Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, June 7, 2006, at 9 a.m. to hold a hearing on Oil Dependence and Economic Risk.

Mr. KYL. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet to conduct a hearing on ``S.3274: The Fairness in Asbestos Injury Resolution Act of 2006'' on Wednesday, June 7, 2006 at 9:30 a.m. in Dirksen Senate Office Building Room 226. Witness list: Panel I: Governor John Engler, President, National Association of Manufacturers, Washington, DC; Peter Ganz, Executive Vice President and General Counsel, Foster-Wheeler, Clinton, NJ; Eric Green, Founder, Principal Resolutions, LLC, Professor, Boston University, Boston MA; Flora Greene, National Spokesperson, Seniors Coalition; Jim Grogan, General President, International Association of Heat and Frost Insulators and Asbestos Workers, Latham, MD; Douglas Holtz-Eakin, Director, Council on Foreign Relations, Washington, DC; Edmund F. Kelley, Chairman, Liberty Mutual Insurance Company; Bob Wallace, Executive Director, Veterans of Foreign Wars, Washington, DC.

Mr. KYL

Mr. KYL. In summary, to summarize these cases, there are currently nine States facing lawsuits challenging their marriage laws-- California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington--and the State supreme courts are expected to rule in New Jersey and Washington sometime this year. So the bottom line is this: The people are not deciding the Constitution, the judges are. If we do not do anything, if we stand aside and let the States work it out, as some of my friends have suggested, then the American people are likely to see the institution of marriage redefined against their will, and it will be much more difficult to adopt a constitutional amendment after these rulings are in place than it is to do so before they are in place. Mr. President, I ask unanimous consent to have printed at the conclusion of my remarks excerpts from a policy paper that was issued by the Senate Republican Policy Committee.

Mr. KYL. Mr. President, would I be out of order if I asked for unanimous consent for 1 more minute to conclude my remarks?

