Immigration: Getting No RESULTS

Senator John Cornyn (R–TX) will propose an amendment to the Senate immigration bill entitled “Requiring Enforcement, Security and safety, & Upgrading Legitimate Trade and travel Simultaneously” (RESULTS). It should really be called the “NO-RESULTS” amendment.

The amendment raises constitutional concerns and fails to solve the enforcement problems in the bill. Before the Department of Homeland Security (DHS) could adjust the status of Registered Provisional Immigrants (RPI) to Lawful Permanent Resident (green card) status, the amendment would require DHS and the U.S. comptroller general—who is the head of the Government Accountability Office (GAO)—to certify that law enforcement has 100 percent monitoring capability and a 90 percent apprehension rate along the southern border as well as a fully operational biometric exit and nationwide E-Verify system.

This involvement of the comptroller in the execution of the laws could violate the Appointments Clause of Article II of the Constitution and the separation of powers doctrine. Even though the comptroller general is appointed by the President with the advice and consent of the Senate, the GAO is considered an agency within the legislative branch of the federal government, not the executive branch, and the comptroller can be removed at the sole discretion of Congress.

In Bowsher v. Synar (1986), the U.S. Supreme Court held that Congress cannot delegate executive authority to itself or to a legislative agency. Under the Constitution, Congress can play no direct role in the execution of the laws. In Bowsher, the Court held part of the Gramm–Rudman–Hollings Deficit Control Act unconstitutional because it delegated executive powers over the budget to the comptroller general, even though on paper all the comptroller general was tasked with doing was preparing a “report.”

So far, all we have is just a summary of the proposed amendment. But if the specific language of Cornyn’s amendment delegates any of the enforcement power of the executive branch over immigration issues to the comptroller general, it would most likely violate the separation of powers doctrine under Bowsher.

Aside from this constitutional issue, the RESULTS amendment provides no comfort for those who believe we should secure our border before we consider dealing with the millions of illegal immigrants already in this country. None of these border security conditions that the GAO and DHS would certify (and do we really think they would be objective?) has to be fulfilled before DHS provides RPI status (essentially amnesty) to the estimated 11 million illegal immigrants. The conditions that must be certified regarding border security relate only to adjustment of the status of RPI aliens to permanent residency status.

In other words, aliens will still be granted amnesty before the border is secured; they just can’t be upgraded to permanent status. An amendment that might actually obtain results would be one that requires that the border be secured before aliens received benefits of any kind under the bill—including, most importantly, the granting of RPI status, which legalizes their presence in the United States.

The amendment would also increase “the number of Border Patrol and Customs Officers by 10,000 over 5 years.” There is no doubt that having more border patrol and customs agents could increase the security of the border—but only if they are actually employed to effectively patrol the border and enforce our immigration laws. There is currently a case pending in federal court by agents who have sued DHS Secretary Janet Napolitano because they have been told to stop detaining illegal aliens or initiating deportation proceedings against them. What use will more border agents be in an Administration that has no interest in stopping illegal immigration?

In any event, however, even if the comptroller general problem is fixed, this amendment would still not achieve a secure border or effective enforcement of our immigration law.