Either Sen. Marco Rubio failed to stay awake in his civil procedure class at the University of Miami Law School, or Sen. Chuck Schumer’s lawyers pulled a fast one on him. How else to explain the Florida Republican’s "MYTH VS. FACT" press release purporting to show that his “Border Security, Economic Opportunity & Immigration Modernization Act” does not enable liberal activist groups to nullify the security measures in the bill by tying them up in court. Rubio writes:
While it is true that any legislation passed by Congress is subject to potential review by the Supreme Court (see: ObamaCare), it is simply hysteria to suggest that the ACLU, or any other group for that matter, can derail the security triggers by simply tying them up in court for 10 years. The fact is that the federal government must fully implement the border security plans, the employment verification system and the exit system to track visa overstays before a single green card is awarded. E-Verify and the exit system must be 100 percent implemented within five years, and those enforcement measures begin on day one, not once any pending lawsuits are settled. Merely filing a lawsuit cannot stop the implementation of any section of this legislation and nothing short of a court ordered injunction could delay the security measures from going into place.
In fact, to defend the legislation from the type of lawsuits skeptics fear, the bill specifically limits litigation around the border fence to constitutional challenges.
In addition, employment verification and the entry-exit visa system must be up and running within five years of the legislation being passed. This leaves plenty of time for judicial review, and complete implementation of the security triggers before the 10 year mark.
1) Rubio’s response completely fails to address Section 3(c)(2)(B) of the bill which states: “EXCEPTION.—The Secretary shall permit registered provisional immigrants to apply for an adjustment to lawful permanent resident status if — (i)(I) litigation or a force majeure has prevented one or more of the conditions described in clauses (i) through (iv) of subparagraph (A) from being implemented; or (II) the implementation of subparagraph (A) has been held unconstitutional by the Supreme Court of the United States or the Supreme Court has granted certiorari to the litigation on the constitutionality of implementation of subparagraph (A); and (ii) 10 years have elapsed since the date of the enactment of this Act.”
Translated into English, what this section means is that if liberal activist groups can challenge any of the bill’s security triggers in court, then, after 10 years, the secretary of homeland security can grant currently illegal immigrants permanent legal status anyway. That’s what the bill currently says. If Rubio does not like it, he should introduce an amendment to remove this section of the bill.
2) The border fence is the only border security item that the bill exempts from nonconstitutional challenges. Challenges to any other security measure in the law are still vulnerable to suit.
3) Nothing in the bill stops the secretary of homeland security from granting legal status to currently illegal immigrants if the E-Verify and visa entry-exit systems are not up and running. The secretary can just say that they are, no matter what the facts on the ground actually are. If you don’t think this is possible, just remember how Obama ignored Congress and the War Powers Act and bombed Libya anyway, despite the fact that his own lawyers determined the bombing was a military action.
Until there is a citizen suit provision in the bill, empowering U.S. citizens to challenge the secretary’s determinations that the security measures are in fact in place, there simply is no guarantee that they will ever happen.