Mr. KYL. Mr. President, I rise today in support of S.J. Res. 1, the Marriage Protection Amendment to the U.S. Constitution. I support this amendment because traditional marriage is the bedrock institution of our society and its integrity must be maintained. The people and State legislatures around the country have approved laws and constitutional provisions to protect traditional marriage, but courts persist in reinterpreting their State constitutions to redefine the institution. I believe that, to prevent that kind of judicial activism from spreading, and to guarantee that people and the States can decide the issue, Congress should approve the marriage amendment and send it to the States for ratification. In my brief remarks, I will address two basic questions. First, is marriage worth defending? And second, is a constitutional amendment necessary, or can this question be handled through the states? On the first question, the answer should be clear to all. Traditional marriage--marriage between a man and a woman--is the fundamental institution of our society. That is primarily because marriage is the best environment for the protection and nurturing of children. Traditional families are where we hope that children will be born and raised and where we expect them to receive their values. If we want our Nation's children to do well, we need to do everything we can to ensure that children grow up with mothers and fathers. And the place where that happens best is where mothers and fathers properly unite, in marriage. The state sanctions and encourages marriage not only because it wants to validate a lifelong personal relationship, but, more importantly, because we need a stable institution for child-rearing. That is why this issue is of such great importance. We send a very important message to our children when we stand up for the institution of marriage. We tell them that marriage matters--that traditional family life is a thing to be honored, valued, and protected. We tell them that marriage is the best environment for the raising of children. We tell them that every child deserves a mother and a father. We point them to the ideal. We simply cannot strip marriage of its core--that it be the union of a man and a woman--and expect the institution to survive in its present form. The law of unintended consequences certainly applies here, as in all things. We cannot strip the institution of its essence and expect no adverse consequences. That leads me to the second question: is a constitutional amendment necessary, or can the future of marriage be handled at the state level? I have heard some of my colleagues argue that this issue is best left to the States. They argue that family law is traditionally a State issue, and that the States are best equipped to manage family law matters. They say that Congress should do nothing, and just let each jurisdiction sort this out on its own. First, just as a matter of history, some like to say that the definition of marriage is only a State issue, but history shows that the question is a bit more complicated. For example, when Congress admitted Utah as a State in 1896, it expressly required Utah to ban polygamy. In other words, the Federal Government imposed the traditional definition of marriage, because Members of Congress believed that the issue was of national importance. And in general, at least since the Civil War, we have moved increasingly towards a system in which the core questions about how to order our society are answered on a national level. Second, we should focus on what ``federalism'' actually means. Many opponents of this constitutional amendment suggest that our federalist principles require us to sit on our hands and do nothing. Respectfully, I believe that the underlying principle that gives federalism its power is being misunderstood and misapplied. In fact, I think exactly the opposite is true: a genuine examination of the principles of federalism and States' rights should lead one to support this amendment. The purpose of federalism is to empower the American people and to bolster democratic participation by ensuring that questions are decided at the local level, wherever possible. We do not want the Federal Government deciding questions of purely local importance, so we have limits on Federal power. These limitations are designed not so much to protect State governments, but to ensure that democracy works more efficiently and that policy is set by the American people through the officials that they know better and who are physically closer to them. Thus, federalism is not a dry question of allocating power among governments and politicians. It is about finding the best way to enhance the power of the people themselves. A vote against this amendment does nothing to enhance the power of the American people. The only thing it does is enhance the power of the courts. To hear this talk of ``States' rights'' and ``federalism,'' you might think that the American people are clamoring for same-sex marriage. In fact, just the opposite is true. Opinion polls consistently show nearly 60 percent opposition to same-sex marriage. Moreover, when citizens are given the opportunity to vote on State constitutional amendments, they support those amendments by an average of 70 percent. No, as we all know, the danger here is not State legislatures, but judicial activism from the courts. The American people are not deciding this question; the courts are. The alternative to a Federal constitutional amendment is not one in which the people are left to operate their States as laboratories, as Justice Brandeis once suggested, but one in which the people are robbed of any ability to control this issue. So let us deal with the facts on the ground, so to speak. This is not being ``handled'' by the States today. It is being handled by the courts. Even in the ``reddest of the red'' States such as Nebraska and Oklahoma, each of which adopted State constitutional amendments to protect traditional marriage, the activists have sued Federal court and said those State amendments are unconstitutional under Federal law. The citizens of these States are not being permitted to decide this question. ``States rights'' implies not courts, but the people, making these decisions. Let's look at what is happening in the courts, with special attention to what has happened since we last debated this amendment. First, since July 2004, State trial courts in Washington, New York, California, and Maryland all have struck down traditional marriage laws. Those cases are now on appeal. So, compare today versus 2 years ago. In July 2004, we were looking only at Massachusetts. Today, State courts in four other States have followed Massachusetts' lead. Second, even more State court lawsuits have been filed. In Connecticut and Iowa, same-sex marriage advocates argue that each State's traditional marriage law is unconstitutional, and that the courts must redefine the institution to include same-sex couples. Third, there has been increased action in Federal courts. In particular, a Federal district court in Nebraska struck down the State's constitutional amendment protecting traditional marriage. The case is on appeal to the Eighth Circuit, and a decision is likely sometime this summer. Regardless of how the case comes out, it shows the aggressiveness of the advocates for same-sex marriage. In Nebraska, 70 percent of voters adopted a constitutional amendment stating clearly that they wanted marriage to be preserved in its present, traditional form. Yet the ACLU still sued. There has been other Federal court action as well. For example, activists filed a lawsuit in Federal court in Oklahoma challenging the State constitutional amendment enacted by voters, as well as Federal DOMA