[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE LAWS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 3, 2013
__________
Serial No. 113-55
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
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DECEMBER 3, 2013
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
Jonathan Turley, Shapiro Professor of Public Interest Law, George
Washington University
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Nicholas Quinn Rosenkranz, Professor of Law, Georgetown
University Law Center and Senior Fellow in Constitutional
Studies, Cato Institute
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Simon Lazarus, Senior Counsel, The Constitutional Accountability
Center
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Michael F. Cannon, Director of Health Policy Studies, Cato
Institute
Oral Testimony................................................. 41
Prepared Statement............................................. 43
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 6
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 56
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 65
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 84
APPENDIX
Material Submitted for the Hearing Record
Supplemental Material submitted by Michael F. Cannon, Director of
Health Policy Studies, Cato Institute.......................... 109
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Member, Committee on the Judiciary............................. 152
THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE LAWS
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TUESDAY, DECEMBER 3, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:21 a.m., in room
2141, Rayburn Office Building, the Honorable Bob Goodlatte
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Smith of Texas, Chabot,
Bachus, Issa, King, Franks, Gohmert, Jordan, Poe, Marino,
Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis,
Conyers, Nadler, Scott, Lofgren, Jackson Lee, Cohen, Gutierrez,
Garcia, and Jeffries.
Staff present: Shelley Husband, Chief of Staff & General
Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Zachary Somers, Counsel; Kelsey Deterding, Clerk; (Minority)
Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown,
Parliamentarian; Heather Sawyer, Counsel; and Tom Jawetz,
Counsel.
Mr. Goodlatte. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
The Chair welcomes the members of the audience who are
here, but any member who disrupts this meeting will be removed.
And presently we do not have order in the hearing room. Members
of the audience must behave in an orderly fashion or else they
will be removed from the hearing room. Rule 11 of the House
rules provides that the Chairman of the Committee may punish
breaches of order and decorum by censure and exclusion from the
hearing. So if there are members here who wish to remain, they
should sit down immediately or leave the room immediately, or
they will be escorted from the room.
Today's hearing is about the President's role in our
constitutional system. Our system of Government is a tripartite
one, with each branch having certain defined functions
delegated to it by the Constitution. The President is charged
with executing the laws; the Congress with writing the laws;
and the Judiciary with interpreting them.
The Obama administration, however, has ignored the
Constitution's carefully balanced separation of powers and
unilaterally granted itself the extra-constitutional authority
to amend the laws and to waive or suspend their enforcement.
This raw assertion of authority goes well beyond the
``executive power'' granted to the President and specifically
violates the Constitution's command that the President is to
``take care that the laws be faithfully executed.''
The President's encroachment into Congress' sphere of power
is not a transgression that should be taken lightly. As English
historian Edward Gibbon famously observed regarding the fall of
the Roman Empire, ``the principles of a free constitution are
irrevocably lost when the legislative power is dominated by the
executive.''
Although the President's actions may not yet amount to the
executive powers overtaking the legislative power, they are
certainly undermining the rule of law that is at the center of
our constitutional design. From Obamacare to immigration, the
current Administration is picking and choosing which laws to
enforce. But the Constitution does not confer upon the
President the ``executive authority'' to disregard the
separation of powers by unilaterally waiving, suspending, or
revising the laws. It is a bedrock principle of constitutional
law that the President must ``faithfully execute'' Acts of
Congress. The President cannot refuse to enforce a law simply
because he dislikes it.
Certainly presidents have from time to time made broad
claims of executive power. However, assertions of executive
authority have traditionally been limited to the area in which
presidential powers are at their strongest--Foreign affairs.
The Obama administration, though, has been equally assertive in
the realm of domestic policy, routinely making end runs around
Congress through broad claims of prosecutorial discretion and
regulatory actions that push executive power beyond all limits.
Indeed, President Obama is the first President since Richard
Nixon to ignore a duly enacted law simply because he disagrees
with it. In place of the checks and balances established by the
Constitution, President Obama has proclaimed that, ``I refuse
to take no for an answer,'' and that ``where Congress won't
act, I will.''
Throughout the Obama presidency we have seen a pattern:
President Obama circumvents Congress when he does not get his
way.
For instance, while Congress is currently debating how to
reform our immigration laws, the President effectively enacted
the DREAM Act himself by ordering immigration officials to stop
enforcing immigration laws against certain unlawful immigrants.
When he could not get his preferred changes to the No Child
Left Behind education law, he unilaterally waived its testing
accountability provisions.
When he objected to the work requirements in the bipartisan
welfare reform law, he granted waivers that are specifically
forbidden by the statutory text.
Instead of working with Congress to amend Federal drug
enforcement policy, he has instructed prosecutors to stop
enforcing certain drug laws in certain States and mandatory
minimum sentences for certain offenses.
And most notably, the President has--without statutory
authorization--waived, suspended, and amended several major
provisions of his health care law. These unlawful modifications
to Obamacare include: delaying for 1 year Obamacare's employer
mandate; instructing States that they are free to ignore the
law's clear language regarding which existing health care plans
may be grandfathered; and promulgating an IRS rule that allows
for the distribution of billions of dollars in Obamacare
subsidies that Congress never authorized.
The House has acted to validate retroactively some of the
President's illegal Obamacare modifications. However, rather
than embrace these legislative fixes, the President's response
has been to threaten to veto the House-passed measures. The
President's far-reaching claims of executive power, if left
unchecked, will vest the President with broad domestic policy
authority that the Constitution does not grant him.
Those in the President's political party have been largely
silent in the face of this dangerous expansion of executive
power. But what would they say if a President effectively
repealed the environmental laws by refusing to sue polluters or
the labor laws by refusing to find violators? What if a
President wanted tax cuts that Congress would not enact? Could
he instruct the IRS to decline to enforce the income tax laws?
President George H. W. Bush proposed, unsuccessfully, a
reduction in the capital gains rate. Should he have, instead,
simply instructed the IRS not to tax capital gains at a rate
greater than 10 percent?
The point is not what you think of any of President Obama's
individual policy decisions. The point is the President may
not--consistent with the command that he faithfully execute the
laws--unilaterally amend, waive, or suspend the law. We must
resist the President's deliberate pattern of circumventing the
legislative branch in favor of administrative decision-making.
We cannot allow the separation of powers enshrined in our
Constitution to be abandoned in favor of an undue concentration
of power in the executive branch.
As James Madison warned centuries ago in Federalist No. 47,
``the accumulation of all powers, legislative, executive, and
judiciary, in the same hands . . . may justly be pronounced the
very definition of tyranny.''
It is now my pleasure to recognize the Ranking Member of
the Judiciary Committee, the gentleman from Michigan, Mr.
Conyers, for his opening statement.
Mr. Conyers. Thank you. And good morning, top of the
morning to the witnesses and to my colleagues on the House
Judiciary Committee.
The President's constitutional duty to faithfully execute
the laws would be an important issue worthy of a hearing by
this Committee if there was any evidence that the President
has, indeed, failed to fulfill his duty. But, unfortunately, it
appears that some here view policy disagreements as
constitutional crises and proof of possible wrongdoing. The
fact is that disagreements or even allegations that a program
is not being carried out the way Congress intended should not
raise constitutional concerns.
If some of my friends want to disagree with the
Administration, it is, of course, certainly their right. But we
should keep some perspective here and consider the following
issues.
To begin with, some of the Administration's actions
criticized by the majority are not really that much out of the
ordinary. Allowing flexibility in the implementation of a new
program, even where the statute mandates a specific deadline,
is neither unusual nor a constitutional violation. It is,
rather, the reality of administering sometimes complex
programs.
This has been especially true in the case of health care
legislation. The Affordable Care Act is not the first time
implementation of a new law has not gone according to schedule.
President George W. Bush, for example, failed to meet some of
the deadlines in Medicare Part D even though it was legislation
he strongly supported. And it is especially interesting that
some Members who strenuously opposed the Affordable Care Act
and who worked diligently to obstruct its implementation now
complain that the President is unconstitutionally impeding the
implementation of his signature legislative accomplishment. How
interesting.
Taking steps to deal with the realities of implementation
of a complex program hardly constitutes a failure to take care
that the laws are faithfully executed. It is, rather, part and
parcel of doing just that.
There have been Administrations in the past that have
obstructed the implementation of laws they opposed, but no one
is seriously contending that President Obama opposes the
Affordable Care Act, ``Obamacare,'' or that his
Administration's actions constitute intentional obstruction of
the law. And when in the past there have been legitimate
concerns about delays in a law's implementation, parties have
turned to the Administrative Procedure Act. That act allows the
courts to determine whether a delay is unreasonable and order
appropriate relief. Notably, no one has alleged that such
action is necessary here. Instead, critics of President Obama
and his signature legislation allege a constitutional crisis,
but no court has ever found delay in implementation of a
complex law to constitute a violation of the Take Care Clause.
Now, some of my colleagues seem to think that the exercise
of prosecutorial discretion, a traditional power of the
executive, is a constitutional violation. The decision, for
example, to defer deportation of individuals who were brought
to the United States as children who have not committed
felonies or misdemeanors and do not pose a threat to public
safety--so-called ``DREAMers''--is a classic exercise of such
discretion. The Administration cannot legalize these
individuals' status without a basis in law, but the
Administration's decision to defer action against particular
individuals is neither unusual nor unconstitutional.
The Supreme Court has consistently held that the exercise
of such discretion is a function of the President's powers
under the Take Care Clause. For example, in Heckler v. Chaney,
the Court held that an agency's refusal to institute
proceedings shares to some extent the characteristics of a
decision of a prosecutor in the executive branch not to indict,
a decision which has long been regarded as the special province
of the executive branch, inasmuch as it is the executive who is
charged by the Constitution to ``take Care that Laws be
faithfully executed.''
Finally, I hope we can distinguish between failing to
execute the laws and following the explicit dictates of the
law. Some here contend that the President's decision not to
defend the Defense of Marriage Act violated the Take Care
Clause. In fact, the President made a judgment, subsequently
vindicated by the United States Supreme Court, that the act was
unconstitutional, but while the case was pending, he continued
to comply with the law.
The President's decision not to defend the law was not
novel. Indeed, Congress itself recognized this possibility.
Congress understood that sometimes the Administration's duty to
take care that the laws be faithfully executed might include
recognizing that a particular statute is unconstitutional. The
Constitution is, as we are told in Article 6 of the
Constitution, the supreme law of the land. Presidents are
required to follow it.
So past Administrations have exercised their discretion not
to defend a law that they have deemed unconstitutional. For
example, the acting Solicitor General at the time, John
Roberts, now the Chief Justice of the United States, refused to
defend a law that he believed to be unconstitutional in the
1990 case of Metro Broadcasting v. the FCC. Chief Justice
Roberts argued that a statute providing for minority
preferences in broadcast licensing was unconstitutional.
Despite Supreme Court precedent applying a more permissive
standard of review, he argued that strict scrutiny applied.
Senate legal counsel appeared as amicus curiae to defend the
law and prevailed.
Clearly, there were reasonable arguments that Chief Justice
Roberts could have made in defense of the law. Yet, no one
suggested that he violated the Constitution by arguing for the
Court to strike that law down. His view was not vindicated in
that case but may ultimately have resulted in a shift in the
law, which makes it additionally clear that the
Administration's decision not to defend DOMA was neither
unprecedented nor inappropriate.
And so I join with all of the Committee in welcoming our
witnesses, look forward to their testimony, and I yield back
the balance of my time, Mr. Chairman.
Mr. Goodlatte. Thank you, Mr. Conyers.
Without objection, all other Members' opening statements
will be made a part of the record.
[The prepared statement of Ms. Jackson Lee follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. We welcome our panel of witnesses today, and
if you would all please rise, we will begin by swearing you in.
[Witnesses sworn.]
Mr. Goodlatte. Let the record reflect that all of the
witnesses responded in the affirmative. Thank you.
And I will now begin by introducing our witnesses.
Our first witnesses is Jonathan Turley, the Shapiro
Professor of Public Interest Law at George Washington
University Law School. Professor Turley is a nationally
recognized legal scholar who has written extensively in areas
ranging from constitutional law to legal theory to tort law. He
has published over 3 dozen academic articles and over 750
articles in newspapers, including The New York Times, USA
Today, and The Wall Street Journal. Professor Turley has been
recognized as the second most cited law professor in the
country.
Our second witness is Nicholas Rosenkranz, a professor of
law at Georgetown University Law Center. Professor Rosenkranz
has served and advised the Federal Government in a variety of
capacities, including as a law clerk to Supreme Court Justice
Anthony Kennedy, and as an attorney advisor to the Justice
Department's Office of Legal Counsel. He has published numerous
scholarly articles, including the ``Subjects of the
Constitution,'' which is the single most downloaded article
about constitutional interpretation in the history of the
social science research network.
Our third witness is Simon Lazarus, a senior counsel with
the Constitutional Accountability Center. He is a member of the
Administrative Conference of the United States and during his
career has served as the public policy counsel for the National
Senior Citizens Law Center as a partner at Powell Goldstein and
as Associate Director of President Carter's White House
domestic policy staff. Mr. Lazarus has written articles that
have appeared in law journals, as well as publications such as
The Atlantic, The Washington Post, and The New Republic.
Our final witness is Michael Cannon, the Cato Institute's
Director of Health Policy Studies. He has been recognized as an
influential expert on the Affordable Care Act. Mr. Cannon has
appeared on ABC, CBS, CNN, and Fox News and has written
articles that have been featured in numerous newspapers,
including The Wall Street Journal, USA Today, and the Los
Angeles Times. He is also the co-editor of a book on replacing
the Affordable Care Act and the co-author of a book on health
care reform.
I would like to thank all of the witnesses for their
appearance today. Each of your written statements will be
entered into the record in its entirety. I ask that each
witness summarize his or her testimony in 5 minutes or less. To
help stay within the time frame, there is a timing light on
your table. When the light switches from green to yellow, you
will have 1 minute to conclude your testimony. When the light
turns red, it signals that the witness' 5 minutes have expired.
And we will turn first to Professor Turley. Welcome.
TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC
INTEREST LAW, GEORGE WASHINGTON UNIVERSITY
Mr. Turley. Thank you, Mr. Chairman, Ranking Member
Conyers, Members of the Judiciary Committee. It is a great
honor to be invited to speak with you today about the meaning
of the Take Care Clause. You will have to forgive my voice. I
am getting over a cold, but I hope to make it through this
without having a coughing fit.
This is obviously a difficult area of constitutional
interpretation. As the Ranking Member pointed out, this is not
the first time that we have dealt with this question.
It is also difficult for some of us who happen to agree
with the President's policies, which I do. In fact, I voted for
him previously.
However, in a Madisonian system, it is often more important
how you do something than what you do. And the reason this is
such an important hearing is that the bedrock of our
Constitution remains the separation of powers. It is often
misunderstood as some type of conflict between the branches. It
is really a protection of liberty. It allows for issues that
divide us to be cycled through a system in which factional
interests can be transformed. Even though all branches are
equal in the Madisonian system, the Congress is the thumping
heart of that system. It is where issues that are divisive are
transformed into majoritarian decisions. It is the very reason
that our system has survived so well. It brings stability to
the system.
Benjamin Franklin used to say or liked to say that God
helps those that help themselves. In our system, the Madisonian
system, the Constitution helps those branches that help
themselves. It is designed to give each branch the ability of
self-protection, of self-defense, and a great deal rides on the
use of that power.
In my view, some of the questions we are going to talk
about today are close questions, things like Internet gambling,
drug enforcement. I think you can have credible arguments on
the Administration side, but some of them I believe are not
close questions. I believe the President has exceeded his
brief.
The President is required to faithfully execute the laws.
He is not required to enforce all laws equally or commit the
same resources to them. But I believe the President has crossed
the constitutional line in some of these areas, which I address
in my testimony.
What I want to start in my opening statement is to
emphasize that this is not a turf fight between politicians.
Rather, this goes to the very heart of what is the Madisonian
system. If a President can unilaterally change the meaning of
laws in substantial ways or refuse to enforce them, it takes
off line that very thing that stabilizes our system. I believe
that Members will loathe the day that they allowed that to
happen. This will not be our last President. There will be more
Presidents who will claim the same authority.
When I teach constitutional law, I often ask my students
what is the limiting principle of your argument. When that
question is presented to this White House, too often it is
answered in the first person, that the President is the
limiting principle, or at least the limiting person. We cannot
rely on that type of assurance in our system.
So the greatest danger of nonenforcement orders is not what
it introduces to a tripartite system but what it takes away.
What it does is it allows for these issues that divide us to be
resolved unilaterally. We do not have a dialogue anymore if
someone can step in and make the legislative process simply an
option as opposed to a binding stage or requirement. It is here
in Congress that factional interests coalesce and convert. This
is the transformative branch. It is different from the other
branches. And that is what makes this so dangerous.
What Madison did is he created a type of Newtonian orbit of
branches. In fact, he was very interested in Newton's physics
when he wrote much of the early writings. There is a belief
that these are three branches that exist in orbit. They are
held together by their gravitational pull. It is a delicate
balance, but it is one that protects individual liberty.
Federalist No. 51 is one of the most cited sources for
Madison's views. It is in that writing that he encouraged
branches to be on guard for the encroachment of their powers.
For decades, this Congress has allowed its core authority to
drain away. I have written a lot about the rise of what is
called the ``fourth branch,'' this expanding number of Federal
agencies that are acting increasingly independently, even
defining their own jurisdiction. If that trend is to continue
and the President's power is to continue to expand, Congress
will be left like a marginal line on the constitutional
landscape, a sad relic of what was once a tripartite system of
equal branches.
There are times like this one of bitter, intractable
divisions, but the Members of this body are tied by a covenant
of faith, an article of faith. And it is found in Article 1
that says that all legislative powers herein granted shall be
vested in the Congress of the United States. It is upon that
covenant that we should not divide by parties and we should
stand firmly for the separation of powers.
[The prepared statement of Mr. Turley follows:]
Prepared Statement of Jonathan Turley, Shapiro Professor of
Public Interest Law, George Washington University Law Center
Chairman Goodlatte, Ranking Member Conyers, and members of the
Judiciary Committee, my name is Jonathan Turley and I am a law
professor at George Washington University where I hold the J.B. and
Maurice C. Shapiro Chair of Public Interest Law. It is an honor to
appear before you today to discuss the constitutional concerns raised
by recent nonenforcement polices and the President's duty to faithfully
execute the law of the United States.
