IMMIGRATION

FRIDAY, MARCH 5, 1965

U.S. SENATE,

SUBCOMMITTEE ON IMMIGRATION AND NATURALIZATION

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10 a.m. in room 457, Old Senate Office Building, Senator Kennedy of Massachusetts (presiding).

Present: Senators Kennedy, Ervin, and Fong.

Also present: Fred M. Mesmer, staff director; Drury H. Blair, staff member; and William A. Stevens, minority staff member.

Senator KENNEDY. The subcommittee will come to order. We are pleased this morning to have the Honorable Norbert Schlei, Assistant Attorney General. He is one of the main architects of S. 500, and I am sure that Mr. Schlei's testimony, on various technical aspects of the bill, will be extremely enlightening to the subcommittee.

Mr. Schlei, if you will proceed in your own manner-I understand that you do not have a prepared statement for the record.

STATEMENT OF NORBERT SCHLEI, ASSISTANT ATTORNEY GENERAL; ACCOMPANIED BY LEON ULMAN, SECOND ASSISTANT, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. SCHLEI. Very good, Senator. I would be glad to proceed in any way that would please the subcommittee. I thought that I might describe what seemed to me to be the principal features of the bill and a little bit of background about how they came to be developed in that way.

Senator KENNEDY. That will be very helpful.

Mr. SCHLEI. I shall proceed on that order.

Senator KENNEDY. I hope that you will save some time for questioning, because I am sure there are a number of questions which the subcommittee will have for you.

Mr. SCHLEI. Very good indeed, sir. I will try to make it brief.

Of course the main objective of this bill is to replace the national origins quota system by which all immigration to the United States is channeled, apart from the Western Hemisphere. When we came to consider what kind of a system to adopt in place of that, we thought that the existing preference system was quite an admirable way of implementing the national interests of the United States. It gave first preference, of course, to people needed here because of their special attainments. It gave other preferences to people who were related to American citizens and thus had a claim on the United States. Their

entry would serve to reunite families. However, the existing preference system operates only within the national origins system, so that no matter how highly qualified you might be, no matter how great a humanitarian claim you might have on the United States as an immigrant, if the quota numbers from your country are exhausted you must wait while others come.

So we arrived at the conclusion that there should be a worldwide preference system and that quota immigration should be on a firstcome, first-served basis within these preference categories.

Now, having gotten that far, when we began to figure out exactly what the impact of that system would be on immigration from various parts of the the world, it became apparent that the system needed some other features in order to have it meet fairly and practically the problems that faced us--in large part because on the injustices under the old system.

The waiting lists had grown so long in some of the countries that had been treated in an unfair way under our existing system that if we went immediately to a first-come, first-served system without limiting features, all of our immigration would come from two or three countries for a matter of years, and similarly, since we have a maximum numerical limit on quota immigration, our quota immigration would be completely shut off from every other country in the world. Of course, that

Senator KENNEDY. Could I interrupt just at that point? Is that your principal objection to sort of a worldwide quota system, this fact that if you did have possibly a worldwide quota system, that it would be filled and would come primarily from two, three, or four different countries?

Mr. SCHLEI. Well, that is the objection to not having the three limiting features that the bill has regarding first come, first served. Senator KENNEDY. I see.

Mr. SCHLEI. If first come, first served were allowed, if that system were allowed to dictate the entire quota immigration policy, we would get 90 percent of our quota immigration from Italy; we would get about 8 percent from Greece, and we would get the other 2 percent perhaps from Poland and Portugal. It is just about that kind of a pattern that we would get, and everyplace else in the world would not qualify for any immigrants, so that obviously that would not be tolerable as a matter of foreign relations, and it would not be fair either. So we built into the bill three features that moderated the first-come, first-served system.

The first was that we put the new system in effect over a 5-year period at the rate of 20 percent per year, so that it would not have any sudden, instant impact on countries that have no problems now.

Second, we put a maximum limit on the immigration that could come from any single country. It seemed to us that if any single country got 10 percent of the authorized quota immigration from the entire world, it was fair to impose a limit at that point and require that the rest of the quota numbers be distributed to other countries. And so that was done.

Our calculations indicate that that limit will be reached in the foreseeable future only by Italy, which would receive 16,600 quota

immigrants. The next nearest country to the limit, as we foresee it, would be Greece, which would reach a total of something like 12,500. But in any case, that serves to insure that the numbers will receive wide distribution around the world.

But it was necessary to have still another feature in the bill to prevent undue hardship to some of our close allies. And so there is a provision in the bill authorizing the President, after consultation with the Joint Executive-Congressional Immigration Board, to reserve up to 30 percent of the numbers in each year for distribution to immigrants who are disadvantaged by the transition from the old system to the new in situations where the correction of that situation will be in the national security interests of the United States.

What the President may do under this provision is to restore cuts that are being effected-those that would be effected by the new law, by the transition from the old system to the new where otherwise undue hardship would result and where in doing so he is benefiting countries that are allied with us, so that the action he is taking is in the national security interest.

Now the Board with which he would have to consult, of course, is a board that consists of two Members of the House of Representatives, two Members of the Senate, and three persons appointed by the President who would represent the executive branch.

There has been a certain amount of criticism in the House hearings, at least, of the makeup of that Board. I would like to explain a little, if I may, how we arrived at that kind of a board.