itself. DOMA also came under fire in California, where a Ninth Circuit panel dismissed a constitutional challenge on technical, standing grounds. Some good news came in Florida, where a Federal district court upheld DOMA's traditional definition of marriage for purposes of Federal law. So, in summary, there are currently 9 States facing lawsuits challenging their marriage laws--California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington. I should add that State supreme courts are expected to rule in New Jersey and Washington sometime this year. I mention all these cases because they show the folly of relying on ``federalism'' or ``States' rights'' to resolve this national debate. The people are not deciding these lawsuits; judges are. If we do nothing--if we stand aside and let the States work it out, as some of my friends argue, then the American people will see the institution of marriage redefined against their will. It is happening now, and it is going to continue happening for as long as this body punts on this issue. If we want to stand up for federalism--not to mention traditional marriage--then let's look at how a constitutional amendment works. The constitutional amendment process outlined in Article V of the Constitution is the most democratic, the most grass roots, and the most respectful process available for the establishment of national policy. A constitutional amendment requires the support of \2/3\ of both houses of Congress. Then it requires the support of the legislatures of \3/4\ of the States in the Union. Then, and only then, can the amendment become effective. This is a very high hurdle, but it guarantees that the American people have a full and complete opportunity to speak to the issue, that they can express their views to their Senators, their Congressmen, and their State legislators. It takes time. But in the end, if a constitutional amendment passes, we know that the American people want it. In other words, Mr. President, the constitutional amendment process enhances federalism and States' rights. It ensures that there is a national consensus on this question, and it pushes the decisionmaking down to the most representative political leaders in our system, rather than allowing a few judges to amend the Constitution by overturning two centuries of our common understanding. I have much more to say, especially regarding the meaning of this amendment and the political situation in the States, but time is short, so I will ask unanimous consent at the conclusion of my remarks to have printed excerpts from a policy paper that I issued as Chairman of the Senate Republican Policy Committee, ``Why a Marriage Amendment is Still Necessary,'' which was published back on March 28. To cite ``federalism'' or ``States' rights'' is to avoid the issue as it is actually playing out. Instead, we must decide whether this question belongs in the courts, where it is now, or whether it belongs in the legislatures and before the people. I submit that we should not stand in the way of the American people's right to speak on this question. I have faith that this constitutional amendment process will work--that the difficult social and cultural questions posed by same- sex marriage can be resolved satisfactorily through the democratic process of passing this constitutional amendment. But I am even more sure that, if we fail to send this amendment to the people, and if the courts continue on their current path, our Nation will face decades of division that will make current frustrations with judicial activism seem quaint in comparison. If we refuse to act, the big loser will be not only traditional marriage, but the people's respect for the judicial system and for the rule of law itself. Such a breakdown would be disastrous, but it is avoidable. It is avoidable if Congress votes ``yes'' and sends this amendment to the States for ratification. Mr. President, again, it should go without saying that traditional marriage as we understand it between men and women is a fundamental institution of our society and that we should do everything we can to ensure its preservation. The reason that is so is primarily because marriage is the best environment for the protection and the nurturing of children. We send a very important message to our children when we stand up for this institution. We tell them that marriage matters, that traditional family life is a thing to be honored and valued and protected. We tell them that marriage is the best environment for raising of children, that every child deserves a mother and a father. We point them to this ideal. We simply cannot strip marriage of its core, that it be the union of a man and a woman, and expect the institution to survive in its current form. The law of unintended consequences certainly applies here as in all things. We can't strip the institution of its essence and expect no adverse consequences. That brings us to the second core question: Is a Federal constitutional amendment necessary to preserve this institution? I have come to the conclusion that it is. The question is whether this matter can be and is properly being handled at the State level, as some of our colleagues have contended. It is being handled at the State level to be sure, but the question is whether it is being handled by the people or by their elected representatives or whether in effect the Constitution is being rewritten by the courts, whether a couple of centuries of tradition about a common understanding of what traditional marriage meant is being eroded by court decisions rather than the will of the people. Opinion polls consistently show nearly 60 percent opposition to same- sex marriage, and when citizens are given the opportunity to vote on State constitutional amendments, they approve them by an average of about 70 percent. So the danger here is not State legislatures but judicial activism from the courts. The American people are not deciding this question; the courts are. That is why the notion that we need to preserve federalism or States rights is, in my view, misplaced. The alternative to a Federal constitutional amendment is not one in which the people are left to operate their States as laboratories, as Justice Brandeis once suggested, but one in which the people are robbed of any ability to control the issue because it is being resolved in the courts. Even in the reddest of the red States, such as Nebraska and Oklahoma, each of which adopted State constitutional amendments to protect traditional marriage, the activists have sued in Federal court and said that those amendments are unconstitutional under Federal law. So the citizens of these States are not being permitted to decide the question. States rights implies not the courts but the people making the decisions. That will not be what happens if these constitutional provisions are thrown out by the courts. Look at what happened in just the last couple of years here, since we last debated the amendment. In 2004, State trial courts in Washington, New York, California, and Maryland all struck down traditional marriage laws. Those cases are now on appeal. So compare today versus 2 years ago. In July 2004, we were looking only at Massachusetts. Today, State courts in four other States have followed Massachusetts' lead. So the concern about the courts intruding into this area is not a hypothetical future concern but a reality today. Even more State court lawsuits have been filed--for example, in Connecticut and Iowa. In addition to that, there is increased action in Federal courts. In particular, the Federal district court in Nebraska struck down a State's constitutional amendment protecting traditional marriage, as I mentioned a moment ago. That case is on appeal to the Eighth Circuit.

