Hagerty Seeks GAO Opinion Whether DHS Immigration Enforcement Policies are Subject to the Congressional Review Act

NASHVILLE, TN—United States Senator Bill Hagerty (R-TN), a member of the Senate Appropriations Committee, has written to the Comptroller General of the United States, who heads the Government Accountability Office (GAO), seeking an opinion regarding whether the Congressional Review Act (CRA) applies to recent policy changes issued by the Department of Homeland Security (DHS) concerning enforcement of immigration laws and border security. A federal judge recently ruled that these policies are an unlawful attempt to rewrite federal immigration laws and are substantive regulations, which indicates they are covered by the CRA.

As Hagerty notes in his letter, these DHS policies improperly override immigration statutes that require the detention of certain illegal aliens, including aliens convicted of serious drug offenses, crimes of moral turpitude, and certain other crimes, as well as aliens subject to a final order of removal. Instead, the DHS policies make such detentions optional and require bureaucratic approval in order for agents to do what federal law requires.

“The result is that criminal illegal aliens who would otherwise be detained will not be detained, and taxpayers and governments will be impacted in myriad ways,” Hagerty wrote.

The CRA allows Congress to oversee the federal regulatory process for implementing legislation by allowing it to revoke, through a resolution of disapproval, certain rules that substantively affect the American people. When an agency fails to submit to Congress a policy that constitutes a rule under the CRA—as is the case with the DHS policies at issue—a member of Congress may request that GAO issue an opinion regarding whether the rule should have been submitted to Congress. If GAO finds that the policy should have been submitted to Congress because it constitutes a rule, then such rule can be brought before Congress for a vote under expedited procedures.

“Given the record-setting numbers of border crossings that continue and the resulting effects upon federal, state, and local governments and the American people, it is important that Congress have the opportunity to timely consider the Memoranda under the provisions of the CRA, if they apply,” Hagerty concluded.

During the recent budget resolution debate, the Senate adopted, 53-46, Hagerty’s amendment to ensure that U.S. Immigration and Customs Enforcement (ICE) has sufficient resources to detain and deport a higher quantity of illegal aliens who have been convicted of a criminal offense in the United States.

For a copy of Hagerty’s letter to GAO, please click here.