Immigration-Related Provisions in the National Defense Authorization Act of FY 2017, Part 2

By Dan Cadman on December 21, 2016

A few days ago I discussed a few immigration-related provisions contained in the Fiscal Year 2017 National Defense Authorization Act (NDAA 2017), which overwhelmingly passed the House of Representatives on December 2.

In that blog post, I said I would separately discuss a much longer immigration-related measure, the "Department of Homeland Security Strategy for International Programs", contained as Title XIX inside of NDAA-2017, which I'll do in a moment. First, though, a couple of prefacing remarks seem to me to be in order.

I have heard it said repeatedly that it is improper, perhaps even unlawful, to embed substantive legislation – for instance of the kind that amends existing law, or brings into existence new law – into the body of appropriations acts, since on their face they are for the purpose of providing funds. This has been the response, for instance, when I've asked about using appropriations bills to push through stalled, but excellent, legislation having to do with enforcement matters introduced in recent years – usually by Republican senators or representatives who believe in the importance of immigration enforcement. (One example out of many is the Davis-Oliver Act, which has both a House and a Senate version.)

Yet time after time, I see examples of exactly the kind of embedding of substantive legislation in appropriations bills that I'm told is inappropriate. We see it again here. Title XIX, the Department of Homeland Security Strategy for International Programs, is both substantive and lengthy, consisting of more than 60 pages; it isn't just a small piece of oh-by-the-way legislation.

On his webpage, Rep. Bennie Thompson takes credit for the legislation, and indicates that it had previously been a standalone bill that passed the House and then went nowhere. Here's the curious thing: Thompson, a Democrat, managed to push this bill into existence via the NDAA in a Congress in which the Republicans hold a majority in both chambers, even as any number of superb Republican bills affecting homeland security and immigration have languished for years. How is that possible?

Here is a brief section-by-section analysis of Title XIX, focusing on the immigration- and border security-related provisions. (Supplementary comments are also offered, where relevant.)

Sec. 1901. Amends the Homeland Security Act ("HSA", the law which gave birth to the Department of Homeland Security (DHS)), by authorizing the Secretary to establish various Joint Task Forces for the purposes of securing the land and maritime borders of the United States; addressing homeland security crises; or establishing regionally-based operations.

Such task forces are to be led by Joint Task Force (JTF) Directors appointed for two-year terms by the President with advice and consent of the Senate, and they are to be filled with employees from across the spectrum of DHS components as deemed necessary and appropriate, and dependent upon the reason they are brought into existence. The language of the section also requires that these JTFs be "revenue neutral".

Comment: Since creating cross-disciplinary task forces is already within the plenary power of the Secretary, one wonders why this section was created, and why it survived the conferencing process of the House and Senate. It seems like organizational superfluity writ large.

I am not against task forces, and combining the cross-disciplinary expertise of different types of officers and employees can be a very good idea – but I am not much enamored of the sundry "czars" that have proliferated across government in recent years. Their organizational structures are often top-heavy, they don't usually mesh well organizationally with the operational agencies tasked with doing what the czars direct, and they can readily become a burdensome distraction to overall agency missions. I do not see much difference between such czars and these newly-created JTF Director positions. For this reason, I question the wisdom and efficacy of creating them.

It also seems to me to be overkill to require that these directors be presidential appointments, particularly since they are of finite and limited duration (two year terms) – if that timeframe is to be believed. But there is often a tendency for government programs, once started, to self-perpetuate beyond all usefulness, and one wonders whether that won't also prove to be the case with such task forces.

What is more, placing advice-and-consent presidential appointees squarely in the middle of the DHS hierarchy is likely to cause no end of organizational difficulty and friction as the JTF Directors and other, more duly-constituted DHS agency leaders quietly struggle and use sharp elbows on one another as they jockey for power and influence.

Finally, there is the "revenue neutral" aspect of these task forces. That seems like a good idea at first blush, but revenue neutral doesn't mean cost free. When considered at length, it seems inevitable that this will have a detrimental effect on the agencies charged with populating the task forces, since "revenue neutral" clearly implies a robbing-Peter-to-pay-Paul scenario. With each task force's gain will be some other operational function or equipment loss. New cars, or training, or enough ballistic vests to supply everyone, or something else will inevitably go by the wayside to fund these mini-czars' new fiefdoms. What is more, they will almost certainly drain substantial resources from those same agencies to pay for the high-end salaries of the czars and their office infrastructure.

