WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Budget Committee and a senior member of the Senate Judiciary Committee, submitted remarks for the Judiciary Committee record on the nomination of Sarah Saldaña to be the Director of Immigration and Customs Enforcement (ICE).  In his remarks, which follow below, Sessions details ICE’s systemic dismantling of immigration law:

“Ms. Saldaña has been nominated to head the nation’s top immigration law enforcement agency, which has been at the epicenter of this Administration’s refusal to enforce our nation’s immigration laws.

Unfortunately, the Chairman denied a request by the Ranking Members of the full Judiciary Committee and the Subcommittee on Immigration, Refugees and Border Security that this nominee testify at a hearing. Such a hearing would have provided members with the opportunity to ask questions and engage in a dialogue with the nominee regarding important issues, particularly with regard to the President’s recent unlawful executive actions.

We were permitted to submit written questions, however, and we received responses to those questions just yesterday. Ms. Saldaña’s responses reflect a remarkable disregard for the rule of law and demonstrate that, if confirmed, she will continue the pattern of lawlessness perpetuated by the President and the political leadership at the Department of Homeland Security.

Senators Lee, Cruz and I asked Ms. Saldaña whether she rejects the unlawful action by the President to unilaterally grant legal residence and work permits to up to 5 million individuals illegally in the country.

Her response: ‘No.’

This response goes to the essence of her qualifications for this post and the central areas of responsibility that would be under her direction if confirmed. Her answer is simply disqualifying.

President Obama himself has said over 20 times that he does not have the authority to do what he has done. On March 28, 2011, he said:

‘With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed… [W]e’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws… There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate roles as President.’

On July 25, 2011, President Obama said:

‘I swore an oath to uphold the laws on the books… Now I know some people want me to bypass Congress and change the laws on my own. Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.’

On September 17, 2013, the President said regarding his unlawful DACA program:

‘If we start broadening that… I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option… What I’ve said is there is a path to get this done, and that’s through Congress.’

On March 6, 2014, the President stated that the DACA program:

‘[A]lready stretched my administrative capacity very far… But at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’ They fund the hiring of officials at the department that’s charged with enforcing. And I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.’

On August 6, 2014, the President said:

‘I think that I never have a green light [to push the limits of executive power]. I’m bound by the Constitution; I’m bound by separation of powers. There are some things we can’t do. Congress has the power of the purse, for example… Congress has to pass a budget and authorize spending. So I don’t have a green light.’

On November 19th, the President did what he claimed all along he did not have the authority to do. On November 25th, the President, in a perhaps unintentionally candid moment, said to a group of protesters, ‘[W]hat you are not paying attention to is the fact that I just took an action to change the law.’

Article I, section 8 of the Constitution is clear that Congress is vested with plenary power over naturalization law. In the 1954 case Galvan v. Press, the Supreme Court stated: ‘That the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of our government.’ The Court has repeatedly affirmed this authority. In Crane v. Napolitano, where several ICE agents and officers sued DHS leadership on the grounds that the administration’s amnesty policies caused them to violate their oath of office to enforce the law, the U.S. District Court for the Northern District of Texas held that ‘DHS does not have discretion to refuse to initiate removal proceedings [where the law requires it to do so].’ The court also affirmed that Congress, and not the President, has the plenary power to set immigration law and that the administration’s prosecutorial discretion and DACA policies violate federal law.

In exercising its plenary authority, Congress has declined to pass an immigration bill bestowing legal status and work authorization upon illegal immigrants. Congress has recognized the need to control the number of individuals who can come to this country to live and to work. It has passed laws to establish rules to protect the interests of U.S. citizens.

President Obama’s recent unlawful actions have essentially established another immigration system wholly apart from that which has been established through constitutionally enacted laws.

As David Rivkin and Elizabeth Price Foley noted in a November 24, 2014, Wall Street Journal op-ed: ‘The executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these categories, deportation may be pursued only if it serves an ‘important federal interest.’ The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.’

 

According to ICE agents and officers, they are already being ordered to implement the President’s unlawful directives.

According to one ICE supervisor: ‘Even though the two deferred action categories don't take effect [until] January 5, we are supposed to be identifying and promptly releasing anyone who appears to qualify, and if they claim to be eligible, it's not our job to make any kind of initial investigation or ask for anything...just take them at their word and release so they can apply in [January] and let [USCIS] figure it out. Nothing to stop future claimants from saying, oh wait, I've been here for five years, not one year, and I have a [U.S. citizen] kid somewhere.’

