Analysis of H Res 442
Stop This Overreaching Presidency (STOP) Resolution

This resolution, introduced on December 12, 2013, by Rep. Tom Rice (R-SC) and 29 cosponsors (now up to more than 100), would require the leadership of the House of Representatives to bring suit in the Federal District Court of the District of Columbia.  The suit would challenge one or more of several actions taken by the Executive Branch under President Obama on the grounds that they represent a “continuing failure to faithfully execute the laws” of the United States. 
            This resolution does not require Senate action since it applies only to the House, and Section 1(d) directs that it be funded from amounts already appropriated for the use of the House of Representatives.  Passage by the House would compel the House leadership to proceed with the lawsuit.
            H Res 442 designates four actions of the Executive Branch for possible challenge.  These are (1) failure to enforce the ObamaCare provision making certain health insurance policies illegal after 2013, (2) suspension for one or two years of the employer mandate in ObamaCare, (3) the treatment of some illegal aliens as if the DREAM Act had passed Congress, and (4) the waiver of work requirements in the 1996 welfare reform bill.
            The foundational assumption of this resolution is found in Article II, Section 3 of the U.S. Constitution, which assigns to the president the responsibility that “he shall take Care that the Laws be faithfully executed . . . .”  If the president believes that there is a problem with the law which requires change, he is to go to Congress and “recommend to their Consideration such measures as he shall judge necessary and expedient” (Article II, Section 3).  The president himself is not given any legislative power by the Constitution.  He cannot pass or amend laws.  Instead, Article I, Section 1 clearly states that “all legislative Powers herein granted shall be vested in a Congress”.
            Given the clear guidance of the Constitution, the remaining question is whether President Obama and his administration have exercised legislative power, rather than merely administering the laws passed by Congress.  The facts in the four matters cited by this resolution make a strong case that constitutional violations have occurred.

The ObamaCare cancelation of health insurance policies
            In the fall of 2013, as insurance companies began sending out the cancelation notices required by ObamaCare, it became obvious that supporters of ObamaCare had not spoken accurately when promising that anyone who liked his policy could keep it.  Public opinion demanded that something be done.  Members of Congress began introducing bills to allow insurance companies to continue offering the policies, at least temporarily, and the House of Representatives scheduled a vote on HR 3522 for November 15.
            The President had an obvious opportunity to work with Congress and amend the law.  Instead, one day before the House vote, he announced that he would allow state insurance commissioners to “extend current plans that would otherwise be canceled into 2014”.  The law continued to say that such policies were illegal, and the President was unwilling to support any change in the law.  Instead of following the constitutional process of amendment, President Obama simply made it know that he would refuse to enforce the law, and he encouraged the state insurance commissioners to follow his example.

Suspension of the ObamaCare Employer Mandate
Obama announced on July 2, 2013, that he would not enforce the law’s requirements for employer-provided insurance and the associated penalties beginning January 1, 2014.  Instead, he suspended that portion of the law for at least one year.  (He later announced that, for some employers, it would be suspended for a second year.)  Section 1513 of the Act, which mandates the penalty, contains nothing that gives the President any discretion as to whether he will enforce the law.  Nor was there any need for the President to act unilaterally.  The House of Representatives passed legislation to make the one-year delay fully legal (HR 2667), but President Obama called on the Senate to reject the House bill and promised a veto if the bill reached his desk.  Rather than follow the only appropriate constitutional procedure, he insisted on acting outside of his constitutional authority. 

The DREAM Act
            The supporters of the DREAM (Development, Relief, and Education for Alien Minors) Act, believe that children who were brought into the United States illegally by their parents should not be held accountable for the actions of their parents, and should not be treated as illegal aliens.  Repeated attempts to persuade Congress to enact the bill have failed, leaving the laws regarding illegal immigration in full force against the bill’s intended beneficiaries.
            As the 2012 presidential election approached, the President decided to proceed administratively as if the DREAM Act had been approved by Congress.  The official announcement came from the Department of Homeland Security on June 15, 2012, affirming that illegal immigrants who met the standards of the DREAM Act could gain immunity from deportation and the ability to legally accept employment.
            This decision was a clear refusal to enforce the existing law.  The Obama administration has defended it on the grounds that the government has “prosecutorial discretion”.  However, while prosecutors do have some discretion in deciding who should be prosecuted, this is normally applied to specific individuals in cases where mitigating circumstances exist.  It is very unusual, and perhaps unprecedented, to exempt an entire class of more than one million people from prosecution.  Furthermore, the administration’s actions go beyond mere refusal to prosecute, and actually provide the legal documentation needed to seek legal employment.

