E-verify.

All these goals would have to be met "within 5 years of the date of the enactment of this Act," i.e., the comprehensive immigration reform bill. As used in Cornyn's amendment, the term "operational control" meant that, "within each and every sector of the Southern border, a condition exists in which there is an effectiveness rate, informed by situational awareness, of not lower than 90 percent." The term "situational awareness" was defined as "knowledge and an understanding of current illicit cross-border activity, including cross-border threats and trends concerning illicit trafficking and unlawful crossings along the international borders of the United States and in the maritime environment, and the ability to predict future shifts in such threats and trends." The Secretary and the U.S. Customs & Border Protection Commissioner would have to "jointly submit" to the President and Congress a written certification, under penalty of perjury, that the Secretary had met these goals.  This submission could not be made sooner than 9½ years after the comprehensive immigration reform bill becomes law and must include "a comprehensive report detailing the data, methodologies, and reasoning" justifying the certification. And, the Comptroller General of the United States would be required to "review such certification and provide Congress with a written report reviewing the reliability of such certification" and expressing the Comptroller General's own conclusion as to whether or not the specified border goals have been achieved.

The Secretary would still be required to submit a strategy "for achieving and maintaining operational control and full situational awareness of the Southern border" to the Comptroller General, and within 60 days of the submission of such strategy, the Secretary would also have to submit "an implementation plan for each of the border security components of the Department to carry out the Strategy." This plan must include, at a minimum:

• a comprehensive border security technology plan for continuous and systematic surveillance of the Southern border, including a documented justification and rationale for the technologies selected, deployment locations, fixed versus mobile assets, and a timetable for procurement and deployment;
• the resources, including personnel, infrastructure and technologies that must be developed, procured and successfully deployed, to achieve and maintain operational control and full situational awareness of the Southern border; and
• a set of interim goals and supporting milestones necessary for the Department to achieve and maintain operational control and full situational awareness of the Southern border.

It seemed doomed to fail, but Cornyn's amendment had something the others didn't: an appropriate acronym. The Senator dubbed his amendment, "Requiring Enforcement, Security and safety while Upgrading Lawful Trade and travel Simultaneously (RESULTS)," and it fared better with his colleagues than the other amendments I've described here did. Only 54 Senators voted to kill it. Two Democrats, Mark Pryor of Arkansas and Joe Manchin of West Virginia, voted against the Motion to Table, as did Senator Rubio, who had opposed the aforementioned amendments offered by  Senators Grassley, Thune, Paul, Vitter and Lee. (Curiously, Rand Paul voted with the anti-enforcement coalition, but that may have been because of the amendment's hefty cost.) Heritage Action ("The Heritage Foundation’s lobbying arm") urged Senators to vote “NO” on Cornyn's RESULTS amendment "because it fails to solve the enforcement problems in the underlying bill" and would "serve as political cover for [multiple Senators] to justify their support for the Gang of Eight’s amnesty."

So, on June 27th, S.744 passed the Senate, free of any amendments that would require DHS to actually secure the borders before illegal aliens could be legalized. It did include language from a border security and enforcement amendment proposed by Sen. Patrick Leahy (D-VT) and modified by the much-touted Corker-Hoeven Amendment, which inludes a lot of stuff that should turn off congressmen and women  on both sides of the aisle. (Leahy, who "begrudgingly" supported the changes to his amendment offered by Senators Corker and Hoeven, complained that their legislation “reads like a Christmas wish list for Halliburton.”) While Corker-Hoeven does delay the legalization of illegals (No Registered Provisional Immigrants can receive Green Cards until at least ten years after the bill becomes law) and strengthens the border-security "triggers" to legalization, it fails to cure many of the bill's other deficiencies and focuses on border security but not interior enforcement. Then there's the price tag; the CBO reported it would add $38 billion to the cost of the act. At the very least, the amendment added language to S.744 aimed at preventing the abuse of federal benefits by illegals who would be legalized under the legislation, including:

·         preventing immigrants who used a fraudulent or false Social Security number while they were unlawfully present in the U.S. from getting Social Security credits for that period;

·         restricting certain non-immigrant visa holders, such as tourists and foreign students, from accessing Medicaid, SCHIP and Obamacare benefits; and

·         providing that the Department of Health & Human Services may not grant waivers to states to allow them to use Temporary Assistance for Needy Families (TANF) dollars to give cash assistance benefits to registered provisional immigrants.

