HH: Obviously, I will return to the marriage decisions, but the immigration debate continues to go on. I had a chance to talk with Senator John Hoeven today of the great state of North Dakota, one of the co-authors of the Corker-Hoeven Amendment. Senator, welcome, it’s great to talk to you.
JH: You bet, Hugh, good to be with you.
HH: Now Senator, last time I saw you, we had lunch at the Harris Ranch in the middle of California, and I want people to know I think you’re a great guy, even though you’re a Dartmouth grad, and I think you’re a great guy, even though you’re a Northwestern grad. And you were a governor for ten years, but I’m going to be pretty tough on you now. I just wanted to be up front about it. I do not like your amendment at all, because I think it guts the border fence.
JH: No, we actually require a total of 700 miles of border fence, and also 20,000 more border patrol agents, $4.5 billion technology plan on the border that includes sensors, radars, drones, helicopters, planes.
HH: But Senator…
JH: But in addition to a national, mandatory national E-verify and electronic entry/exit systems at airports and seaports.
HH: But Senator, I want to stay focused just on the fence, if you don’t mind, in our few minutes.
JH: Okay, all right. Yeah.
HH: At Section 5b, it says the Southern Border Fencing Strategy, not later than 180 days after the date of the enactment of this act, the secretary of Homeland Security shall establish a strategy to be known as the Southern Border Fencing Strategy, to identify where 700 miles of fencing, including double layer fencing, infrastructure and technology, including ports of entry, should be deployed along the southern border. First question, of those 700 miles, how many miles must be double layered?
JH: Well, it requires what’s called the pedestrian fencing. That’s the minimum, okay? But it requires 700 miles of fencing, and then you’ve got about a 2,000 mile border there, obviously. The Secretary can determine where on that 2,000 miles the fence is most effective, or DHS can, but they have to make it 700 miles of fence. It can’t be the vehicle barricades.
HH: But is it fair to say that there is a zero mile minimum for double layered fencing?
JH: It doesn’t. It has to be at least the pedestrian fencing. It doesn’t specify that it has to be the double layer. That’s correct, Hugh.
HH: Okay. Now how big does the pedestrian fencing have to be?
JH: I’d have to look back at the specs, but it’s, you know, I mean, it’s impressive fencing. It’s not the double layer you’re talking about, but it’s a significant barrier.
HH: Now Senator Hoeven, there aren’t any specs. This is my problem. I’ve read…
JH: No, see, there’s existing pedestrian fence on there, and so when we say pedestrian fence, it has a definition as to the fencing that’s already there. So…
HH: But it doesn’t, it actually doesn’t. I’ve been through the law very carefully. I bring my lawyer’s, not my MBA to it, but I look at it as a Constitutional lawyer. They actually don’t have to do anything. In fact, I was going to ask you, what if they don’t turn in a strategy in 180 days? What’s the law’s penalty?
JH: They’d be breaking the law.
HH: But what’s the penalty?
JH: Well, you’d obviously have to enforce the law, but I mean, it’s like, it would be like saying any law, what…they have to follow the law. They’re required to follow the law, and we would undertake an action to make sure that they do. That’s…
HH: But there is no…
JH: Just like we would for any, you’re asking me a, I think, legal question there, obviously, but just like any law…
HH: Well, there is no citizen standing.
JH: I mean, that would be saying any law we passed, what if they don’t bother to enforce it.
HH: Well, if you and I don’t pay our taxes, the IRS, especially we conservatives, get a phone call from them, and you go to jail. If the Secretary doesn’t do this, in the same way that the 2006 border fencing law was never implemented, nothing bad happens, and no citizen has standing to sue, because there’s no citizen standing provision.
JH: Two things I would say to you, Hugh. One thing, first, the funding is authorized and appropriated up front and put in a trust fund, so it can’t be a funding issue. Second, understand, if they don’t meet these requirements, there’s no lawful permanent residence, no green cards, for any of the illegal aliens that are in the country. So again, I think we’ve made it very clear that these are triggers that have to be met, and we’d take an action obviously to require that they enforce the law.