Work Requirements
            The 1996 Welfare Reform Act, passed by a Republican Congress and signed into law by a Democratic president, contained a requirement which forced many welfare recipients to go to work.  The increased employment was regarded by many as one of the great successes of welfare reform. 
            The Obama administration has been granting waivers to states, allowing them to cease enforcing the “workfare” requirement, even thought the law itself remains on the books.

Given the above facts, the House appears to have a strong case that the Obama administration has acted in defiance of the Constitution.  The Federal courts are the proper place in which to seek a remedy.  However, those courts have been reluctant to take sides in disputes between the Legislative and Executive branches, and have avoided taking up the cases by declaring that a member of Congress lacks the “standing” to bring suit.  This is a strong argument against proceeding with H Res 442, since attempting such a lawsuit could easily take more than a year and end without a trial on the merits.  However, Rep. Rice argues that a suit brought by the House as an institution, rather than an individual member, might compel the courts to accept the case.  Given the lack of precedent, his argument appears to have merit.

            Anyone wishing to read the testimony given at the February 26, 2014 Judiciary Committee hearing on H Res 442 can find it on the Committee’s website, at http://judiciary.house.gov/index.cfm/hearings?ID=4B00641F-3944-4308-BF89-F68AA9FF4653

Ellis Island, Main Immigration Building

Key Facts About S. 744, The Border Security, Economic Opportunity, and Immigration Modernization Act

The United States faces an illegal immigration crisis.  The Border Security, Economic Opportunity, and Immigration Modernization Act introduced by Senator Schumer (D-NY), claims to be the answer to that crisis.  This study examines whether S. 744 (as amended and passed by the Senate) provides a solution to the major problems of illegal immigration.

Border Security
            The most critical need in dealing with illegal immigration is to secure the U.S. borders, especially the border with Mexico.  If this is not done, illegal immigration will continue.  According to a poll conducted by Pew Research Center, one-third of Mexicans would like to come to the United States, and some will always be willing to do so illegally.
            Section 2 of S. 744 presents laudable goals for the legislation.  These include :
            That the United States has “a right, and duty, to maintain and secure our borders”
            That “in order to qualify for the honor and privilege of eventual citizenship, our laws must be followed”
            That “as a nation, we have the right and responsibility to make our borders safe . . . and to eliminate illegal immigration, which in some cases has become a threat to our national security”.
            These statements in S 744 are in line with public opinion polls, which put the highest priority on stopping illegal immigration.  A May poll by the Pew Research Center showed 83% of Americans agreeing that government can do more about illegal immigration (53% agreed that government “can do a lot more”) while only 13% agreed that government was already doing all it could.  A Rasmussen poll at about the same time found 66% putting border control ahead of dealing with the status of illegal immigrants.
            The bill deals with border security in Section 4-8 and Title I, Sections 1101 through 1116.  Section 5 requires the Secretary of Homeland Security (currently Janet Napolitano) to send Congress, within six months, a strategy for both Comprehensive Southern Border Security and for Southern Border Fencing.  The Secretary then submits an official notification that DHS has commenced the implementation of the two strategies, which allows commencement of the amnesty provisions of the bill, giving illegal aliens provisional legal status. 
            There are several disturbing features to this part of the bill.  The amnesty process begins before there has been any sustained effort to reduce illegal immigration, requiring merely a statement by the Secretary that she is beginning to carry out a plan whose effectiveness cannot yet be known.  We do know that, despite the vast amounts spent on border security over the past decade, the United States has not been able to prevent a large amount of illegal immigration.  There are strong indications that illegal immigration has been increasing in 2012 and 2013.  It is entirely possible that the plan, by doing more of the same, will have little effect in reversing this recent increase in illegal immigration.  (This was the conclusion of the Congressional Budget Office, as mentioned below.)  By the time that such a result is known, millions of illegal aliens will have been granted legal residence (the essence of amnesty) and millions more may have crossed the border, continuing the problem the bill is intended to solve.
            The Secretary’s Border Security Plan is supposed to aim at 90% effectiveness – that is, 90% of those attempting to cross the border illegally will be captured or will turn back to avoid capture (see Section 3 of S. 744).  However, arriving at such a statistic requires knowing how many illegal aliens have slipped through, and the very fact that they escaped capture demonstrates that they may have entered without notice.  The system is therefore biased in favor of a higher than accurate effectiveness number.  DHS will have strong incentives, both political and institutional, to make the effectiveness rate as high as possible, and the uncertainty concerning the number of successful crossings will allow manipulation for this purpose.
            Having an accurate measure of effectiveness is essential, since this triggers the second phase of amnesty, in which permanent legal status is granted.  If the effectiveness rate cannot be easily verified, it becomes possible for an administration sympathetic to illegal aliens to proceed further with the amnesty while allowing a substantial amount of illegal immigration to continue.
            S. 744 offers little assurance that illegal immigration will be stopped, and no reliable means of obtaining a measure of effectiveness.