The issue before the Committee is clearly a difficult one. It is
often difficult to separate the merits of the underlying policies from
the means used to achieve them. It so happens that I agree with many of
the goals of the Administration in the various areas where the
President has circumvented Congress. However, in the Madisonian system,
it is often more important how you do things than what you do. We have
long benefited from a system designed to channel and transform
factional interests in the political system. When any branch encroaches
upon the authority of another, it not only introduces instability into
the system but leaves political issues raw and unresolved. However, to
paraphrase one of Benjamin Franklin's favorite sayings, the
Constitution helps those branches that help themselves. Each branch is
given the tools to defend itself and the Framers assumed that they
would have the ambition and institutional self-interest to use them.
That assumption is now being put to the test as many members remain
silent in the face of open executive encroachment by the Executive
Branch.
While I believe that the White House has clearly ``exceeded its
brief'' in these areas, this question of presidential nonenforcement
has arisen periodically in our history. In the current controversy, the
White House has suggested an array of arguments, citing the
interpretation of statutory text, agency discretion, or other
rationales to mask what is clearly a circumvention of Congress. It also
appears to be relying on the expectation that no one will be able to
secure standing to challenge such decisions in court. Finally, there is
no question that the President as Chief Executive is allowed to set
priorities of the administration and to determine the best way to
enforce the law. People of good faith can clearly disagree on where the
line is drawn over the failure to fully enforce federal laws. There is
ample room given to a president in setting priorities in the
enforcement of laws. A president is not required to enforce all laws
equally or dedicate the same resources to every federal program. Even
with this ample allowance, however, I believe that President Barack
Obama has crossed the constitutional line between discretionary
enforcement and defiance of federal law. Congress is given the defining
function of creating and amending federal law. This is more than a turf
fight between politicians. The division of governmental powers is
designed to protect liberty by preventing the abusive concentration of
power. All citizens -Democratic or Republican or Independent--should
consider the inherent danger presented by a President who can
unilaterally suspend laws as a matter of presidential license.
In recent years, I have testified and written about the shift of
power within our tripartite government toward a more Imperial
Presidential model. Indeed, I last testified before this Committee on
the assertion of President Obama that he could use the recess
appointment power to circumvent the Senate during a brief intrasession
recess.\1\ While I viewed those appointments to be facially
unconstitutional under the language of Article I and II (a view later
shared by two federal circuits), I was equally concerned about the
overall expansion of unchecked presidential authority and the relative
decline of legislative power in the modern American system. The recent
nonenforcement policies add a particularly menacing element to this
pattern. They effectively reduce the legislative process to a series of
options for presidential selection ranging from negation to full
enforcement. The Framers warned us of such a system and we accept it--
either by acclaim or acquiescence--at our peril.
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\1\ I testified before Congress last year on the controversy
surrounding these recess appointments. See Executive Overreach: The
President's Unprecedented ``Recess'' Appointments Before the H. Comm.
on the Judiciary, 112th Cong. 35-57 (2012) (statement of Jonathan
Turley, Professor, The George Washington University Law School)
[hereinafter Executive Overreach]. I also address the controversy at
length in two forthcoming law review articles. See Jonathan Turley,
Recess Appointments in the Age of Regulation, 93 B.U. L. Rev. 1523
(2013); Jonathan Turley, Constitutional Adverse Possession: Recess
Appointments and the Role of Historical Practice in Constitutional
Interpretation, 2013 Wis. L. Rev. (forthcoming fall 2013); see also
Jonathan Turley, Op-Ed., Recess Appointments: President as Ruler, USA
Today, Feb. 15, 2012, at 7A.
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The current claims of executive power will outlast this president
and members must consider the implications of the precedent that they
are now creating through inaction and silence. What if a future
president decided that he or she did not like some environmental laws
or anti-discrimination laws? Indeed, as discussed below, the
nonenforcement policy is rarely analyzed to its natural conclusion,
which leads to a fundamental shift in constitutional principles going
back to Marbury v. Madison.\2\ The separation of powers is the very
foundation for our system; the original covenant reached by the
Founding Generation and passed on to successive generations. It is that
system that produces laws that can be truly said to represent the
wishes of the majority of Americans. It is also the very thing that
gives a president the authority to govern in the name of all Americans.
Despite the fact that I once voted for President Obama, personal
admiration is no substitute for the constitutional principles at stake
in this controversy. When a president claims the inherent power of both
legislation and enforcement, he becomes a virtual government unto
himself. He is not simply posing a danger to the constitutional system;
he becomes the very danger that the Constitution was designed to avoid.
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\2\ 5 U.S. (1 Cranch) 137, 177 (1803).
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i. the separation of powers within the tripartite system
A. Factions and the Legislative Process.
One of the greatest dangers of nonenforcement orders is not what it
introduces to the tripartite system but what it takes away. The Framers
created three ``equal'' branches but the legislative branch is the
thumping heart of the Madisonian system. It is the bicameral system of
Congress that serves to convert disparate factional interests into
majoritarian compromises. In this sense, Congress is meant to be a
transformative institution where raw, often competing interests are
converted by compromise and consensus. One of the most striking aspects
of the recent controversies involving presidential nonenforcement is
that they involved matters that were either previously before Congress
or actually under consideration when President Obama acted
unilaterally.
The role of the legislative process in stabilizing the political
system is key to the success of the American system. Madison saw the
vulnerability of past governmental systems in the failure to address
the corrosive effects of factions within a population. The factional
pressures in a pluralistic nation like the United States would be
unparalleled and Madison understood that these factions were the
expression of important political, and social, and economic interests.
As Madison explained, ``liberty is to faction what air is to fire, an
ailment without which it instantly expires. But it could not be a less
folly to abolish liberty, which is essential to political life, because
it nourishes faction than it would be to wish the annihilation of air,
which is essential to animal life, because it imparts to fire its
destructive agency.'' \3\ Congress is where these factional interests
coalesce and convert in an open and deliberative process.
---------------------------------------------------------------------------
\3\ THE FEDERALIST NO. 10, 78 (James Madison) (Clinton Rossiter
ed., 1961).
---------------------------------------------------------------------------
The point of this background discussion is that the loss caused by
the circumvention of the legislative branch is not simply one branch
usurping another. Rather, it is the loss of the most important function
of the tripartite system in channeling factional interests and reaching
resolutions on matters of great public importance.
The importance of this central function of Congress is magnified
when the country faces questions upon which there is great division.
Ironically, these are the same areas where presidents are most likely
to issue nonenforcement orders due to opposition to the underlying
legislation. Consider illegal immigration. There are few issues that
are more divisive today. The immigration laws are the product of
prolonged debates and deliberations over provisions ranging from public
services to driver's licenses to ICE proceedings to deportations. Many
of these issues are considered in combination in comprehensive statutes
where the final legislation is a multivariable compromise by
legislators. Severity in one area can at times be a trade-off for
leniency in another area. Regardless of such trade-offs, the end result
is by definition a majoritarian compromise that is either signed into
law by a president or enacted through a veto override. The use of
executive orders to circumvent federal legislation increases the shift
toward the concentration of executive power in our system and the
diminishment of the role of the legislative process itself. It is
precisely what the Framers sought to avoid in establishing the
tripartite system.
B. The Royal Prerogative and the Faithful Execution of Federal Law.
Juxtaposed against this legislative power is the Chief Executive.
The Framers created a Chief Executive with a relatively short term of
four years and clearly defined powers to fit within this system of
shared government. Despite the recent emergence of an uber-presidency
of increasingly unchecked powers, the Framers were clear that they saw
such concentration of power to be a danger to liberty. Indeed, the
separation of powers is first and foremost a protection of liberty from
the dangers inherent in the aggregation or aggrandizement of power.\4\
The Constitutional Convention and subsequent ratification conventions
are replete with statements on the need to carefully confine the Chief
Executive to enumerated powers and to specifically safeguard the powers
of the legislative branch in the control of the purse and the creation
of new laws.
---------------------------------------------------------------------------
\4\ See generally, Turley, Age of Regulation, supra.
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At issue in today's hearing is in many ways the first issue that
arose in the creation of the office of a president. The Framers were
intimately familiar with English history and law. The suggestion of a
president immediately produced objections over the dangers of abuse and
unilateral action. This debate occurred against the backdrop of over
150 years of tension with the English monarchy that can be traced to
the confrontation of Sir Edward Coke and James I. That confrontation
had some interesting parallels to the current debate. At issue was not
the circumvention of the legislative but the judicial branch. James
claimed the right to remove cases from the court for his own judgment.
When various people objected, James noted ``I thought law was founded
upon reason, and I and others have reason as well as the judges.'' \5\
Modern presidents in nonenforcement policies claim that same basis in
reason--adjusting legal authority to a more equitable or more efficient
reality. However, in the case of James I, Coke objected that ``natural
reason'' does not make for good laws or legal analysis. Rather, law is
a form of ``artificial reason and judgment'' or ``an art which required
long study and experience before that a man can attain to the
cognizance of it.'' \6\ Even in the face of a treason charge, Coke
maintained that, ``the king ought not to be under any man, but he is
under God and the law.'' \7\
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\5\ 7 Sir Edward Coke, Reports 65, quoted in Roscoe Pound, The
Spirit of the Common Law 5 (1921) at 61.
\6\ Id.
\7\ Id.
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The principle articulated by Coke drew the distinction between the
King and the law--the latter which is made separate from the King and
governs the King. It was the rejection of what has been called the
``royal prerogative.'' \8\ This rejection was first seen in the state
constitutions in crafting the powers of Governors and later manifested
in the drafting of the new federal Constitution. For example, Thomas
Jefferson wrote in 1783 with regard to the Virginia Constitution that
``By Executive powers, we mean no reference to the powers exercised
under our former government by the Crown as of its prerogative . . . We
give them these powers only, which are necessary to execute the laws
(and administer the government).'' \9\ Jefferson's statement reflects
the same Cokean distinction--now a mantra for American framers in
defining the new concept of executive power.
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\8\ See Julius Goebel, Jr., Ex Parte Clio, 54 Colum. L. Rev. 450,
474 (1954); David Gray Adler, The Steel Seizure Case And Inherent
Presidential Power, 19 Const. Commentary 155, 164 (2002).
\9\ This quote is from Jefferson's Draft of a Fundamental
Constitution for Virginia. Adler, supra, at 164 (citing Charles Warren,
The Making of the Constitution 177 (Harvard U. Press, 1947)).
---------------------------------------------------------------------------
The earliest references to executive power or the presidency in the
Constitutional Convention refer to the execution of federal law--
affirming the idea that the executive must enforce the law established
by the legislative process. Indeed, it was the introduction of the
Virginia Plan that most clearly cast this executive model.\10\ Roger
Sherman stated this most clearly in describing ``the Executive
magistracy as nothing more than an institution for carrying the will of
the Legislature into effect.'' \11\ Likewise, James Wilson defended the
model of an American president by assuring his colleagues that ``did
not consider the Prerogatives of the British Monarch as a proper guide
in defining the Executive powers. Some of these prerogatives were of a
Legislative nature.'' \12\
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\10\ Max Farrand, 1 The Records of the Federal Convention of 1787
at 62-63 (Yale U. Press, 1911) (Edmund Randolph describing a ``national
executive . . . with power to carry into execution the national laws .
. . [and] to appoint to offices in cases not otherwise provided
for.''); see also Adler, supra, at 164.
\11\ Farrand, supra, at 65; Adler, supra, at 164-65.
\12\ Farrand, 1 Records at 62-70; Adler, supra, at 165.
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Reflecting these views, and the view of Framers like Madison that
the chief executive must only be given power that is ``confined and
defined,'' \13\ the first draft of the Take Care Clause read ``it shall
be his duty to provide for the due and faithful execution of the
Laws.'' \14\ That language then became, with the report of the
Committee of Detail, ``he shall take care that the laws of the United
States be duly and faithfully executed.'' The final language of the
Committee of Style was refined further into ``The executive power shall
be vested in a president of the United States of America . . . He shall
take care that the laws be faithfully executed.'' What is most striking
about this process is how little the language actually changed--
reflecting a general consensus on limiting the office to the execution-
as opposed to the creation- of laws.
---------------------------------------------------------------------------
\13\ Id. at 70.
\14\ Id. at 171; Adler, supra, at 165.
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While the line between legislation and enforcement can become
blurred, this view is generally reflective of the functions defined in
Article I and Article II. The Take Care Clause is one of the most
direct articulations of this division. The Clause states ``[The
President] shall take Care that the Laws be faithfully executed . . .
'' U.S. Const. art. II, Sec. 3, cl. 4. It is one of the clearest and
most important mandates in the Constitution. The Framers not only draw
the distinction between making and enforcing laws, but, with the
enforcement of the law, the Framers stressed that the execution of the
laws created by Congress must be faithfully administered. The language
combines a mandate of the execution of laws with the qualifying
obligation of their faithful execution.
The constitutional obligation contained in the Take Care Clause is
amplified by the oath that a president takes as a pre-condition for
assuming power as Chief Executive under Section 1 of Article II.
Indeed, the order of these references is interesting. In order to
assume office, a president must ``solemnly swear (or affirm) that [he]
will faithfully execute the office of President of the United States,
and will to the best of my ability, preserve, protect and defend the
Constitution of the United States.'' U.S. CONST. art. II, Sec. 1, cl.
7. The Take Care Clause appears later in Section 3. This section
happens to refer to the legislative function of Congress in stating
that ``from time to time give to the Congress information of the state
of the union, and recommend to their consideration such measures as he
shall judge necessary and expedient.'' Id. Notably, the section affirms
the right of a President to ask Congress for legislative action that he
deems to be necessary. The clause then affirms the obligation of the
President to faithfully execute those laws created by Congress. It is
equally significant that the clause following the obligation to
faithfully execute the laws is the clause allowing for the impeachment
and removal of presidents.
The import of these clauses is that the President can seek
legislative changes and even call Congress into session, but it remains
the prerogative of Congress to decide what laws will be enacted
(subject to presidential signature or veto override).
The most obvious meaning of faithful execution is that the
President must apply the laws equally and without favoritism.
Favoritism is clearly shown in the failure to enforce the laws against
friends or political cronies. However, it can also apply more widely to
favored groups or political allies. Merriam-Webster defines
``faithful'' as ``having or showing true and constant support or
loyalty.'' In this controversy, this true and constant support is to
the laws themselves. It is worth noting that this is not loyalty tied
to the ``law'' in general--possibly inviting a more nuanced
interpretive response to what specific laws serve or disserve the law
in general. The use of the plural form encompasses the laws referenced
in Article I as the product of Congress. It is those laws that the
President is bound to execute faithfully under Article II.
C. Nonenforcement Orders and the Rise of the Fourth Branch.
The current controversy over the nonenforcement of federal law
transcends the insular issues of particular statutes or regulations.
The American governmental system is being fundamentally transformed
into something vastly different from the intentions of the Framers or,
for that matter, the assumptions underlying the constitutional
structure. As I recently discussed in print,\15\ we are shifting from a
tripartite to a quadripartite system in this age of regulation. The
Administrative State that is credited with so many advances in public
welfare has also served to shift the center of gravity in our system to
a fourth branch of federal agencies. As a result, our carefully
constructed system of checks and balances is being negated by the rise
of the sprawling departments and agencies that govern with increasing
autonomy and decreasing transparency. At the same time, we have seen a
rapid growth of executive power, particularly since 9-11, where the
President is asserting largely unchecked authority in many areas.
---------------------------------------------------------------------------
\15\ Jonathan Turley, Op-Ed., The Rise of the Fourth Branch of
Government, Wash. Post (May 24, 2013), at C1; see also Turley, supra,
Age of Regulation, at 1542-61.
---------------------------------------------------------------------------
When the Framers created the tripartite system, our federal
government was quite small. In 1790, it had just 1,000 nonmilitary
workers. In 1962, there were 2,515,000 federal employees. Today, we
have 2,840,000 federal workers in 15 departments, 69 agencies and 383
nonmilitary sub-agencies.\16\ Indeed, these numbers can be themselves
misleading since much federal work is now done by contractors as part
of ``downsizing'', but the work of the agencies has continued to
expand. Moreover, technological advances have increased the reach of
this workforce. With the expansion of the government has come a shift
in the source of governing rules for society. Today, the vast majority
of ``laws'' governing the United States are not passed by Congress but
are issued as regulations, crafted largely by thousands of unnamed,
unreachable bureaucrats. To give one comparative measure, one study
found that in 2007, Congress enacted 138 public laws, while federal
agencies finalized 2,926 rules, including 61 major regulations.\17\
Adding to this dominance are judicial rulings giving agencies heavy
deference in their interpretations of laws under cases like Chevron. In
the last term, this Supreme Court added to this insulation and
authority with a ruling that agencies can determine their own
jurisdictions -- a power that was previously believed to rest with
Congress. In his dissent in Arlington v. FCC, Chief Justice John
Roberts warned: ``It would be a bit much to describe the result as `the
very definition of tyranny,' but the danger posed by the growing power
of the administrative state cannot be dismissed.''
---------------------------------------------------------------------------
\16\ Turley, supra, Age of Regulation, at 1533; Walter E. Volkomer,
American Government 231 (11th ed. 2006) (citing Bruce D. Porter,
Parkinson's Law Revisited: War and the Growth of American Government,
60 Pub. Int. 50, 50 (1980)). In 1816, the federal system employed 4837
employees. Deanna Malatesta, Evolution of the Federal Bureaucracy, in 1
A History of the U.S. Political System: Ideas, Interests, and
Institutions 373, 380 tbl.1 (Richard A. Harris & Daniel J. Tichenor
eds., 2010).
\17\ Anne Joseph O'Connell, Vacant Offices: Delays in Staffing Top
Agency Positions, 82 S. Cal. L. Rev. 913, 936 (2009).
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With agencies increasingly performing traditionally legislative and
judicial functions,\18\ the nonenforcement of federal law exacerbates
the shift away from the original calibration of the tripartite system.
Federal agencies are becoming practically independent in their
operations in assuming new forms of regulatory law and adjudications.
The refusal to execute those laws enacted by Congress would serve to
marginalize the legislative branch further and make the federal
government even less dependent on or responsive to that branch.
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\18\ As the number of federal regulations has increased, Congress
has shifted the adjudication of many disputes between citizens and
their government to administrative courts tied to individual agencies.
The result is that a citizen is 10 times more likely to be tried by an
agency than by an actual court. In a given year, federal judges conduct
roughly 95,000 adjudicatory proceedings, including trials, while
federal agencies complete more than 939,000. Turley, supra, Age of
Regulation, at 1533; Anne Joseph O'Connell, Vacant Offices: Delays in
Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 936 (2009).
---------------------------------------------------------------------------
ii. nondefense orders, presidential prioritization policies,
and signing statements
It is important to distinguish between the various ways that
presidents can oppose laws, which can blur the line between
nonenforcement and inadequate enforcement. While a president does not
have authority to negate or amend laws, there is overlap between the
branches in different functions. Clearly, for example, the President is
allowed to set goals in the execution of laws that place certain public
programs above others in priority. No area of the law has one-hundred
percent enforcement. There are discretionary actions that can include
staffing and resource allocations with impacts on the level of
enforcement in a given area. Before delving further into the
constitutionality of nonenforcement, three types of executive decisions
are important to distinguish.
