"On Thursday, DHS Secretary Janet Napolitano faced Members of the House Judiciary Committee who are likely the most outspoken critics of her policy memorandum that provides amnesty through the use of prosecutorial discretion to at least 1.4 million illegal aliens. When the policy was first announced, several questions were left unanswered due to its ambiguity. While Members of the committee asked for answers to many of those questions, Secretary Napolitano dodged, avoided, and redirected her way through the more than two-hour hearing.

 

Secretary  Napolitano was subject to considerable examination from the Judiciary Chairman Lamar Smith, Immigration Subcommittee Chairman Elton Gallegly, Immigration Subcommittee Co-chairman Steve King, and Reps. Randy Forbes, Trey Gowdy, and Ben Quayle. Reps. Bob Goodlatte and Jason Chaffetz also criticized Secretary Napolitano for her handling of the 287(g) program and her testimony on border security.

 

While many of the Members asked specific questions about the policy, its implementation, and its legality, Rep. Gallegly turned the policy into a jobs issue. He tried to get the Secretary to quantify how many illegal aliens would receive work permits under her memorandum, but in his first attempt, she dodged the question.

 

"Yes, they will be able to apply for work authorizations," Napolitano said when asked about how many would receive work permits.

 

Rep. Gallegly asked again -- "How many would receive work authorizations?"

 

"Again, they can apply for work permits, but they're going to have to meet standards for being eligible for work authorization. The linkage between deferred action and work permits goes back to the 1980s. That's a long standard," Secretary Napolitano said.

 

Rep. Gallegly asked for a third time -- "Is it going to be 2-3 people or 200,000-300,000 people? You know, we've got a lot of people out of work right now."

 

"If I might back up a moment because this was an issue that I thought of deeply before I wrote my memorandum as jobs for Americans is very important," she said. "My conclusions were that there are lots of different ways to stimulate job creation, some are before the Congress now. But we shouldn't balance the American economy on the backs of children."

 

Would the fourth time be the charm? -- "How many people who will qualify for this will be allowed to work when we have 14 million Americans who are out of work?"

 

"Don't know."

 

She doesn't know. 

 

 

Chairman Smith questioned Secretary Napolitano on an issue that was immediately identified after its announcement -- documents. Secretary Napolitano's memorandum doesn't address what documents could be used as proof for eligibility, but during a conference call shortly after the announcement, USCIS Director Alejandro Mayorkas said, "We will consider whatever documents the individual submits to us." Since the President and other supporters of the policy have emphatically directed focus on the students who would qualify, Chairman Smith asked whether they would be required to submit school transcripts.

 

"DHS does not currently plan to require individuals to provide a certified school transcript. It seems to be that that's the only way some of these individuals that are in the country can prove that they are eligible under these provisions. Do you plan to require applicants to provide that certified school transcript or not?" Smith asked.

 

But a month after the announcement, Secretary Napolitano said, "[w]e're still working through the details on that. Our plan is to accept different types of documents."

 

 

"We're working through USCIS what records they have to produce. ICE had several people already in removal proceedings and have looked at those cases," she said.

 

"So certified school transcripts may or may not be required?" Smith asked.

 

"I think that's fair to say."

 

 

Chairman Smith's question brought up another point - about 1,000 illegal aliens have already been granted prosecutorial discretion. Secretary Napolitano answered in the affirmative to that question even though many of the policy's finer details haven't been worked out.

 

Chairman Smith also brought up the question of Advanced Parole. Advanced Parole is a policy that allows aliens to leave and re-enter the United States. When they re-enter the U.S. legally, they would no longer be subject to the 3- and 10-year bars that an illegal alien who is removed would face. Chairman Smith's concern is that Advanced Parole would make them eligible for a green card if they have a pending application. 

 

Secretary Napolitano drove home the point that this is "deferred action on a case-by-case basis". (She used that phrase three times during Chairman Smith's questioning alone.) She did concede, however, that "particular individuals" could receive Advanced Parole.

 

Rep. Randy Forbes doesn't usually say much during committee hearings and markups, but on Thursday, he took off his Congressman's cap and put on his attorney's cap. His questioning of Secretary Napolitano was methodical and purposeful and was more reminiscent of what you'd see in a court room than a committee hearing room. He started by holding up and reading from a sign that contained Pres. Obama's quote from March 28, 2011 where the President stated he did not have the authority to allow illegal aliens to stay. The President said that he could not change the laws on the books through executive order.

Rep. Forbes asked Secretary Napolitano if any laws had changed since the President made that statement. "No." 

 

He asked if she felt the President was correct in what he had said. "As a general matter, yes."

 

He then pulled out his old copy of Black's Law Dictionary, which is THE authoritative source for lawyers, and read the definition of an executive order -- "an order issued by or on behalf of the President regarding a law or treaty." He then asked Secretary Napolitano about the apparent contradiction between the President's 2011 statement and her memorandum.

 

"It was under my authority as secretary of the department and setting the priorities for enforcement of the nation's immigration laws," she said.

"Is it your opinion, Madame Secretary, that the authority you issued this under has greater authority than the president of the United States?" Forbes asked. 

Secretary Napolitano didn't answer the question directly, but said, "There is broad authority going far back about the ability of a prosecutor to set priorities." 

 

Both Reps. Steve King and Ben Quayle asked Napolitano how Members of Congress should draft laws that they "really want enforced" but she had no suggestions. Of course, the questions were asked more to make a point rather than to generate a serious response.

Rep. King also brought up the idea of a lawsuit during his questioning. He has maintained the idea that he plans on suing the Administration if they implement the memo. He said it was the idea of offering work permits that he believes overstepped their authority.

"There is a separation of power. The executive branch cannot legislate by executive order by memorandum. ... I do not [accept the use of prosecutorial discretion] when it deals with a work permit that’s ordered to be issued that doesn’t exist in the United States Code. That is the province of Congress. So I thank you for being here today, but we will see each other down the line in litigation."

 

Rep. Trey Gowdy focused his questioning on whether the Secretary of the Department of Homeland Security has the authority to offer prosecutorial discretion to an entire class of cases, and she responded by emphasizing the case-by-case aspect of the policy. Rep. Gowdy then asked why she even wrote the memo if she already has the ability to use prosecutorial discretion.  

 

"This memo gave you no more authority than what you had before you drafted it," he said.

 

Other topics were discussed. Rep. Bob Goodlatte expressed his frustration at the agency's decision to terminate 287(g) agreements in Arizona and its recent rejection of Virginia's application for the 287(g) program. Secretary Napolitano said the program is "unproductive and very expensive", so he asked why then the Department lists so many 287(g) success stories on its website.

 

"I would tell the people working the website to take them down. The program doesn't work the way that Congress intended," she said. She followed through with that promise. Before the end of the hearing, the success stories were no longer on the DHS website.

 

Rep. Jason Chaffetz questioned Napolitano on border security, focusing specifically on the Tucson sector in western Arizona. She said that her department has virtually stopped all illegal crossings along the U.S.-Mexico border. She backed that up with crime statistics from Phoenix. But Rep. Chaffetz noted that crime was up 6% in Phoenix from 2008-2009 and in Nogales, which is the biggest city on the border in the Tucson sector, crime increased 92% from 2009-2010. Napolitano said she would look into it.