Hugh Hewitt Shreds John Hoeven: "If I were La Raza, I could make sure this fence never gets built"

I'm guessing that Sen. John Hoeven (R-N.D.) regrets agreeing to discuss the Corker-Hoeven Amendment -- the faux border security measure passed by the Senate -- with Hugh Hewitt. Hewitt, an expert attorney with a strong legislative and Constitutional background, quickly determined that the border security aspects of Corker-Hoeven are just as enforceable as, well, our current immigration laws.

And read to the end, because I've included Hewitt's interview with Ted Cruz in which he truly gets to the bottom -- and I do mean bottom -- of this abysmal cluster of a miserable bill.

HH: Now Senator... 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... 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: 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... 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… 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.

...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…

...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: 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…

...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.

Hewitt had earlier interviewed the enormously popular senator from Texas, Ted Cruz, a formidable litigator in his own right and a staunch opponent of this Amnesty bill.

HH: ...look back at your time as a law clerk to Chief Justice William Rehnquist and ask yourself if he would recognize the federalism doctrine employed today by Anthony Kennedy in the DOMA case.

TC: I don’t think he’d recognize it at all. It was, well, let’s be fair. He actually would recognize it, but he would be deeply disappointed, because it’s part and parcel of a pattern we’ve seen the past several decades of the Court of repeatedly the Court substituting its own policy judgments on contested area of social dispute for the preferences and decisions democratically expressed through the people. And I think the decisions today were regrettable. In the state of California, the people of California went, and they voted in Proposition 8 about how to define marriage in the state of California. And the Supreme Court today allowed instead for the courts to set aside that judgment of the voters of California, and impose a very different definition of marriage than the definition that the voters of California chose, which is a traditional marriage of one man and one woman.

...The only way I think to do so [fix this judicial activism] is to insist upon nominees who will follow the law, who don’t view being on the federal bench as an invitation to be a platonic philosopher-king, to have nine unelected lawyers decreeing what our answer should be, what our policy position should be on every hot button issue of the day. I think it is a much sounder approach to say let the people decide, let’s vote on it, and you know what? The people in California will come to different decisions than will the people in Texas or Florida or Vermont, and that’s the beauty of our federalism. We’ve got 50 states, and people with different values, different morays. And why had this all over to unelected federal judges to impose their values on all 50 states?

HH: Now Senator, in our brief time, I want to talk to you about the immigration bill, which I used to be in favor of, but I now oppose after Corker-Hoeven, the amendment which gutted the fence. And I’m going to talk to Senator Hoeven next hour about this. But am I correct, do you agree with my legal analysis that there’s absolutely nothing compelling the construction of even one mile of double layered fencing, and probably not even a single mile of any kind of new fencing?

TC: No, that’s exactly right. I mean, as you know, federal statute has required since 2006 the construction of 700 miles of double fencing, and the federal government simply hasn’t complied. They’ve constructed about 36 miles. And the amendment that was touted as a border security amendment weakens the requirement of federal law, and just like the prior requirement, we can expect with considerable certainty that it will be disregarded as well.

HH: There is in the Corker-Hoeven amendment a savings clause, which also, I think, preserves citizen standing to bring Endangered Species Act and Clean Water Act challenges against fence construction, and an empowerment of the secretary of Homeland Security to simply declare herself not bound by any report that comes back. Am I reading this wrong? Because I think I’m reading it the way a litigator opposed to the fence would read it, and they would laugh, Ted Cruz, at this.

TC: I think you’re exactly right, and you know, this bill has roughly a thousand waivers in it. And I mean, much like Obamacare, just about every major provision gives Janet Napolitano or another member of the Obama cabinet the ability to waive any of the law enforcement in the border security provisions. And we have certainly seen with the IRS, with Benghazi, we’ve certainly seen ample reason to trust waivers given to this cabinet and their fidelity to law. And I think this current bill, if it is passed, if the House passes it, I don’t think the House is going to pass it, but if it did, I think it would make the problem worse. It continues the pattern we saw in 1986 of legalization first and then border security maybe someday in the future. And what happens is the border security never happens.

HH: Now Senator Cruz, I agree with Bill Kristol that I hope the House does not pass anything. I don’t want a conference. I do not trust it. I watched your colloquy today with Patty Murray trying to preserve the conference on the budget from running amok, and I was not satisfied that she was being candid with you. I think you’ve got their number on this. Would you trust a House-Senate conference on the immigration bill?

TC: Well, it was, there would certainly be considerable reason to have concerns, especially the one danger of something passing in the House that really does damage on immigration is it something comes out of conference and ends up passing with all the House Democrats and a tiny handful of Republicans. And that’s one way this Gang of 8 bill could pass, and I think it would do enormous damage. You know, one of the most perverse aspects of this bill, as you know, is its intersection with Obamacare puts in effect a $5,000 federal tax penalty on U.S. companies that hire U.S. citizens or legal immigrants, and basically sets up a hiring preference for those who are here illegally. And I think that would only drive up unemployment, particularly among young people, among African-Americans, among Hispanics. And it really is indefensible to put a penalty on hiring U.S. citizens, and on hiring legal immigrants who follow the rules and come in the right way. And it’s indefensible to give essentially a preference to those who broke the law and came here illegally.

HH: Senator Cruz, continue the good fight. 30 seconds, I know you’ve got to run. Do you see support gathering or falling away from the Senate bill?

TC: I think support is falling away from the Gang of 8. For one thing, people are coming together enormously. We’ve launched a national petition at www.securebordersnow.com. Over 100,000 people have signed up in the last week insisting we actually fix the problem. Secure the borders first. Don’t go down the road of legalization first and never securing the borders.

Sign the petition now.