Republican critics see a rerun of healthcare law in Senate immigration bill

GOP critics of the Senate’s immigration bill warn Congress risks a rerun of ObamaCare if it approves the measure. 

They argue the 844-page immigration bill mimics some of the worst qualities of President Obama’s nearly 2,000-page healthcare reform law by giving administration officials — chiefly Secretary of Homeland Security Janet Napolitano — far too much latitude in implementing the law.

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“I’m concerned that the bill provides unfettered and unchecked authority to you and your department and your successors,” Sen. Chuck Grassley (Iowa), the ranking Republican on the Judiciary Committee, told Napolitano Tuesday when she testified before the panel.

“It reminds me of the 1,693 delegations of authority in the healthcare reform bill that make it almost impossible for the average citizen to understand or predict how the law will be applied,” he added.

Decisions granted to Napolitano or a future Homeland Security secretary are scattered throughout the legislation.

To attract broader support in Congress, the legislation would exclude immigrants in the country illegally from obtaining provisional legal status if they have committed three or more misdemeanors. But the bill grants Napolitano the power to waive this rule “for humanitarian purposes, to ensure family unity, or if in the public interest.”

The legislation empowers the secretary to waive a rule prohibiting deported immigrants from applying for provisional legal status if they are outside the country.

Napolitano also would have discretion over whether immigrants should lose their provisional legal status by failing to meet eligibility requirements or by using fraudulent documentation. She could revoke legal status for these infractions but she is not required to, according to the legislation. 

The broad waiver powers granted to Napolitano have prompted comparisons to the 2010 healthcare law. The Obama administration granted more than 1,000 waivers under the law within the first year after its enactment.

“From my perspective, we’ve seen how this administration has abused waiver authority in the so-called Affordable Care Act to exempt political favorites from the law that applies to everybody else. I think this Congress’s job is to set the standard,” said Sen. John Cornyn (Texas), the second-ranking member of the Senate Republican leadership and a member of the Judiciary Committee.

Cornyn said in the immigration bill “there are multiple opportunities to waive and exempt people from the operation of the bill.”

“When Congress passes laws it ought to apply to everybody equally,” said Cornyn.

Sen. Marco Rubio (R-Fla.), a member of the Senate’s Gang of Eight, which drafted the bill, said he’s open to reducing Napolitano’s authority to waive provisions of the bill.

“Some criticisms may be valid, and if they are, they should be addressed through the amendment process,” he said. “If people feel that way, I certainly welcome the opportunity to fix it and make the bill better.

“I view the bill as a starting point,” he said.

Rubio’s job is to sell the controversial bill to the GOP’s conservative base. So far, he’s done a good job, according to Republican colleagues, as the emerging opposition is only a fraction of what there was in 2007, when the Senate last debated immigration reform.

Sen. Jeff Flake (R-Ariz.), another member of the Gang of Eight, said he expects critics to take shots at the bill. He said if there weren’t waivers granted to Napolitano, the bill would be criticized for being too inflexible.

For example, the law allows the secretary to extend the application period if the department needs more time to process applications for provisional legal status. If Napolitano did not have this discretion, there would be pressure on her department to fast-track applications without adequate review.

Regulations governing tax payments for immigrants applying for provisional legal status and the process for collecting fees in installments would also fall under Napolitano’s responsibilities.

She would have power to expand the kinds of documents needed to establish evidence of employment, and could waive employment and educational requirements.

The law says the secretary could require in-person interviews for immigrants applying for legal status, but some critics worry this gives her leeway to dispense with the requirement altogether. A Republican aide said this would allow for a weaker requirement than what is the standard practice for visas applied for outside the United States.

Grassley said the bill allows Napolitano to define the terms of the legislation as she sees fit. She can excuse some behaviors that are supposed to render illegal immigrants ineligible for legal status and determine what documents and other types of evidence are acceptable to begin the pathway to legal status.

“In areas related to [Registered Provisional Immigrant] eligibility or ineligibility, the secretary has a lot of discretion. There are certain crimes that may be waived by the secretary for purposes relevant for determining RPI eligibility,” said Sen. Mike Lee (R-Utah), a member of the Judiciary Committee.

Some Republican lawmakers say granting Homeland Security broader discretion to implement the law will result in a dilution of the stringent requirements Congress intends.

They point to their experience with the Secure Fence Act of 2006, which mandated construction of a 700 mile-long double-layered fence along the U.S.-Mexico border. In 2007, Congress granted Homeland Security authority to decide what kinds of fencing were most appropriate for different terrains and locations. The department subsequently built sections of double-layered fence along only 36 miles of the border, opting instead for vehicle barriers and single-layer pedestrian fencing to cover more than 600 miles of the designated area.