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Senators Lankford, Johnson Call on GAO to Review Immigration Executive Actions for Possible Violation

WASHINGTON, DC— Senator James Lankford (R-OK) and Senator Ron Johnson (R-WI) today called on GAO to review whether the Obama Administration’s executive actions on immigration were implemented by the Department of Homeland Security as a rule under the Congressional Review Act (CRA). When an agency issues a rule, it must submit it to Congress and the Comptroller General for review; however, DHS did not submit the memos issued to implement the president’s program to defer deportation to millions living in the United States illegally. By not submitting the memos for review, DHS circumvented the ability of Congress to disapprove of the actions taken by the Administration. 

Lankford is the Chairman of the Regulatory Affairs and Federal Management Subcommittee, while Johnson is the Chairman of the Homeland Security and Governmental Affairs Committee.

“In November, the president undermined our existing immigration laws by announcing his executive actions to defer deportation,” said Lankford. “Ignoring our law sends the wrong message to our enemies, both foreign and domestic, that we aren’t serious about protecting Americans and respecting the rule of law. Ignoring the law disrespects millions of immigrants who have come to our country through the legal naturalization process. Process is important and the law is essential. If the Congressional Review Act was violated, it sends the wrong message to Americans and the foreign community that even our own government can’t be fully trusted to follow the law.”

“Last week the district court was clear: the administration’s executive actions are substantive rules,” said Johnson. “Deferred action is not merely non-enforcement of immigration laws; it is an affirmative action granting Social Security numbers, work authorizations, and access to benefits such as the Earned Income Tax Credit.  The court found that last year the state of Wisconsin paid $570,748 in unemployment benefits just to recipients of deferred action.  The administration’s policies have substantial taxpayer implications.  This is why the court issued an injunction and why Congress must be given the ability to review these rules.”

The letter was specifically addressed to The Honorable Gene L. Dodaro, Comptroller General of the Government Accountability Office.

In the letter, the Senators wrote, “If GAO determines that the Homeland Security Directives are ‘rules’ under the CRA, the Department of Homeland Security is required to submit a concise general statement to Congress and the Comptroller General for review before the rules may take effect. 

“The Congressional Review Act establishes a mandatory process for congressional review of agency rules. Under the CRA, before a rule can take effect, the promulgating agency must submit the final rule to Congress and the Comptroller General. Specifically, the agency must submit a copy of the rule, a concise general statement relating to the rule, including whether or not it is a ‘major rule,’ and the proposed effective date of the rule. These processes are essential to ensuring that administrative agencies are accountable to Congress as a co-equal branch of government, as designed by the Constitution.”

The letter continued, “We are further persuaded by the February 16, 2015 United States District Court for the Southern District of Texas memorandum opinion and order, in which the court ruled that the Homeland Security Directives constitute not merely ‘rules’ under the Administrative Procedure Act (APA), but substantive rules, such that applicable APA notice and comment rulemaking procedures were violated. In granting a preliminary injunction blocking the implementation of the Homeland Security Directives on behalf of twenty-six States, the district court easily determined that the Directives constituted ‘rules’ under the APA.”

The Senators request a response from GAO by March 23, 2015.