A. Nondefense Orders.
The nondefense orders arise when presidents decide that their
administrations will not defend a challenged law in court. These
decisions are relatively rare and highly controversial. Even defenders
acknowledge that such a decision should only be considered in
circumstances where a president feels that enforcement of a law would
conflict with his duty to uphold the Constitution. Indeed, one study
showed that between 1974 and 1996, presidents objected to the
constitutionality of roughly 250 laws but did not refuse to defend
them.\19\ Despite these reservations, Presidents Ford, Carter, Reagan,
George H.W. Bush, and Clinton did not refuse to defend such laws.\20\
---------------------------------------------------------------------------
\19\ Christopher N. May, Presidential Defiance of
``Unconstitutional'' Laws xiv (1998).
\20\ In many cases, presidents used signing statements to interpret
the laws compatible with their view of constitutional limits.
---------------------------------------------------------------------------
While the duty to defend would seem to be naturally subsumed under
the duty to enforce, the Obama Administration draws a distinction
between the two duties. Thus, it stated an intent to enforce the law
while refusing to defend it. It was a curious distinction for many
since continued enforcement would require that the law be defended in
challenges.\21\ The Justice Department previously adopted a narrow
exception to the rule that the ``courts, and not the Executive, finally
to decide whether a law is constitutional'' and that the nondefense of
a law would impermissibly create a barrier to judicial review.\22\
Unless the law impedes executive power, the Justice Department stated
that it would defend laws so long as are not ``clearly
unconstitutional.'' That would seem to demand more than simple
disagreement with lower courts or adherence to a new or unestablished
interpretation of the Constitution.
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\21\ Indeed, some have argued that the Administration got it wrong
and that there is no duty to enforce or to defend. See Neal Devins and
Saikrishna Prakash, The Indefensible Duty To Defend, 112 Colum. L. Rev.
507, 508-509 (2012) (``Given President Obama's belief that the DOMA is
unconstitutional, he should neither enforce nor defend it.'').
\22\ Recommendation that Dep't of Justice Not Defend
Constitutionality of Certain Provisions of Bankr. Amendments and Fed.
Judgeship Act of 1984, 8 Op. O.L.C. 183, 194 (1984).
---------------------------------------------------------------------------
In light of the foregoing, the Administration's decision that it
would not defend the Defense of Marriage Act (DOMA) was a classic
example of a nondefense policy. The timing of the decision, however,
was curious given the Administration's defense of the law for years and
the President's own public ambivalence over same-sex marriage. Thus,
this was not a statute that was treated as facially invalid by this
president, and it was supported (and signed into law) by another
Democrat, Bill Clinton. Nevertheless, while belated, the Obama
Administration announced that it could no longer in good faith support
a law that it deemed unconstitutional. It notably took this position
after previously enforcing the law, leading many to question a decision
to abandon the law ``mid-stream'' without any clear advocate with
standing to argue the law's merits.\23\
---------------------------------------------------------------------------
\23\ Indeed, advocates of this presidential power insist that
courts cannot be deemed as supreme in the interpretation of laws since
``[f]ederal courts only have jurisdiction over cases or controversies,
meaning that they cannot issue Article III judgments or opinions when
they are not deciding cases or controversies. Yet there will be many
situations, many questions, where federal courts cannot opine because
there will be no case or controversy.'' Devins & Prakash, supra, 112
Colum. L. Rev. at 530. Indeed, it is true that the executive branch
must engage in interpretations as part of its enforcement of laws and,
particularly with the narrowing of standing in federal cases, many of
these decisions go unchallenged. However, for those of us concerned
about the rise of the Fourth Branch, this only increases the
concentration of power in the Executive Branch and further undermines
the balance in the tripartite system.
---------------------------------------------------------------------------
The decision of the Administration was equally notable in basing
its nondefense decision on a position that had never been embraced by
the Supreme Court. The Administration stated that ``the President and
[the Attorney General] have concluded that classifications based on
sexual orientation warrant heightened scrutiny and that, as applied to
same-sex couples legally married under state law then, from that
perspective, there is no reasonable defense of DOMA.'' \24\ While the
Administration acknowledged that a lower standard of review had been
applied in prior cases, it insisted that ``neither of those decisions
reached, let alone resolved, the level of scrutiny issue because in
both the Court concluded that the laws could not even survive the more
deferential rational basis standard.'' \25\
---------------------------------------------------------------------------
\24\ http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.
\25\ Id.
---------------------------------------------------------------------------
While I take the same view as to gay rights, it is not a view that
had ever secured a majority of the Supreme Court or even most lower
courts. Thus, the Administration was refusing to defend a law based on
an interpretation that had thus far remained unsupported by direct
precedent. Indeed, the ultimate decision in Windsor was a close one
with a 5-4 opinion, and the basis for the decision was more nuanced
than the one indicated by the Administration. In adopting a nondefense
position, the Obama Administration was establishing precedent that
Presidents could refuse to defend laws based on unaccepted legal
interpretations. This would lead to the question of whether a president
could maintain a nondefense postures even with a legal position
rejected by lower courts but never rejected by the Supreme Court.
My strongest objection was the failure of the Administration to
avoid the untenable position of leaving a federal law without an
advocate. That produced a standing dilemma that should never have been
allowed to arise. The fact is that there are strong arguments on both
sides of this litigation. While I have long been a supporter of same-
sex marriage, I felt that the standing barriers created in the recent
Hollingsworth \26\ and Windsor \27\ cases were grossly unfair to the
critics of same-sex marriage and equally inimical to the legal
system.\28\ It is particularly troubling when this law was signed by a
prior president who clearly viewed it (as did Congress) to be a
constitutional act. The Court clearly saw the Administration's actions
as undermining both the Judicial and Legislative branches:
---------------------------------------------------------------------------
\26\ Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
\27\ United States v. Windsor, 133 S. Ct. 2675 (2013).
\28\ I have repeatedly argued to Congress that the narrow rules
concerning standing are increasingly preventing worthy constitutional
challenges from being heard. I have the honor of representing both
Democratic and Republican members of Congress who challenged President
Obama's unilateral decision to attack Libya's capitol and armed forces.
Jonathan Turley, Members of Congress Challenge Libyan War in Federal
Court, Jonathan Turley (June 15, 2011), http://jonathanturley.org/2011/
06/15/members-of-congress-challenge-libyan-war-in-federal-court/.
``if the Executive's agreement with a plaintiff that a law is
unconstitutional is enough to preclude judicial review, then
the Supreme Court's primary role in determining the
constitutionality of a law that has inflicted real injury on a
plaintiff who has brought a justiciable legal claim would
become only secondary to the President's. This would undermine
the clear dictate of the separation-of-powers principle that
``when an Act of Congress is alleged to conflict with the
Constitution, `[i]t is emphatically the province and duty of
the judicial department to say what the law is.''' . . .
Similarly, with respect to the legislative power, when Congress
has passed a statute and a President has signed it, it poses
grave challenges to the separation of powers for the Executive
at a particular moment to be able to nullify Congress'
enactment solely on its own initiative and without any
determination from the Court.'' \29\
---------------------------------------------------------------------------
\29\ Windsor, 133 S. Ct. at 2688.
While the Supreme Court resolved the standing problems in Windsor on
prudential grounds, the untenable position created by the
Administration should have been avoided by the selection of outside
counsel to assume the burden of defending the law. While obviously this
would have been an action taken in furtherance of the statute by the
Administration, it would have allowed the Administration to convey its
opposition to the statute while, in the interests of both Congress and
the rule of law, ensuring that both sides were adequately represented.
Putting aside the timing and status of the DOMA defense, there
remains a principled reason why a President, as well as an Attorney
General, may feel that the defense of a statute is fundamentally at
odds with his duty toward the Constitution. For example, if Congress
passed a new Sedition Act or a law establishing an official religion, a
president could claim a good-faith basis for viewing the law as
conflicting with his constitutional duties. While (as noted above) the
law should be defended in the interests of all sides being presented
for judicial review, a president can decline to directly defend the
law. In such cases, the president is caught on the horns of a
constitutional dilemma, and the appointment of outside counsel is
appropriate to allow the presentation of arguments in favor of the law.
After all, the Executive Branch has consistently opposed efforts of
Congress to defend laws in court as a usurpation of Executive
authority. It should not fight to both bar Congress from such arguments
while declining to perform that role to the detriment of these laws.
B. Prioritization Policies.
Every President has faced accusations of slow-walking or under-
enforcing laws that he has opposed. Ronald Reagan was accused of
undermining a host of environmental laws through the appointment of
officials like James Watt and Anne Gorsuch. Likewise, Syracuse
University recently found a sharp reduction of prosecutions for
financial institution fraud from over 3,000 in 1991 to just 1,365 in
2011.\30\ That reduction in the Obama Administration is not deemed a
constitutional violation since such cases are heavily imbued with
prosecutorial discretion. Indeed, members of Congress often suggest
that presidents should not ``waste time'' on enforcing some laws.\31\
---------------------------------------------------------------------------
\30\ See Criminal Prosecutions for Financial Institution Fraud
Continue to Fall, TRAC Reports, Syracuse University, available at
http://trac.syr.edu/tracreports/crim/267/.
\31\ See, e.g., Andrew Cohen, Sen. Leahy: Fed Shouldn't 'Waste
Time' on State Marijuana Laws, Atlantic, Sept. 3, 2013.
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Immigration is again an excellent example of such controversies.
Modern presidents have long made deportation a lower priority for
enforcement than prosecuting violent illegal immigrants and other
provisions. The numbers of such deportations have varied dramatically
with George W. Bush deporting a total of 2,012,539 or 251,567 per year,
while Bill Clinton deported with an average annual rate of 108,705.\32\
During the same period of time, Obama (with 395,774 per year) has
actually deported more individuals per year than his predecessor.\33\
The level of deportations, however, remains a discretionary decision of
an Administration and courts tend to leave disagreements on the level
of enforcement as a political question for the legislative and
executive branches to resolve. As discussed below, this is in contrast
to orders effectively suspending portions of federal immigration law as
part of a policy change of the Administration.
---------------------------------------------------------------------------
\32\ 2011 Yearbook of Immigration Statistics, published by the
Office of Immigration Statistics under the Department of Homeland
Security (table 39).
\33\ Id.
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C. Signing Statements.
There has already been much discussion of signing statements,
particularly during the Administration of George W. Bush.\34\ The
majority of signing statements are uncontroversial in that they amplify
policies or celebrate accomplishments or reaffirm objectives connected
to the legislation. However, some signing statements have been used to
inform agencies of an interpretation that seems at odds with the
language and intent of Congress--often after an Administration has
failed to get its way with the legislative branch. Signing statements
may merge with nonenforcement orders when a president claims a
provision is unconstitutional and unenforceable.
---------------------------------------------------------------------------
\34\ See generally Presidential Signing Statements Under the Bush
Administration: A Threat to Checks and Balances and the Rule of Law?:
Hearing Before the H. Comm. on the Judiciary, 110th Cong. 7, 9 (2007).
---------------------------------------------------------------------------
James Monroe is generally credited with the first signing
statement.\35\ Like many controversial practices, it started in a
rather routine and harmless fashion with Monroe stressing how the law
was to be administered.\36\ Given his confrontational and at times
imperial approach to the presidency, it is not surprising that the
first defiant signing statement came with Andrew Jackson who did not
want a road built from Detroit to Chicago. Jackson instructed his
Administration to build the road but to stop before Chicago. Such
statements were condemned at the time on the grounds that they violated
the separation of powers and usurped the authority of the legislative
branch. One of the most interesting early confrontations occurred
between President John Tyler and Speaker of the House, John Quincy
Adams. When Tyler wrote a signing statement rejecting certain
provisions of a political apportionment bill, Adams rejected the
signing statement as an ``extraneous document'' that constituted a
``defacement of the public records and archives.'' \37\ Indeed, Adams
was right. Such statements are extraneous and do not constitute
``law.'' They, however, have such an effect when a president uses them
to order the disregard or effective line veto of a duly enacted law.
---------------------------------------------------------------------------
\35\ T.J. Halstead, Cong. Research Serv. Report for Cong.,
Presidential Signing Statements: Constitutional and Institutional
Implications 2 (2007), http://www.fas.org/sgp/crs/natsec/RL33667.pdf.
\36\ Christopher N. May, Presidential Defiance of
``Unconstitutional'' Laws 73 (1998).
\37\ Am. Bar Ass'n, Task Force on Presidential Signing Statements
and the Separation of Powers Doctrine 7 (2006).
---------------------------------------------------------------------------
The most significant transformation of these statements came with
Ronald Reagan. Then Attorney General Ed Meese sought to make such
statements integral rather than extraneous by ensuring the West
Publishing Company would print such statements with these laws as if
they were a binding amendment or interpretation of the laws. The
Supreme Court was viewed as undermining the authority of Congress
further in INS v. Chadha and later cases by referring to signing
statements and casually noting that the president will use such
statements to decline to enforce certain objectionable provisions in
laws.\38\ Soon, presidents were adding hundreds of such statements to
``Executive legislative history'' accounts as if they were an addendum
to legislation.
---------------------------------------------------------------------------
\38\ In striking down the legislative veto in Chadha, the Court
noted
that ``11 Presidents, from Mr. Wilson through Mr. Reagan, who have
been presented
with this issue have gone on record at some point to challenge
congressional vetoes as
unconstitutional.'' 462 U.S. 919, 942 fn. 13 (1983).
---------------------------------------------------------------------------
To the extent that signing statements order the nonenforcement of
legislation, it raises serious constitutional questions. Some signing
statements have led to later reversals as in Reagan's dispute over the
Competition in Contracting Act of 1984 or congressional reversals as in
the HIV-positive personnel provision of the National Defense
Authorization Act for Fiscal Year 1996 in the Clinton Administration.
To the extent that these disputes are not resolved through inter-branch
compromise, they should be resolved through judicial review (though,
again, the dysfunctionally narrow standing rules can inhibit such
review). Where the signing statements establish nonenforcement orders,
we are left with a fundamental challenge to legislative authority.
These confrontations can be made worse by the perfect constitutional
storm of a signing statement that imposes a nonenforcement order, which
in turn results in a nondefense order in litigation.
George Bush most dramatically diverted from his predecessors by
issuing signing statements that ``interpreted'' statutes in ways that
effectively amended or negated provisions. Ironically, one of the
greatest critics of such statements was Barack Obama, who pledged to
end the practice as unconstitutional. Yet, Obama would be criticized
for not only continuing such statements but actually barring
enforcement by agencies.
D. Nonenforcement Orders.
The three branches are set in a tripartite system designed to hold
each in a type of Newtonian orbit. Under this system, no branch ideally
has enough power to govern alone--they are forced into cooperative
agreements and coexistence. Nonenforcement orders challenge this
arrangement by imposing a type of presidential veto extrinsic to the
legislative process. The legitimacy of such orders has long been
challenged as an extraconstitutional measure.
Yet, since Thomas Jefferson, Presidents have asserted the
discretion not to enforce laws that they deemed unconstitutional.
Jefferson took a stand against the Sedition Act that was used for many
blatant abuses against political enemies in the early Republic.
Jefferson cited his oath to protect the Constitution compelling him to
act to ``arrest [the] execution'' of the law at ``every stage.'' \39\
Jefferson's stand represented the strongest basis for nonenforcement in
a law that was used against political opponents and free speech.
However, many presidents object to the constitutionality of a law,
often in defense of expansive views of executive power. Those
presidential arguments have resulted in rejection before the Supreme
Court--reaffirming objections that presidents are negating legislative
authority in violation of the separation of powers.
---------------------------------------------------------------------------
\39\ Letter from Thomas Jefferson to Abigail Adams (July 22, 1804),
in 1 THE ADAMS-JEFFERSON LETTERS 274, 275-76 (Lester J. Cappon ed.,
1959); see also Saikrishna Bangalore Prakash, The Executive's Duty To
Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008).
---------------------------------------------------------------------------
Other presidents would follow suit, particularly in resisting
claimed intrusions on executive authority. President Wilson refused to
comply with a law barring his removal of postmasters without Senate
approval. While three justices (including Brandeis and Holmes)
dissented, the Administration prevailed in Myers v. United States.\40\
However, presidents have also been wrong in such judgments. This was
the case with Gerald Ford, who refused to enforce the 1974 amendment to
the Federal Election Campaign Act of 1971, which placed legal limits on
the campaign contributions. Ford vetoed the law on first amendment
grounds, but Congress overrode the veto. Ford then refused to enforce
those provisions \41\ and then Robert Bork argued against the FECA
provisions before the Court. However, the Court rejected Ford's
arguments on that part of the law.\42\
---------------------------------------------------------------------------
\40\ 272 U.S. 52 (1926).
\41\ Gerald Ford, Statement on the Federal Election Campaign Act
Amendments of 1974 (Oct. 15, 1974), http://www.presidency.ucsb.edu/ws/
?pid=4464#axzz2gIvcVm5z.
\42\ Buckley v. Valeo, 424 U.S. 1 (1976).
---------------------------------------------------------------------------
Likewise, Ronald Reagan refused to execute the Independent Counsel
law on the grounds of separation of powers--an ironic position given
his own refusal to respect a duly enacted law of Congress. The Supreme
Court ruled 7-1 that Reagan was wrong in Morrison v. Olson.\43\ In the
same fashion, George H. W. Bush opposed affirmative action policies of
the FCC only to be rejected in Metro Broadcasting v. FCC.\44\ While
this was in turn overruled in Adarand Constructors, Inc. v. Pena,\45\
it was clearly a close constitutional question. For presidents to block
enforcement of a law creates uncertainty as to the legitimacy and
finality of enactments.
---------------------------------------------------------------------------
\43\ 487 U.S. 654 (1988).
\44\ 497 U.S. 547 (1990).
\45\ 515 U.S. 200 (1995).
---------------------------------------------------------------------------
I cannot agree with Abner Mikva who claimed as White House Counsel
for Clinton that it is ``uncontroversial'' that ``the President may
appropriately decline to enforce a statute that he views as
unconstitutional.'' \46\ Mikva cites virtually nothing in terms of the
text or intent of the Framers. Rather, he cites first and foremost the
silence of the Court in cases like Myers where ``the Court sustained
the President's view that the statute at issue was unconstitutional
without any member of the Court suggesting that the President had acted
improperly in refusing to abide by the statute.'' \47\ This
``implicit[] vindication'' is cited by Mikva as proof of the authority
to block the enforcement of federal statutes.\48\
---------------------------------------------------------------------------
\46\ Memorandum for the Honorable Abner J. Mikva, Counsel to the
President, Nov. 2, 1994 (found at http://www.justice.gov/olc/
nonexcut.htm).
