Senate Bill Grants Napolitano Waiver of Border Security Provisions

Bob Beauprez
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Posted: Jun 24, 2013 12:01 AM
Senate Bill Grants Napolitano Waiver of Border Security Provisions

No wonder Janet Napolitano supports the latest evolution of the Gang-of-Eight's immigration reform legislation; it specifically gives her the unilateral authority to ignore the key border security provisions.

Late last Friday, Napolitano issued the followingstatement of supportfor the border security amendment offered by Republican Senators John Hoeven (ND) and Bob Corker (TN):

"The president has made clear that commonsense immigration reform legislation must include measures to strengthen border security, create a path to earned citizenship, crack down on employers that hire undocumented workers, and streamline our legal immigration system so everyone is playing by the same set of rules.  The border security amendment agreed to by a bipartisan group of Senators is in line with that criteria.  It will devote important additional resources to the robust border security system this administration has put in place and strengthen what was already an unmatched piece of border security legislation."

Originally hyped as a major get-tough improvement to the Gang of Eight's border security provisions intended to attract more Republican support, Corker volunteered to reporters that the "Gang has been involved" in drafting the amendment, noting in particular that two of the most liberal Democrats, "Senator Schumer and Senator Menendez have been very active."

Knowing that, it comes as no surprise to learn that the so-called Hoeven-Corker amendment specifically gives the Secretary of Homeland Security the sole discretion to waive the provisions to build hundreds of miles of new fencing and the installation of technological equipment to aid in securing the border. 

Regarding the border fence, according to theWashington Times, the 1190 page "amendment" reads that "nothing in this subsection shall require the secretary to install fencing, or infrastructure that directly results from the installation of such fencing, in a particular location along the southern border, if the secretary determines that the use of placement of such resources is not the most appropriate means to achieve and maintain effective control over the southern border at such location."

The Hoeven-Corker legislation also calls for very specific installation of technology including, 685 ground sensors, 50 towers, 73 fixed video cameras, and 28 mobile surveillance systems.  But, again the bill gives the Napolitano or her successors waiver authority "if the secretary determines that an alternate or new technology is at least as effective as the technologies described in paragraph (3) and provides a commensurate level of security." 

Hoeven-Corker also mandates an increase in "the number of trained full-time active duty U.S. Border Patrol agents deployed to the Southern border to 38,405."  How that rather specific number of agents was determined is unclear, but the secretary gets eight years –until September 30, 2021- to ramp up to that level.

Those watching the debate on both sides are predicting lawsuits in bunches if a bill is eventually signed into law, which would likely stall implementation of various provisions of the legislation, as well. 

However, regardless of whether any fencing, technology, or agents ever get deployed, or border security ever improves, "immigrants will be given permanent status in ten years no matter what" according to Byron York, chief political correspondent for theWashington Examiner, who has meticulously followed the Senate's deliberations.  

The Senate is expected to vote on Hoeven-Corker as early as Monday, June 24 after having only the weekend to review the 1200 pages of complex legislative language.  Want to make a bet as to how many of the Senators will have read the bill before they vote on it?

York actually calculated the task at hand: 3 days, 16 hours a day, 24 pages and hour.  "That's certainly doable," York says, "But, it's also not easy, because reading the amendment requires comparing the new text to the original text of the bill to try to spot changes."  Then there's the obvious – what Senator is going to spend the weekend doing that anyway?

Senator Mike Lee (R-UT) has assigned 100 page sections of the Hoeven-Corker amendment to members of his staff to review.  Rest assured that he is the exception.  Last Thursday, before the text was even available, Senator Corker told reporters thatfourteen Republicanswere ready to support the bill as rewritten.

Something seems likely to pass the Senate.  It also appears that the House may pass their own version of Immigration reform legislation, but likely not until September at the earliest.  That means a Conference Committee would need to be formed to reconcile differences in the two bills (likely significant differences) as Congress enters full blown campaign season before the 2014 elections.  Then it's anybody's guess if both chambers would pass the Conference compromise, and if the President would sign or veto it.

So, as badly as a good solution needs to be found to a major problem that has been decades in the making, our bet is that the efforts of this Congress will yield the same result as the several previous ones – not much.