HH: So, well, A) there’s no action that you actually could take, because you would need the Democrats in the Senate to agree with you, because it’s not in this statute. But…
JH: But Hugh, that’s like saying any law we pass, you know, that people just don’t enforce it, I mean, I think you could make that argument for anything that’s put in place.
HH: Well, Senator…
JH: It’s not a case of funding. We’ve made sure the dollars are there. It’s authorized, it’s appropriated. In addition, like I say, there’s clear sanctions in terms of no illegal alien would ever get lawful permanent status.
HH: That’s true, but they would also not have their permanent residence revoked. And I was all in favor of this law, don’t get me wrong. If you guys had written in the requirement for the fence, I’d be selling this law. But as I read this, I go on to read, limitation on requirements notwithstanding paragraph 1, nothing in this subsection shall require the Secretary to install fencing or infrastructure that directly results from the installation of such fencing in a particular location along the southern border if the secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain effective control over the southern border at such locations.
JH: Right, and when I read through that with my lawyer, he said because the earlier section is the controlling section that requires a minimum of 700 miles of fencing, this only gives some discretion as to where on that 2,000 [mile] border is placed so it’s put in the most effective areas. And I’m happy to go back and check on the controlling section and find out exactly what the sanctions are. I don’t know what it is off the top of my head, but I’m happy to go back and check it and get back to you.
HH: Senator, you’ve got to fire that lawyer, because honest to God, I have been doing Endangered Species Act and Clean Water Act litigation for 22 years. I still do it. I’ve argued it before the 9th Circuit. There is absolutely nothing here that compels the construction of a fence. And the savings provision, and I want to read that for the audience…
JH: But the section you’re talking about, Hugh, again, just modifies the controlling section that requires a minimum of 700 miles. And I’ll go back and check on that section for you, and we’ll be back in touch.
HH: Okay, Senator, okay, that’s simply not correct, but I’ll let you check on it.
JH: Well, section 5 is the controlling section.
HH: And that was what I just read to you, was section 5b, was section 5b(5), and limitation on requirements, and in section 5b…
JH: Well, let’s…I’ll tell you what. Let’s check it out, and I’m happy to do that.
HH: Okay, now let me talk to you about the savings provision.
HH: Nothing in this paragraph, meaning the entire section 5, may be construed to create or negate any right of action for a state or local government, or other person or entity affected by this subsection. As you know, Senator, because you were the governor of a big state, whenever you need to cross a water of the United States, or impact critical habitat for an endangered species, you need the permission of the U.S. Fish & Wildlife Service, you need the permission of the EPA and the Army Corps of Engineers, and if you don’t get it, or even if you do get it, citizens can sue to block that. That’s why no ‘notwithstanding any contrary legal authority’ language was omitted from this, and I do not understand why you guys didn’t make this fence mandatory on a schedule without regard to any other law?
JH: Well, Hugh, again, we require the fence. Like I say, it’s one of the triggers that has to be met before there’s any green cards. And furthermore, the only discretion we put in was to try to get it in the places where it would be most effective on that 2,000 miles border. But it doesn’t mitigate the requirement that at least 700 miles are built. So…and remember, that’s just one of the five triggers that we have in place to defend the border.
HH: Well, see if you understand where I’m coming from, because if in fact I’m right, and they don’t come up with a plan, or when they come up with a plan, they want to put in a minimum pedestrian fencing that is easily breeched and easily crossed, and not double fence…
JH: Well, that’s, they already…that’s definitional for the pedestrian fence they already have there. You can go look at it.
HH: Oh, I have. I’ve seen it. I know what it is, and I’ve seen pictures of it.
