Two weeks ago The Washington Examiner reported that Sen. Marco Rubio’s staff was shopping a list of possible fixes to the Schumer-Rubio immigration bill that is set to hit the Senate floor next week. The fourth item on the list read:
Concern: Achieving the prescribed border awareness/apprehension metrics of 100 percent/90 percent are not real triggers. Regardless of whether these targets are met, the path to a green card can proceed.
Solution: An amendment to require that, if the 100/90 metrics are not met within the first 10 years, Congress would have to affirmatively vote that the border is secure before any green cards can be granted to the current immigration population.
On Wednesday, Sen. John Cornyn, R-Texas, introduced an amendment almost exactly like this one, but weaker, and possibly also unconstitutional. The San Antonio Express-News reports:
The amendment calls for the U.S. comptroller and the Department of Homeland Security to establish that American law enforcement has 100 percent control of the U.S.-Mexico border before green cards can be issued to the 11 million undocumented immigrants. Cornyn will call the provision the “results amendment,” because it “guarantees real security and real results,” an aide said.
There are at least four problems with this amendment:
1. It still provides legalization first and enforcement later: Under the RESULTS amendment, illegal immigrants would still get legalization first while the American people would get no guarantee of border security enforcement later. If, five years from now, the comptroller fails to certify the border is secure, what is the Clinton/Rubio administration going to do? Deport 11 million recently legalized people? That’s never going to happen.
2. It doesn’t address the many other problems in the bill: On Tuesday, Sens. Ted Cruz, R-Texas, Jeff Sessions, R-Ala., Mike Lee, R-Utah, and Chuck Grassley, R-Iowa, sent a letter to their colleagues detailing nine specific problems with the Schumer-Rubio bill as well as 28 amendments Senate Judiciary Democrats rejected to address those problems. Ensuring border security enforcement is just one of many problems in the 1,000-plus-page bill.
3. It lets Washington bureaucrats, not accountable elected officials, decide if the border is secure: Cornyn’s actual proposal, letting the comptroller certify border security, is arguably weaker than the amendment proposed in Rubio’s earlier talking points, which left the decision up to Congress. There is a reason Democrats have insisted that border security certification not be left up to Congress: They know the border will not be secure, and they don’t want another tough vote to stand between illegal immigrants and citizenship.
4. It is probably unconstitutional: In 1985 Congress passed the Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act which, among other things, empowered the comptroller to make recommend spending cuts if the federal budget exceeded predetermined levels. In Bowsher v Synar, the Supreme Court found this portion of the law unconstitutional because it vested an executive power in an agent of the legislative branch (which is what the comptroller ultimately is). “The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess,” the court ruled.
And that really is the fundamental problem with the Schumer-Rubio amnesty-now-enforcement-later framework. The U.S. Constitution requires Congress to trust the executive branch to execute the laws it passes. Rubio can dream up all the amendments he wants, but he will never get around this fundamental problem.