That ad I mentioned at the beginning of this post calls the Border Surge "the toughest border security plan ever passed by Congress." That it may be, but again, border security is only part of what we need. S.744 falls short of ensuring the aggressive interior enforcement that is desperately needed and eliminating the government-created magnets for illegal immigrants. Also, it fails to predicate legalization on a congressional affirmation of border security or other objectively verifiable metrics. If any of that bothers you, then please contact your Representative and admonish him or her not to vote for any bill that contains the same flaws as the Senate bill. But first, follow us on Twitter.

Richard Nixon at 100

(AP Photo)

 

My apologies to our readers for not posting anything in a while. For the past couple of weeks, I’ve been spending between 90 and 95% of my waking hours either studying for the bar exam or searching for a full-time job in the Obama economy. sportsfan is recovering from watching his beloved Fighting Irish get their asses handed to them in the BCS Championship, and the rest of our contributors have various excuses (some very compelling) for not wasting their time on blogging.

 

Still, I couldn't let such a significant occasion pass without acknowledging the man who would have been 100 years old today.

 

Perhaps no U.S. president has had a more mixed record than Richard Milhous Nixon. His achievements included re-opening relations with China, France and Egypt, ending U.S. involvement in Vietnam (and the draft), and lowering the federal voting age to 18. But then there were the scandals. Oh, the scandals.

 

Nixon fit the classic definition of a Greek tragic hero: a great man with a tragic character flaw that brought about his downfall. In his case, it was paranoia. That paranoia drove him to plant listening devices around the White House during his presidency and five members of his re-election campaign to break into the DNC headquarters at the Watergate complex on an apparently ham-handed investigatory mission. What the White House originally dismissed as a "third-rate burglary" ultimately led to an unprecedented (and, to date, unrepeated) event: our president's term cut short, not by death, but by his own resignation.

The Watergate scandal alone would have been enough to indelibly tarnish Nixon's legacy, but his administration also suffered the taint of corruption from the activities of his vice president, Spiro Agnew, who turned out to have been on the take since his days as Baltimore County Executive. in October of 1973, less than a year prior to Nixon's departure, Agnew pled nolo contendere (no contest) to a charge of federal income tax evasion and resigned his office.

Even as scandal brought down his second-in-command and other scandals threatened to prematurely end his presidency, Nixon never let up in his efforts to further American interests abroad. After making good on his promise to withdraw all U.S. troops from Vietnam, he met repeatedly with then-Soviet premier Leonid Brezhnev, their last meeting taking place while former White House counsel and unabashed weasel John Dean was spinning tales as fast as he could to the Watergate Committee in a desperate attempt to save his own skin. Negotiations between the two leaders (known as the Strategic Arms Limitation Talks, or SALT) led to the signing of the Anti-Ballistic Missile Treaty in 1972.

Per Nixon's directive, the U.S. provided vital support to Israel during the Yom Kippur War in 1973. He visited Cairo in June of 1974 and agreed to provide Egypt with nuclear technology. Not long after that, the House Judiciary Committee approved three articles of impeachment related to the Watergate cover-up. Before the House of Representatives could vote to impeach him, Nixon released transcripts of tape recordings that implicated him in the cover-up and announced his resignation.

Even after leaving office, he remained an authoritative voice on international affairs. President Clinton even reportedly sought his advice, and the New York Times (which seemed to never have a kind word for Nixon when he was alive) acknowledged, "The former President was always strongest writing about foreign policy." He continued to visit foreign countries and meet with world leaders, and he wrote prolifically. (His memoir RN was okay, but if you really want to get a handle on the man's world view and/or mental processes, then Six Crises and The Real War are both worth a read, and I've read good things about Beyond Peace.)

I can remember learning of his death in 1994. I was in first grade; as I left school, I stood under the flagpole gazing at Old Glory. It's my earliest memory of seeing a flag flown at half-mast.