\47\ Id.
\48\ Not surprisingly, there has been a series of opinions out of
the Executive Branch supporting a president's right to refuse to
execute laws. For example, Attorney General Civiletti insisted that
``Myers holds that the President's constitutional duty does not require
him to execute unconstitutional statutes; nor does it require him to
execute them provisionally, against the day that they are declared
unconstitutional by the courts.'' The Attorney General's Duty to Defend
and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C.
55, 59 (1980).
---------------------------------------------------------------------------
There has of course been obvious controversy over the right of a
president to refuse to execute federal laws in light of express
language requiring his faithful enforcement of such laws. Moreover, the
allowance for nonenforcement orders undermines the express process of
legislation detailed in Article I and Article II. Thus, a president
like Clinton can sign the National Defense Authorization Act for Fiscal
Year 1996, forego a constitutional veto, and then declare a
constructive post-enactment veto in a signing statement. While I
happened to agree with Clinton on his opposition of the mandatory
discharge of HIV-positive service members, a conscious decision was
made to sign the legislation under the expectation that he could
achieve the same effect of a veto through a nonenforcement order. Of
course, it did not have the same effect constitutionally. An actual
veto would have resulted in additional congressional debate and a
separate vote to override the veto. The nonenforcement order made the
legislative process meaningless by negating the provisions in a post-
enactment order.
iii. nonenforcement policies under the obama administration
From Internet gambling to educational waivers to immigration
deportations to health care decisions, the Obama Administration has
been unilaterally ordering major changes in federal law with the
notable exclusion of Congress. Many of these changes have been defended
as discretionary acts or mere interpretations of existing law. However,
they fit an undeniable pattern of circumventing Congress in the
creation of new major standards, exceptions, or outright
nullifications. What is most striking about these areas is that they
are precisely the type of controversial questions designed for the open
and deliberative legislative process. The unilateral imposition of new
rules robs the system of its stabilizing characteristics in dealing
with factional divisions. While Attorney General Eric Holder has
recognized that the judicial branch is ``the final arbiter of . . .
constitutional claims,'' \49\ he appears less committed to the concept
of the legislative branch's inherent authority. The classic
circumvention of the Faithful Executive Clause is to say that it
necessarily is limited to only constitutional laws. However, this
argument only begs the question of who determines the
unconstitutionality of a law. If it is left to a President, any such
law could be claimed as presumptively unconstitutional. Indeed, if a
President views a law as unconstitutional, it is not clear why the
President could not still refuse to enforce it. This inherent power is
often reinforced by reference to the President's oath to ``preserve,
protect, and defend'' the Constitution--making the enforcement of a law
deemed unconstitutional a violation of his oath--the Jeffersonian
position on the Sedition Act.
---------------------------------------------------------------------------
\49\ Letter from Eric H. Holder, Jr., Att'y Gen. of the United
States, to Hon. John H. Boehner, Speaker of the House (Feb. 23, 2011)
at 5.
---------------------------------------------------------------------------
Some academics posit that each branch has an interpretive function
and that the President need not yield to the rivaling interpretation of
Congress or even courts. As was recently argued in one law review,
``the Constitution nowhere anoints any entity or branch as the final
arbiter of the meaning of the laws or the Constitution.'' \50\ This
view, however, challenges the stability achieved after Marbury v.
Madison \51\ since it necessarily leads to a position that ``[t]he
Constitution never marks the Supreme Court supreme in its exposition of
the Constitution over Presidents, Congress, the states, or the
people.'' \52\ This is a long-standing debate that is not without
support given the absence of a clear statement in Article III making
the Supreme Court the final arbiter in such disputes.\53\ However,
regardless of the debate over Chief Justice Marshall's basis for his
holding, Marbur established a key stabilizing element by bringing
finality to interpretive debates, particularly over controversies over
the separation of powers. While the Administration avoids acknowledging
the implications of its policy, it does inevitably challenge this
foundational principle of judicial authority. The result is a view that
not only allows the circumvention of the legislative powers but the
negation of judicial review. That leaves such disputes to a matter of
political strength and reduces the tripartite system to something akin
to a continual game of chicken between branches.
---------------------------------------------------------------------------
\50\ Devins & Prakash, supra, 112 Colum. L. Rev. at 526.
\51\ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
\52\ Id. at 529.
\53\ Id. (``In sum, to imagine that the Constitution marks the
Supreme Court as supreme in its exposition of the Constitution and laws
of the United States, one has to believe two implausible propositions.
One has to presume that a Constitution that never grants the Supreme
Court a general power to decide all legal questions nonetheless cedes
the Court a power to definitively answer such questions in some
instances. And one has to discover, buried deep within the
Constitution's interstices, an interbranch supremacy on constitutional
and legal interpretation even though the Constitution contains nary a
word hinting at such dominance.'')
---------------------------------------------------------------------------
While political divisions would normally be a reason to leave a
matter to the legislative process to resolve, it is increasingly being
cited as a rationale for circumventing Congress. Thus, citing gridlock
and the failure to correct the law, President Obama has granted
widespread waivers to states under the No Child Left Behind Act,
effectively nullifying the law in the view of critics.\54\ This has
been denounced as a circumvention of Congress with the creation of new
criteria or conditions by the Administration for schools to receive the
waivers. This new system is entirely the product of an intrabranch
process in circumvention of Congress. Likewise, the Administration
effectively flipped the interpretation of the Wire Act, 18 U.S.C.
Sec. 1084, from years of prohibiting Internet gambling to a limited bar
just on sports betting.\55\ The interpretation effectively flipped the
long-standing meaning of the federal law--an interpretation favored by
many states and lobbyists in the industry. After years of maintaining a
consistent interpretation, the 180 degree change transformed the Act
into a vastly different law that potentially allowed billions of
dollars' worth of gambling operations on the Internet. While defendable
as an interpretative function, it was a radical change made without
congressional hearings or debate.
---------------------------------------------------------------------------
\54\ Motoko Rich, ``No Child'' Law Whittled Down By The White
House, New York Times, July 6, 2012.
\55\ Nathan Vardi, Department of Justice Flip-Flops On Internet
Gambling, Forbes, Dec. 12, 2011.
---------------------------------------------------------------------------
A different rationale was used for delaying enforcement of the
employer mandate set by Congress in the Affordable Care Act. Once
again, this remains one of the most important and divisive questions
facing the political system. Yet, the Administration cited deference to
agencies in implementing regulations and establishing standards for tax
and other provisions. Despite having four years to implement the law
and the statutorily-set deadline, the Administration insisted that
Congress cannot hold agencies to such schedules. The law itself
unambiguously sets January 1, 2014 as the critical date \56\--a matter
of considerable debate within Congress during deliberations. There is
no express power given to change that date. Yet, Mark J. Mazur, the
Assistant Secretary for Tax Policy at the U.S. Department of the
Treasury, insisted that such mandatory dates can be ignored by the
Administration, which will unilaterally decide such questions.\57\ It
is another example of the new independence of the ``Fourth Branch'' and
how specific mandates can now be disregarded in the haze of agency
deference. The Congress could not have been more clear as to the
activation date for the law, but the position of the Administration
would make such provisions merely advisory and subject to the agreement
of the President.
---------------------------------------------------------------------------
\56\ This date applies to the Employer Mandate (26 U.S.C.
Sec. 4980H) and the
Individual Mandate (id. Sec. 5000A). Pub. L. No. 111-148, 124 Stat.
119.
\57\ Mark J. Mazur, Continuing to Implement the ACA in a Careful,
Thoughtful Manner, U.S. Department of the Treasury, July 2, 2013
(available at http://www.treasury.gov/connect/blog/Pages/Continuing-to-
Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx).
---------------------------------------------------------------------------
The Administration's basis for negating statutory provisions lost
even the pretense of reasoned authority in the immigration area.\58\
There has long been a general consensus that a president cannot refuse
to enforce a law that is considered constitutionally sound. Thus, in
his general support for nonenforcement orders, former Attorney General
Benjamin Civiletti acknowledged that ``[t]he President has no
`dispensing power,''' meaning that the President and his subordinates
``may not lawfully defy an Act of Congress if the Act is constitutional
. . . . In those rare instances in which the Executive may lawfully act
in contravention of a statute, it is the Constitution that dispenses
with the operation of the statute. The Executive cannot.'' \59\ Yet, in
June 2012, President Obama appeared to exercise precisely this type of
``dispensing power'' in issuing an order to federal agencies that the
Administration would no longer deport individuals who came to this
country illegally as children despite the fact that federal law
mandates such deportation. In disregarding the statutory language, the
Administration rolled out a new alternative policy that individuals can
qualify for ``deferred action'' if they had come to the country before
the age of 16, have no criminal history, resided in the U.S. for at
least five consecutive years, and are either a student or have already
graduated from high school, or earned an equivalent GED, or served in
the military. Yet, this new, detailed system is the product not of
Congress but the internal deliberations of a federal agency. While
claimed to simply be an act of prosecutorial discretion,\60\ it
constitutes a new and alternative immigration process for these
individuals.
---------------------------------------------------------------------------
\58\ There was also an immigration component of the controversy
over DOMA. Peter Baker, For Obama, Tricky Balancing Act in Enforcing
Defense of Marriage Act, New York Times (Mar. 28, 2013). Before the
ruling of the Supreme Court striking down DOMA, the Department of
Homeland Security announced that it would no longer enforce DOMA in its
immigration decision. In August 2011, Obama's DHS announced it would no
longer deport the noncitizen spouses of gay Americans in conflict with
DOMA.
\59\ The Attorney General's Duty to Defend and Enforce
Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980)
(opinion of Attorney General Civiletti.
\60\ Memorandum of Janet Napolitano, Secretary of Homeland
Security, June 15, 2012, (available at http://www.dhs.gov/xlibrary/
assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-
us-as-children.pdf).
---------------------------------------------------------------------------
The Administration again circumvented Congress in August of this
year with the announcement that deportation would no longer occur for
any primary provider for any minor child or the parent or guardian of a
child who is a U.S. citizen or legal permanent resident. Once again, it
is not clear what Congress could do to counter such claims of
discretion any more than it could set the date for the implementation
of the ACA. The federal law mandates deportation for individuals in the
country illegally. While prosecutorial discretion has been cited in
individual case decisions, the Administration was using it to nullify
the application of federal law to hundreds of thousands, if not
millions of individuals. Once again, one's personal view of the merits
of such an exception should not be the focus, or even a part, of the
analysis. In ordering this blanket exception, President Obama was
nullifying part of a law that he simply disagreed with. There is no
claim of unconstitutionality. It is a raw example of the use of a
``dispensing power'' over federal law. It is difficult to discern any
definition of the faithful execution of the laws that would include the
blanket suspension or nullification of key provisions. What the
immigration order reflects is a policy disagreement with Congress.
However, the time and place for such disagreements is found in the
legislative process before enactment. If a president can claim sweeping
discretion to suspend key federal laws, the entire legislative process
becomes little more than a pretense. What is most striking is the
willingness of some to accept this transparent effort to rewrite the
immigration law after the failure to pass the DREAM Act containing some
of the same reforms.
A few weeks ago, President Obama again invoked his inherent power
in declaring that individuals with pre-existing policies could retain
those policies for a year despite the fact that they do not conform
with the requirements of the ACA.\61\ The ACA expressly sets the date
for compliance that penalizes non-exempt individuals who do not
maintain ``minimum essential'' health insurance coverage.\62\ Those
non-compliant individuals are subject to a ``[s]hared responsibility
payment.'' \63\ By saying that states can allow individuals to remain
non-compliant after the statutory deadline, President Obama inserted a
constructive exemption that would have been the subject of intense
political debate at the time of the deliberations.
---------------------------------------------------------------------------
\61\ Juliet Eilperin, Amy Goldstein and Lena H. Sun, Obama
Announces Change To Address Health Insurance Cancellations, Wash. Post,
Nov. 14, 2013.
\62\ 26 U.S.C. Sec. 5000A.
\63\ 26 U.S.C. Sec. 5000A(b).
---------------------------------------------------------------------------
Notably, the unilateral change occurred when legislation addressing
this issue was being debated in Congress. Moreover, this change was
made after an outcry over what many viewed as the central selling point
of the President's during the debate over the ACA: suggesting that, if
people liked their current policies, they would be allowed to keep
them. After securing passage of the ACA, however, on a thin vote
margin, many accused the President of a bait-and-switch when millions
lost their policies. I will leave others to work through the merits of
that controversy. For my purposes, I am only interested in the fact
that a key issue discussed during the debate over the legislation was
unilaterally altered after passage. This is an obviously important part
of the debate. The law does not expressly give the President the
authority to waive the application of the provisions for selected
groups. To the extent that the President was claiming that he had the
authority to amend the law in this way, I fail again to see the legal
basis for such authority.
Notably, the unilateral changes made to laws like the ACA are not
done (as with Jefferson's refusal to enforce the Sedition Act) in
defiance of an act viewed as unconstitutional and abusive. Rather,
President Obama has invoked a far broader authority to tailor laws
based on his judgment and discretion. This may be done ostensibly to
``improve'' the law as with the one-year waiver for individual policies
or to mitigate the hardship of a law as with the immigration law. These
happen to be areas of great political division in the country as well
as substantial opposition to the President's policies in Congress. Many
applauded the President's transcending politics by ordering such
unilateral action without considering the implications of such inherent
authority for the system as a whole.
Once again, it is important to divorce the subject of such
legislation or the identity of the president from the constitutional
analysis. The circumvention of the legislative process not only
undermines the authority of this branch but destabilizes the tripartite
system as a whole. If President Obama can achieve the same result of
legislation by executive fiat, future presidents could do the same in
negating environmental or discrimination or consumer protection laws.
Such practices further invest the Administrative State with a degree of
insularity and independence that poses an obvious danger to liberty
interests protected by divided government. This danger is made all the
more menacing by the clear assumption by the Executive Branch that
artificially narrow standing rules will insulate the orders from
judicial scrutiny and relief. With Congress so marginalized and courts
so passive, the Fourth Branch threatens to become a government unto
itself for all practical purposes.
iv. conclusion
In Federalist No. 51, James Madison explained the essence of the
separation of powers--and the expected defense of each branch of its
constitutional prerogatives and privileges:
``But the great security against a gradual concentration of the
several powers in the same department, consists in giving to
those who administer each department the necessary
constitutional means and personal motives to resist
encroachments of the others. The provision for defense must in
this, as in all other cases, be made commensurate to the danger
of attack. Ambition must be made to counteract ambition.''
A provision was once made for the defense of this branch against
the type of ``encroachments'' discussed in this hearing. It was found
in the power of Congress to establish federal law and the obligation of
the Executive Branch to faithfully execute those laws. For decades,
however, Congress has allowed its core authority to drain into a fourth
branch of federal agencies with increasing insularity and independence.
It has left Congress intact but inconsequential in some disputes. If
this trend continues unabated, Congress will be left like some Maginot
Line on the constitutional landscape--a sad relic of a once tripartite
system of equal branches.
There remain legitimate questions over when a President can refuse
to defend or enforce a statute and whether the former duty is a subset
of the latter duty. As an academic deeply concerned over the
concentration of power under the modern presidency, I tend to minimize
such authority in favor of a more formalist division of powers.\64\
Functionalists take a clearly more fluid approach to such powers.
However, I do not view the recent controversies as ``close questions.''
The actions of the Obama Administration challenge core principles of
the separation of powers and lack meaningful limiting principles for
future executive orders.
---------------------------------------------------------------------------
\64\ See generally Turley, Age of Regulation, supra.
---------------------------------------------------------------------------
Clearly, these are times of bitter and intractable divisions
between the parties. It is not the first time such divisions have
emerged in Congress. However, Madison and others believed that petty
partisanship would ultimately yield to common institutional interests
when faced with the ``danger of attack.'' After all, members have a
common article of faith. It is Article I of the Constitution and the
words ``All legislative powers herein granted shall be vested in a
Congress of the United States.''
__________
Mr. Goodlatte. Mr. Rosenkranz, welcome.
TESTIMONY OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR OF LAW,
GEORGETOWN UNIVERSITY LAW CENTER AND SENIOR FELLOW IN
CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. Rosenkranz. Thank you, Mr. Chairman, Representative
Conyers, Members of the Committee. I thank you for the
opportunity to express my views about the President's
constitutional duty to take care that the laws be faithfully
executed.
So to speak about the Take Care Clause, I want to associate
myself with Professor Turley's opening statements. I quite
agree with all of his remarks.
I would like to just draw the Committee's attention to the
text of the clause. It is always best to begin by parsing the
actual words.
So, first, notice that this clause is not a grant of power
actually but the imposition of a duty. ``The President shall
take Care.'' This is not optional. It is mandatory.
Second, note that the duty is personal. The execution of
the laws may be delegated to other officers, but the duty to
take care that the laws be faithfully executed--that is
personal. That is the President's duty alone.
Third, notice that the President is not required to take
care that the laws be completely executed. That would be
impossible given finite resources. The President does have
power to make enforcement choices. However, he must make them
faithfully.
Finally, it is important to remember the historical context
of the clause. English kings had claimed the power to suspend
laws unilaterally, but the Framers expressly rejected that
practice. Here, the executive would be obliged to take care
that the laws be faithfully executed.
So with these principles in mind, it is possible to view
some recent controversies through this precise proper
constitutional lens. For this purpose, I am going to focus on
three examples: the President's unilateral decision to suspend
certain provisions of the Affordable Care Act; the President's
unilateral abridgement of the Immigration and Nationality Act;
and on the IRS's targeting of the President's political
adversaries.
So, first, the Obamacare suspension. On July 2nd, 2013,
just before the long weekend, the Obama administration
announced via blog post that the President would unilaterally
suspend the employer mandate of Obamacare, notwithstanding the
unambiguous command of the law. The statute is perfectly clear.
It provides that these provisions become effective on January
1st, 2014. The blog post makes no mention of the statutory
deadline.
This raises the question of what it means to take care that
the laws be faithfully executed. Certainly the adverb
``faithfully'' gives the President broad discretion about how
to best deploy his executive resources, and the scope of that
discretion can be the subject of legitimate debate. But this
was not a mere calibration of executive resources. This is
wholesale suspension of law in the teeth of a clear statutory
command to the contrary. Whatever it may mean to take care that
the laws be faithfully executed, it simply cannot mean
declining to execute a law at all.
Now, the President's remarks on this issue were quite
striking. A few months ago, he said he would actually prefer to
simply call up the Speaker of the House to request a change in
this law that would have achieved the desired delay, but the
truth is he would not have needed to pick up the phone. The
House actually had already passed the Authority for Mandate
Delay Act, but the President, far from welcoming this
legislative change, actually threatened to veto it. So this
seems almost like a willful violation of the Take Care Clause.