Mr. KYL

Mr. KYL. Mr. President, I ask for the yeas and nays.

Mr. KYL. Mr. President, I wonder if the Senator from Wisconsin would answer a question that I have regarding his amendment.

Mr. KYL. I ask unanimous consent to speak for 1 minute.

Mr. KYL. Mr. President, I thank my colleagues for that courtesy. The managers' amendment has been negotiated right up to the last second. It is hard to know exactly everything that is in it. I am told by staff that among the provisions is one which: . . . requires Federal, State and local representatives in the United States to consult with their counterparts in Mexico concerning the construction of additional fencing and related border security structures along the U.S.-Mexico border before the commencement of any such construction to, No. 1, solicit the views of affected communities; No. 2, lessen tensions; and, No. 3, foster greater understanding and stronger cooperation on this and other important security issues of mutual concern. I am all for consulting with the Mexican Government on matters of mutual concern, but I do not think it is necessary for us to put as a precondition into the building of any fencing structures the requirement that the U.S. Government consult with the Government of Mexico. For that reason among others, I will be voting against the managers' package. I thank my colleagues.

Mr. KYL. Mr. President, in view of that answer, which is greatly confusing to me, it is clear that the effort is not simply to eliminate the stay language that Senator Coburn was successful in inserting in the Judiciary Committee, but also the injunction language that is in the existing statute. I don't know that you can read it any other way. If the Senator from Wisconsin would like to clarify, I will certainly stand to be corrected.

Mr. KYL. Mr. President, I have an inquiry through the Chair. I thought it was possible, though I would not need 10 minutes, not having spoken on the bill, to ask for 10 minutes simply to point out a couple of things in the managers' package, including the fact that the U.S. Government would be required to consult with the Mexican Government before building any fences on the border. Would I be able to ask for time to discuss anything in the managers' package at this time?

Mr. KYL. It is my understanding that current law--this is the Immigration Nationality Act--states: No court shall enjoin the removal of any alien pursuant to final order unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. Is that provision of existing law impacted by the amendment of the Senator from Wisconsin?

Mr. KYL. Mr. President, I rise in opposition to this amendment. This amendment is not just some little amendment that is seeking to cure some outlying kind of case. It amends existing law, as well as to strike a provision that was added in the Judiciary Committee. It is opposed by the administration. The reason is because the administration today is using the part of the law that would be stricken here to remove, in an expedited fashion, illegal immigrants who come here, and--using the figures that are more current--over 10 percent of whom, by the way, are criminals, to their home country, the other-than- Mexican illegal immigrant. Last year, there were over 135,000 of these people who were apprehended, and they were from countries all over the world, including a lot of countries that won't take them back, especially won't take them back very quickly. So the question becomes, What happens? If they are from Mexico, of course, you can simply put them back on the bus and take them to the border. But if they are from China or Russia or Vietnam or some other country, you can't do that. First of all, you have to work with the other country to ensure they can be removed to the other country, and then you have to keep them in custody until they can be removed. In the meantime, if they want to make a case for asylum, they may do so, and the only standard is the usual standard of credible fear. So let's not labor under the assumption that this outlying case, this person who will be subject to abuse if the person is returned home, can't make an asylum claim. You can, and it is resolved just like the other asylum claims are resolved: If you can establish a credible fear so that you are put in a separate category over here, and you are not removed to your home country. But what about those who do not? Today there aren't sufficient detention spaces for these individuals, and so many of them are simply asked to report back in a few days and they don't show up, obviously. So they melt into our society. It was to solve this problem that Secretary Chertoff invoked the expedited removal plan, which originally just applied to two of the sections on the border and now will apply to all of the border. The people are detained until they can be removed and the period for removal is reduced from about a month down to about 2 weeks, so detention space is adequate. What happens if the Feingold amendment passes? Secretary Chertoff's promise to us that he would invoke expedited removal and be able to remove these people from the country--those who can't make a credible asylum claim--will be destroyed, because every one of them can file an appeal. The law that currently exists says that you can't get an injunction. The reason is clear. We passed this because it is obvious that everybody simply files an appeal, gets an injunction, and they stay. It is years before you get them out--if you can ever re-contact them after they have been released. You can't keep them in detention for that period of time, so they are released and the chances are they never show up. That is the experience we had. Congress decided we can't do that, that it is just a free pass to be illegal. So we said, once you made your claim for asylum and it is denied, and you have a final order for removal, and that can be made by an immigration judge--actually, it can go all the way through the Immigration Board of Appeals or, in certain cases, it can be by an immigration official, but once that order is final you are on your way and you cannot appeal and enjoin your removal. The ninth circuit decided in its wisdom that ``enjoined'' didn't include ``stay.'' So they said Congress may have said we can't enjoin the removal, but we can stay it. As the Senator from Wisconsin pointed out, it is pretty much the same thing. So the ninth circuit got around congressional intent. Nonetheless, the Secretary of Homeland Security believes that he can use expedited removal to remove most of these illegal immigrants, many with criminal records, from the United States. What the amendment does is to strike both the injunction language in the existing law and the stay language in the amendment by the Senator from Oklahoma, which was intended to overturn that ninth circuit decision and get back to the original intent of Congress. But the net result is not to speak with a fine sieve or filter here, but to enable everybody against whom a final order of removal has been made to appeal and get injunctive relief from the final order of removal. In the effort to solve a few outlier cases which could be solved by other means--and certainly the motivations of the Senator from Wisconsin and the Senator from Kansas who spoke with respect to that are important, and I think we would all agree with those motivations, but there is a better way to solve that outlier problem than to simply say, for all of the people who come here illegally and get an order of final removal, they don't have to go; they can appeal, and they can enjoin the order of removal. I am not sure if the Senator from Wisconsin would agree to this, but one of the ways that you could begin to limit the application of this, not to destroy Secretary Chertoff's program of expedited removal, would be to ensure that the amendment of the Senator did not apply to expedited removal. I am not sure whether the Senator would be willing to do that, but that would be one start. The Senator says it is not just expedited removal we are talking about here, and that is very true. But we are also talking about expedited removal and that is something we need to move forward with and not stop dead in its tracks. The problem is that the experience with absconders is significant. Mr. President, 90 percent of these appeals, when there are appeals, are resolved against the person making the appeal. So most of these are not outlier cases. They are cases that were brought for the purpose of delaying, to allow the individual to stay in the country longer and, in many cases, to simply forget the judicial process once the injunction has been granted or the stay has been granted, so that the individual did simply meld into our society and never show up again. That is the concern that we have, and this amendment sweeps with too broad a brush here. To deal with the outlier situation we do not have to remove the remedy of the final order of removal for the hundreds of thousands of people who came here illegally and need to be expeditiously removed. I urge my colleagues to understand that this amendment is serious. It is far-reaching. It is overly broad. It strikes existing law. It is opposed by the administration and it is unnecessary with respect to the underlying purposes of the immigration problem that we are trying to resolve today. My colleagues should defeat this amendment.

