The House Judiciary Committee hosted a Department of Homeland Security oversight hearing last Wednesday with Secretary Janet Napolitano.
As you may recall, the House Homeland Security Committee shares a certain amount of legislative jurisdiction with the House Judiciary Committee regarding the Department of Homeland Security. While the Homeland Security Committee covers border security issues, most immigration legislation is covered by the Judiciary Committee. As a result, during the authorization process, the Secretary of Homeland Security is often called to testify before two committees.
It’s not a fun process for the Secretary to get grilled and asked obscure questions. I might actually pity Secretary Napolitano if she had better priorities, like deporting illegal aliens, enforcing a legal workforce, and managing the Department by statute instead of through the White House.
Last week, ICE Director John Morton faced the wrath of the House Judiciary’s Subcommittee on Immigration regarding the deferred removal "administrative amnesty" policy. That was a fun and engaging hearing and a number of Members used that opportunity to express their frustration regarding this Administration’s immigration policies.
With a Department of Homeland Security authorization bill in development, it was now the Secretary’s turn to face the Judiciary Committee and explain her actions. The resulting exchange was so heated it even became a story on the local news. Deferred Action and Fast and Furious were the primary topics of contention and while Jason Chaffetz and Darrell Issa made their points, other good exchanges from Randy Forbes and Sandy Adams were overshadowed.
Congressman Chaffetz started a media fire storm, which is still a topic of conversation across the major news networks. You could tell that he really thought out his line of questioning because he spun a web that trapped the Secretary in defending her actions on Operation Fast and Furious, a lapse in judgment that is turning into a major scandal for the Administration.
His first question asked what percentage of the border Secretary Napolitano thought was secure.
The Secretary responded, "The most it has ever been."
Chaffetz then asked again, "What percentage?"
The Secretary responded, "Very secure."
He then asked, "If that’s the case, why do you not have the details on Fast and Furious."
She said, "It was an ATF operation. You know that."
Expressing anger and frustration, Mr. Chaffetz then replied, "One of your agents died! How do you not know the details?"
The Secretary then said she did not know but took the agents death seriously.
The Congressman then asked, "Did your Department not allow guns to go across the border?"
The Secretary responded that it was an ATF operation and that there were questions at first, but the Assistant U.S. Attorney told them to stand down.
The Congressman then said, "Two dead agents and no conversation with Holder is completely unacceptable."
The Secretary then said there was no conversation because the Attorney General quickly moved the issued to the Inspector General’s office.
Following the heated discussion with Mr. Chaffetz, Rep. Griffin of Arkansas asked what the Secretary knew about detailed policy memos supporting the DREAM Act and Deferred Action and why states were taking action on immigration enforcement.
The Secretary responded by saying most of the information about the border is inaccurate and that states were acting because Congress has failed to act on immigration reform.
Similar to Mr. Chaffetz, Rep. Trey Gowdy of South Carolina asked the Secretary more questions about Fast and Furious as did Rep. Darrell Issa of California. The questions were energized, yet a similar line of questioning. Mr. Issa chairs the Oversight and Government Reform Committee where he is currently investigating Attorney General Eric Holder regarding Fast and Furious.
Rep. Sandy Adams of Florida then asked if the Secretary had recommended to the State Department any countries that should have their visas revoked because they would not repatriate aliens being removed from the United States.
The Secretary said, "I’ll look into that," which caused the Congresswoman to reply, "I’ve heard that all morning" and that these are statutory not gotcha questions.
After the Resident Commissioner of Puerto Rico complemented the Secretary on her "common sense" immigration policies, Mr. Quayle of Arizona asked where the 400,000 deportation cap originated.
The Secretary said it was in the supporting documents released by the Appropriations Committee. The Congressman then asked, "If certain states want to act as force multipliers, shouldn’t we be helping them?"
The Secretary said, "That is a federal responsibility."
From the outset, Chairman Lamar Smith set a confrontational tone for the hearing during his opening statement when he said,
The non-partisan Government Accountability Office ("GAO") has found that only 44% of the Southwest border is under the "operational control" of the Border Patrol.