One day not long after that, while rooting through my parents’ closet looking for a box of monies (you know, like every kid does at one point or another), I found a shoebox full of political memorabilia. My father and grandmother had collected it over the years. There were buttons from every presidential campaign from 1900 to 1972, many of them bearing Nixon’s name. It turns out the '68 campaign was the first one my father had been involved in. He told me how he and his best friend David would stand out in front of my grandmother’s house, near the road, with a big NIXON sign, and passing motorists would honk or smile or shout at them (Every once in a while, someone would stick his head out the window and shout, “Vote for George!”—i.e., George Wallace, the Alabama governor and defender of segregation who ran for president in '68 on a states’ rights platform.) Nixon, of course, won the 1968 election but narrowly lost Texas. We still have the issue of the Star-Telegram from the morning after Election Day with the headline “NIXON IS ELECTED PRESIDENT.”

Dad wasn't the only active Nixon supporter in my lineage. Years before my folks ever met, my other grandmother served as precinct chair for Nixon's re-election campaign in 1972. Like many Nixon supporters, she was bemused by the scandals that unfolded so soon after an incredible victory she and thousands of others had worked fervently to ensure.

"All I got out of it was a red face and a letter from John Wayne," she later told me. (The Duke had supported Nixon in all three of his presidential bids and apparently sent letters to those who worked on the campaign, thanking them for their work.)

As a child, I idolized Nixon. Not because of my family, but because of what I learned about the man through my own research. Certainly, Nixon did a lot of things to warrant admiration, even by those who never knew him personally. His ascendancy to the vice-presidency was one of the fastest in U.S. history; after returning home from World War II, during which he had served in the Navy, Nixon was elected to Congress in 1946. While his role in the Alger Hiss investigation arguably stood out as the most salient highlight of his time in the House of Representatives, he also helped write the Taft-Hartley Act (a.k.a. The Labor Management Relations Act of 1947), which passed over President Truman's veto. During his second term in the House, he was elected to the U.S. Senate. His support for civil rights and opposition to price controls, illegal immigration and public power, along with his erudite speeches warning of the threat of "global Communism" endeared him to many conservatives, and in 1952, the Republican National Convention nominated the 39-year-old freshman senator to run for vice president on the ticket with Dwight D. Eisenhower. Eisenhower and Nixon won in a landslide--twice--even carrying several states in the "solid South" (including Texas, Tennessee, Florida and Virginia). 

 

As vice president, Nixon honed his already keen foreign policy credentials, touring dozens of countries and chairing National Security Council meetings in the president's absence. On a trip to Moscow in 1959, he challenged Khrushchev during their infamous "kitchen debate," bluntly telling the Communist leader, "You don't know everything." 

 

Nixon held the distinction of losing the closest presidential election in U.S. history and winning a presidential election by the biggest landslide in U.S. history. His successful 1968 campaign, waged eight years after a devastatingly close loss to JFK and six years after losing his bid for governor of California, remains one of the great political comebacks of all time. He's the only person to be twice elected vice president and twice elected president of the United States.

My appreciation of his work wasn't ideological, either. Domestically, Nixon could not be called a conservative, not in any sense of the word. He expanded the size of the federal government, signing into law legislation that created, inter alia, the EPA, EEOC, OSHA, CBO and FHLMC (better known as "Freddie Mac"). As part of his "New Federalism" agenda, he proposed a new welfare program that would have guaranteed a minimum payment to all needy American households, regardless of work ethic. He also put in place wage and price controls and took the U.S. off the gold standard. He cut some taxes but raised others, including the capital-gains rate. His administration commenced affirmative action, though arguably at a time when institutional racism was far more widespread in the U.S. than it is today. The federal revenue-sharing program, under which the federal government shares its tax revnues with local governments, also began under Nixon, so every time you see/hear some worthless politician wailing about how spending cuts will mean fewer teachers/police officers/firemen, they're probably lying, but their mendacity is facilitated by one of President Nixon's policies.

His policy mistakes aside, Nixon was a brilliant and hardworking man who made some bad choices. Nothing he is known to have done, however, is/was bad enough to justify ignoring all of his good deeds in damnatio memoriae. Count me as a fan who believes his accomplishments were far greater than his transgressions.

To some, Nixon will always be a villain, but he was certainly a hell of a lot better president than the one we have now.