New Ad Pushes Amnesty via Promises of Enforcement

By Jon Feere, July 10, 2013

Advocates of amnesty and higher levels of immigration have come out with a new advertisement that attempts to sell their agenda by highlighting only the border provisions of the Senate's immigration bill (S.744) — provisions that will never see the light of day if the open-border crowd gets its way. The American Action Network's amnesty ad is designed to appeal to conservatives and refers to the amnesty as "conservative immigration reform". It focuses largely on the Corker-Hoeven Amendment, a last-minute addition to the Senate's immigration bill designed to attract a handful of Republican senators to vote for the amnesty.

Dubbed the "border surge" by the ad's creators, the Corker-Hoeven amendment does nothing to change the flawed architecture of the immigration bill: All illegal immigrants are entitled to legal status six months after the bill is signed, well before the enforcement provisions in the Corker-Hoeven amendment take effect sometime in the future (if ever). If fully enacted, the provision would roughly double the Border Patrol by adding 20,000 agents and finish the 700 miles of fencing already mandated once by Congress. It also includes the goal of a 90 percent apprehension rate along the border. But all provisions are "goals" rather than requirements and would thus not have to be met before aliens acquire legal status, green cards, and eventual U.S. citizenship.

And that's if the immigration bill's enforcement provisions are not later amended, narrowed administratively, or outright eliminated through a court ruling. Many supporters of the amnesty bill will be pushing for this enforcement-killing trifecta the moment the bill is signed into law.

The American Action Network was founded by Democrat-turned-Republican senator Norm Coleman of Minnesota, who has a "C" grade on immigration from NumbersUSA due to his many votes in favor of amnesty as senator, and by Fred Malek, who has worked in various private and public positions and served as a National Finance Committee Co-chair of Sen. John McCain's (R-Ariz.) 2008 presidential campaign. The group is run by Doug Holtz-Eakin, who previously served as director of the Congressional Budget Office and worked as Chief Economic Policy Adviser to Sen. McCain's 2008 presidential campaign. You can watch him debate the amnesty bill, here.

The group has reportedly spent more than $750,000 in ad buys pushing the Senate's immigration bill, proving once again that Big Money is on the side of amnesty. The ad will be airing on Fox News and in various Florida media outlets.

The amnesty advertisement is analyzed line by line below. Watch the 30-second video here:

NARRATOR: It's called the Border Surge. The toughest border security plan ever passed by Congress.

While the narrator reads this line, the video shows a quote cited as coming from NBC. The quote in the ad reads: "Border surge plan will double size of border control" — NBC (6/20/13). But this isn't entirely accurate. The quote is actually a headline of a video report from MSNBC — not the most conservative news organization. While this might be a simple oversight, likely the producers of this ad didn't want to be caught pushing so-called "conservative immigration reform" with the help of liberal MSNBC. And while the headline is an affirmative statement, the report itself is less concrete, consisting of a reporter asking whether the plan would double the size of the Border Patrol and Sen. Bob Corker (R-Tenn.) responding "I think that you have a pretty good general sense at the kind of things that are being looked at. But you know, these things, they don't happen until they happen. And because we're still vetting some of the issues, I'd prefer to let you talk about it."

The senator is right: History shows us that enforcement provisions in comprehensive amnesty bills "don't happen until they happen" and all too often they never happen. The current immigration bill makes the same mistakes of the 1986 amnesty, namely putting legalization before enforcement. To be fair to the senator, the interview took place before the final vote on the amendment, and that likely explains some of his equivocation.

But the question remains: Is this "the toughest border security plan ever passed by Congress"? Taken as a whole, the immigration bill is quite generous to illegal immigrants. It would even grant amnesty to an unknown number of illegal immigrants who have already been deported and are currently living back in their home countries. No immigration bill in the history of the United States has ever permitted previously deported illegal aliens to return to the United States to receive citizenship.

Additionally, the bill would give illegal immigrants a pass for the various crimes they have committed from ID theft to tax avoidance — crimes that could land an American in jail.

The Congressional Budget Office analyzed the Corker-Hoeven amendment and found that anywhere from half to two-thirds of illegal immigration would continue even if the bill became law and was fully implemented. If this is the toughest border security plan every passed by Congress, it seems that it may be time to go back to the drawing board.

NARRATOR: 700 miles of new fencing. 20,000 new Border Patrol agents. Radar. Night vision. Even drones.

On their own, these proposals sound like a serious commitment to immigration enforcement. If separated from the amnesty, Americans might support the enforcement. Of course, the 700 miles of border fencing should also sound familiar because it has already been requested by Congress. The Secure Fence Act of 2006 required the construction of 700 miles of a double-border fence along the U.S.-Mexico border. It was signed into law by President George W. Bush on October 26, 2006. But a year later the act was amended, effectively striking down the requirement for the double-layer fencing. The new language reads:

[N]othing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.

