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Janet Napolitano testifies

Janet Napolitano is testifying before the Senate Judiciary Committee about the comprehensive immigration bill. Naturally, she supports this legislation, which is a crucial element of her boss’s agenda.

In response to questioning from Sen. Cornyn, Napolitano has admitted that the “90 percent effectiveness rate” standard cannot reliably be calculated because we don’t know who is crossing the border undetected. Yet the 90 percent effectiveness rate is a key criterion for determining that the border has been secured.

Keep this in mind the next time Marco Rubio or one of his fellow Gang members touts the 90 percent effectiveness standard in an effort to persuade us that the border will be secured before illegal aliens receive full amnesty and a path to citizenship.

Sen. Lee points to the huge amount of discretion the legislation confers upon the Department of Homeland Security. Napolitano doesn’t disagree about this. Some have suggested that there are more than 400 instances of new discretionary decisions the Secretary of DHS will be able to make.

Do you trust the DHS Secretary and her successors to exercise this amount of discretion capably and in compliance with the law? I don’t. (See below for more about why I don’t trust DHS.)

Sen. Cruz states that the bill relies on the existence of sound metrics regarding the effectiveness of border enforcement. Napolitano doesn’t disagree.

But Napolitano’s answers to Cruz’s questions suggest that DHS’s metrics are confused and easily manipulated. First, she testifies that the number of apprehensions has stayed the same except in southern Texas where there has been a spike. But then she testifies that apprehensions, border-wide, are at a 40-year low.

I don’t see how both statements can be true.

Moreover, Cruz shows that DHS uses apprehension rates to claim effectiveness whatever they show. If apprehensions increase, that’s considered evidence of effectiveness. After all, people are being caught. But if apprehensions decrease, that’s also considered evidence effectiveness. It is said to show that people have given up on trying to get in.

In the end, Napolitano testifies that there is no one way to determine effectiveness of border enforcement. It’s a combination of factors. I guess we’ll just have to trust the government to chose the factors and weigh them in a sensible way.

But Sen. Sessions’ questions show that DHS cannot be trusted. Napolitano admits to him that the morale of ICE officers — the folks who actually try to enforce our immigration laws — has “plummeted” and is a major concern. In fact, it ranks 279 out of 291 federal agencies, according to a recent study.

Why has morale become so low? Probably because the poltical appointees at DHS prevent ICE officers from doing their jobs. Indeed, ICE officers have sued DHS for precisely this reason. They claim that DHS bars them from doing what the immigration law says they “shall” do.

Napolitano’s response is telling. She says that the ICE officers’ suit highlights a reason for enacting the Gang of 8′s legislation. Why? Because it will change the duties of the ICE officers to reflect what DHS wants them to do.

That’s fine, but it’s no excuse for forcing ICE officers not to carry out their duties under current law. How can we trust an agency that substitutes its judgment about what ICE officers should do for what the law requires of them?

Clearly, we can’t. We should expect DHS to bend the new law to suit its political purposes, just as it is doing now under the old law.

Napolitano also admits that she has not met with ICE union representatives even though they have requested to meet with her. Perhaps morale among ICE officers would be higher if she would deign to meet with the union.

Sen. Durbin asks whether Napolitano agrees with him that the worst outcome would be to do nothing. Against all odds, Napolitano concurs.

But this is a cynical and fraudulent argument. If the Democrats really believed that doing nothing is the worst option, they would not have held taken an all or nothing approach to immigration reform. But they have insisted that there can be no reform — i.e., they will opt for doing nothing — unless they get amnesty and a path to citizenship for illegal aliens.

Someone should ask Napolitano whether, if this legislation is defeated, she will support an alternative that provides for increased border security but does not grant amnesty or a path to citizenship. Someone should ask Durbin the same question.

Sen. Cruz takes a second round of questioning. He asks Napolitano what facts would be sufficient to persuade her that the enforcement trigger hasn’t been satisfied. She ducks the question, but Cruz politely insists on an answer. The best she can do is to say that if conditions in Tuscon return to what they were in 2005, the trigger won’t be satisfied.

A “Tuscon 2005″ standard — even if one trusts Napolitano to adhere to it — isn’t good enough. Neither, as Napolitano has admitted, is the 90 percent effectiveness rate. In reality, there is no meaningful standard, and one cannot rely on DHS’s subjective judgment.

Chairman Leahy concludes the hearing (which lasted a little more than two hours) by saying that there are some who will always find a reason why we can’t have immigration reform now. I don’t know who these people are. Every Republican I know would like to see reform — certainly they favor enacting better measures to secure the border, at a minimum. Many would, including me, are prepared to go much further.

But most Republicans don’t favor the bill put together by the Gang of 8. The hearings of the past two days, though far from adequate for a bill of this magnitute, have gone a ways towards showing why.

Let’s hope that Republican legislators, if not in the Senate than in the House, follow through and block this legislation.

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