The second example, the Immigration and Nationality Act
suspension, which the Chairman mentioned. I will just mention
briefly what is striking about this is the President's decision
to enforce the immigration laws as though the DREAM Act had
been enacted when in fact it has not. So in this case, it is
almost a mirror of the other case. Rather than declining to
comply with a duly enacted statute, the President is complying
meticulously but with a bill that never became a law. Congress
has repeatedly considered a statute called the DREAM Act. The
President favors this act. Congress repeatedly declined to pass
it. So the President has simply announced that he would enforce
the Immigration and Nationality Act as though the DREAM Act had
been enacted.
To put the point another way, the President's duty is to
``take Care that the Laws be faithfully executed,'' ``Laws,''
capital L, not those bills which fail to become law like the
DREAM Act.
Finally, I will just briefly mention the IRS targeting. If
the adverb ``faithfully'' means anything, I would say that it
means nondiscriminatorily. That is, the President cannot
enforce the laws in a discriminatory manner. And the story of
the IRS targeting is actually the application of the tax laws
to the President's political enemies in a discriminatory way.
This is perhaps the single most troubling type of enforcement
discrimination, and so in a way perhaps the most troubling
violation of the President's obligation to take care that the
laws be faithfully executed.
Thank you.
[The prepared statement of Mr. Rosenkranz follows:]
Prepared Statement of Nicholas Quinn Rosenkranz, Professor of Law,
Georgetown University Law Center, and Senior Fellow in Constitutional
Studies, The Cato Institute, Washington, DC
Mr. Chairman, Representative Conyers, Members of the Committee: I
thank you for the opportunity to express my views about the President's
constitutional duty to ``take Care that the Laws be faithfully
executed.'' \1\
---------------------------------------------------------------------------
\1\ U.S. Const. art. II, Sec. 3.
---------------------------------------------------------------------------
This is a timely and important hearing, because many of the legal
controversies of the day implicate this Presidential duty. In areas as
important and diverse as healthcare, immigration, nuclear waste
storage, tax enforcement, military action, and foreign aid, there has
been an inchoate sense that the Administration has overstepped its
authority. But the criticism has generally been issue-specific, and it
has often conflated policy objections with constitutional objections.
There has been very little systematic analysis of this behavior as a
pattern. And more to the point, there has been very little analysis of
the particular constitutional clause at issue.
The relevant clause of the Constitution, which should be the
lodestar of this discussion, is the Take Care Clause: ``The President .
. . shall take Care that the Laws be faithfully executed.'' \2\ To put
these recent controversies in constitutional context, it is essential
to understand the meaning and purpose of this Clause. As always, it is
best to begin by parsing the constitutional text.
---------------------------------------------------------------------------
\2\ Id. (emphasis added).
---------------------------------------------------------------------------
First, notice that this Clause does not grant power but rather
imposes a duty: ``The President . . . shall take Care . . . '' \3\ This
is not optional; it is mandatory. Second, note that the duty is
personal. Execution of the laws may be delegated, but the duty to
``take Care that the Laws be faithfully executed'' \4\ is the
President's alone. Third, notice that the President is not required to
take care that the laws be ``completely'' executed; that would be
impossible given finite resources. The President does have power to
make enforcement choices--however, he must make them ``faithfully.''
Finally, it is important to remember the historical context of the
clause: English kings had claimed the power to suspend laws
unilaterally,\5\ but the Framers expressly rejected that practice.
Here, the executive would be obliged to ``take Care that the Laws be
faithfully executed.'' \6\
---------------------------------------------------------------------------
\3\ Id. (emphasis added).
\4\ Id. (emphasis added).
\5\ F.W. Maitland, The Constitutional History of England: A Course
of Lectures Delivered, 302-03 (1st ed. 1908 & reprint 1919).
\6\ U.S. Const. art. II, Sec. 3. See also Michael W. McConnell, Op-
Ed: Obama Suspends the Law, Wall St. J. (July 8, 2013), http://
online.wsj.com/article/SB1000142412788732382300457859150
3509555268.html.
---------------------------------------------------------------------------
With these principles in mind, it is possible to view recent
controversies through the proper constitutional lens. For this purpose,
I shall focus on three recent examples--though, sadly, there are many
others that one could choose. I shall focus on the President's
unilateral decision to suspend certain provisions of the Affordable
Care Act, on the President's unilateral abridgement of the Immigration
and Nationality Act, and on the IRS's targeting of the President's
political adversaries.
i. obamacare suspension
On July 2, 2013, just before the long weekend, the Obama
Administration announced via blog post that the President would
unilaterally suspend the employer mandate of ObamaCare \7\--
notwithstanding the unambiguous command of the law. The statute is
perfectly clear: It provides that these provisions become effective on
January 1, 2014.\8\ The blog post--written under the breezy Orwellian
title ``Continuing to Implement the ACA in a Careful, Thoughtful
Manner''--makes no mention of the statutory deadline.\9\
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\7\ Mark J. Mazur, Continuing to Implement the ACA in a Careful,
Thoughtful Manner, U.S. Dep't of the Treasury (July 2, 2013), http://
www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-ACA-in-
a-Careful-Thoughtful-Manner-.aspx. The Obama Administration suspended
implementation of 26 U.S.C. Sec. 6055, 26 U.S.C. Sec. 6056, and 26
U.S.C. Sec. 4980H.
\8\ The Patient Protection and Affordable Care Act, Pub.L. 111-148,
Sec. 1502(e), 124 Stat. 119, 252 (March 23, 2010) (``The amendments
made by this section shall apply to calendar years beginning after
2013.''); id. Sec. 1513(d), 124 Stat. at 256 (``The amendments made by
this section shall apply to months beginning after December 31,
2013.'').
\9\ See Mazur, supra note 7.
---------------------------------------------------------------------------
This blog post raises the question of what it means to ``take Care
that the Laws be faithfully executed.'' Certainly, the adverb
``faithfully'' gives the President broad discretion about how best to
deploy executive resources and how best to execute the laws. And the
precise scope of this discretion may be the subject of legitimate
debate. But this breathtaking blog post was not a mere exercise of
prosecutorial discretion or a necessary calibration of executive
resources. This was a wholesale suspension of law, in the teeth of a
clear statutory command to the contrary. Whatever it may mean to ``Take
Care that the Laws be faithfully executed,'' it simply cannot mean
declining to execute a law at all.
As if the suspension weren't enough, President Obama's comments
about it on August 9, 2013--claiming that ``the normal thing [he] would
prefer to do'' is seek a ``change to the law'' \10\--added insult to
constitutional injury. Indeed, the President seemed annoyed when The
New York Times dared to ask him the constitutional question.\11\ As for
Republican congressmen who questioned his authority, Mr. Obama said
only: ``I'm not concerned about their opinions--very few of them, by
the way, are lawyers, much less constitutional lawyers.'' \12\ Mr.
Obama made no mention of, for example, Iowa Sen. Tom Harkin--a
Democrat, a lawyer and one of the authors of ObamaCare--who asked
exactly the right question: ``This was the law. How can they change the
law?'' \13\ Senator Harkin's point, of course, is that a change like
this is inherently legislative; it requires an amendment to the statute
itself.
---------------------------------------------------------------------------
\10\ President Barack Obama, Remarks by the President in a Press
Conference, (Aug. 9, 2013), http://www.whitehouse.gov/the-press-office/
2013/08/09/remarks-president-press-conference.
\11\ See Jackie Calmes & Michael D. Shear, Interview with President
Obama, N.Y. Times (July 27, 2013), http://www.nytimes.com/2013/07/28/
us/politics/interview-with-president-obama.html
?pagewanted=all&_r=0.
\12\ Id.
\13\ Jonathan Weisman & Robert Pear, Seeing Opening, House G.O.P.
Pushes Delay on Individual Mandate in Health Law, N.Y. Times (July 9,
2013), http://www.nytimes.com/2013/07/10/us/politics/house-gop-pushes-
delay-on-individual-mandate-in-health-law.html.
---------------------------------------------------------------------------
But the President has been distinctly ambivalent about any such
amendment. A few months ago, he said that he would like to ``simply
call up the Speaker'' of the House to request a ``change to the law''
that would achieve his desired delay.\14\ But the truth, as the
President knows, is that he wouldn't even need to pick up the phone: On
July 17, 2013, the House of Representatives passed the Authority for
Mandate Delay Act (with 229 Republicans and 35 Democrats voting in
favor).\15\ This would have authorized President Obama's desired
suspension of the law.\16\
---------------------------------------------------------------------------
\14\ President Barack Obama, Remarks by the President in a Press
Conference, (Aug. 9, 2013), http://www.whitehouse.gov/the-press-office/
2013/08/09/remarks-president-press-conference.
\15\ See Authority for Mandate Delay Act, H.R. 2667, 113th Cong.
(2013). For final vote results for H.R. 2667, see http://
clerk.house.gov/evs/2013/roll361.xml.
\16\ See Authority for Mandate Delay Act, H.R. 2667, 113th Cong.
(2013).
---------------------------------------------------------------------------
But President Obama did not actually welcome this congressional
ratification. To the contrary, this bill--which stood to fix the
constitutional problem that he himself had created--the President
deemed ``unnecessary''.\17\ Indeed, he actually threatened to veto
it.\18\ In this case, it appeared that the President would actually
prefer to flout the law as written, rather than support a statutory
change that would achieve his desired result. This seems an almost
willful violation of the Take Care Clause.
---------------------------------------------------------------------------
\17\ Office of Mgmt. & Budget, Exec. Office of the President,
Statement of Administration Policy, (July 16, 2013), http://
www.whitehouse.gov/sites/default/files/omb/legislative/sap/113/
saphr2668r_20130716.pdf.
\18\ Id.
---------------------------------------------------------------------------
ii. immigration and nationality act suspension
The second example, immigration, is almost an exact mirror of the
first. In the ObamaCare context, the President suspended an Act of
Congress--a statute that was duly passed by both Houses of Congress,
and which he himself had signed into law. In the immigration context,
the situation is the opposite. Rather than declining to comply with a
duly enacted statute, the President is complying meticulously--with a
bill that never became a law.
Congress has repeatedly considered a statute called the DREAM Act,
which would exempt a broad category of aliens from the Immigration and
Nationality Act (INA).\19\ The President favored this Act, but Congress
repeatedly declined to pass it.\20\ So, on June 15, 2012, the President
announced that he would simply not enforce the INA against the precise
category of aliens described in the DREAM Act.\21\ He announced, in
effect, that he would behave as though the DREAM Act had been enacted
into law, though it had not.\22\
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\19\ See Elisha Barron, The Development, Relief, and Education for
Alien Minors (Dream) Act, 48 Harv. J. on Legis. 623, 633 (2011); Robert
J. Delahunty & John C. Yoo, Dream On: The Obama Administration's
Nonenforcement of Immigration Laws, the Dream Act, and the Take Care
Clause, 91 Tex. L. Rev. 781, 783-784, 789 (2013).
\20\ The Dream Act of 2011 did not move past the committee stage in
either the House or the Senate. See Development, Relief, and Education
for Alien Minors Act of 2011, H.R. 1842, 112th Congress (2011);
Development, Relief, and Education for Alien Minors Act of 2011, S.
952, 112th Congress (2011).
\21\ President Barack Obama, Remarks by the President on
Immigration (June 15, 2012), http://www.whitehouse.gov/the-press-
office/2012/06/15/remarks-president-immigration.
\22\ See id.; Memorandum from Janet Napolitano, Sec'y, U.S. Dep't
of Homeland Sec., to David V. Aguilar, Acting Comm'r, U.S. Customs &
Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration
Servs. & John Morton, Dir., Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children, U.S.
Immigration & Customs Enforcement (June 15, 2012), http://www.dhs.gov/
xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-
came-to-us-as-children.pdf.
---------------------------------------------------------------------------
Once again, the President does have broad prosecutorial discretion
and broad discretion to husband executive resources. But in this case,
it is quite clear that the President is not merely trying to conserve
resources. After all, his Solicitor General recently went to the
Supreme Court to forbid Arizona from helping to enforce the INA.\23\
And exempting as many as 1.76 million people from the immigration laws
goes far beyond any traditional conception of prosecutorial
discretion.\24\ More to the point, this exemption has a distinctly
legislative character. It is not a decision, in a particular case, that
enforcement is not worth the resources; rather it is a blanket policy
which exactly mirrors a statute that Congress declined to pass.\25\ To
put the point another way, the President shall ``take Care that the
Laws''--capital ``L''--``be faithfully executed''--not those bills
which fail to become law. Here, in effect, the President is faithfully
executing the DREAM Act, which is not law at all, rather than the
Immigration and Nationality Act, which is supreme law of the land. The
President cannot enact the DREAM Act unilaterally, and he cannot evade
Article I, section 7,\26\ by pretending that it passed when it did not.
---------------------------------------------------------------------------
\23\ See Brief for Respondent United States at 26, Arizona v.
United States, 132 S. Ct. 2492 (2012) (No. 11-182). The Solicitor
General argued that ``Arizona's attempt to punish violations of federal
law intrudes on exclusive federal authority.''
\24\ Jeanne Batalova & Michelle Mittelstadt, Migration Policy
Inst., Relief from
Deportation: Demographic Profile of the DREAMers Potentially Eligible
Under the Deferred Action Policy 1 (2012), available at http://
www.migrationpolicy.org/pubs/FS24_deferredaction.pdf.
\25\ See Memorandum from Janet Napolitano, supra note 22. See also
In re Aiken Cnty., 725 F.3d 255 (D.C. Cir. 2013) (Kavanaugh, J.)
(``[T]he President may not decline to follow a statutory mandate or
prohibition simply because of policy objections. Of course, if Congress
appropriates no money for a statutorily mandated program, the Executive
obviously cannot move forward. But absent a lack of funds or a claim of
unconstitutionality that has not been rejected by final Court order,
the Executive must abide by statutory mandates and prohibitions.'').
\26\ U.S. Const. art. I, Sec. 7 (requiring bicameralism and
presentment for a bill to become a law).
---------------------------------------------------------------------------
Indeed, the President himself made this exact point, eloquently,
only 20 months ago:
America is a nation of laws, which means I, as the President,
am obligated to enforce the law. . . . With respect to the
notion that I can just suspend deportations through executive
order, that's just not the case, because there are laws on the
books that Congress has passed . . . There are enough laws on
the books by Congress that are very clear in terms of how we
have to enforce our immigration system that for me to simply
through executive order ignore those congressional mandates
would not conform with my appropriate role as President.\27\
---------------------------------------------------------------------------
\27\ President Barack Obama, Remarks by the President at Univision
Town Hall (Mar. 28, 2011), http://www.whitehouse.gov/the-press-office/
2011/03/28/remarks-president-univision-town-hall.
And just last week, in response to a heckler, the President expressly
denied that he has ``a power to stop deportation for all undocumented
immigrants in this country.'' \28\ He reiterated:
---------------------------------------------------------------------------
\28\ President Barack Obama, Remarks by the President on
Immigration Reform--San Francisco, CA (Nov. 25, 2013), http://
www.whitehouse.gov/the-press-office/2013/11/25/remarks-president-
immigration-reform-san-francisco-ca.
[W]e're also a nation of laws. That's part of our tradition.
And so the easy way out is to try to yell and pretend like I
can do something by violating our laws. And what I'm proposing
is the harder path, which is to use our democratic processes to
achieve the same goal that you want to achieve.\29\
---------------------------------------------------------------------------
\29\ Id.
---------------------------------------------------------------------------
What the President did not explain is how his current immigration
policy is consistent with that principle.
iii. irs targeting
The third example is troubling in a different way. As is now well
known, the IRS subjected Tea Party organizations to Kafkaesque scrutiny
and delay, particularly in the run-up to the last election. A few
months ago, a House Oversight Committee hearing revealed that the IRS
Chief Counsel's Office had played a key role.\30\ The Committee rightly
zeroed in on this fact, because the Chief Counsel is one of only two
political appointees at the IRS,\31\ appointed by President Obama \32\
and confirmed by the Senate.\33\ But what was missing from the
hearing--and what has been missing from the commentary throughout--is
the constitutional context of this scandal.
---------------------------------------------------------------------------
\30\ Written Testimony of Carter Hull, Before the House Oversight
and Gov't Reform Comm. (July 18, 2013), http://oversight.house.gov/wp-
content/uploads/2013/07/Hull-Testimony-Final.pdf.
\31\ See 26 U.S.C. Sec. 7803(b)(1).
\32\ Press Release, The White House: Office of the Press Sec'y,
President Obama Announces More Key Treasury Appointments (Apr. 17,
2009), http://www.whitehouse.gov/the-press-office/president-obama-
announces-more-key-treasury-appointments.
\33\ Press Release, U.S. Dep't of the Treasury, William J. Wilkins
Confirmed as Chief Counsel for the Internal Revenue Service, Assistant
General Counsel for Treasury (July 28, 2009), http://www.treasury.gov/
press-center/press-releases/Pages/tg245.aspx.
---------------------------------------------------------------------------
The President has, of course, been at pains to distance himself
from this scandal. But, again, recall that the duty to ``take Care'' is
personal. Execution of the laws may be delegated; indeed, the Clause
clearly contemplates that other officers--like the IRS Chief Counsel--
will do the actual executing. But the duty to ``take Care that the Laws
be faithfully executed'' is the President's alone. For this reason,
what the President knew and when he knew it is, in a certain sense,
beside the point; the right question is what he should have known. It
will not do for the President to say (erroneously) that the IRS is an
``independent agency'' or to say (implausibly) that he learned about
IRS targeting ``from the same news reports'' as the rest of us.\34\ Not
knowing what an executive agency is up to--let alone not knowing that
the IRS is, in fact, a bureau of an executive agency that answers to
the President--is not taking care that the laws be faithfully executed.
If the President was negligent in his supervision of the IRS (or
somehow unaware that it was subject to his supervision), then he failed
in his duty to take care.
---------------------------------------------------------------------------
\34\ See President Barack Obama, Remarks by President Obama and
Prime Minister Cameron of the United Kingdom in Joint Press Conference,
(May 13, 2013), http://www.whitehouse.gov/the-press-office/2013/05/13/
remarks-president-obama-and-prime-minister-cameron-united-kingdom-
joint-. The IRS is part of the Department of Treasury, not an
independent agency. See 26 USC Sec. 7803 (placing the IRS Commissioner
in the Department of the Treasury, and making him removable at the will
of the President).
---------------------------------------------------------------------------
Now, again, it is true that the President is not required to take
care that the laws be ``completely'' executed; that would be impossible
given finite resources. The President does have power to make
enforcement choices--however, he must make them ``faithfully.'' If the
President lacks the resources to prosecute all bank robbers, he may
choose to prosecute only the violent bank robbers; but he cannot choose
to prosecute only the Catholic bank robbers.\35\ Invidious
discrimination is not faithful execution.