Nearly 450,000 illegal immigrants enter the U.S. each year. Meanwhile, Mexican drug cartels are out of control and the violence threatens to spill over into the U.S. The administration needs to do more to secure the borders and protect the American people.
Some have claimed what are supposedly "the largest number" of removals in history. However, even President Obama has said the statistics put out by DHS are "a little deceptive." The Washington Post has found that administration has inflated its removal numbers by including voluntary returns.
How can DHS justify granting work authorization to illegal immigrants when so many American citizens don’t have jobs?
Twenty-three million Americans who are unemployed or can’t find full-time work must wonder why this administration puts illegal immigrants ahead of them. Citizens and legal immigrants should not be forced to compete with illegal workers for scarce jobs. The administration should put the interests of American workers first.
In contrast, during the Secretary’s opening statement, she attempted to assure the Committee that her priorities were common sense and attempted to clarify that deferred action was not an amnesty but a prioritization system. She continued to say the ICE agents will "meet our priorities," but still do their job.
Unfortunately, the "priorities" she refers to involves ICE agents not performing their duties according to the books. It’s a total contradiction.
She continued with another absurd statement by insisting that apprehensions were only a rough estimate of identifying how many are trying to "immigrate."
It’s true that apprehensions are an arbitrary number and are not a real indication of security. Unfortunately, our Secretary of Homeland Security doesn’t understand that immigration is actually a legal process and not some game of freeze tag between border enforcement and those trying to cross illegally. They are not trying to "immigrate." They are trying to circumvent the legal process.
After the Secretary’s testimony, Chairman Smith opened the question and answer half of the hearing with a direct line of questioning. He asked if she was aware of the crimes committed by aliens she refused to detain.
The Secretary made no effort to answer his question and simply provided evasive answers like, "We have only 34,000 beds" and "We’ll look into it."
Chairman Smith then asked, "Why does the Administration allow illegal aliens to take jobs away from American workers?"
The Secretary responded by saying the percentage of alien workers is actually very small and has gone from 5,000 to 1,500.
This was just another example of the Secretary’s absurd assumption that apprehensions equate results. When was the last worksite raid? Who was President again?
This caused the Chairman to follow-up by asking, "Why are they not being removed? The last Administration did a better job."
The Secretary smiled and said, "I respectfully disagree" and the Chairman closed out his question time by declaring that thousands of aliens were taking jobs away from American workers. The Secretary then quipped, "Not necessarily."
Ranking Member Conyers decided not to speak and yielded his question time to Rep. Nadler of New York who wanted nothing more than to complain about detainee transfer policies. He claimed the Department was not protecting due process rights for illegal aliens’ because they were moved around so much as a result of bed space.
When it was Rep. Sensenbrenner’s (the former Judiciary Committee Chairman and author of the REAL ID Act) turn to ask questions he wanted to know if the Secretary planned to extend the REAL ID compliance deadline, which is January 15, 2013.
The Secretary admitted that she opposed REAL ID, but was not the only one standing in opposition, citing numerous state governors. She said "We advocated for the PASS ID Act as a replacement" and that only 22 states would currently meet REAL ID standards. Though not currently introduced in the 112th Congress, the PASS ID Act would repeal the REAL ID Act’s provisions implementing secure driver’s license/personal identification card standards.
Mr. Sensenbrenner then asked when the Secretary would "drop the boom," referring to penalties such as individuals not being able to use their state issued ID to enter a federal building or pass through airport security.
However, the Secretary simply responded, "It’s tough to say. We are a year away."
The Representative from Wisconsin then closed by saying it was still a hole that could be exploited by terrorists and that the real problem was a lack of will from the Department and the various state governors.
The next Member to speak was Rep. Bobby Scott of Virginia who wanted to know if the Department was working with Alabama to implement their state enforcement law.
The Secretary responded by saying she was working with the Department of Justice to oppose the law and admitted that the discrimination of Hispanics was a real concern.
Rep. Scott then asked if there were "detainees in limbo" and the Secretary responded that there were many across the whole immigration system and expressed the need for immigration reform, implying a "comprehensive" type solution.