Sec. 1902. Amends HSA Section 709 by creating a new Office for Strategy, Policy, and Plans in DHS with an Undersecretary at its helm. The undersecretary is authorized one Deputy Undersecretary, who may or may not be a career employee; additional Deputy Undersecretaries within this Office are only permitted if approved in advance by Congress.

The Undersecretary's role will be to strategically marry together the various operations of a huge and far-flung bureaucracy possessing a significant number of agencies with widely disparate missions that sometimes seem to only hang together vaguely under the rubric of "homeland security". The Undersecretary will also act as the Secretary's "principal policy advisor" in all strategic and policy matters, including the quadrennial homeland security review mandated by law.

The new Undersecretary will also be the designated manager of "Department leadership councils" (presumably such as the Homeland Security Advisory Council).

Additionally, the Undersecretary will be charged with establishing metrics and collecting statistics from across the range of DHS and, importantly, establish[ing] standards of reliability and validity for statistical data collected and analyzed by the Department..." To this end, the statute requires that management "of all immigration statistical information of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and United States Citizenship and Immigration Services" be transferred to the Office for Strategy, Policy, and Plans.

Comment: Although I am ordinarily no fan of adding to the upper hierarchical levels of any bureaucratic pyramid, the creation of this particular office and undersecretary – including the possibility that the "permanent undersecretary" (to use a British parliamentarian phrase) may be a careerist – seems to me to be sound, especially given the depth and breadth of the missions encompassed within DHS.

I'm also pleased to see that the immigration statistics will be compiled and maintained within this office. What I do not see, though, is any specific reference in this section to the need for transparency and completeness in statistical reporting, two things that have been sadly lacking within the Obama administration, which has overtly "cooked the books" in enforcement matters and played shameless politics by withholding items that should be available for advocates, scholars, and researchers (including, for instance, routine publication of approval and denial rates for the various immigration benefits); and been absolutely obstreperous about complying with Freedom of Information Act requests filed by parties on both the left and the right.

Sec. 1903. Amends HSA Section 103 (6 U.S.C. Sec.113) in several ways; for instance, by making the Undersecretary for Management the principal assistant to the Deputy Secretary – a kind of "first among equals" within the various Undersecretaries of DHS, which will now include the newly-established Undersecretary for Strategy, Policy, and Plans mentioned above. Most significantly, the section embeds in law a required succession at DHS, from the Secretary to the Deputy Secretary, and then to the Undersecretary for Management. In other words, if for some reason the Secretary and Deputy Secretary simultaneously become unable to discharge their responsibilities for a period of time, then by law the Management Undersecretary would take over.

The provision also amends the language describing the Management Undersecretary's duties, putting an emphasis on management integration transformation and standardization among and between various departmental components, particularly in their technology and information systems. One curiosity in this rewrite is the following language describing the Undersecretary for Management's responsibility for "...overall supervision, including the conduct of internal audits and management analyses, of the programs and activities of the Department..." (emphasis added), which appears perilously close to the statutory mission of the DHS Inspector General.

Comment: In a huge organization all of whose core missions are operational, I'm at a loss to understand the logic of the succession requirement. Consider this analogy: imagine, for a moment, that the Secretary and Deputy Secretary of Defense both for some reason became simultaneously incapable of performing their duties. The President would almost certainly wish a civilian, and not a general, to temporarily handle their duties – but almost equally certainly would tap the Secretary of Army, Navy or Air Force to do so – not an Undersecretary whose background and expertise are in personnel administration, finance, procurement, and other important but technical support areas. So it should be at DHS. Perhaps a better attempt at providing organizational rigor for DHS might have been to consider some variant of the Pentagon's governing structure.

Placing the Undersecretary for Management at the helm seems to me to be inapposite to the very reason for DHS's existence but if an Undersecretary must be third in succession at times of incapacity for both the Secretary and Deputy Secretary would not the Undersecretary for Strategy, Policy, and Plans be a better choice, given that incumbent's task of wedding department-wide missions and strategies into an overarching whole?