Executive Branch Discretion
            Many of the provisions of S. 744 are subject to the discretion of the Secretary of the Department of Homeland Security, and can be waived or altered at the discretion of the Secretary.  Columnist George Will counted 153 instances in which the bill allows a waiver.  The discretionary power of the Secretary extends to such matters as providing required documentation as well as paying fees and back taxes.
            The Obama administration has a history of using all possible discretionary authority in favor of illegal aliens.  In 2011, it claimed that prosecutorial discretion allowed it to rule out deportation for most illegal immigrants, granting them at least a temporary form of amnesty. In 2012, this was followed up by using disputed executive power to carry out many of the provisions of the DREAM bill that had failed to pass Congress. 
            The administration has also been remiss in extending the existing fencing along the Mexican border and has not carried out a 1996 law intended to identify those who become illegal immigrants by remaining when their visas expire.
            Given this track record, any objective observer would have to wonder whether the provisions of S. 744 would all be carried out in good faith.  If discretionary power were to be used to the utmost in favor of illegal immigrants and against enforcement, S. 744 would be a very different law from what the Senate thought it was.

Criminals and Terrorists
            The bill is supposed to prevent criminals who are criminals from moving to legal status.  According to Section 2101, DHS is to conduct a background check for this purpose and refuse legalization to anyone guilty of a felony or three misdemeanors.  (The Secretary of DHS has a limited waiver power here.)  However, conducting background checks on millions of applicants is certain to require a brief and hasty approach to most, which is likely to allow some criminals to slip through.
            Another provision of Section 2101 prohibits amnesty for anyone who “is engaged in or is likely to engage after entry in any terrorist activity”.  Given the fact that a much more thorough FBI investigation of Tamerlan Tsarnaev failed to determine that he was a terrorist-in-the-making, it stretches credibility to think that DHS has the ability to investigate eight million or more illegal aliens and discover the terrorists.
            S. 744 cannot be said to deal realistically with the public safety aspect of illegal immigration.

Cost
            Illegal aliens are usually poorly educated and low income.  Therefore, they use government services at a higher rate than native citizens and legal immigrants.  The cost of illegal immigration, from schools to prisons to healthcare, is a major concern that needs to be addressed.
The most comprehensive analysis of the financial effect of S. 744 has been prepared by the Heritage Foundation.  Their research showed that, far from reducing these costs, the bill would add another $6.3 trillion for taxpayers over the lifetime of those receiving amnesty.  Government would receive about $3.1 trillion in tax payments but provide them with $9.4 trillion in services and welfare benefits.
Short-term estimates of the cost of the bill are misleading, since the full cost of government services will hit only as those receiving amnesty become citizens.  This fact has been confirmed by the Congressional Budget Office (see below).  It is safe to say that passage of S. 744 would make this problem worse, not better.

Funding the Left
            Passage of S. 744 would likely provide a financial bonanza to pro-illegal alien organizations.  Section 2531 of the bill creates the United States Citizenship Foundation.  This new agency is authorized to provide millions in Federal subsidies to nonprofit organizations for the purpose of assisting illegal aliens with the process of becoming legal residents and eventually citizens.  This part of the bill may demonstrate recognition by liberals that many illegal immigrants want only legal residence, not citizenship (fewer than half of those legalized by the 1986 amnesty chose to become citizens.)  By paying pro-illegal alien groups to work with these people, an effort to persuade them to seek citizenship and the right to vote can be carried out with the Federal government picking up the tab instead of the Democratic Party.
            Ten of the twelve directors of this foundation will be “from national community-based organizations that promote and assist permanent residents with naturalization.”  These directors will be in charge of handing out the money to groups such as their own.
            Government funding is already being received by some pro-illegal groups.  According to its IRS filings, La Raza (“The Race”) increased its receipts from government sources from $5.1 million in 2009 to $9.8 million in 2011.  During that period, government payments went from 14% to 24% of its total income.  La Raza Centro Legal in San Franciso received almost $800,000 – 57% of its total income – from government sources.
            Almost $3.4 million went to Americans for Immigrant Justice / Florida Immigrant Advocacy Center in 2011, and this was 93% of their income.  The Northwest Immigrant Rights Project received more than $1.1 million (42% of total income).
            Many other such groups are also already on the receiving end of taxpayer dollars, and S. 744 will greatly increase the flow of government funds to them.