It was our thought that if this system was to work as it should, it would be desirable to have the executive and the legislative branches working together in the formulation of policy from the very beginning so that they would not arrive at opposite positions independently which would have to be resolved, but would work together from the start. Therefore, we thought it was very desirable that Members of Congress actually be on the Immigration Board that was considering these problems. But, under the Constitution, if Members of Congress are on an entity, a board of this kind, the Board cannot constitutionally be given operating functions. It cannot be given the actual power to distribute these numbers. It can only be an advisory commission; technically under the Constitution the final authority must reside with the President or some official in the executive branch.

However, we thought--and I still think-that as a practical matter the President will substantially always accept the recommendations of the Immigration Board because if he does not, he will become the focus of the pressures that there will be to exercise this authority. The President will be insulated from these pressures, because the law will have designated the people to deal with this problem, to study it, formulate the recommendations, and when they make their recommendations after considering them, I think it will be in his interest almost invariably to follow those recommendations and not pierce the insulation that protects him from the claims that will be asserted.

So I think that while this Board is an advisory board, as a practical matter it will have very great influence.

Those are the three features that moderate the system of first come, first served within preference categories and that make up

the crux of what this bill does. I think that it is fair, that it is nondiscriminatory. I think it serves the national interests of the United States. It gives preference first of all-after the very close relatives who are nonquota-to people who are needed, badly needed in the United States because of their attainments, and it gives preference next of all to relatives who have humanitarian claims on the United States.

We anticipate that at the end of 5 years there will be no more preference waiting list in the world, with the possible exception of a fourth preference waiting list in Italy. That means that we will have no relatives, no people who want to rejoin their relatives, who are being kept out. We will have no people that the United States wants badly to have, because of their attainments, being kept out. The waiting list will consist entirely of people who, whatever their good points, have no particular claim on the United States that entitles them to special consideration.

There are, of course, a number of other features to the bill. I would be very glad indeed to discuss those the subcommittee wishes. Senator KENNEDY. Thank you very much, Mr. Schlei. You talked somewhat about the President's 30-percent reserve authority. Would you elaborate on the reason for retaining the provision after the first 5 years?

Mr. SCHLEI. Well, it was not clear that we would not need it beyond the 5-year point, particularly as to certain countries in Western Europe who are right now very close to using the quota numbers that they receive. Thus they have never had a waiting list. They are not going to get any numbers out of the quota reserve, out of the new system, the first come, first served system, for a long time to come, until their lines grow, which will take a while, and it was not clear that we would not have a hardship situation in those countries for a considerable time beyond the 5-year period.

This is particularly true of Western Germany, France, and the Netherlands.

By the way, when this bill was in the process of formulation, President Kennedy was quite concerned about the situation of West Germany. He had just returned from there at that time, and he felt that it would be very undesirable to create a foreign affairs problem with West Germany, who are our good friends, and even with the reserve we were having great difficulty avoiding a most inequitable situation for West Germany which the President objected too strenuously, and we continued to work on the matter, and we suddenly discovered that about a third of the immigrants from West Germany consisted of the wives of American soldiers who were entitled to nonquota status, clear outside the quota, but they did not choose to apply for that status because it cost an extra $10. So when we changed the fee schedule, that gave us an extra 8,000 numbers or so, and it was possible to work out this problem.

It is for the benefit of those countries, which our calculations show might well have a problem beyond the 5-year period, that the authority is not limited to 5 years.

Senator KENNEDY. To calculate the normal maximum which can be given a country-that is, 10 percent of the total quota numbersthe individual applicants in every country are going to have to indi

cate on their applications what country they are from, is that correct?

Mr. SCHLEI. Yes, sir.

Senator KENNEDY. So, actually, to some extent, the place from which the applicant comes, remains a determining factor in the criteria for admission.

Mr. SCHLEI. That is true. That is the one respect

Senator KENNEDY. Would you distinguish this from the present system?

Mr. SCHLEI. Well, I would be glad to, Senator. It is true that there is one respect in which birthplace will be a matter of significance under this proposed law, but in the first place it is for a very marginal purpose. That 10 percent limitation, as I indicated, looks to us as if it will apply only to one country in the world.

Secondly, I think it will be clear to anyone who examines the situation that we are not using birthplace for any invidious purpose. We are not discriminating against any country on the basis of the race or the religion of the people who are born there. As a matter of fact, we would prefer to use some concept such as citizenship or permanent residence, but we think that the administrative problems of using any such other criterion are so serious that at the moment we are stuck with birthplace. We think that if we made it citizenship, for example, there would be countries where it would become possible to secure citizenship easily for the sole purpose of qualfying for a better status under the immigration laws of the United States.

It would be so hard to figure out whether the residence was permanent, or temporary, or what have you, that we have to use birth, I think, for the time being at least for this purpose. But it is a very marginal purpose.

Senator KENNEDY. Referring to your earlier testimony on the President's reserve power-he would have an opportunity to consult with this Immigration Board, but, nonetheless, the final determination, would be made by the President; is that right?

Mr. SCHLEI. Yes, the final authority would reside with the President.

Senator KENNEDY. Do you believe, then, that this is an undue delegation of power to the President?

Mr. SCHLEI. Absolutely not, Mr. Chairman. As a matter of fact, I noticed that that question was asked either yesterday or the day before, and I looked up a few precedents. There has not been since I believe the Schecter Poultry case any decision by the Supreme Court holding a law bad for delegation of power, and I think there is no area in our law where the power of Congress to delegate is broader than in the field of immigration because to a great extent what Congress is doing is implementing some inherent executive powers to keep people out, to exercise judgment as to who shall come in; it is an exercise of the foreign affairs power, which Congress shares with the Executive.

But I can give the subcommittee a great many precedents which make it quite clear that the authority which is delegated here, within strict statutory criteria, is a perfectly valid delegation.