HH: And it doesn’t have to be any particular height. It just must obstruct a pedestrian, and it’s not the traffic barrier. So it’s better than a traffic barrier, but it really doesn’t work, Senator. And 700 miles, do you have, I mean, why is that a magic number for you guys, because it’s a 2,000 mile border, and I’ve never seen anything that said it had to be 700 miles, nothing.
JH: Right, but again, you know, you’re just, well, because that is the 700 miles that if you go back to the earlier legislation that was required to be built that didn’t get built. And so we’re trying to make sure that gets done. But understand, that’s just one of the measures. We start with a $4.5 billion dollar technology plan that includes towers, it includes radars, it includes people, it includes drones, it includes helicopters, planes, all these things. But as far as the 700 miles, that goes back to what was required to be built before and didn’t get done, and that’s what we’re trying to do in this amendment, is make darn sure we secure the border first, and do all the things that need to be done to secure it.
HH: But Senator, this is where I’m at a loss. It would have been so easy to write a specific mandatory, absolutely as to mapping, construction standards, specifications, timeline, citizen standing to enforce, the denial of citizen standing to obstruct. It would have been so easy to write it, that given the fact that it is so opaque, so that someone like me, who’s a fence proponent looks at it and says this doesn’t do it, and I wanted to support this bill. I really did. No one can deny that. I’ve had Senator Rubio on the show like 15 times. But then this comes up, and I look at it and say you guys weren’t serious about this, and that…
JH: Well, let me say two things, Hugh, two things. One is I’m glad to look into that and get you some more information on it on some of these specifics you’re asking, because we very much worked to make sure that these things get done. Number two, remember, we ‘ve still got to work with the House to get it final. So if there is an issue in there that we need to further address, we certainly intend to do it.
HH: But Senator, Bill Kristol and I agree on this. We don’t want this to go to a conference. We do not trust a conference. We do not believe that if this is the best that the Republicans could to on security, on the border fence and other issues, we don’t want the House to pick this up. I think you guys killed immigration reform by not taking conservative demands for border security seriously in substituting, and I debated this with Senator McCain once. We wanted a fence, an honest to God, big, double layered fence with an access road with specs spelled out, and you guys blew through it in five paragraphs, and anyone can avoid this. Anyone with a, I mean, maybe not your lawyer, but I certainly can go to work for the enviros to stop this, and if I was a La Raza type, I could make sure this fence was never built, even it was only three feet and it could be hopped over. I mean, it’s a disaster.
JH: Well, again, I think that it, we’ve worked very hard to make sure the fence is in there. I think if there are things we can do to make it stronger or better, that’s what working with the House is all about, and we’ll see how that goes. But I think you’re focusing on one piece of something that includes far, far more in resources on the border.
HH: I am.
JH: You know, like I say, the technology…
HH: That’s true.
JH: 20,000 border agents, we’re going to double the number of border patrol agents on the border.
HH: I don’t care, because anything, and I want you to understand, anything that can be turned on can be turned off. Anyone that can be forward deployed can be sent backward. It’s sort of like the DREAM Act. The President didn’t want to enforce the immigration laws last year, so he didn’t enforce them. You can’t not enforce a fence once it’s built, and I’m just curious, last question, Senator…
HH: Am I really surprising you? Did no one tell you guys that the fence was everything for a large portion of the border security community? Did no one let you guys know this?
JH: The reason we put a fence in is because we felt it was important to people, and that’s why we’re trying to make sure it gets built. You’re raising concerns about exactly the specs and so forth. Hey, I think that, what I said to people all along is we’re not done in terms of a final product. If we can make it stronger, we intend to do that. But the whole focus of this amendment is to strengthen border security and to do it on the front end.
HH: Senator, I appreciate your time. Send me anything. Send me your lawyer, because I would really love to spend…
JH: I’m going to do it, Hugh. We’re going to check it out and we’ll be in touch.
HH: And let him come on the air with me and tell him to get his resume ready.
JH: Sounds good.
HH: Thank you, Senator.
End of interview.