|Rand Paul’s Constitutional Reform of Immigration|
By Ashton Ellis
Thursday, June 20 2013
Even though the United States Senate refused to adopt Rand Paul’s amendment to the Gang of Eight’s immigration bill, his ‘Trust But Verify’ idea is one that conservatives should keep an eye on as the debate moves to the House of Representatives.
Already growing in popularity among House Republicans, Paul’s proposal would require Congress to vote annually on whether the border is actually secure, instead of shifting responsibility to faceless bureaucrats with an institutional bias against enforcement. If successful, the reform could go a long way to restoring Congress’ constitutional accountability for securing the border.
Paul’s chief criticism of the Gang’s bill – officially titled the “Border Enforcement, Economic Opportunity & Immigration Modernization Act of 2013” – has been the failure to make legalization of the estimated 11 million illegal immigrants dependent on enhanced border security.
In essence, his theme has been to secure the border first, and then we can talk about granting documentation to those already here. Paul’s stance echoes the main conservative criticism that legalization without a secure border only invites another cycle of illegal-immigration-then-legalization.
History provides the best example. The 1986 amnesty granted legalization first and promised increased border security measures that never materialized. Conservatives learned a hard lesson that unless specific criteria are included in the same law as legalization, there is no leverage to get an enforcement-only bill done in the future.
That’s why the Gang’s immigration proposal is at best laughable, at worst disingenuous. Nowhere in the bill are there concrete policies to guarantee a measurable improvement in border security. The closest the text comes is to require the Department of Homeland Security to achieve 100 percent surveillance with a 90 percent apprehension rate. But even those numbers are misleading since the bill allows DHS to write its own report – over several years – proposing how to meet these goals. Moreover, there is no punishment for DHS if it refuses to do so, and no criteria for judging the accuracy of the report if it does.
What makes the Gang’s treatment of border security so outrageous is that it empowers the same DHS that has consistently refused to create a border security metric as required by current law. Earlier this year, a House oversight committee was stunned to learn from the head technology officer at DHS that the agency was deliberately failing to deliver information on how well the border is being monitored. At the same time DHS Secretary Janet Napolitano is busy implementing “deferred action” for more than 1 million illegal immigrants, a watered-down version of the never-passed DREAM Act.
Essentially what the Gang has done with border security is to outsource it to DHS, knowing full well that the political appointees and bureaucrats who staff it have no intention of aggressively implementing border security measures.
This kind of legislative sleight-of-hand is nothing new. For decades Congress has been delegating responsibility for policy decisions to faceless bureaucrats, blaming them for decisions that constitutionally belong to Congress. The game allows Members of Congress to claim credit for ‘doing something’ by creating an agency, but then shirk accountability when agencies over-regulate or underperform.
Correcting this abuse of power is the beauty of Rand Paul’s ‘Trust But Verify’ amendment. Constitutionally, it makes Congress accountable by requiring both houses to vote on whether the border is more secure than the year before. The voting will take place annually for five years from the date of passage, and no legalization process can begin until the fifth joint resolution is approved. This system puts pressure on DHS to produce measureable results in 12 months, not a self-serving report over several years. It also focuses Congress’ immediate attention on figuring out how to secure the border, rather than debate how many benefits to make available to legalized immigrants.
As for border security metrics, Paul’s amendment also provides clear guidance here, too. Criteria include:
To keep DHS honest, the amendment requires the agency’s Inspector General – an internal but independent auditor – to review the department’s annual report on its progress completing the border fence and overall surveillance program. Border state governors are encouraged to submit testimony and recommendations on improving border security. All of this is designed to provide the data necessary for Congress to do what the Constitution envisions – deliberate and decide on an issue of federal jurisdiction.
Though, as anticipated, his amendment was defeated in the Senate, Paul is already discussing how to include ‘Trust But Verify’ in the House version of immigration reform. So far, according to Paul, the reception among House Republicans has been favorable.
Conservatives eager to put border security front-and-center in the immigration debate should keep an eye on Paul’s idea. With its focus on plausible metrics and increased accountability for Congress, its passage into law would be a good start on reforming immigration policy to fit the Constitution.
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