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THE CONCERN: The immigration reform legislation grants the federal government, particularly the Department of Homeland Security (DHS), excessive power and discretion through hundreds of waivers and exceptions.

• RUBIO: “First of all, I think that’s a legitimate and valid point that we should look at. If there’s a way to tighten this up, we should. … If there are legitimate concerns out there about the number of waivers in the bill, we should tighten that. There’s no reason why we shouldn’t, and I’ve always been open to that. I’ve always said that I’m looking for ways to make the bill better. Some waivers, quite frankly, some, not all, but a few might be justified. They’re not all created equal. I’ll give you an example. We have a work requirement. When you go and apply for your temporary permit to be renewed, you have to have been required to be working. But what if you got hit by a bus and you’ve been disabled for six months? There should be a waiver for someone that’s in a hardship like that. So the waiver is really for exceptional circumstances. It’s not for, you know, ‘we don’t like the law not going to apply it.’ I’m open to tightening the bill and making sure that and other legitimate concerns are addressed. I think one of the things that we have forgotten in Washington is that legislating is not a take-it-or-leave-it proposition. I know that’s the way it’s been done and maybe that’s the big problem that we have. People come up with a bill and then they feel they have to protect any changes against it because it wasn’t their idea. I don’t view it that way. I think our job is to come up with a starting point, and I’ve always and consistently said this. But now other people get a chance to look at it, they find things that they think can be improved or are wrong with it, let’s deal with it. For those that are serious about improving it, I’m all open to that and I think that’s an important part of this process.” (Senator Marco Rubio, “The Hugh Hewitt Show,” 4/30/13)

WHAT THE BILL DOES: The bill does contain specific measures granting the federal government discretion in how it applies the law, not to completely disregard the law as it sees fit.  As part of the open and transparent debate currently underway, these provisions were scrutinized during one of last week’s Judiciary Committee hearings, where senators raised valid questions and concerns about ways to improve the bill as it relates to waivers and exceptions contained in it. 

NOT ALL WAIVERS ARE THE SAME: In drafting the initial legislation, some of these provisions were included not with the sinister motive of empowering DHS to ignore the law or take it easy on illegal immigrants, but rather to avoid some unintended consequences that can occur when the executive branch has no flexibility whatsoever in applying the law.  For example:

• One recent criticism looked at an alleged waiver that gives DHS latitude on when to deport a criminal or terrorist suspect illegally residing in the U.S..  The criticism suggested that it would empower DHS to decline to deport illegal immigrants who are criminals or who may have terrorist ties.  However, in the event that a criminal or terrorist suspect who is here illegally is apprehended on U.S. soil, the American people’s national security interests must be considered when determining if and when to deport the individual.  In sum, the bill would preserve the federal government’s ability to detain such a criminal or terrorist suspect for further questioning, rather than forcing immediate deportation.  

• Another criticism centered on some exceptions the bill contains regarding the proof of gainful employment requirement.  As introduced, the immigration bill requires legalized immigrants with temporary status to prove gainful employment as a condition for renewing their status.  The ultimate goal of this provision is to ensure these individuals can support themselves so they don’t become public charges that are dependent on federal public benefits for their economic sustenance.  The immigration bill grants the federal government some flexibility when it comes to this gainful employment requirement, specifically as it relates to individuals who are not working because they are in job training, attending college, or are pursuing their high school diploma or GED to improve their ability to obtain employment.  The bill also provides exceptions for the primary caretakers of young children or elderly relatives, as well as exceptions for individuals who are younger than 21 (and therefore likelier to be attending school) or older than 60 (and therefore likelier to be physically unable to work or have more trouble finding a job, as many American senior citizens trying to return to the work force can attest).  Lastly, if an individual was involved in a serious accident and physically cannot work, the bill provides an exception stipulating that their unexpected hardship not be ignored when assessing their employment and education requirements under the bill.  However, although they have experienced such hardship, no exception is made in terms of their eligibility for federal disability benefits, including under Social Security.

• While reasonable people may disagree on providing these types of exceptions to the gainful employment requirement, the draft legislation takes the position that individuals under this program should not be discouraged from attempts to improve their earning power and opportunities for upward mobility through education and job training.  The same goes for mothers and fathers who do one of the most important jobs of all – raising their children full-time.  This legislation also recognizes that there will be people struck by accidents and personal tragedies that may prevent them from meeting certain requirements under the bill.

BOTTOM LINE: The Senate should use common sense when reviewing each proposed waiver and exception in the bill.  We should eliminate any unnecessary waivers while preserving those that are in the public interest.  The legislation introduced is not a take-it-or-leave-it proposition, and the amendment process to be conducted in the Judiciary Committee and eventually the Senate floor offers senators a chance to propose changes to improve it.