Another ICE supervisor reported: ‘New guidance is now that for reinstatements, we must only consider the original order, not subsequent removals. So a noncriminal alien who is arrested in October 2014 after, say, a traffic stop, is processed for reinstatement of, say, a 2013 order and removal, and is undergoing reasonable fear, if she reentered prior to 1/1/14, we must release from custody as a ‘non priority.’ They are released out the door with nothing, and get nothing. Just returned to illegal status. Though I'm sure the attorneys will quickly figure out to apply for a work permit as an asylum applicant based on the unfinished [reasonable fear] claim.’

Another ICE supervisor said: ‘Non-criminals previously removed who are back in the U.S. prior to January 1, 2014, are considered lowest priority and NOT to be arrested or reinstated. Same for non-criminal fugitives. Lowest priority, not arrestable, order not to be executed. Aliens who entered after January 1 are still fair game… but newest [prosecutorial discretion] and priorities still apply, so they still get a shot at staying, just without deferred action. What a massive abuse and misuse of the deferred action mechanism.’

Another ICE supervisor said: ‘I guess interpretation and implementation of the EO will be fluid and constantly changing to fit the agenda and to benefit the most. Prosecutorial discretion, the bastardized version.’

Another ICE supervisor told us: ‘If you sneak in through the border, get past the Border Patrol, stay under the radar for a few years, have kids, you will be rewarded with protection from deportation… This is not merely [prosecutorial discretion], this is a flagrant disregard for the rule of law and our sovereignty as a nation. Even if you come to the [port of entry] and claim credible fear, you will eventually be released from custody because you are not a priority.’

On November 6, 2014, an award-winning career prosecutor and Chief Counsel of the Phoenix, Arizona ICE field office filed a lawsuit against Secretary of Homeland Security Jeh Johnson for retaliation after she resisted orders to release convicted criminal illegal aliens from ICE custody. The complaint alleges that personnel were ordered to ignore the law with regard to criminal illegal aliens, including those with felony convictions, DUI convictions, identity theft convictions, DACA applicants, juveniles apprehended during the border surge, and illegal immigrants who falsely claimed citizenship to vote in federal elections. As House Judiciary Chairman Goodlatte noted recently: ‘What is troubling is that several of the people named in the complaint are tasked with enforcing our immigration laws and implementing the President’s November 20, 2014, announcement which further curtails immigration enforcement.’

Morale at DHS is the lowest of any federal department and, within DHS, ICE ranks among the lowest of the agencies. In June 2010, the National ICE Council, the union that represents more than 7,000 agents within ICE, cast a unanimous vote of ‘No Confidence’ in former ICE Director John Morton. That vote stemmed from the fact that the agents were prevented by senior leadership from carrying out their lawful duty to enforce immigration laws. Several ICE agents sued Secretary Napolitano, Director Morton, and Director Mayorkas, arguing that the administration’s amnesty policies caused the ICE agents to violate their oath of office and federal law by commanding them to refrain from detaining certain illegal aliens. The court held that ‘DHS does not have discretion to refuse to initiate removal proceedings [where the law requires it to do so].’ Instead of recognizing the damage that these policies of non-enforcement inflict on the men and women that risk their lives protecting this nation, the administration has chosen to dismantle our laws and impose the President’s will upon us by granting amnesty to millions of illegal immigrants.  

Ms. Saldaña’s answers to our questions demonstrate that she will not be an independent voice for the rule of law nor stand up to the President’s unlawful policies. The first priority of Congress must be to restore the rule of law, secure the border, and bring the administration into compliance with the laws of the United States. Congress cannot further capitulate to this President’s overreach. Much like many of this administration’s political appointees, it appears that Ms. Saldaña will elevate loyalty to the President over a sworn duty to enforce the law. 

Congress cannot and must not confirm anyone to lead an agency in DHS or other law enforcement agency who supports executive amnesty. Congress cannot vote to accelerate its own demise. It would be unthinkable to yield to the confirmation of such nominees in the face of so grave a threat to our Constitutional order. 

For that reason, I will oppose the nomination and I urge my colleagues to do the same."