Mr. KYL

Mr. KYL. Mr. President, I rise today to offer a tribute to Lawrence Willcox, who has served me admirably for the past 3\1/2\ years as staff director of the Senate Republican Policy Committee and, before that, as legislative director and tax counsel in my personal office. Lawrence has made the decision to return to the private sector and pursue a career in tax law. Lawrence joined my personal staff in 2001, where he served me ably, especially in the tax policy arena. When I was elected chairman of the Policy Committee at the end of 2002, I asked Lawrence to become the staff director. Lawrence has come to be a trusted adviser, and I have appreciated his good work. He promptly and dutifully carried out every task that I charged him with, and he led the staff members of the Republican Policy Committee to achieve a level of excellence that I believe has been of value to Senators and their staff. During Lawrence's time as staff director, we have produced more than 200 policy papers, and dozens of legislative notices. In each case, our goal was a first-rate product--one that would be thorough, accurate, and reliable--that would serve Senators, their staffers, the press, and the public. I commend him for all of his work and his successes in that regard. Additionally, Lawrence has served as my agent and adviser on Senate leadership matters. He has attended leadership meetings with me and given me sound counsel. He has also managed and attended the Policy Committee's weekly luncheons. I should mention that it was Lawrence who instituted the Policy Committee's practice of issuing detailed amendment descriptions in anticipation of every rollcall vote. The reception from this new service has been very positive: It has made the jobs of legislative directors and legislative aides vastly easier in preparing Senators for votes. That is just one example of innovations Lawrence has overseen. I think it would be fair to suggest that many of my colleagues here today and others in the Senate reading these words in future days would want to join me in thanking him for a job well done. We would not be able to do the work we do were it not for staff members of the caliber of Lawrence Willcox. Before I close, I note that Lawrence has been in public service for nearly all his working life. In addition to his more than 8 years of experience on Capitol Hill, including 3 years as a staffer in the House of Representatives, he served 5 years active duty as a naval officer, and he has also worked in both the judicial and executive branches, serving in various capacities, including as a law clerk on the U.S. Court of Federal Claims and as a trial attorney in the Department of Justice's Tax Division. Lawrence holds a bachelor's degree from the University of Michigan, a law degree from American University, and a master's degree in tax law, LL.M., from New York University. Lawrence is a person who is always growing from his experiences, putting his newfound knowledge to work in newer and better ways. So, while I wish him well, I am also confident that he will do well, and I hope to retain his friendship in the years ahead. Thank you, Lawrence.

Mr. KYL

Mr. KYL. Mr. President, I rise in strong opposition to the Leahy amendment and just warn my colleagues that this is not a benign amendment but is one of the most serious amendments that has been proposed to this legislation and, if it is adopted, literally would allow us to take somebody from the Taliban into the United States. There is already a law that provides full waiver authority to the Secretary of State to allow entry into this country for someone who happened to be caught up in terrorist activity, albeit innocently--the villager who is forced to give rice and water to a Taliban member. There is nothing that prevents the Secretary of State from allowing that person to come into this country. This is literally a solution looking for a problem. And it is pernicious because it literally allows entry into this country of members of the Taliban because the Taliban is not a designated terrorist organization or a person who assists an organization which threatens other countries and peoples but not the United States. Under the specific language of the amendment, there are three specific exceptions. One is the Secretary of State, in consultation with or upon the request of the Attorney General or Secretary of Homeland Security, has determined that these activities threaten the security of United States nationals or the national security of the United States. So you can threaten the security of Israel or Sri Lanka or India or some other country and support that terrorist organization but be permitted to come into the United States. What sense does that make? There is no problem here that cannot be dealt with under existing law. Show me where in existing law the Secretary of State does not have complete and unfettered authority to waive the provisions of the law. This is a law about terrorists, people who provide material support to terrorist organizations not being allowed into the United States. I know the good intentions of the sponsors of the amendment, but the fact is, some villager who is forced to provide aid and comfort to a terrorist organization can get entry into the United States without this language which opens a huge loophole. Never in the past have we said it is OK to let a member of the Taliban come in simply because the Taliban is not a designated organization. You might ask: Why, with all of the other terrorist organizations, isn't the Taliban a designated organization? Of the 42 groups in the world that have been certified by the Secretary of State, it is not. The reason is because it is a serious matter to designate someone. For example, once they are designated, then giving anything of value to that group constitutes a Federal felony punishable by 15 years in prison. And as a result, the failure to designate the Taliban would be the type of group that if you give material support or aid to would permit you entry into the United States. Because the Department of State is conservative with these certifications and they have substantial collateral consequences, not every group that would fall into the category of a terrorist group is going to be designated, and the Taliban is a perfect example. I urge my colleagues, simply because your heart yearns to help someone who might have been forced under a concept of duress to support a terrorist organization or an organization like the Taliban that is not designated as a terrorist organization, don't adopt this amendment under the mistaken view that there is no other remedy. There is a remedy. Clearly, under circumstances of duress, that remedy can be invoked. I urge my colleagues to reject this very dangerous amendment.