In other words, the amendment gave the DHS secretary discretion to direct the construction of the fencing, and the 700 miles of double-layer fencing were never constructed.

According to the communications director for the American Action Network, "The conservative border surge plan is tough, enforceable, takes away discretion from the Obama administration, and that would finally secure the border." Yet, as illustrated below, the language of the Corker-Hoeven provision provides all sorts of discretion to DHS Secretary Janet Napolitano, and not just on the fencing.

There are some basic elements to the structure of the Corker-Hoeven amendment. Before the amnesty recipients can upgrade to full green card status, the Corker-Hoeven amendment requires that the DHS secretary "submits to the President and Congress a written certification" that two things are happening.

First, the certification must show that the plan "has been submitted to Congress and includes" certain "minimum requirements" listed in sections (3), (4), and (5) of the Southern Border Fencing Strategy contained in the bill. The first of these sections, Section (3), runs 13 pages and includes a cornucopia of enforcement tools and devices for a variety of border sectors from San Diego, Calif., to the Rio Grande Valley in Texas. For example, here's the list for just the Del Rio, Texas, sector:

3 integrated fixed towers, 74 fixed camera systems (with relocation capability), which include remote video surveillance systems. 47 mobile surveillance systems, which include mobile video surveillance systems, agent-portable surveillance systems, and mobile surveillance capability systems. 868 unattended ground sensors, including seismic, imaging, and infrared. 174 handheld equipment devices, including handheld thermal imaging systems and night vision goggles. 26 mobile/handheld inspection scopes and sensors for checkpoints. 1 improved surveillance capabilities for existing aerostat. 21 sensor repeaters. 21 communications repeaters. 4 license plate readers, including mobile, tactical, and fixed. 13 radiation isotope identification devices updates. 3 mobile automated targeting systems. 6 land automated targeting systems.

It may be that immigration law enforcement needs many of these tools, but here's the rub: They can be waived or replaced at the discretion of the DHS secretary. The two other "minimum requirements" listed in Section (4) and Section (5) are not requirements at all, but are actually discretion granted to the DHS secretary. They read as follows:

(4) REDEPLOYMENT OF RESOURCES TO ACHIEVE EFFECTIVE CONTROL.—The Secretary may reallocate the personnel, infrastructure, and technologies required in the Southern Border Security Strategy to achieve effective control of the Southern border.

(5) ALTERNATE TECHNOLOGY.—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, the Secretary may deploy that technology in its place and without regard to the minimums in this section. The Secretary shall notify Congress within 60 days of any such determination.

That amounts to discretion and gives plenty of authority to the Obama administration. And does anyone actually believe that illegal aliens will be denied green cards if the Del Rio sector receives only 867 ground sensors instead of the 868 it is slated to receive? Will the legalization process be stalled if the Laredo sector receives only six of the seven "fiber-optic tank inspection scopes" listed in this bill?

The second thing required in the DHS certification of the Comprehensive Southern Border Security Strategy is actually five different things. It requires that the border strategy is "deployed and operational", additional border fencing, an employment verification system, an Exit system to track visa-overstayers, and the hiring of more Border Patrol agents. But there is discretion in some and problems with others.

For example, proving that the strategy is "deployed and operational" shouldn't be too difficult for the DHS secretary because the provision notes that "operational" simply "means the technology, infrastructure, and personnel, deemed necessary by the Secretary" has been procured and is in current use to achieve "effective control" (emphasis added). And in 2011, Napolitano told Congress that DHS already had "effective control over the great majority" of the northern and southern borders of the United States.

As to the fencing, a strategy must be "submitted to Congress and implemented" and the DHS secretary must "certify" that there is "no fewer than 700 miles of pedestrian fencing" along the U.S-Mexico border "which will include replacement of all currently existing vehicle fencing on non-tribal lands on the Southern Border with pedestrian fencing where possible" (emphasis added). The provision notes that "after this has been accomplished" the plan "may" include a second layer of pedestrian fencing "in those locations along the Southern Border which the Secretary deems necessary or appropriate" (emphasis added). Unfortunately, the bill does not provide a definition of "pedestrian fencing", an oversight that could lend itself to broad interpretation by those tasked with enforcing the law.

As to the Exit system requirement, it is important to remember that Congress has requested such a system for 17 years in over six different bills. Existing law requires it to be a biometric system at all land, sea, and airports. This is more than what is required in the Corker-Hoeven provision, meaning the proposal in Congress would weaken current law. The proposal would not be biometric and would be limited to air and seaports. Land ports, where most people enter and exit, would be exempted.

Six years after the enactment of this bill, the bill requires DHS to establish a biometric Exit system at 30 international airports in the United States, and then submit "a plan" to Congress that considers expanding the program to "major sea and land entry and exit points" based on the findings of a study, costs, and performance.

But the fact that an Exit system is not already up and running is a strong indicator that the requirements in this may also be delayed.