---------------------------------------------------------------------------
\35\ See Smith v. Meese, 821 F.2d 1484, 1492 (11th Cir. 1987).
---------------------------------------------------------------------------
Discriminatory enforcement on the basis of religion would have
horrified the Framers of the Constitution. But there is one kind of
discrimination that would have worried them even more--the one kind
that could undermine the entire constitutional structure: political
discrimination. The single most corrosive thing that can happen in a
democracy is for incumbents to use the levers of power to stifle their
critics and entrench themselves.\36\ This is devastating to a
democracy, because it casts doubt on the legitimacy of all that
follows. Ensuring that this does not happen is perhaps the single most
important imperative of the President's duty to take care that the laws
be faithfully executed. If he gives only one instruction to his
political appointees, it should be this: do not discriminate on the
basis of politics in your execution of the laws.
---------------------------------------------------------------------------
\36\ See John Hart Ely, Gerrymanders: The Good, the Bad, and the
Ugly, 50 Stan. L. Rev. 607, 621 (1998).
---------------------------------------------------------------------------
This, sadly, is the gravamen of the IRS scandal. Congress enacted a
neutral provision of the tax code, but an executive agency enforced it
non-neutrally, discriminating on invidious grounds. It discriminated
against the Tea Party,\37\ the most potent political force that the
President's party faced in the mid-term elections. It discriminated
against those who ``criticize how the country is being run.'' \38\ For
good measure, it reportedly discriminated against those ``involved in .
. . educating on the Constitution and the Bill of Rights.'' \39\ And it
did all this while an embattled incumbent President was running for re-
election.\40\
---------------------------------------------------------------------------
\37\ Treasury Inspector Gen. for Tax Admin., Inappropriate Criteria
Were Used to Identify Tax-Exempt Applications for Review 5 (May 14,
2013), https://docs.google.com/viewer?url=http://
www.washingtonpost.com/blogs/wonkblog/files/2013/05/201310053fr-
revised-redacted-1.pdf&chrome=true.
\38\ Id. at 6, 35.
\39\ Id. at 30, 38.
\40\ See id. at 6-10.
---------------------------------------------------------------------------
The President may, alas, urge his supporters to ``punish our
enemies'' \41\; but he cannot stand oblivious while the IRS does just
that. He may, alas, berate the Supreme Court for protecting political
speech \42\; but he cannot turn a blind eye while the IRS muzzles his
critics with red tape. He may, alas, call right-leaning groups a
``threat to our democracy'' \43\--but the real, cardinal threat is
unfaithful execution of the laws.
---------------------------------------------------------------------------
\41\ Eddie Sotelo, Interview with the President of the United
States Barack Obama, Univision Radio (Oct. 25, 2010), transcript
available at http://latimesblogs.latimes.com/washington/2010/10/
transcript-of-president-barack-obama-with-univision.html.
\42\ President Barack Obama, Remarks by the President in State of
the Union Address (Jan. 27, 2010), http://www.whitehouse.gov/the-press-
office/remarks-president-state-union-address.
\43\ President Barack Obama, Remarks by the President and the Vice
President at a DNC `Moving America Forward' Rally in Philadelphia,
Pennsylvania (Oct. 10, 2010), http://www.whitehouse.gov/the-press-
office/2010/10/10/remarks-president-and-vice-president-a-dnc-moving-
america-forward-rally-.
---------------------------------------------------------------------------
conclusion
The President has a personal obligation to ``take Care that the
Laws be faithfully executed.'' \44\ The word ``faithfully'' is,
perhaps, a broad grant of discretion, but it is also a real and
important constraint. The President cannot suspend laws altogether. He
cannot favor unenacted bills over duly enacted laws. And he cannot
discriminate on the basis of politics in his execution of the laws. The
President has crossed all three of these lines.
---------------------------------------------------------------------------
\44\ U.S. Const. art. II, Sec. 3.
---------------------------------------------------------------------------
__________
Mr. Goodlatte. Thank you.
Mr. Lazarus, welcome.
TESTIMONY OF SIMON LAZARUS, SENIOR COUNSEL,
THE CONSTITUTIONAL ACCOUNTABILITY CENTER
Mr. Lazarus. Thank you very much, Mr. Chairman, and thank
you, Mr. Ranking Member Conyers and all of the Members of the
Committee who are here.
I am afraid I am going to have to disagree with my
colleagues on the panel who have spoken so far. Brandishing the
Take Care Clause has become a favorite talking point for
opponents of an array of Obama administration policies and
actions.
All of these efforts, or at least the ones with which I am
familiar, are in reality--all these efforts to import the
Constitution into what are in reality political and policy
attacks are really rhetorical make-weights. They mock the text
and original meaning of the Take Care Clause. They flout long-
established Supreme Court precedent, and they contradict the
consistent practice of all modern presidencies, Republican and
Democratic, to implement complex and consequential regulatory
programs as Congressman Conyers pointed out.
These critics fault the Obama administration for many
things, but essentially two kinds of things: one, making
necessary adjustments in timing of implementation of laws and
particularly the Affordable Care Act; and secondly, in matching
immigration enforcement priorities with available resources and
practical, humanitarian, and other exigencies.
But exercising presidential judgment for such reasons is
precisely what the Constitution requires. It is precisely what
the Framers expected when they established a separate executive
branch under the direction of a nationnally elected President
and charged him to take care that the laws be faithfully
executed.
So let's first take a quick look at one of the targets of
these charges and that is the phasing in of the ACA employer
mandate, which has been called a blatant illegality and many
other things. But in fact it is a routine, temporary course
correction.
What exactly did the Administration do? On July 2nd, it
announced the decision to postpone for 1 year the January 1,
2014 effective date for the ACA requirement that large
employers provide their workers with health insurance or pay a
tax. This and other subsequently announced delays related to
the ACA do not constitute refusals to enforce the ACA at all.
On the contrary, they are merely phasing in adjustments
designed to ensure effective implementation of the overall
statute in accord with Congress' purposes. The Treasury
Department's announcement makes that clear and the proposed
regulations that it has followed through on on September 5th
make that clearer, as does Treasury's statement that it intends
to continue fine tuning those regulations and working with the
people affected by them until they become finally effective.
And I should emphasize that just after the Administration
took this action, President George W. Bush's HHS Secretary,
Michael Leavitt, concurred that ``the Obama administration's
decision to delay the employer mandate was wise.'' That was
based on his experience in phasing in the Medicare Part D
prescription drug benefit.
So I have to say that hyperventilating about how
extraordinary and unprecedented and unconstitutional these
delays are is just that. It is hyperventilation and it is
contrary to obvious historical fact.
Nor is the 1-year delay of the employer mandate an affront
to the Constitution. The Framers could have prescribed simply
that the President execute the laws. So why did they add
``faithfully'' and ``take care''? I have to disagree
respectfully with Professor Rosenkranz and Professor Turley
about their explanation of the history and original meaning of
the clause. Obviously, they were taking pains to clarify that
the President's duty is to implement laws in good faith, hence
the word ``faithfully,'' and to exercise reasonable care, hence
the words ``take care,'' in doing so. The fact is that scholars
on both the left and the right concur that this broadly worded
phrasing means that the President is to exercise judgment and
to handle his enforcement duties with fidelity to all laws,
including indeed the Constitution.
As a legal and practical matter, the President's phase in
of the employer mandate and other ACA provisions is well within
his job description. So is the DACA program, the Deferred
Action on Childhood Arrivals. I am not going to go into that
now, but Congressman Conyers explained why that is true, and in
my written statement, we do so also.
I have to say one quick word about what I know that my good
friend and frequent debating partner, Michael Cannon, is going
to focus on and that is his theory--and he gets a lot of credit
for thinking it up and marketing it--his theory that Affordable
Care Act premium assistance tax credits and subsidies must be
available to all--his theory that they are only available to
Americans who happen to live in States that have set up their
own exchanges. I cannot go into detail about this
unfortunately. Perhaps in the questioning, I will be able to do
that.
But his theory is that a few phrases in this enormous
statute have to be construed in a way that would stiff millions
of people who were the intended beneficiaries of the act.
Am I over? I am over.
The fact is that that is not the correct construction of
the act, and perhaps we will be able to talk about that
further.
[The prepared statement of Mr. Lazarus follows:]
Prepared Statement of Simon Lazarus, Senior Counsel,
The Constiutional Accountability Center
My thanks to the Chair and members of the House Judiciary Committee
for inviting me to testify in this inquiry into the provision of
Article II, Section 3 of the Constitution, which provides that the
President ``take care that the laws be faithfully executed.''
I am Senior Counsel to the Constitutional Accountability Center, a
public interest law firm, think tank, and action center dedicated to
the progressive promise of the Constitution's text and history.
Recently, opponents of the Affordable Care Act (ACA), have charged
that President Obama broke the law and abused his constitutional
authority, when,
on July 2, his administration announced a one-year postponement of
the January 1, 2014 effective date for the ACA requirement that large
employers provide their workers with health insurance or pay a tax.\1\
Specifically, opponents claim that this decision ran afoul of the
``Take Care'' clause quoted above. Indeed, brandishing the ``Take
Care'' clause appears to have become a favored talking point for
opponents of an array of Obama administration policies and actions. I
presume that this hearing will address several of these instances.
---------------------------------------------------------------------------
\1\ White House Statement, ``We're Listening to Businesses about
the Health Care Law'' (July 2, 2013), available at http://
www.whitehouse.gov/blog/2013/07/02/we-re-listening-businesses-about-
health-care-law.
---------------------------------------------------------------------------
All of these efforts to import the Constitution into what are in
reality political and policy debates are rhetorical make-weights. They
mock the text and original meaning of the Take Care clause. They flout
long-established Supreme Court precedent applying the relevant
constitutional provisions. And they contradict the consistent practice
of all modern presidencies, Republican and Democratic, to responsibly
implement complex and consequential regulatory programs. These critics
fault the Obama Administration for making necessary adjustments in
timing and matching enforcement priorities with resources and
practical, humanitarian, and other exigencies. But exercising
presidential judgment in carrying laws into execution is precisely what
the Constitution requires. It is precisely what the framers expected,
when they established a separate Executive Branch under the direction
of a nationally elected President, and charged him to Take Care that
the Laws be Faithfully Executed.\2\ Certainly, in the policy areas with
which I am familiar, that is precisely what the President Obama and the
members of his administration are doing--whatever one may think of
their actions from a policy or political perspective.
---------------------------------------------------------------------------
\2\ Akhil Reed Amar, America's Constitution: A Biography 195
(2006): The sweeping provisions of Article II, including the Take Care
clause ``envisioned the president as a generalist focused on the big
picture. While Congress would enact statutes and courts would decide
cases one at a time, the president would oversee the enforcement of all
the laws at once--a sweeping mandate that invited him to ponder legal
patterns in the largest sense and inevitably conferred some discretion
on him in defining his enforcement philosophy and priorities.''
---------------------------------------------------------------------------
In this written statement, I will focus on the ACA employer mandate
issue, and address three other issues as to which ACA opponents have
woven a Take Care clause claim into their policy and political attacks.
I will also address one other Obama administration action that has come
under similar constitutional challenge, the June 2012 decision of the
Department of Homeland Security to defer action for certain
undocumented young people who came to the U.S. as children and have
pursued education or military service here.
An article I wrote on the ACA employer mandate issue appeared in
The Atlantic on July 17 of this year. Another article, on the
availability of ACA premium assistance tax credits and subsidies on
federally facilitated as well as state-managed health insurance
exchange market-places, appeared in The New Republic for May 2, 2013.
In addition, I testified on the latter subject before the Subcommittee
on Energy Policy, Health Care, & Entitlements of the House Committee on
Government Oversight & Reform on July 31, 2013. This statement draws
upon these writings. I ask that the Committee include my July 31
written testimony in the record of this hearing.
phasing in the aca employer mandate:
``blatant illegality'' or routine temporary course-correction?
Critics have labeled the employer mandate postponement a
``blatantly illegal move'' that ``raises grave concerns about
[President Obama's] understanding'' that, unlike medieval British
monarchs, American presidents have, under Article II, Section 3 of our
Constitution, a ``duty, not a discretionary power'' to ``take Care that
the Laws be faithfully executed.'' \3\
---------------------------------------------------------------------------
\3\ Michael W. McConnell, ``Obama Suspends the Law,'' The Wall
Street Journal (July 8, 2013), available at: http://online.wsj.com/
article/SB10001424127887323823004578591503509555268
.html.
---------------------------------------------------------------------------
These portentous indictments ignore what the Administration
actually decided and how it has delimited the scope and purpose of its
decision. The Treasury Department's announcement provides for one year
of ``transition relief,'' to continue working with ``employers,
insurers, and other reporting entities'' through 2014 to revise and
engage in ``real-world testing'' of the implementation of ACA reporting
requirements, simplify forms used for this reporting, coordinate
requisite public and private sector information technology
arrangements, and engineer a ``smoother transition to full
implementation in 2015.'' \4\ The announcement described the postponed
requirements as ``ACA mandatory''--i.e., not discretionary or subject
to indefinite waiver. On July 9, Assistant Treasury Secretary Mark
Mazur added, in a letter to House Energy and Commerce Committee Chair
Fred Upton, that the Department expects to publish proposed rules
implementing the relevant provisions ``this summer, after a dialogue
with stakeholders.'' \5\
---------------------------------------------------------------------------
\4\ Mark J. Mazur, United States Department of the Treasury,
``Continuing to Implement the ACA in a Careful, Thoughtful Manner''
(July 2, 2013), available at http://www.treasury.gov/connect/blog/
pages/continuing-to-implement-the-aca-in-a-careful-thoughtful-
manner-.aspx.
\5\ Letter from Mark J. Mazur, United States Department of the
Treasury to the Honorable Fred Upton, Chairman, Committee on Energy and
Commerce, Washington, D.C., 9 July 2013, available at http://
democrats.energycommerce.house.gov/sites/default/files/documents/Upton-
Treasury-ACA-2013-7-9.pdf.
---------------------------------------------------------------------------
A month ago, on September 5, the Treasury Department issued those
proposed rules. They detail proposed information reporting requirements
for insurers and large employers, reflecting, the Department stated,
``an ongoing dialogue with representatives of employers, insurers, and
individual taxpayers.'' It appears from the Department's release that
it intends, through comments that will be received on the proposed
rules, to continue fine-tuning ways ``to simplify the new information
reporting process and bring about a smooth implementation of those new
rules.'' \6\
---------------------------------------------------------------------------
\6\ United States Department of the Treasury Press Release,
``Treasury Issues Proposed Rules for Information Reporting by Employers
and Insurers Under the Affordable Care Act'' (September 5, 2013),
available at http://www.treasury.gov/press-center/press-releases/Pages/
jl2157.aspx.
---------------------------------------------------------------------------
In effect, the Administration explains the delay as a sensible
adjustment to phase-in enforcement, not a refusal to enforce. And its
actions validate that characterization--as any court that had occasion
to consider the matter would surely agree.
Indeed, shortly after the initial July 2 announcement, Michael O.
Leavitt, who served as Health and Human Services Secretary under
President George W. Bush, concurred that ``The [Obama] Administration's
decision to delay the employer mandate was wise.'' \7\ Secretary
Leavitt made this observation based on his own experience with the Bush
Administration's initially bumpy but ultimately successful phase-in of
the prescription drug benefit to Medicare, which was passed in 2003 and
implemented in 2006.
---------------------------------------------------------------------------
\7\ Michael O. Leavitt, ``To implement Obamacare, look to Bush's
Medicare reform,'' Washington Post (July 12, 2013), available at http:/
/www.washingtonpost.com/opinions/to-implement-obamacare-the-right-way-
look-to-bushs-medicare-reform/2013/07/12/c2031718-e988-11e2-8f22-de
4bd2a2bd39_story.html.
---------------------------------------------------------------------------
Experience so far strongly bears out Secretary Leavitt's
expectation that delaying the employer mandate reporting requirements
to simplify and improve them would facilitate smooth implementation of
those provisions, without undermining the rest of the ACA, or Congress'
broad goals in enacting it. The vast majority of the nation's six
million employers--96%--employ fewer than 50 workers, and are therefore
not covered by the employer mandate. Of those 200,000 that are covered,
at least 94% already offer health insurance; so, during 2014--the one-
year period during which those employers will not be penalized for
failing to insure their employees--a relatively small number of workers
will remain uninsured because of the delayed implementation of the
employer mandate. And even those workers will, during 2014, be eligible
for policies marketed on ACA exchanges and also for premium assistance
subsidies.\8\
---------------------------------------------------------------------------
\8\ Ezekiel J. Emanuel, ``Obama's Insurance Delay Won't Affect
Many,'' New York Times (July 3, 2013), available at http://
opinionator.blogs.nytimes.com/2013/07/03/obamas-insurance-delay-wont-
affect-many/?_r=0.
---------------------------------------------------------------------------
Though ``wise,'' is the current postponement ``illegal?'' On the
contrary,Treasury's Mazur wrote to Chair Upton, such temporary
postponements of tax reporting and payment requirements are routine,
citing numerous examples of such postponements by Republican and
Democratic administrations when statutory deadlines proved unworkable.
Across federal agencies, failure to meet statutory deadlines for
promulgating regulations or taking other regulatory actions is,
inevitably, a routine feature of implementing complex regulatory laws
like the ACA. To take one particularly well-known example, the
Environmental Protection Agency, under Republican and Democratic
administrations, has often found it necessary to phase-in
implementation of requirements beyond statutory deadlines, to avoid
premature actions that were poorly grounded or conflicted with other
mandates applicable to EPA or other agencies. These, of course, are
precisely the types of practical considerations that the Treasury
Department has cited for postponing implementation of the reporting
requirements pertinent to the employer mandate, and the mandate itself.