Mr. KYL. Mr. President, reserving the right to object, if that request is amended to the extent that the same additional amount of time will be given to the Republican side, there will be no objection.

Mr. KYL. Mr. President, I will be voting against the Grassley amendment. I compliment the chairman of the Judiciary Committee and the chairman of the Finance Committee, Senator Grassley, and his staff, for working hard at producing what is a big step forward in ensuring that we can determine the eligibility of workers to be hired. Unfortunately, it doesn't complete the job. That is such a critical component of this legislation that I cannot support it until additional changes are made. My vote is not intended to be pejorative in any way toward those who worked very hard to put this together, and many of my ideas are in that amendment. I appreciate their effort. But there is still a long way to go, and, in some respects, this is a metaphor for a lot of this bill. There has been a lot of progress made, but there is a long way to go.

Mr. KYL. I am not sure if the group that the chairman of the Judiciary Committee referred to is the same one I will refer to here, but to illustrate the fact that the Secretary of State has unfettered authority to grant these waivers and has in fact done so in the past, actually there was a large group of refugees from Burma who were recently permitted asylum in the United States, even though they had provided, allegedly, material support to terrorism. This is an authority which can be exercised, which has been exercised. Secondly, I urge my colleagues who are in support of this underlying legislation on immigration reform, it is a controversial enough piece of legislation for the Senate to consider. Amending it in the way that the chairman has described, without the necessary careful consideration of what the ramifications would be if this language is too broad, I urge that this be done in another way and another time rather than in this bill.

Mr. KYL

Mr. KYL. Madam President, I wish to compliment the Senator from Oklahoma for his work, for bringing it to the Senate floor, and for doing something I think is very important and that I think unifies us. What are some of the things that do unify us? Well, our language unifies us. Senator Alexander, who will speak in a moment, was responsible also for working with Senator Inhofe to include provisions in this amendment that help us to recognize the importance of English in our country and the importance--not just for our new immigrants but for all Americans--of speaking this language that is our national language. So an amendment that recognizes that it is our national language is very positive for both immigrants and nonimmigrants alike. I would also like to make a point about what this amendment is not. This is not an English-only amendment. That is an important point. We do speak a lot of different languages in this country, but English is our national language, and I think we can all agree on those great principles. So this expression by the Senate is an important one, and I compliment all of those who helped to work on it, and for bringing it to the Senate floor I thank Senator Inhofe.

Mr. KYL. Mr. President, the amendment that was adopted yesterday is a good amendment. I would hate to see us undo what we did yesterday with the Kennedy amendment. Therefore, I rise in opposition to it. What we are talking about is self-petitioning by an illegal immigrant for permanent legal status in the United States--a green card--to be here for the rest of their life. The circumstances in the past for that had always been that either a family member petitioned you in under the law or an employer petitioned you in because he had a job for you. The concept of self-petitioning is a new one in the law in this context. One of the reasons why that is critical is we are trying to assure that while a job may have existed for somebody in the past or even exists today, that job may not be available forever. The concept of temporary workers is just that, that when there is a job available for that worker, then the worker has a temporary visa to fulfill that job. When that jobs goes away, and there is no longer work in that particular area, then the individual's visa would expire, and it would not be reissued until, once again, the work is available. That is the whole concept of ``temporary.'' That concept is eliminated or destroyed with a part of the Kennedy amendment. The first part of the Kennedy amendment does provide for the Department of Labor to make a determination about employment conditions and whether jobs are available in a particular area. But then there is the word ``or'' written in at the end of section III(i). The second way the alien can petition is by simply submitting documents for current employment; in other words, the alien shows that he currently has a job. That is fine for a temporary permit. It is not fine for permanent legal status. What you are allowing the individual to do is to say: I have a job today temporarily, and with that I am going to petition for the right-- and the law would then allow the individual to acquire permanent status in the United States, which then can lead to citizenship. The whole point of temporary permits, as I said, is they reflect the economic conditions for the length of the permit or the visa. Under the bill Senator Cornyn and I have, we have 2-year visas. What the President has proposed is a 3-year visa. The bottom line is, it should be no longer than necessary to ensure that if economic conditions change and the jobs are no longer available, that the visa would expire, the individual would return home and would not get another visa to come here for temporary work until the job has opened up again. So the fact that an individual can prove he has a job today or that he had a job yesterday has nothing whatsoever to do with the availability of employment in the future. That is the fatal flaw of this amendment. There needs to be an assurance that when we are talking about permanent legal residence, there will be a job available for that person in the future, not just that the individual has a job today. So that is a fatal flaw in the Kennedy amendment. I do not know whether it is deliberately intended. I suspect the point is to undercut the effect of the amendment we adopted yesterday, which is a worker protection amendment. The bottom line that Senator Cornyn is trying to assure is that if an American has a job, that job is not undercut by somebody coming here today who would be able to stay here forever and, therefore, compete with the American for the job. So I think we should stick with the worker protection amendment we adopted yesterday and not agree to the Kennedy amendment.

Mr. KYL. Mr. President, the Senator from Massachusetts is willing to yield back his time. And if there is no one else on this side desiring to speak, I will be happy to yield back our time. I hope our colleagues will support the amendment. Thank you.

