Hugh Hewitt Was Incorrect in His Interview with Senator Hoeven

Let me start by saving a lot of people the time of attacking by stating I am not a fan of the Senate immigration bill, but I AM a fan of honest reporting. The reporting on this bill from some sectors of the conservative movement has been no better than typical media matters content.  Today, I’d like to address one accusation in particular. This accusation was made originally by Matthew Boyle at Breitbart News, and now repeated by Hugh Hewitt during an interview with Senator Hoeven. Senator Rubio specifically refuted the claim on the Senate floor, but it persists. The claim is that the Corker-Hoeven amendment does not require DHS to build 700 miles of border fence, and it is completely false.

I’ll skip the Breitbart story, which claimed to be citing the law but just left the most relevant section completely out (which I assume is also where Hewitt got his claims for and just go over some of the transcript from the Hewitt interview).

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.

(No, DHS can’t just ignore laws otherwise they could just stop enforcing them now and wouldn’t need a new bill. The reason 2006 was never implemented was Congress later voted to strip the funding, not because DHS just ignored it)

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.

(Here is where Hewitt exposes he hasn’t actually read the law. In fact, illegal aliens would not receive permanent residency until the border fence was built. They will only have temporary visas that automatically expire without further action. The Section Hewitt is reading here is section 5, the same mistake Boyle made, but that IS NOT the controlling section.)

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…

(In fact, Hoeven’s lawyer is correct, Hewitt just clearly either misses or ignores the actual controlling section. The relevant part is Section 3 (c) (2) (A) (II), which explicitly states that one of the hard triggers BEFORE permanent residency is full implementation of the border fence. Specifically the trigger requires:

(ii) the Southern Border Fencing Strategy has been submitted to Congress and implemented, and as a result the Secretary will certify that there is in place along the Southern Border no fewer than 700 miles of pedestrian fencing which will

include replacement of all currently existng vehicle fencing on non-tribal lands on

the Southern Border with pedestrian fencing where possible, and after this has been accomplished may include a second layer of pedestrian fencing in those locations along the Southern Border which the Secretary deems necessary or appropriate;”

Notice it requires the fencing to be “in place” as a trigger before permanent residency. This is the controlling section that Hoeven’s lawyer was referring to, and that Hewitt somehow completely missed. Hoeven didn’t do the best job explaining this, but it is clear that he is correct.


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