Last year, as one of many examples, EPA delayed promulgation of
Secondary National Ambient Air Quality Standards for Oxides of Nitrogen
and Sulfur, over the objection of some environmental groups, on the
pragmatic ground that there is too much scientific uncertainty to
enable the Agency to promulgate new standards with the requisite
scientific basis.\9\
---------------------------------------------------------------------------
\9\ To be sure, some administrative ``delays'' have in fact
constituted de facto decisions not to enforce or implement laws,
indefinitely and for policy reasons. For example, during the
administration of President George W. Bush, EPA was frequently
criticized in such terms for shelving a broad spectrum of regulations
and other initiatives. In at least one highly visible instance,
involving the agency's mandate to determine whether greenhouse gases
are pollutants requiring regulation under the Clean Air Act, the
Supreme Court ordered EPA to institute formal proceedings to make such
a determination. Massachusetts v. EPA, 549 U.S. 497 (2007)
---------------------------------------------------------------------------
Applicable judicial precedent places such timing adjustments well
within the Executive Branch's lawful discretion. To be sure, the
federal Administrative Procedure Act authorizes federal courts to
compel agencies to initiate statutorily required actions that have been
``unreasonably delayed.'' \10\ But courts have found delays to be
unreasonable only in rare cases where, unlike this one, inaction had
lasted for several years, and the recalcitrant agency could offer
neither a persuasive excuse nor a credible end to its dithering. In
deciding whether a given agency delay is reasonable, current law
admonishes courts to consider whether expedited action could adversely
affect ``higher or competing'' agency priorities, and whether other
interests could be ``prejudiced by the delay.'' \11\ Even in cases
where an agency outright refuses to enforce a policy in specified types
of cases--not the case here--the Supreme Court has declined to
intervene. As former Chief Justice William Rehnquist noted in a leading
case,\12\ courts must respect an agency's presumptively superior grasp
of ``the many variables involved in the proper ordering of its
priorities.'' Chief Justice Rehnquist suggested that courts should
defer to Executive Branch judgment unless an ``agency has consciously
and expressly adopted a general policy that is so extreme as to amount
to an abdication of its statutory responsibilities.'' \13\ The Obama
Administration has not and is not about to abdicate its responsibility
to implement the statute on whose success his historical legacy will
most centrally depend.
---------------------------------------------------------------------------
\10\ The Administrative Procedure Act, 5 U.S.C. Sec. 706.
\11\ Telecommunications Research and Action Center, et al. v. FCC,
750 F.2d 70, 80 (1984).
\12\ Heckler v. Chaney, 470 U.S. 821, 831-32 (1985).
\13\ 470 U.S. at 833 n.4.
---------------------------------------------------------------------------
Nor is the one-year delay of the employer mandate an affront to the
Constitution. In the relevant constitutional text, note the term,
``faithfully,'' and the even more striking phrase, ``take care''
(which, by the way, is not included in the title of this hearing). The
framers could have prescribed simply that the President ``execute the
laws.'' Why did they add ``faithfully'' and ``take care?'' \14\
Defining the President's duty in this fashion necessarily
incorporated--or reaffirmed the previously implicit incorporation--of
the concept that the President's duty is to implement laws in good
faith, and to exercise reasonable care in doing so. Scholars on both
left and right concur that this broadly-worded phrasing indicates that
the President is to exercise judgment, and handle his enforcement
duties with fidelity to all laws, including, indeed, the
Constitution.\15\ Both Republican and Democratic Justice Departments
have consistently opined that the clause authorizes a president even to
decline enforcement of a statute altogether, if in good faith he
determines it to be violative of the Constitution. To be sure, as one
critic has noted, a president cannot ``refuse to enforce a statute he
opposes for policy reasons.'' \16\ But, while surely correct, that
contention is beside the point here.
---------------------------------------------------------------------------
\14\ Initial drafts of what became what is now known as the ``Take
Care'' clause provided simply that the President was to ``carry into
execution the national laws.'' In July 1787, in the Committee of
Detail, charged with drafting language for the full convention to
consider, there was debate over the phrase ``the power to carry into
execution,'' and when the Committee returned, that phrase had been
removed, the new ``take care language'' emerged in place of the former
phrase. As Farrand notes, some of the phrases under debate included
(Max Farrand, The Records of the Federal Convention of 1787, Volume II
171): (He shall take care to the best of his ability that the laws) (It
shall be his duty to provide for the due & faithful exec--of the Laws)
of the United States (be faithfully executed) (to the best of his
ability). Ultimately, the Committee on Style adopted the phrase ``take
care that the laws be faithfully executed'' into constitutional text in
September 1787.
\15\ See Stephen G. Calabresi & Saikrishna B. Prakash, ``The
President's Power to Execute the Laws,'' 104 Yale L. J. 541 (1994); see
also Lawrence Lessig & Cass R. Sunstein, ``The President and the
Administration,'' 94 Colum. L. Rev. 1 (1994).
\16\ McConnell, ``Obama Suspends the Law.''
---------------------------------------------------------------------------
The Administration has not postponed the employer mandate out of
policy opposition to the ACA, nor to any specific provision of it. It
is ludicrous to suggest otherwise, and at best misleading to
characterize the action as a ``refusal to enforce'' at all. Rather, the
President has authorized a minor temporary course correction regarding
individual ACA provisions, necessary in his Administration's judgment
to faithfully execute the overall statute, other related laws, and the
purposes of the ACA's framers. As a legal as well as a practical
matter, that's well within his job description.
In effect, ACA opponents' constitutional argument to the contrary
amounts to asserting that the Administrative Procedure Act itself
ratifies unconstitutional behavior. As noted above, the APA recognizes
that delayed implementation of rules, beyond statutory deadlines, can
come within the Executive Branch's lawful discretion, as long as such
delays are ``reasonable.'' Opponents' claim is that the ``take care''
clause must be interpreted to condemn any deviation from a statutory
deadline for implementing a regulation, no matter how reasonable. This
implausible interpretation flouts, not only Congress' understanding as
expressed through the text of the APA, but administrative and judicial
precedent as well.
is the administration's postponement, in specified instances, for one
year enforcement of aca insurance market reforms an ``unreasonable
delay'' under the apa, or a violation of the constitution's ``take
care'' clause?
On November 14, HHS' Director of the Center for Consumer
Information and Insurance oversight, Gary Cohen, sent a letter to all
state insurance commissioners, in which he announced a ``transitional
policy'' of permitting health insurers to ``choose to continue
coverage'' for one additional year, for policies commencing between
January 1, 2014, and October 1, 2014, that would otherwise be
terminated or cancelled,'' because such policies are out of compliance
with several of the ACA's insurance market reform protections.\17\ The
letter stated that ``State agencies responsible for enforcing the
specified market reforms are encouraged to adopt the same transitional
policy with respect to this coverage.'' As this language indicates, the
Administration was thereby not changing the law, or giving employers a
waiver from a statutory requirement, but instead merely announcing a
``transitional'' enforcement policy for the federal government--one
that state regulators are free to emulate or not, as they see fit. As
of last week, many state insurance regulatory authorities, in states
including Alaska, Arkansas, California, Colorado, Connecticut, Indiana,
Maryland, Massachusetts, Minnesota, Nebraska, New York, Oklahoma,
Oregon, Rhode Island, Vermont, Virginia, Washington, and West Virginia,
as well as Washington, D.C., have declined to adopt the transitional
policy, and, hence, will bar issuance of policies inconsistent with the
ACA market reform requirements, as of January 1, 2014, as prescribed in
the statute.\18\ As with the one-year delay of finalization of the
employer mandate reporting requirements and enforcement of the mandate,
this ``encouragement'' of state regulators to permit a one-year
transitional renewal of non-compliant individual insurance policies
would clearly not be an unreasonable delay under the Administrative
Procedure Act, and would not violate the constitutional Take Care
clause.
---------------------------------------------------------------------------
\17\ http://www.cms.gov/CCIIO/Resources/Letters/Downloads/
commissioner-letter-11-14-2013.PDF.
\18\ The Commonwealth Fund Blog posted on November 27 a review of
states which have, have not, and are still deciding how they wish to
respond to the Administration's ``encouragement,'' together with
explanations of the consequences of alternative state resolutions.
http://www.commonwealthfund.org/Blog/2013/Nov/State-Decisions-on-
Policy-Cancellations-Fix.aspx?omnicid=20.
---------------------------------------------------------------------------
does the deferred action for childhood arrivals (daca) program
``breach'' the president's duty under the ``take care'' clause--or
appropriately prioritize enforcement priorities, while faithfully
implementing the immigration laws?
Critics have also alleged that the Administration's ``Deferred
Action for Childhood Arrivals (DACA) program constitutes a ``breach''
of the President's duty to take care that the laws be faithfully
executed. On June 15, 2012, President Obama signed a memorandum calling
on the Department of Homeland Security to defer action for certain
undocumented young people who came to the U.S. as children and have
pursued education or military service here.\19\ On August 15, 2012, the
Department began accepting applications for deferred action status
under the program. Contrary to the critics, this action violates
neither the Constitution nor the immigration laws, and is, indeed
similar to the prosecutorial discretion actions taken by other
presidents, of both parties, that have been part and parcel of
immigration enforcement policy for decades.
---------------------------------------------------------------------------
\19\ Department of Homeland Security Press Release, ``Secretary
Napolitano Announces Deferred Action Process for Young People Who Are
Low Enforcement Priorities'' (June 15, 2012).
---------------------------------------------------------------------------
To begin with, it is specious to suggest that the Obama
administration is systematically failing in its obligation to enforce
the immigration laws. On the contrary, the administration has detained
and deported noncitizens at record levels--approximately 400,000
annually, compared to 150,542 in 2002. The 400,000 figure is not an
accident. Congress has provided funding to cover 400,000 removals per
year. This is less than 4% of the total estimated population of
unauthorized residents of the country--11.5 million. Setting
enforcement priorities is, obviously, essential, given this huge
shortfall of available resources.\20\ The criteria prescribed in the
DACA program are entirely sensible, and in keeping with prioritization
criteria long characteristic of immigration enforcement.
---------------------------------------------------------------------------
\20\ See Shoba Sivaprasad Wadhia, In Defense of DACA, Deferred
Action, and the DREAM Act, 91 Tex. L. Rev. 59 (2013).
---------------------------------------------------------------------------
As 128 academic immigration law experts explained in a letter to
the President outlining his authority to institute a program like DACA:
Deferred action is a long-standing form of administrative
relief. . . . It is one of many forms of prosecutorial
discretion available to the Executive Branch. A grant of
deferred action can have any of several effects. . . . it can
prevent an individual from being placed in removal proceedings,
suspend any proceedings that have commenced, or stay the
enforcement of any existing removal order. It also makes the
recipient eligible to apply for employment authorization. . . .
[T]he U.S. Supreme Court has made clear that decisions to
initiate or terminate enforcement proceedings fall squarely
within the authority of the Executive [citing Heckler v.
Chaney, 460 U.S. 821, 831 (1985)]. In the immigration context,
the Executive Branch has exercised its general enforcement
authority to grant deferred action since at least 1971. Federal
courts have acknowledged the existence of this executive power
at least as far as back as the mid-1970s.\21\
---------------------------------------------------------------------------
\21\ Letter from 128 academic immigration law experts to President
Obama, Washington, D.C., 28 May 2012, available at http://
www.law.uh.edu/ihelg/documents/ExecutiveAuthorityFor
DREAMRelief28May2012withSignatures.pdf.
Moreover, the Obama administration's decision to use deferred action in
the systematic manner it has with DACA is not at all exceptional. In
2005, for example, the George W. Bush administration announced deferred
action for the approximately 5,500 foreign academic students caught in
the aftermath of Hurricane Katrina--quite appropriately. In 2009, then-
DHS Secretary Napolitano announced deferred action for the widows of
U.S. citizens for two years, to ``allow these individuals and their
children an opportunity to stay in the country that has become their
home while their legal status is resolved.'' Secretary Napolitano also
used defer action to keep immigrants who are the spouses, parents, and
children of military personnel together with their families. Agency
memoranda providing guidance for deferred action programs frequently
stated that such exercises of ``prosecutorial discretion . . . are
designed to ensure that agency resources are focused on our enforcement
priorities, including individuals who pose a threat to public safety,
are recent border crossers, or repeatedly violate our immigration
laws.'' \22\ The DACA program implements similar criteria and is well
within the immigration enforcement approaches of this and past
administrations.
---------------------------------------------------------------------------
\22\ Wadhia at 68.
---------------------------------------------------------------------------
Just a year and a half ago, a 5-3 majority of the Supreme Court
opined that ``A principal feature of the removal system is the broad
discretion exercised by immigration officials. . . . Federal officials,
as an initial matter, must decide whether it makes sense to pursue
removal at all. . . .'' The Court--in an opinion by Justice Anthony
Kennedy, joined by Chief Justice Roberts, and Associate Justices
Ginsburg, Breyer, and Sotomayor--went on to specify that ``Discretion
in the enforcement of immigration law embraces immediate human
concerns. Unauthorized workers trying to support their families, for
example, likely pose less danger than alien smugglers or aliens who
commit a serious crime.'' \23\ That very recent analysis by a broad-
based Supreme Court majority is completely at odds with the critics'
cramped interpretation of the President's immigration enforcement
discretionary authority, let alone their equally cramped interpretation
of the Constitution's Take Care clause.
---------------------------------------------------------------------------
\23\ Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
---------------------------------------------------------------------------
Indeed, these critics' reliance upon the Take Care clause seems
particularly out of place, for it is precisely that provision which,
construed as it has always been by the courts, is the source of the
President's broad authority to exercise prosecutorial discretion. As
the Supreme Court held in the leading case, Heckler v. Chaney, cited
above, decisions not to indict or to institute civil proceedings have
``long been regarded as the special province of the Executive Branch,
inasmuch as it is the Executive who is charged by the Constitution to
`take Care that the Laws be faithfully executed.''' Obviously, faithful
execution does not empower the President to disregard statutory
requirements, but it requires applying specific requirements in a
manner that is faithful to effective implementation of the overall
statutory scheme, to the other affected laws, and to the Constitution.
That is precisely what the Obama Administration is attempting to do as
it phases in an exceptionally complex and consequential new law.
the obama administration has correctly determined that aca premium
assistance tax credits and subsidies must be available to all eligible
americas, whether they reside in states that operate their own
exchanges or in states with federally facilitated exchanges
Affordable Care Act opponents have taken the Treasury Department to
task--and to court--for adopting a regulation in May 2012 \24\ that
affirms that ACA premium assistance tax credits and subsidies are
available to all eligible Americans nationwide, whether they reside in
states that have elected to operate their own insurance exchange
market-places or in states that have elected to have the Federal
government operate the exchange covering their residents. These
critics, of whom my co-panelist Michael Cannon was among the first and
most energetic, assert that Treasury's interpretive regulation
``rewrites the law.'' In fact, however, it is Mr. Cannon and his allies
who would rewrite the ACA. And from their standpoint as die-hard ACA
opponents, for a good reason. Their invitation to the courts to impose
their interpretation is, in their own terms, a play ``for all the
marbles.'' In the 33 or so states now utilizing federally facilitated
exchanges, their proposed reinterpretation would, they gloat, ``sink''
the ACA ``drive a stake through the heart of Obamacare,'' and
``threat[en]'' its ``survival.'' \25\
---------------------------------------------------------------------------
\24\ 77 Fed. Reg. 30,377, 30,378, 30,387 (May 23, 2012)
\25\ See, e.g., Michael Cannon, ``No Obamacare Exchanges,''
National Review Online (April 12, 2012), http://www.nationalreview.com/
articles/295773/no-obamacare-exchanges-michael-f-cannon; Dan Diamond,
``Could Halbig et al. v. Sebelius Sink Obamacare, The Health Care Blog,
(June 11, 2013) (quoting Michael Greve: ``This is for all the
marbles.''), http://thehealthcareblog.com/blog/2013/06/11/could-halbig-
et-alv-sebelius-sink-obamacare/.
---------------------------------------------------------------------------
When the law was enacted in March 2010, no one, on either side of
the aisle, had ever heard of, let alone embraced, the Cannon
interpretation. The ACA's fiercest critics agreed with its most fervent
supporters about one thing: that it had, and has, a clear and simply
stated goal--``to achieve near-universal health insurance coverage,''
and they understood that the premium assistance necessary to achieve
that goal would be available in all states. To my knowledge, not until
late in 2011 did Mr. Cannon surface his claim to the contrary. He said
at the time that he ``was first made aware of this aspect of the ACA''
in December 2010, nine months after enactment. To ACA opponents probing
for any opportunity, no matter how far-fetched, to impede the law's
implementation, the discovery of this apparent ``glitch'' must have
been invigorating.
But In fact, everyone was right at the beginning. The ACA's text
does not sabotage its universally acknowledged purpose of ensuring
access to health insurance for millions of Americans who cannot now
afford it. To make their implausible case to the contrary, the
opponents snatch a few isolated phrases out of context, and ignore the
rest of the 2700 page statute. Numerous provisions of the law confirm
that eligible residents of all states shall receive the premium
assistance they need.
In a nutshell, the text of the ACA provides that if state decides
not to set up an Exchange, the federal government is to step in and set
one up in its place. The same rules apply to all Exchanges, whether
it's the states or the federal government that operates them. Under the
opponents' tortured reading, all sorts of individual provisions in the
statute do not work, and, indeed, the exchange marketplaces themselves
will not work. That result, of course, is precisely what these die-hard
opponents intend. But it's the opposite of what the Congress that
enacted the ACA intended.
In order to justify their implausible reading of the ACA's text,
opponents have concocted an even more head-scratching claim--that the
sponsors of the law ``purposefully'' designed it to achieve this self-
immolation. Their theory is that, by threatening to deprive residents
of states of premium tax credits, Congress sought to ``coerce'' states
to set up Exchanges. If true, what the Act really means, and what its
sponsors really intended, is a result that would not only cancel the
core benefit the law sought to confer, for the core constituency it
aimed to benefit. More remarkably, under the opponents' misread, the
ACA's sponsors would have intentionally handed over to ACA opponents in
state capitols the power to subvert the law in their states. In effect,
they would have given Mr. Cannon's political allies that ``stake'' and
invited them to drive it through the heart of the ACA. Is that
plausible?
Unsurprisingly, there is not a single piece of evidence in the
legislative record to support the notion that Congress was threatening
states into setting up Exchanges. There is no mention of this idea
anywhere in the voluminous pages of the debate over the Affordable Care
Act. No one, supporter or opponent of the law, brought it up.
And certainly no one ever communicated to any state official that
they risked depriving their residents of affordable health care if they
refused to set up their own Exchanges. There is no such thing as a
stealth threat. A threat must be communicated. Here, none ever was. In
and of itself, this is fatal to the upside-down interpretation
opponents are asking the courts to embrace.
How likely is it that a majority of the Supreme Court, or any
court, will endorse the perverse premise of these ACA opponents, and
bar access to affordable quality health care for millions of people
whom Congress specifically intended to benefit? Such a decision,
especially if rendered by an ideologically divided court, will likely
appear to the public as a radical ratcheting up of the regrettable
tradition of Bush v. Gore--though less principled and more
transparently political. I doubt that the judiciary will take the bait
these lawsuits tender, and venture out on that limb.
And, self-evidently, it is frivolous to suggest that the Obama
Administration is violating the Constitution's mandate to take care
that the laws be faithfully executed by implementing the ACA's exchange
provisions in a manner that is faithful to the ACA's text, to the
purpose of the Congress that enacted it, and to the needs of millions
of hard-working Americans for access to affordable health insurance.
conclusion
In sum, the various critiques being vetted here, of the Affordable
Care Act and other Obama Administrative initiatives, reflect political
and policy-driven criticisms routine in a democratic polity, especially
one as polarized as we are today. But attempts to wrap those arguments
in the Constitution just thicken the political fog. They deserve no
attention from people who are seriously interested in evaluating
competing policy and political claims, or in facilitating, rather than
obstructing, resolution of those differences.