Mr. KYL. Mr. President, let me take a couple of minutes to respond to my friend, the Senator from the State of Idaho. He projects that 500,000 workers are going to be needed every year. That sounds a bit high, but there is a way to resolve the question. If we have a temporary worker program that works well and brings in all of the temporary employment needed to fill your labor needs, then whatever that number is can be satisfied with the temporary worker program. But if the Senator is wrong and we do not need that many people but we have allowed that many people to come into this country and remain here permanently, then we have a big problem because we also have to consider the American worker and the job of the American worker. The Senator said we need stability in our workforce. Indeed, that is a good thing. But I submit we need stability for the American worker. The American worker needs to know his job is secure. In all of the industries we are talking about, while there is a significant need for foreign labor, there are far more American workers working in those industries than foreign workers. The bottom line is, there are American workers who will do these jobs. The only exception of any significance is in certain specters of agriculture. And agriculture, in many respects, is a very different animal. The reality is, whether you are talking about the hospitality industry with people making beds and washing the dishes or talking about the construction industry or landscaping, there are millions of Americans doing those jobs. And we want to know that those jobs are there for those American citizens when the economy is not as strong as it is now. So in periods of decreasing jobs and increasing unemployment, we want to be able to ensure that American workers can remain employed. With a temporary foreign worker program, we can ensure that because the foreign workers are brought in, to the extent they are needed, when they are needed, in each of these industries. But if they can convert to permanent status automatically, which is what this legislation would allow, they cannot be removed. They are here. They have legal permanent residency and eventually can acquire citizenship, if they desire. So whether there is a job for them here or not, they are here. The studies show they compete with American workers very well in the low- skilled job categories by usually taking less money than Americans, with the result that many times Americans will be unemployed, for which we will be responsible for paying unemployment compensation and other benefits, and yet the foreign worker might have the job. So instead of a situation in which there is not an American to do the job, we will have a situation in which there is a job, but it is held by a foreign worker rather than an American worker. Why do we need to take the chance, is my question. We all agree with the concept of a temporary worker program for skilled labor. In skilled labor, these visas expire. For student visas, they expire. For tourist visas, they expire. They can be renewed in certain situations. In the different categories of temporary workers that we have in the law today, they are all for a specific period of time, and then they expire. What is the matter with that same principle being applied to low- skilled workers? In fact, the experts all agree--we had testimony before our committee--that with respect to low-skilled workers, you are more likely to have people who are undereducated or less well educated and likely to work in the lower skill occupations. No surprise there. So if you are going to end up in a situation in which you have extra workers who are here, would you rather have them be of the high-skilled variety or the low-skilled variety, unable to be as flexible in the job market as somebody with better education and skills? Our immigration law has always been very leery of allowing large numbers of undereducated and low-skilled workers into the country because they represent a potential expense for this country in the event that the employment that was promised to them does not materialize or goes away. So there is no need to take a chance on this. If, in fact, my colleague is correct that we will need more laborers, we can get them under a temporary program where permits can continue to be expanded. We can expand the number or they can be renewed. In any event, there is always the opportunity for people to acquire green cards. In fact, under I think all of the bills that are pending, the number of green card slots is increased. So there is also an opportunity for that. But in case they are wrong, and jobs evaporate over time, and even Americans cannot find work, why would we want to be granting these foreign residents who are here temporarily the right to be here permanently? It seems to me it is unnecessary. It is potentially devastating, devastating to American workers, and we ought to change it. As a result, I hope my colleagues will support this amendment, which could go a long way toward improving this bill, creating a true temporary worker program rather than one which automatically converts to legal permanent residency.

Mr. KYL. I will give someone on the other side an opportunity to speak.

Mr. KYL. Mr. President, this is a simple amendment, a very important amendment. It is not inconsequential. It changes in a major way a specific feature of the underlying bill. But I believe that feature is wrong and needs to be changed. The underlying bill sets up a temporary worker program, but it is not temporary in the sense that the workers who come here and get a temporary worker permit can then apply for permanent legal residency and ultimately citizenship. There is no reason to deny them that under the bill. As a result, you never have temporary workers. You always have permanent workers, people who are allowed to come here originally as temporary but who can in effect automatically convert their status to permanent legal residency and then citizenship. The question is, Why is that necessary? The second point is it creates a problem when economic conditions change. Why would it be necessary? There are many visas in our system today that are temporary. In fact, there are skilled labor visas that are temporary. They can be renewed. They are based upon an economic need. When there is a job here that is going unfulfilled by an American worker, we have the ability to issue visas to foreigners who can then come here and work for a temporary period of time. Then they return home. As long as there are jobs here, those visas ordinarily continue, but when the work is not here, the visas stop. That is a good thing. I support a temporary worker program under this legislation. However, it should be temporary. That is to say, the program may be permanent, but the visas under it are temporary, for a limit period of time. They may be 8 or 10 months out of the year; they may be 1 or 2 or 3 years in duration. In my view, they should be renewable. There are a lot of different ways to construct it. The bottom line is, when you come in because there is a job available for you as a temporary worker, that same job or another job may not be available to you 5 years later. There may be no work for you 5 years later. Let me give an illustration I have used before. In my home State of Arizona, we are in a construction boom period. We cannot get enough people to help build houses. There are jobs that go begging, and therefore we have to rely on a large supply of foreign labor to help. It is undoubtedly the case that many of the foreign laborers are illegal. They are not documented in the appropriate way. However, they are workers who are performing a valuable function in our economy today. Here is the question. I have been in Arizona now for almost 50 years. We have seen lots of upturns and lots of downturns. What happens when the downturn comes, when we are not building as many houses or office buildings, there aren't many jobs available, and Americans begin to find that jobs are not available for them, they are unemployed, and there is just not the work for people? What happens if you have a temporary visa issued and say that visa is for a period of 2 years? That visa expires, and there is no more job available. In fact, there are Americans looking for work. That foreign worker goes home. When another job opens up, when the construction industry gets going again and there are opportunities for foreign labor because Americans can no longer provide all of the labor required, the visas would begin being issued again, and that individual could come back and begin working again. Perhaps there is some other industry in which the individual can work. In any event, the visa for that job would, after a year or after 2 years, expire, and if there is not a job available, you do not issue a new visa. The problem in the underlying bill is that once you get your temporary visa, you can apply or your employer can apply for you to turn that automatically into a permanent legal residency status or a green card status. And we know from that you can apply for citizenship. When you have a green card, it does not matter whether there is a job here for you, it does not matter whether we are in the middle of a recession and Americans are looking for work; you have a legal right to be in the United States and no one can kick you out. That is what legal permanent residency means. So there is no reason in a temporary worker program to be able to convert the temporary visa or permit into a legal permanent residency. In fact, there can be great harm done if the economy changes, the economic situations change, jobs are no longer available, and instead of having those visas expire, you have converted the individuals into people who have a permanent right to stay in the United States. This amendment does absolutely nothing to change the existing law with respect to how you can acquire a green card in the United States or convert other legal status into benefits under our immigration laws. You can still apply for a green card. You can still apply for other ways of remaining in the United States for differing periods of time. We do not change any of that. If you are somebody who wants a green card, there is still a way to get a green card. In fact, under different versions of the bill, the number of green cards is increased so that there are greater opportunities for green cards. The bottom line is, you do not have to convert the temporary worker program into a permanent worker program. There are economic studies which back up what I am saying. For the sake of time, I will not get into the details of some of the studies. Among other things, in previous times, going back to the year 2000, for example, in the skilled visa era where we issued large numbers of visas, there were economic studies that suggested we could have a continuing need for those visas on into the future for some number of years, and we were issuing those visas at a very high rate at that time. Little did we know that the economic conditions were going to change very rapidly, and very quickly those high-skilled jobs fell off. Yet we had issued visas for people to come into the country at a time when, in fact, we were starting to go into a recession and, in fact, those jobs were not available for those people. If they had been able to permanently reside in the United States after they got their temporary visas, it wouldn't matter whether there were jobs available for them; they would be here. It would be legal. There would be no way to remove them. And of course, with green cards, they would be entitled to benefits which would flow from that status. The United States is going to have to pay a lot of unemployment compensation if we now have two bodies of workers, neither one of which can get a job or both of which are competing with each other, American workers and foreign workers. Whether you are talking about purely the future flow workers under the temporary worker program which many in this Senate want to create, although we differ somewhat on the details of it, I would like to create a temporary worker program because we think they may be needed in the future, or you are talking about the people in the underlying bill who have been here 5 years or less and are required to go into the temporary worker program--those are the two groups of people we are talking about--our view is they should be temporary workers, subject to the economic conditions of the United States, not replacing American workers but fulfilling a work requirement when there aren't enough Americans to do the job. It is basically the same thing the President said in his speech earlier this week when he said that the temporary workers should have an opportunity to be matched with a willing employer when there are not Americans who can do the job. When the job is finished, they can return home. I am paraphrasing, but I think those are the words of the President. The concept the President has articulated is the same concept that we believe is appropriate. It is the basis of the temporary worker bill in the Kyl-Cornyn legislation. We believe it is appropriate for that same concept to be embodied in this legislation. Might I inquire how much time remains on both sides?