Sec. 1904. Amends HSA Section 704 (6 U.S.C. Sec. 344) to reassign reporting responsibility of the Chief Human Capital Officer (CHCO) to the Undersecretary for Management, rather than directly to the Secretary. The CHCO's job responsibilities are also redefined and expanded

Comment: One of the areas articulated in this section is the CHCO's charge to "develop, improve, and implement policies, including compensation flexibilities available to Federal agencies where appropriate, to recruit, hire, train, and retain the workforce of the Department..." Employee retention among the various immigration components of DHS has become increasingly challenging, in no small measure because of abysmal morale – agents at ICE and the Border Patrol routinely rank at the bottom of annual measurements of employee morale taken by the Office of Personnel Management. There is no acknowledgement of, nor direction to address, this critical workplace problem in the new statutory language, which is unfortunate to say the least.

Sec. 1905. Directs the Federal Emergency Management Agency (FEMA) Administrator to conduct a "transparency" feasibility study for gathering data and information on its grants under the Urban Area Security Initiative and the State Homeland Security Grant Program. These are the counterterrorism and homeland security grants made to state and local governments. The FEMA Administrator must then report back to Congress on the matter no later than one year after enactment of NDAA 2017.

Comment: The amounts of money involved under these funding programs are huge: more than $1.044 billion was disbursed to state and local governments in 2015 alone. Past DHS IG audits have found that not all of the monies disbursed are well-spent, or have sometimes been diverted into unauthorized purposes, or cannot be accounted for properly because of flawed accounting procedures by the recipients. For this reason DHS/FEMA should not be tasked with undertaking a feasibility study, but with actually exercising the oversight already required by law to ensure that federal grant monies are well and wisely used.

There is another matter at play though. DHS, as the executive branch organization primarily responsible for immigration control, confronts an ongoing intransigence on the part of more than 300 state and local governments that have declared themselves "sanctuaries" to protect illegal aliens, often criminals, from the reach of federal immigration agents. It is unconscionable that DHS continues to fund these sanctuaries rather than sanction them by withholding funds from Urban Area Security Initiative and State Homeland Security grants until they stop obstructing lawful federal immigration enforcement efforts. It may be unrealistic to expect that a Democratic representative would embed that in Section 1905, but it was a missed opportunity to do so by the Republicans who control the House of Representatives and the Senate. Let us hope that the president-elect rectifies this matter using his executive authority.

Sec. 1906. Adds a new Section 319 to the HSA, "Transparency in Research and Development", requiring the DHS Secretary to develop and timely-maintain detailed lists, task orders, and priority rankings for various science and research projects, both classified and unclassified, funded under DHS programs such as the Federally Funded Research and Development Centers, and University-based Centers of Excellence. Such lists are to be provided to Congress on an annual basis.

Comment: Like the state and local sanctuary governments, some of the designated "University-based Centers of Excellence" have policies that shield and support illegal aliens students. Such policies are inconsistent with DHS recognition, designation, or funding. Since nothing in this bill carves out such a sanction against these schools, it will fall to the new chief executive to do so.

Sec. 1907. Directs the President to conduct a "foreign fighters review", using classified and unclassified data from U.S. intelligence and enforcement agencies, of all persons who have since 2011 traveled, or attempted to travel, to conflict zones in Iraq or Syria with the purpose of "joining or providing material support to a terrorist organization." The review is to—

ascertain which factors, including operational issues, security vulnerabilities, systemic challenges, or other issues, which may have undermined efforts to prevent the travel of [such] persons...including issues related to the timely identification of suspects, information sharing, intervention, and interdiction; identify lessons learned and areas that can be improved to prevent additional travel...

—and must be completed within six months and submitted to Congress.

Comment: It's regrettable, given the number of aliens (including refugees and green-card holders) and children of aliens or naturalized citizens who have attempted to engage in such travel, that there is no specific directive to examine the nexus between unassimilated populations of fairly recent entrants (and their offspring) and would-be jihadists seeking to join Islamic State or other terrorist groups in the identified conflict zones.