When Howard Coble took over questions, he asked if the Department’s numbers were deceptive and whether or not voluntary returns were counted against the total.
However, Secretary Napolitano said most of that number was criminal aliens and that the Department did not count the voluntary returns, contrary to what news reports and agents in the field have been telling us.
Rep. Zoe Lofgren was the next Member to question the Secretary and she wanted the Committee and Secretary to be aware of news that the ACLU had filed a lawsuit against the DHS after a detainee was sexually assaulted by a guard. She also pointed out that there was reported assault against gay and transgender detainees.
The Secretary simply responded that the Department had zero tolerance for those actions. Mrs. Lofgren shook her head and replied, "You inherited a mess," not willing to concede that more than half of the problem was the current Administration’s policies.
Mr. Quigley of Illinois then asked the Secretary about expansion of the Visa Waiver Program. He said, "It’s not your father’s Visa Waiver Program. It’s much more secure."
The Secretary then said they were looking at the program, but biometric identification technology was very expensive which caused them to utilize biographical data instead.
Congress Ted Poe had a great exchange with ICE Director Morton a week before and was ready to ask similar questions for his immediate boss, the Secretary of Homeland Security. The exchange was just as intense and confrontational.
Rep. Poe said the GAO (Government Accounting Office) determined that only 44% of the border is under control.
The Secretary took a defensive stance and harshly responded, "That is not accurate. The GAO is using the term "operational control" and went on to mention that it was now a very different border.
Mr. Poe then responded, "I agree. It’s worse."
Congressman Poe then mentioned that 34% of those imprisoned in the United States were foreign nationals. He asked the Secretary if she thought that was a high number.
The Secretary was fuddled and did not know how to answer the question, which caused Mr. Poe to ask, "Yes or No. Don’t ramble on to expire my time."
Of course, the Secretary responded with a rambling speech, which caused the Congressman to reclaim his time.
He then asked if the Secretary knew of any statutory authority for the deferred action (administrative amnesty) process.
The Secretary smugly replied, "Article II, Section 1."
Mr. Poe correctly responded that the Constitution gave the Legislative branch authority over naturalization. The Secretary then mentioned the Heckler case.
Mr. Poe was obviously starting to get frustrated and said, "I don’t want to hear about the Heckler case" and insisted that the Secretary cite specific Constitutional authority for her policy. The Secretary had the last word when she said it had been the policy of previous administrations and that the policy made sense.
Congresswoman Chu used her question time to compliment the Secretary for her deferred action policy. She said, "It makes more sense to deport violent criminals instead of students" and went on to say that the Congress had repeatedly asked the Department to focus on criminal aliens.
Secretary Napolitano then said, "That is accurate."
Congresswoman Sheila Jackson Lee mentioned that she was angry with the Secretary for securing the border. She said it affected the people she wanted to legalize. She then plugged Comprehensive Immigration Reform.
The Secretary responded by saying, "The President wants Comprehensive Immigration Reform and is ready at a moment’s notice to work with Congress and draft a bill."
Ms. Jackson Lee then said she wanted access to legalization like the Ortiz bill and the Secretary agreed. It should be noted that Rep. Ortiz was defeated in last year’s general election.
At this point, most of the audience and Members had left the committee room, including Chairman Smith who yielded the gavel to Rep. Gallegly of California. However, after a great question and answer exchange about deferred action, he had the last word and said, "You call it prosecutorial discretion, but I call it amnesty." Chairman Gallegly then made his closing statements and adjourned the Committee.
All in all, this was a very insightful and entertaining hearing, if not very long. It lasted nearly four hours and some Members could have used a second round of questions. It just demonstrates how much separation exists between the Administration and Congress, especially the House of Representatives. The Senate welcomes Secretary Napolitano like a hero and lets her leave after an hour or two. The House, on the other hand, is bold enough to ask the tough questions. As usual, they’re left with more questions than answers.
JONATHAN OSBORNE is the Chief Legislative Analyst for NumbersUSA
Originally Published: Tue, Nov 1st 2011 @ 12:22pm EDT