As to the hiring of 20,000 Border Patrol agents, one issue is a matter of training. The CBO analysis of the Corker-Hoeven amendment notes that the drop in illegal immigration — as minimal as it might be — would not come right away because it "would take several years before DHS could hire the full number of Border Patrol agents called for in the act." Training could take a decade or more.

One top of this, the Corker-Hoeven provision requires the DHS secretary to allow illegal aliens who receive the primary legal status six months after the bill becomes law "to apply for an adjustment to lawful permanent resident status" if two things happen: (1) any of the enforcement provisions do not become law due to a lawsuit, a "force majeure" (which is any unanticipated event making the enforcement impossible or impracticable, from floods to riots), or the Supreme Court agrees to take a look at the constitutionality of a provision in the law, and (2) 10 years have elapsed since the date of enactment of the amnesty bill. Considering that lawsuits are inevitable, another way to put this is that all illegal aliens will be able to upgrade their legal status from the RPI status to legal permanent resident status 10 years after Obama signs the bill, regardless of where the enforcement provisions stand.

One must contemplate whether a lack of funds or economic difficulties would be considered a "force majeure" by the officials tasked with carrying out these provisions.

President Obama has already promised amnesty groups that he will revisit the enforcement provisions that he finds unacceptable after the bill becomes law. There is no telling how many of these enforcement provisions will be narrowed or eliminated via lawsuits and administrative action.

NARRATOR: Written with Border Patrol agents and supported by conservative leaders like Marco Rubio, Paul Ryan, and Jeb Bush.

I have been unable to verify the claim that the bill was written with Border Patrol agents. The offices of Sen. Corker (R-Tenn.) and Sen. Hoeven (R-N.D.) did not respond to an inquiry at the time of publication. But the fact is that the National Border Patrol Council announced it has “serious concerns” about a number of the Corker-Hoeven provisions and argues that the best way to boost border security would be to allow agents to enforce the law and for the government to assist them with appropriate infrastructure and executive level support for their mission. ICE Union head Chris Crane explained that "Instead of empowering ICE agents to enforce the law" the bill "empowers political appointees to further violate the law and unilaterally stop enforcement."

In fact, all three unions for the employees at the immigration services — the Border Patrol, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services — have raised a variety of concerns about the Senate's immigration bill.

And while one can debate the "conservativeness" of Marco Rubio (R-Fla.), Paul Ryan (R-Wisc.), and former Florida Governor Jeb Bush, it is difficult to see how one can be labeled a conservative for supporting an immigration bill that will increase the number of voters for bigger government. According to a recent Pew Hispanic survey, support for a larger government is greatest among Latino immigrants. More than 81 percent say they would rather have a bigger government with more services than a smaller government with fewer services. This is compared to the national average, where only 41 percent of Americans support a larger government. Pew finds that even second and third-generation Latinos support bigger government at a greater rate than the national average.

It is also difficult to view these politicians as conservative leaders when they've been silent on President Obama's lawless activity in the area of immigration. When Obama decreed that he would no longer enforce immigration laws for certain illegal aliens, but would instead give them work permits and legal status via his Deferred Action policy, Rubio, Ryan, and Bush did not take the lead to stop it. Putting immigration politics aside, a true conservative leader would be aghast at the idea of a president unilaterally declaring huge portions of the population to be exempted from certain areas of law. Logically, a president can now extend such decrees to tax law, for example, and not fear any repercussion from so-called conservative leaders.

In fact, the Deferred Action decree was the natural result of Obama receiving virtually no blowback for his effort to administratively narrow the scope of immigration enforcement through the Morton Memos, policies that generally give illegal aliens a pass from deportation until someone is seriously injured or killed. By not challenging the Morton Memos, Rubio, Ryan, and Bush have effectively shown their support for increased executive power and are seemingly content with non-enforcement of many immigration laws.

There every reason to believe that President Obama will narrow the scope of enforcement in the Senate's immigration bill should it become law, and every reason to believe that Rubio, Ryan, and Bush will say nothing when it happens.

NARRATOR: This is the tough border security America needs. Call Congress, tell them to support the border surge. Tell them to pass conservative immigration reform.

Americans generally do support tougher border security and better enforcement of our immigration laws. To that extent, the amnesty ad would be appealing if it were describing a stand-alone piece of legislation. But it is quite a telling that the ad's creators avoided all discussion of the bill's legalization and mass immigration provisions, particularly since they make up the majority of the bill. Clearly they do not want the public to think about the fact that the bill being pushed in the advertisement is supported by many leftist special interests and that it would dramatically increase legal immigration numbers while granting amnesty to over 11 million illegal aliens, some of whom have already been deported. The American Action Network also does not want you to know that the Congressional Budget Office finds that the bill would lower wages for Americans for the next decade.

Calling Congress is a good idea for those seeking a rational immigration policy. But the bill recently passed in the Senate is not a benefit to anyone other than illegal immigrants and special interest groups.