During this review, one can also hope that, as a part of considering "other issues which may have undermined efforts to prevent the travel of [such] persons", the executive branch will consider why a) the State Department has been so loath to cancel and revoke the passports of these individuals; b) the federal government has been so reluctant to strip individuals who engage in such conduct of their citizenship for having committed treason (see here and here); and c) why the FBI director has in the past taken the position that there is nothing the federal government can do when such individuals come home from their travels because they are entitled to return.

Sec. 1908. Expresses the sense of the Congress that it should be U.S. policy to "regularly assess the evolving terrorist threat to the United States...[to] catalog existing Federal Government efforts to obstruct terrorist and foreign fighter travel into, out of, and within the United States, and overseas...[to] identify such efforts that may benefit from reform or consolidation, or require elimination...[to] identify potential security vulnerabilities in United States defenses against terrorist travel; and...[to] prioritize resources to address any such security vulnerabilities." This section also requires the president to submit a national strategy to the Congress within six months of enactment of NDAA 2017; including requests and recommendations for programs or funding needed to execute the strategy, as well as an implementation plan.

Sec. 1909. Amends the HSA to provide for more state, local, tribal, and territorial government representation at the DHS National Operations Center (NOC). Also establishes a statutory basis for providing "situational awareness" information to "the private sector and international partners". Further, it authorizes the DHS NOC to enter into agreements with the operations centers of other federal or "homeland security partners" to facilitate the sharing of information.

Comment: Sharing information with "international partners" is a good thing, but it should be done only on a basis of reciprocity. If other governments balk at sharing what they consider privacy-protected data about their citizens or residents, then why should they get a free ride?

Sec. 1910. Directs the DHS Secretary to submit to Congress, within six months of enactment, a "comprehensive three-year strategy...in which personnel and resources of the Department are deployed abroad for vetting and screening of persons seeking to enter the United States." The strategy must include:

  • specific risk-based goals for DHS's international programs;
  • a risk-based method for determining whether to establish programs in new locations or expand existing international programs;
  • alignment with the highest Departmentwide and Government-wide strategic priorities of resource allocations on international programs; and
  • a common reporting framework for the submission of reliable, comparable cost data by components of the Department on overseas expenditures attributable to international programs.

The strategy is additionally to consider these items:

  • information on existing visa-vetting operations of international programs at DHS;
  • the number of DHS personnel deployed to each location during the current and prior fiscal year;
  • analysis of the impact of each international program on domestic activities of components; and
  • analysis of barriers to the expansion of an international program.

Comment: As I understand it, bills usually go through a "legislative counsel" after being drafted. That lawyer's job is to scrub the bill, eliminate redundancies, clarify words where they may lead to confusion, and generally put the bill into the recognized and desirable final form and format it will take if enacted. It's not clear that happened here. The phrase "in which personnel and resources of the Department are deployed abroad for vetting and screening of persons seeking to enter the United States" is used redundantly no less than six times – notwithstanding which, the purpose of the entire section is unclear.

Read one way, it seems to suggest that expanding and solidifying DHS international programs abroad that are aimed at visa vetting is to be desired. Read another way, it seems to imply that the DHS Secretary needs instead to think about whether such programs would be better served and more cost-effective by consolidation in some other way (for instance via a domestic operations center of the sort that ICE Office of International Affairs initiated as a part of its Visa Security Program – although in its case one reason that ICE did that is because its leaders dislike the VSP, and another because they confronted resistance of expansion abroad by certain obstreperous senior State Department officials, including notably a number of Ambassadors/Chiefs of Mission in locations where ICE had evidenced a desire to position staff).

In the end, I suspect that, whatever was intended, the incoming administration will read this section in the manner of its choosing, because the lack of clarity in intent makes that possible. That being the case, one wonders why the section was written at all.

Secs. 1911-1913. These sections have little or no relationship with immigration and border security matters, and so are not reviewed here.

Conclusion. On an A through F rating scale, I would grade this embedded piece of legislation-within-legislation as no more than a C, perhaps a C-. There are a few good things, a number of dubious things, and several provisions that will have to play out before they prove themselves to be worthwhile or worthless. In sum, Title XIX doesn't look to me like the kind of bill that should have been permitted to get placed into the National Defense Authorization Act of 2017; and some of the specific provisions should not to have survived the conferencing process. This leads us back to asking why, when it was a bill of the minority party, did any of this occur in a Republican-led Congress?