CBO Report
            The Congressional Budget Office (CBO) has issued a 62-page report on the impact of S. 744.  While this has been cited as providing support for the bill, a closer reading raises serious questions.
            First, the CBO researchers came to the conclusion that the bill's enforcement measures to prevent future illegal immigration will fail.  The CBO estimates that illegal immigration would be reduced only 25%, still allowing many to enter the United States illegally.
The CBO report took into account only Federal spending, ignoring the cost to state and local governments.  It also makes clear that the Federal deficit reduction comes primarily from taxes paid by increasing legal immigration, and this could be achieved without amnesty.
Finally, the CBO report on the Federal deficit looks much different when it divides the effect on the deficit into "on-budget" and "off-budget" changes.  The deficit reduction is the result of adding young workers to the workforce -- workers who will start paying into Social Security immediately but will not begin collecting benefits for many years.  Without this surplus, the effect is to increase the deficit.  In the long run, when these new workers begin retiring and collecting benefits, the Social Security surplus will disappear, along with any deficit reduction.
In fact, the immigration bill could be seen as an attempt by Congress to recreate the Social Security surplus as a source of funding for other government agencies.  Congress borrowed nearly $3 trillion from Social Security before rising unemployment during the recession turned the surplus into a deficit.  Passage of S. 744 promises to allow that borrowing and spending to resume.
Supporters of the Senate amnesty bill (S. 744) have been assuring taxpayers that it protects the public by making those receiving amnesty ineligible for Federal welfare programs.  While the bill does say that amnesty recipients would be unable to receive some welfare benefits, the prohibition would end when they become citizens. 
Furthermore, the recent CBO report shows that the law actually allows illegal aliens to receive some welfare benefits even during the period when they are in a "provisional status" or legalized but not yet citizens.  Pages 25-38 detail how S. 744 would allow at least some illegal aliens to be eligible for Medicaid, Food Stamps (now called SNAP), children’s health care (CHIPS), unemployment, child nutrition, student aid, and other programs.
Because the welfare benefits which illegal aliens would collect increase as they move from provisional to legal residents to citizens, the welfare costs will increase substantially over time.  The CBO study, by focusing only on the period 2014-2023, did not provide specific details on the long-term cost as illegal aliens become citizens beginning around 2027.
            The CBO also concluded that “During the next several years, the unemployment rate would be slightly higher than it otherwise would be and average wages would be slightly lower.”

Constitutional Question
            Is S. 744 constitutional?  According to Article I, Section 7 of the Constitution, “All Bills for raising Revenue shall originate in the House of Representatives”.  The Senate may amend such a bill after passage by the House, but has no authority to begin the revenue raising process. 
            There is no question that S. 744 is a bill for “raising Revenue”.  The various penalties and fees it imposes are intended to fund much of the direct cost of the bill.  (A great deal of the $459 billion in increased revenues cited in the CBO report are the result of a growing economy, rather than increases in taxes, fees, etc., and the Constitutional limitation does not apply to that.  Nevertheless, the billions raised by penalties and fees clearly meet the Constitutional standard for raising revenue.)
The Supreme Court has never ruled a bill unconstitutional on these grounds, and the Roberts-Kennedy Court seems unlikely to be the first.  However, the House of Representatives would be well within its rights to refuse to consider S. 744 on the grounds that it is Constitutionally illegitimate.

S. 744 as a “Christmas Tree”
            As so often happens with legislation that is being pushed by the White House or Congressional leaders, S. 744 was treated by the Senate as a “Christmas tree” on which senators could hang their own pet projects – projects which could not pass if proposed as a separate bill.  Title V (Sections 5101-5105) establishes a $1.5 billion “Jobs for Youth” program, which had been pushed by President Obama as a “stimulus” measure but went nowhere in Congress.  Sen. Bernie Sanders (I-VT), the Senate’s only self-described socialist, insisted that it be included in the immigration bill. 
            The bill is also filled with home-state “pork- barrel” spending for some senators.  Helicopters and radar systems are among the mandated spending added to the bill as a condition of receiving the votes of some senators.

Published by The Conservative Caucus Foundation, July 2013
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