I rise in opposition to the nomination of Sarah Saldaña to be in charge of Immigration and Customs Enforcement for the Department of Homeland Security. 

As we know, the President has recently announced that he will take unilateral executive action on immigration.  In so doing he has circumvented the democratic process, broken the law, and subverted the constitutional order.  It is incumbent on every member of this body — no matter what their politics, or what immigration policies they would prefer to enact — to oppose that usurpation of legislative power and to defend the rule of law. 

Fulfilling that duty leads me to oppose Ms. Saldaña’s nomination to be ICE director.  Although I respect her and her record of public service, including an admirable independent streak as United States Attorney, she has also demonstrated that her commitment to the rule of law may falter where the Immigration and Nationality Act is concerned.  In response to a question several members of the Senate Judiciary Committee, including me, Ms. Saldaña said that she agreed with DHS Secretary Jeh Johnson that immigrants who entered the country illegally, and have now been targeted for so-called deferred action, have “earned the right to be citizens.”

That’s quite a bold claim.  No doubt Congress could, and many people think it should, ease the path the citizenship for some aliens here unlawfully.  But to assert that citizenship is a matter of right, and that it has been earned by the very act of breaking our immigration laws, is an unacceptable view for a person nominated to be head of immigration enforcement.

But as I told the Senate last week, that is exactly the mentality of this Administration:  Although President Obama has repeatedly denied clearing a path to citizenship for those who crossed our border illegally, his denial is false, and he knows it. 

In 2010 a Department of Homeland Security memorandum explicitly contemplated using a legal device called “parole” to enable aliens who crossed our border unlawfully to become citizens.  The law makes it possible for aliens with U.S.-citizen children who have been “paroled into the United States” to adjust their immigration status and become green-card holders, but parole is supposed to be very rare.  Federal law, INA § 212(d)(5)(A), forbids the President from paroling aliens into the country except for “urgent humanitarian reasons or significant public benefit.” 

But now, despite denying clearing the pathway to citizenship, the Administration has begun granting parole to beneficiaries of deferred action under the thinnest of pretexts:  The President’s policies now allow deferred-action recipients to get “advance parole” so long as they have a client meeting, or an interview, or some academic research to perform overseas — hardly an urgent humanitarian crisis.  When they get back from their trips, they will be paroled into the country, and will eventually become eligible to adjust status and get green cards — exactly as the 2010 DHS memo suggested.

All of this is, of course, illegal.  But it is worse than illegal: It is illegitimate.  If Congress decides to make it easier for undocumented immigrants who have children here to obtain citizenship, so be it.  But that is a decision for the American People, through their elected legislature, to make.  If the President dislikes the law, he like any other citizen must ask this body to change it.  He has no more right than anyone else who lives in this country to ignore or change the law outside the constitutional process.

But he and his Administration have talked themselves into doing just that.  They can try to rationalize that action — to us and perhaps to themselves — only by donning the mantle of moral indignation:  It isn’t just that it would be prudent, or merciful, to reform our immigration regime.  Instead, the Administration’s argument is that those who flout our laws have, by the very act of flouting them, earned a moral entitlement to have the law changed. 

And if Congress will not oblige them, then they’ll just do it themselves.  They’ll draft up a law called an “executive order” that overturns national immigration policy and announce it at a press conference; there will be no debate; there will be no amendments; there will be no vote; in short, there will be no democracy.

We have passed through the looking glass.  And to see how far we’ve gone inside, observe:  Today the President asks the Senate to install, as custodian of our border, a person who evidently believes that crossing our border illegally earns you the right to vote.  The Constitution gives the Senate the responsibility to give the President advice about his executive nominations, and ultimately its consent.  My advice is this:  The President should not proffer a nominee for the job of executing our immigration laws who affirmatively supports subverting them.  But that is exactly what he has done, so I cannot and will not give my consent.