On May 8, 2017, Democratic Senators Dianne Feinstein of California and Dick Durbin of Illinois issued a harshly critical response to the decision of the United States Immigration and Customs Enforcement (ICE) to restrict the circumstances in which it will grant stays of removal to alien beneficiaries of private bills submitted by Congress.
Senators Feinstein and Durbin described private bills as a “critical safety net,” and they took the position such bills have been “carefully used for a small number of the most critical cases.” This characterization of the use of private bills contrasts with that of Thomas Homan, the Acting Director of ICE, who took the position that they have been abused by Congress.
Senators Feinstein and Durbin expressed frustration that the ICE “has now unilaterally changed [the private bill] process without consulting Congress.” They described the actions taken by Homan as “mean-spirited” and contrary to “longstanding practice between two co-equal branches of government.” Furthermore, they charged that the Trump Administration “has already demonstrated a willful disregard for the Constitution's separation of powers in the name of the President's deportation agenda.”
It is perhaps unsurprising that Senator Feinstein, a ranking member of the judiciary committee, is taking the lead on opposing changes to how the ICE handles private bills. From March 20, 1997, to September 15, 2015, Senator Feinstein proposed 119 private bills, 106 of which were referred to committee and 8 of which passed the Senate.1 On September 25, 2009, Rob Hotakainen of McClatchy Newspapers reported that of the 35 private bills that were pending in the Senate at the time, 14 had been proposed by Senator Feinstein.2 While private bills are uncommon in general, Senator Feinstein has been one of their most prominent proponents in Congress.
Regardless of the policy merits of the arguments advanced by Senators Feinstein and Durbin, it is important to note that the ICE's change in policy does not “demonstrate a willful disregard for the Constitution's separation of powers…” There is no provision of the constitution, or of any statute or regulation, that requires the ICE to grant stays of removal in response to private legislation. Claiming constitutional violations in such a spurious manner only serves to minimize actual violations of the constitution or of the rights of individuals in immigration proceedings in the United States. Furthermore, Senators Feinstein and Durbin neglect to note that the ICE has not completely abandoned granting stays of removal in response to private bills, but rather has required Congress to go through a modified process in issuing the private bills and has narrowed the scope of stays of removal during that process. The policy debate on many immigration issues — including private bills — will be far more productive and informative if people on both sides of the issue stick to the facts in lieu of engaging in hyperbole.