Mr. KYL

Mr. KYL. Mr. President, let me first of all note that I very strongly support this amendment for one reason: It embodies the entirety of an amendment which I offered in the Senate Judiciary Committee which was agreed to. When the Senator from Massachusetts defends the underlying bill, he is defending that amendment. That amendment provides for about half of what we are talking about. In fact, all of the language of that amendment is also included in the amendment of Senator Sessions. Why do I know about that? It was my amendment because it deals specifically with the State of Arizona. What did we do? We went to the Border Patrol and we said: You will have aircraft, sensors, cameras, border patrol, vehicles, fencing, all of those things working in combination to try to secure the border. What do you need, specifically? What are you recommending for the fencing part of that? This is what they said: First of all, we need to tear down some of the existing fencing because it is not very effective. It is the old surplus landing mat. It is solid steel. It stood vertically. The National Guard built that fencing and that is what exists in the urban areas. I wish my colleague from Massachusetts could visit the border in Arizona and see how that solid-steel fencing has divided communities. It is an ugly eyesore. It is an ineffective way to prevent people from crossing, right in the middle of Nagales, AZ. On the other side from Naco-Sonora, separated by this fence, we have a huge 30-foot-high or 20-foot-high barrier of solid steel. It is ugly. It is ineffective. People can climb up the other side, and our Border Patrol cannot see them because it is solid steel. What the Border Patrol would like is a double fencing that you can see through so they can see who is on the other side and what they are about to do. Moreover, the biggest part of violence now is the rock throwing that occurs. They cannot see what is on the other side of this steel barrier. The first point is they want to replace this landing mat fencing with modern, up-to-date fencing that is probably double. That is to say, there are two fences involved, as there are in California. That has been extraordinarily effective to keep people out because you have a patrolling in the middle. People may get over one fence, but by the time they get over that fence the cameras spot them and are able to direct Border Patrol to the area. They are not able to get over the second fence so they cannot quickly melt into the rest of our society. That is why this double fencing actually works. In the area of San Diego, I am told that still no one has crossed over the double or triple fencing. No one. In that sector of the border, the apprehensions have gone down. This is good news because it means there are not people crossing--from some 600,000 now down to 100,000. And that is the entire sector of San Diego. In the specific area where there are 26 miles of fencing, no one gets across. That is what we are trying to achieve in the urban areas. The Senator from Massachusetts said all that has done is to drive them out into the desert, where it is more dangerous and deaths have increased. What is the point of that argument? Is the point that we should simply provide an invitation for those who would like to cross our border illegally, to do it in the same way as the urban area? What the Border Patrol says works is a combination of things. Fencing in the urban area, where large numbers of people congregate at one time. We have seen the pictures of them rushing the border through the San Diego port of entry, where 200 or 300 people at a time congregate, rush the border, rush through, intermingle with the cars waiting to get through. It is impossible to apprehend more than a handful of them. That is one of the techniques. We have to try to stop that. One way we do that in the urban area is to have this fencing. Frankly, if I can get my colleagues from New England or other States to come down, Members would agree it is not very sightly. From an environmental standpoint, it is not good. And from a good neighbor standpoint, it is not good to have this ugly fencing. We would like something that looks good and does the job. What the amendment in the underlying bill does, and it is the same thing in Senator Session's amendment, it says we are going to replace that landing mat fencing with the kind of fencing the Border Patrol believes would be more effective. That is part of the reason for the 370 miles of fencing. The Senator from Massachusetts derided the amendment as suggesting that it was not just for the urban areas because, after all, 370 miles of fencing is a lot of fencing. That is a big piece of the whole border. Now, let's calm down and do the math. There are several hundred towns along the border. As one should not argue against oneself when one supports the underlying bill, here is what one is supporting. What you are supporting is fencing in the urban areas, approximately 10 miles extended in either direction. The urban areas are maybe 5 or 6 miles and 2 or 3 miles beyond that. That is what the underlying bill provides. I will read briefly from parts of the underlying amendment: (1) replace all aged, deteriorating, or damaged primary fencing in the Tucson Sector located approximate to population centers in Douglas, Nogales, Naco, and Lukeville, Arizona with double- or triple-layered fencing running parallel to the international boundary . . . To extend it for a distance of not less than 2 miles beyond urban areas except it shall extend west of Naco for a distance of 10 miles. Then we talk about the Yuma Sector of Yuma, Somerton, and San Luis, so there are 15 communities in the State of Arizona. If you proximate 10 miles on either side of the midpoint of the community, that comes out to 140 miles of fencing. If you add to that, there is at least 26 miles in the San Diego area. I don't know how much beyond that. If you add the 26 miles, that is 176 miles. There are many other communities in California, but let's say there are four or five. That gets you half of the 370 miles, and you have not even talked about the longest part of the border in New Mexico and Texas. My point is, if all you do is extend, to a modest degree, for more than 10 miles on either side of the communities that are on the border, you are easily up to 326 miles of fencing. Why did the Border Patrol say it needed 326 miles of fencing? Because they did the math. They counted up all of the communities and figured how much fencing they needed in each of these urban areas and that is what they asked for. This amendment simply takes the underlying bill, which my colleague from Massachusetts is supporting, and adds essentially the fencing for Texas, New Mexico, and California to that, and the sum total we get is about 370 miles to replace existing fencing and add fencing strictly in the urban areas, which will be effective as the fencing in San Diego has been. The Senator from Massachusetts says we need to secure the border, but we should do it in a serious way. I submit that a virtual fence is not a fence. A serious way means building some miles of actual fence. That is what keeps the illegal immigrants from crossing illegally into the United States. In combination with UAVs, helicopter, fixed-wing surveillance--there is surveillance actually in other ways, as well, which we do not need to get into--there are sensors, there are cameras, there are people on patrol on horseback, on three-wheeled vehicles, on four-wheeled vehicles, and you put all of those things together, and we can build a combination of actual and virtual fencing that creates the ability to control the border. This is what you do if you are serious about controlling the border. Finally, in the Judiciary Committee, we held hearings about what was necessary to secure the border. We heard from the head of the Border Patrol, David Aguilar. We heard from the former head of the Border Patrol, we heard from the U.S. attorney from Arizona, we heard from a couple of sheriffs on the border in Texas and Arizona. And we asked them what was going on at the border and what they need to control the border. Here are a couple of examples. David Aguilar said that over 10 percent of the people now apprehended coming into the country illegally had criminal records. They were serious criminal records. We are not talking about defacing public property. We are talking about murder, rape, kidnaping, violent smuggling, drug crimes, and the like. More than 10 percent. These people are deterred by fencing, and they need to be stopped. So we are not talking about people trying to come into the country to work. The U.S. attorney for Arizona testified that crime, in the last year, in terms of assaults in the border areas, has increased by 108 percent. The reason is because the Border Patrol is finally getting to be a sufficient number, and the fencing is doing a good enough job that we are contesting the territory of the drug cartels, the smugglers, the coyotes, and the criminals are fighting back to try to regain the territory with weapons. Do not think rocks are not a lethal weapon. As a result, we are seeing that there is some progress being made, but it has increased the violence. The Border Patrol desperately needs more fencing in order to protect their agents from these criminals on the other side of the border. It is beyond me why someone would deride a recommendation of the Border Patrol for a little bit of fencing in the urban areas to protect our officers who are out there trying to do their job, among other things, to prevent violent criminals from entering the United States, to prevent contraband drugs from entering the United States. This is why we are adding a little bit of fencing. The border is 2,000 miles, roughly, and we are talking 370 miles, representing essentially the area of urban communities on the border. Bear in mind, these are communities that straddle the border. In Douglas, until a few years ago, there was a corral in the middle of town, and the border ran through the middle of the corral. There was nothing but a corral. In places right outside of town, there is a barbed-wire fence that is old and rusty and now does not even have three strands. That is the border. These are communities in which people work and live on both sides, they cross frequently, and they are now subjected to a huge amount of crime because of the elements that have moved into those communities to transport drugs, to make a lot of money transporting illegal immigrants, and to come across the border from countries other than Mexico because they are criminals, and they figured out this is a good way to get into the United States to do their crime. Who knows what terrorists might be thinking. The point of this amendment is to add, simply, a little bit more fencing to what is already in the underlying bill in the urban areas of the country to effectively secure the border which, after all, is what we ought to be about here, to protect the people who live in the vicinity of the fencing and to protect the officers we have put into harm's way to do the job we want them to do. I will conclude with this point. It has become very fashionable now for everyone to say: We must secure the border. What this amendment says is, if you are serious, if you really mean that, here is a very modest little thing you can do, what the Border Patrol has recommended it needs, to have a modest amount of real fencing which they say protects themselves and protects American citizens. I don't have the statistics on the top of my head, and maybe Senator Cornyn does, but at the hearing we held in our subcommittee, the testimony was that crime in the San Diego area where this fencing had gone up had gone way down, but that San Diego and the Mexican citizens on the other side of the border, likewise, have been subjected to a huge increase in crime until that fence was built. Once the coyotes and the cartels knew they could not come across in that area, they left. And so did the crime. This is a great amendment. It should be supported by all Members. Crime in San Diego dropped by 56.3 percent between 1989 and 2000. If you can cut the crime in half in a community by building this double fence, and they did, and I don't hear anyone objecting to the double fence in the area of San Diego, why shouldn't the other communities? If anyone would like to come to the Senate and say that it was a mistake to build that double fence in the area of San Diego, I would like to ask them to please do it. I would love to hear the reason why that is not a good idea. All we are asking is that in the other urban areas along the border, the same kind of fencing be built to protect our law enforcement officials and the citizens of those areas and to help prevent this kind of smuggling across our border--nothing more, nothing less. This is a modest amendment, and it should be unanimously agreed to by the Senate.