March 4, 2016
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: The Bipartisan Case for Ending Regulatory Capture
It’s not every day that I have the opportunity to speak at an event alongside my colleagues Senator Whitehouse and Senator Warren. On paper, you might think the three of us, two progressive Democrats and one conservative Republican, don’t have much in common.
And yet earlier this week, all three of us spoke at the same venue on the same topic, because we are committed to the same cause: fighting regulatory capture in all its forms.
Hosted by the Administrative Conference of the United States, the purpose of the event was to discuss solutions to the problem of special-interest influence on the modern administrative state. And with panelists and speakers from across the ideological spectrum, it was a testament to the emerging consensus among policymakers, scholars, and activists on both sides of the aisle and everywhere in between that sees regulatory capture for what it is: one of the most pressing political, economic, and moral issues of our time.
But too often, especially on Capitol Hill, this consensus breaks down along partisan lines. Members of both parties are guilty of railing against regulatory capture when it’s politically convenient, and looking the other way when it’s not.
Our constitutional system was set up to operate according to these basic principles of transparency in lawmaking and accountability to the people, but this is not how the federal government works today.
Today, the vast majority of federal “laws” are not passed by the House and Senate and signed by the president; they are written, and also enforced, by unelected bureaucrats via a decision-making process that is opaque and highly technical... precisely the kind of venue that is susceptible to capture by concentrated interests.
Concentrating the powers of judge, jury, and executioner in a single governmental body made up of individuals who never stand for election makes an easy, high-value target for special-interest factions vying for access to the levers of power in pursuit of their own interests.
So it should come as no surprise that the movement against regulatory capture is gaining momentum at this particular moment in our nation’s history.
If there’s one thing we know about American politics today it’s that there is a deep and growing distrust between the American people and our political system in Washington.
No matter where they live or which party they support, most Americans no longer believe we have a federal government of, by, and for the people.
And in many cases they’re right. Increasingly what we have today is a government of unelected officials with a degree of job security that would make tenured professors envious; a government by well-connected market incumbents and fashionable special interests; and a government for the benefit of political and economic elites.
Regulatory capture has played an important role in building today’s discredited status quo and insulating it from reform. So any effort to win back the trust of the American people – as both political parties will surely hope to do in the years ahead – must include an agenda to rein in the agencies and regulate the regulators.
Issue in Focus: The Obama Amnesty Loophole
Speaking from the White House Rose Garden on July 15, 2012, President Obama promised the American people about his new Deferred Action for Childhood Arrivals program, “Now, let’s be clear – this is not amnesty, this is not immunity. This is not a path to citizenship.”
Now, more than ever, this statement has proven to be blatantly false.
Shortly after Obama first announced his DACA program, the Legal Action Center of the American Immigration Council published a “practice advisory” alerting immigration lawyers to a legal loophole that could be exploited to turn an illegal immigrants DACA status into a green card and eventually citizenship.
Here’s how it works: aliens who legally enter the United States but do not have a valid visa, have long been allowed to apply for “advance parole,” an immigration document that allows aliens to re-enter the United States after traveling abroad.
The statute says the federal government can only grant advance parole on a case-by-case basis and only for “urgent humanitarian reasons” or “significant public benefit.” But after Obama announced DACA, the United States Citizenship Services office announced that for DACA recipients “significant public benefit” now included “educational purposes, employment purposes, or humanitarian purposes.”
Later USCIS guidance added that “educational purposes include, but are not limited to, semester abroad programs or academic research.” This means that a DACA recipient who came to the country illegally, could now apply for advance parole, travel home to Mexico for “semester abroad” and then legally re-enter the United States.
Voila. Thanks to DACA and Obama’s advance parole loophole such semester-abroad studying DACA recipients have magically changed from illegal to legal immigrants. They are now on a path to citizenship.
It is unclear how many illegal immigrants have taken advantage of this program so far. According to a 2015 Department of Homeland Security report to the House Judiciary Committee, 4,566 DACA recipients had been granted advance parole status at that time. And word is spreading. California newspapers are reporting that professor across the state are bringing more and more students across the border to Mexico and back, just so they can take advantage of this loophole.
This week, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and I wrote a letter to DHS Secretary Jeh Johnson demanding answers, specifically how many DACA recipients have received advance parole, how many have been paroled back into the United States, and how many have tried to adjust their immigration status after they have re-entered.
We will keep you updated on what we hear back.