__________
Mr. Goodlatte. Thank you, Mr. Lazarus.
Mr. Cannon, welcome.
TESTIMONY OF MICHAEL CANNON, DIRECTOR OF
HEALTH POLICY STUDIES, CATO INSTITUTE
Mr. Cannon. Thank you, Mr. Goodlatte and Mr. Conyers and
Members of the Committee.
I want to start off by saying that the concerns that I am
going to be sharing with you today are not born of
partisanship. It is no secret that I have worked for
Republicans. I myself am not a Republican. I am acutely aware
of the last Republican President's failure to execute the laws
faithfully. In 2008, though I supported neither major party
presidential candidate, I actually preferred Barack Obama to
his opponent in part because he promised to curb such abuses by
the executive, and I praise President Obama for doing more than
even many Libertarians to celebrate the gains in equality and
freedom our Nation has secured for women, for African
Americans, for gays, and for lesbians.
Article II, section 3 of the Constitution, to which every
President swears an oath, commands that the President shall
take care that the laws be faithfully executed. Fealty to this
duty is essential for maintaining our system of Government and
public order.
The law is a reciprocal pact between the Government and the
governed. Public order requires Government to remain faithful
to the laws as much as it requires the citizenry to do so
because if the actions of Government officials lead citizens to
conclude that those officials are no longer meaningfully bound
by the law, then citizens will rightly conclude that neither
are they.
Since he signed the Patient Protection and Affordable Care
Act into law, President Obama has failed to execute that law
faithfully.
The President has unilaterally taken taxpayer dollars made
available by the PPACA and diverted them from their
congressionally authorized purposes toward purposes for which
no Congress has ever appropriated funds.
He has unilaterally and repeatedly rewritten the statute to
dispense taxpayer dollars that no Federal law authorizes him to
spend and that the PPACA expressly forbids him to spend.
He has unilaterally issued blanket waivers to requirements
that the PPACA does not authorize him to waive.
At the same time, he has declined to collect taxes that the
PPACA orders him to collect, he has unilaterally rewritten the
statute to impose billions of dollars in taxes that the PPACA
expressly forbids him to impose and to incur billions of
dollars in debt that the statute expressly forbids him to
incur.
He has unilaterally rewritten the PPACA to allow health
insurance products that the statute expressly forbids, and he
has encouraged consumers, insurers, and State officials to
violate a law that he himself enacted.
And he has taken these steps for the purpose of
forestalling democratic action by the people's elected
representatives in Congress.
President Obama's unfaithfulness to the PPACA is so wanton
that it is no longer accurate to say that that statute is the
law of the land. Today, with respect to health care at least,
the law of the land is whatever one man says it is or whatever
this divided Congress will let him get away with saying. What
this one man says may flatly contradict Federal statute. It may
suddenly confer benefits on favored groups or tax disfavored
groups without representation. It may undermine the careful and
costly planning done by millions of individuals and businesses.
It may change from day to day. This method of lawmaking has
more in common with monarchy than with democracy or a
constitutional republic.
This President's failure or any President's failure to
honor his constitutional duty to execute the laws faithfully is
not a partisan issue. The fact that Presidents from both
parties violate this duty is cause not for solace. It is cause
for even greater alarm because it guarantees that Presidents
from both parties will replicate and even surpass the abuses of
their predecessors as payback for past injustices. The result
is that democracy and freedom will suffer no matter who
occupies the Oval Office.
I thank you and I look forward to your questions.
[The prepared statement of Mr. Cannon follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
*See Appendix for supplemental material submitted by this witness.
__________
Mr. Goodlatte. Thank you, Mr. Cannon.
I will begin the questioning under the 5-minute rule.
Professor Rosenkranz, oftentimes the legislative process is
about negotiation, about give and take between competing
interests and compromise. How does the President's creating,
amending, suspending, and ignoring acts of Congress at will
affect the legislative process?
Mr. Rosenkranz. That is a great question, Mr. Chairman.
The short-term effect is an aggrandizement of the
President, but a predictable long-term effect is legislative
gridlock. There is every reason to believe that Congress will
not be able to reach these compromises if they know that these
compromises can be unilaterally rewritten in the White House.
There is every reason to believe that Congress will grind to a
halt under the threat that President Obama will rewrite its
handiwork.
Mr. Goodlatte. In fact, couldn't you argue that that is,
indeed, happening right now, that as you try to work out
differences between various perspectives on a piece of
legislation, those who may be asked to give something that they
think the President agrees with them on might say, well, why
should I give on that because I can get that changed or done
unilaterally by the executive branch, or the party that wants
to achieve that says, well, why should I agree to it because
they are not going to enforce that anyway?
Mr. Rosenkranz. You could imagine such a negotiation about
the effective date of Obamacare, but after the statute is
passed, President Obama decides what the effective date is
quite regardless of what Congress wants. So gridlock is quite a
predictable result.
Mr. Goodlatte. Professor Turley, the Constitution's system
of separated powers is not simply about stopping one branch of
Government from usurping another. It is about protecting the
liberty of Americans from the dangers of concentrated
Government power. How does the President's unilateral
modification of acts of Congress affect both the balance of
power between the political branches and the liberty interests
of the American people?
Mr. Turley. Thank you, Mr. Chairman.
The danger is quite severe. The problem with what the
President is doing is that he is not simply posing a danger to
the constitutional system, he is becoming the very danger the
Constitution was designed to avoid, that is, the concentration
of power in any single branch. This Newtonian orbit that the
three branches exist in is a delicate one, but it is designed
to prevent this type of concentration.
There are two trends going on which should be of equal
concern to all Members of Congress. One is we have had the
radical expansion of presidential powers under both President
Bush and President Obama. We have what many once called an
imperial presidency model of largely unchecked authority. And
with that trend, we also have the continued rise of this fourth
branch. We have agencies that are now quite large that issue
regulations. The Supreme Court said recently that agencies can
actually define their own or interpret their own jurisdiction.
Mr. Goodlatte. I am going to cut you off there because I
have got a couple more questions I want to ask and only 2
minutes left.
But, Mr. Cannon, you have argued that the President is
going to spend billions of dollars Congress did not authorize
to provide premium assistance tax credits and subsidies on
federally run health care exchanges. Could you please quickly
walk me through why the President's plan to provide premium
assistance on federally run exchanges is indeed illegal?
Mr. Cannon. Well, we called those premium assistance tax
credits because that is what the statute calls them, but in
effect they are Government subsidies. They are Government
spending. And the statute is quite clear. It is clear. It is
consistent. It is unambiguous. It was intentional and
purposeful when it said that those premium assistance tax
credits would be available only to people who purchase health
insurance through an exchange ``established by the State under
section 1311.'' That is not just one mention of that phrase.
The phrase is mentioned several times explicitly and through
cross references. The statute is very tightly worded, and it
makes clear that those tax credits are available only if a
State establishes an exchange itself under section 1311. If the
Federal Government establishes a Federal fallback exchange,
those tax credits are not available because that exchange is
established by the Federal Government under section 1321 as the
Obama administration has acknowledged in regulation.
Mr. Goodlatte. Thank you. I agree.
Professor Rosenkranz, some defenders of the President's
unilateral actions have asserted that his actions were merely
an exercise of prosecutorial discretion. Are these assertions
correct or is there a fundamental difference between
prosecutorial discretion and many of the President's unilateral
actions?
Mr. Rosenkranz. So there are many cases that are close
cases. I agree with Professor Turley. But some of these cases
are not close. So prosecutorial discretion is one thing, but
wholesale suspension of law is quite something else and that is
what has happened under Obamacare.
Likewise in the immigration context, kind of case-by-case
prosecutorial discretion is one thing, but a blanket policy
that the Immigration Act will not apply to 1.8 million people,
that is quite something different. This is a scale of decision-
making that is not within the traditional conception of
prosecutorial discretion.
Mr. Goodlatte. In fact, the President has taken it a step
further and has actually given legal documents to the people in
that circumstance, well beyond simply deciding to leave them
there and not prosecute them but to actually enable their
violation of the law by giving them documents to help them
evade the problems that ensue from living in a country that
they are not lawfully present.
Mr. Rosenkranz. Quite right.
[Disturbance in the hearing room.]
Mr. Goodlatte. Presently we do not have order in the
hearing room. Members of the audience must behave in an orderly
fashion or else they will be removed from the hearing room.
Rule 11 of the House rules provides that the Chairman of the
Committee may punish breaches of order and decorum by censure--
--
Mr. Gohmert. Mr. Speaker, could we get security to help?
Mr. Goodlatte [continuing]. And exclusion from the hearing.
The Capitol Police will remove the disruptive members from the
audience immediately.
Ms. Jackson Lee. Would the Chairman yield? Are you allowing
some to be able to sit down and therefore comply rather than
removing them from the hearing room?
Mr. Goodlatte. I have conferred with the Ranking Member and
since we afforded them that opportunity earlier in the hearing,
now they are going to be required to leave.
Ms. Jackson Lee. Well, my passion is with those who are
leaving. Thank you for being here, and I hope that we will come
to an understanding----
Mr. Goodlatte. The gentlewoman is out of order.
My time has expired, and the Chair now recognizes the
Ranking Member, Mr. Conyers, for his questions.
Mr. Conyers. Thank you.
I am interested in the presentation of Professor Lazarus
who was explaining some of his differences with the witness to
his left, and I would like to ask if he could pick up that line
of discussion. We are pleased that you are here because there
has been so much excitement or excited rhetoric about where the
President and his Administration are going. I have never heard
this level of hypothesizing as to where this is all going to
take us. And I think it is considerably over the top. I am so
glad you are here today, and I would ask you to respond,
please.
Mr. Lazarus. Thank you very much, Mr. Conyers.
The theory that the Affordable Care Act actually intended
to cut off the very benefits that the law was passed to create
to the very core constituency of needy people that was the
target of the law that my friend, Mr. Cannon, came up with is
something that no one on either side of the aisle had any idea
about when the law was passed. He and some other clever
colleagues came up with this theory at least 9 months, I think,
after the law was passed, and they are very happy that they did
so. They have gloated that their theory, if adopted by the
courts, would drive a stake through the heart of Obamacare.
That is their words, that it would sink the ACA and threaten
its survival.
In fact, however, the law's text does not sabotage the
universally acknowledged purpose of ensuring access to health
insurance for all the millions of Americans who cannot now
afford it. To make their implausible case to the contrary, Mr.
Cannon and his colleagues snatch a few isolated words out of
context and ignore the rest of this huge statute. But if you
look at the entire statute, you quickly have to conclude that
the whole text, not just these isolated phrases, harmonize the
purpose of the statute with its text, meaning that all
Americans who are eligible for the benefits to enable them to
afford insurance will be able to have them whether or not they
reside in Federal exchange States or State exchange States.
I might add just one quick thing, and that is, so Mr.
Cannon and his friends soon realized that their reading of the
text did not make sense and hang together. So they came up with
an even more head-scratching claim, and that is that the
sponsors of the law ``intentionally and purposefully designed
it to achieve this self-immolation.'' And Mr. Cannon just
referred to that argument.
So what this means, it means that the ACA sponsors actually
intended not only to stiff the very people that they wanted to
benefit. It actually means that they intentionally handed over
to Mr. Cannon's allies in State capitals the stake that he
talks about and invited them, if they chose to do so, to drive
it through the heart of the ACA. I mean, we have to imagine
really--in order for your theory to make sense, one has to
imagine Senator Baucus, Senator Murray, Senator Reed, that
well-known soft touch, Senator Schumer getting together in a
room off the Senate floor and saying I know what we are going
to do. We are going to enable all the Republican Governors and
State legislators just to decide that the ACA will not work in
their States. Unsurprisingly, there is not a single piece of
evidence in the legislative record to support this notion, and
what is really going on, I am afraid is that having lost
politically, having lost in the Supreme Court, the ACA
opponents who are clinging to this theory are hoping that the
courts will bail them out once again. That is an awfully big
political lift. I do not think that the courts are going to do
that.
Mr. Conyers. Thank you so much.
Mr. Chairman, I would ask unanimous consent to put in the
record this report by the ``New Republic'' of November of this
year entitled ``Obamacare's Single Most Relentless
Antagonist,'' who is our distinguished witness here today.
Mr. Issa. Reserving. Can I just ask one quick question, Mr.
Chairman? Is the ``New Republic'' doing reports or articles?
Mr. Conyers. Reports or articles? I cannot tell you. You
mean on the one that I am introducing?
Mr. Issa. Yes, Mr. Ranking Member. I only ask because I am
fine to have newspapers and op-eds and so on put in the record.
I just want to have them characterized not as a report as
though they have some substantive, factual backing.
Mr. Conyers. Well, I have never been asked this question
before.
Mr. Issa. Only because I am often called the President's
antagonist, and I am not sure that a report that left me out
would be justified as factual. [Laughter.]
Mr. Goodlatte. Without objection, the ``New Republic''
article entitled ``Obamacare's Single Most Relentless
Antagonist''--and I am sure both the author of the theory with
regard to the Federal use of those funds and the gentleman from
California would both be proud to have the article in the
record, and therefore we will, without objection, make it a
part of the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Conyers. And I am sorry to disappoint my friend. Your
name is not even mentioned in this article.
Mr. Issa. It is an oversight.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Goodlatte. The Chair recognizes the gentleman from
Texas, Mr. Smith, for 5 minutes.
Mr. Smith of Texas. Thank you, Mr. Chairman.
Mr. Chairman, in my judgment, the President has ignored
laws, failed to enforce laws, undermined laws, and changed
laws, all contrary to the Constitution. It seems to me that the
President is trying to make laws by executive decree at news
conferences.
But in a 2012 interview, the President said that he could
not ``wave away the laws that Congress put in place,'' and that
``the President does not have the authority to simply ignore
Congress and say we are not going to enforce the laws that you
passed.'' Yet, it seems to me that is exactly what he has done.
I would like to address my first question to Professor
Turley, Professor Rosenkranz, and Director Cannon. I think I
know their answer, but the question is, do you think in fact
the President has acted contrary to the Constitution?
Professor Turley, you mentioned that you supported the
President's policies and even voted for him. Yet, you say he
has crossed the constitutional line. The legislative process is
not an option, and what the President has done is dangerous. So
I assume your answer is, yes, the President has acted contrary
to the Constitution. Is that right?
Mr. Turley. It is. And I would also just add, Congressman,
that this was an issue that the Framers considered. You know,
150 years before they drafted this provision, which did not
change much in the Committee, this was a fight with James I.
The Framers were very familiar with it, and I think that is
what gave life to this very clause.
Mr. Smith of Texas. Thank you.
And, Professor Rosenkranz, do you think the President has
acted contrary to the Constitution?
Mr. Rosenkranz. Representative, I would say that some of
these cases are close cases but some are not. So the wholesale
suspension of law, for example, is I would say the paradigm
case of a Take Care Clause violation, yes.
Mr. Smith of Texas. Okay, thank you.
And Director Cannon?
Mr. Cannon. Yes.
Mr. Smith of Texas. That was quick and easy. Thank you.
My next question is a little bit tougher, and that is what
can Congress or the American people do about it. How can we
restrain the President from acting in a way contrary to the
Constitution? Professor Turley?
Mr. Turley. That is, I think, the most difficult question
that we face. I have had the honor of representing Members of
both parties of Congress and going to the courts. And the
courts are quite hostile toward a Member's standing, for
example, when they believe a violation of the Constitution has
occurred. It is in fact Member standing that would solve many
of our problems; that is, if Members could go to the courts and
raise violations of the constitution, it would make much of
these difficulties go away.
You will note that the Administration has made reference to
the fact--and I think they have some support for this--that
they doubt people would have standing to challenge many of
these acts. So we have something that the Framers would never
have accepted, that you can have violations of the Constitution
and literally no one can raise the issue successfully with the
courts for review.
Mr. Smith of Texas. Professor Rosenkranz?
Mr. Rosenkranz. I am actually not sure I agree with
Professor Turley on the standing question. It is quite true
that some of these violations may not be amenable to judicial
review. Ultimately, though, the check on this sort of
constitutional violation is elections. So this is exactly the
sort of hearing we ought to be having, exactly the sort of
hearing that the electorate ought to be paying attention to for
our next round of elections.
Mr. Smith of Texas. Okay, thank you.
And Director Cannon.
Mr. Cannon. I think there is little that Congress can do if
it is divided over the President's abuse of his authority, but
fortunately--and as far as judicial remedies go, it is very
difficult to challenge an action of the President when he
relaxes an obligation on a certain party. It is much easier to
find a plaintiff who has standing to challenge an action that
imposes new obligations that the legislature never approved.
That is what has happened in the case of the President
issuing premium assistance tax credits through Federal
exchanges because those tax credits will trigger taxes,
penalties, on employers and individuals in those 34 States that
have refused to establish an exchange. And a number of those
employers and individuals, including two State attorneys
general, 15 Indiana school districts, and a dozen or more
private employers and private citizens have filed suit, four
different lawsuits. In fact, one of them will have oral
arguments this afternoon here in Washington, D.C. So there is a
judicial remedy for some of these abuses.
Mr. Smith of Texas. Okay, good. Thank you, Director Cannon.
Thank you, Mr. Chairman. I yield back.
Mr. Goodlatte. The Chair now recognizes the gentleman from
New York, Mr. Nadler, for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Lazarus, Professor Rosenkranz has written in a Wall
Street Journal op-ed piece that Abraham Lincoln would not
approve of the delay in the employer mandate and contrasts this
decision with Lincoln's decision on habeas corpus. Could you
comment on the claim that Lincoln would disapprove, and what
about the contrast with the suspension of habeas corpus by
Lincoln?
Mr. Lazarus. Yes, I read that article with some amusement,
I have to say, Professor Rosenkranz. I think that President
Lincoln would chuckle somewhat contemptuously at the notion
that there is an equation between suspending the writ of habeas
corpus, perhaps the most fundamental guarantee of freedom in
our whole system, with a temporary delay in the implementation
of a provision that is part of a very complex, new law, which
is something that happens under all Administrations, has to
happen sometimes for practical reasons. Why we are making a big
fuss about this as a constitutional matter--well, it is not
beyond me. I understand why it is being done. If it sounds like
politics, that is what it is. But to make that kind of a
comparison, Professor Rosenkranz, does not do justice, I think,
to your position at Georgetown.
Mr. Rosenkranz. May I----
Mr. Nadler. Thank you. No, no. I have too little time for
too many questions.
Let me start by saying that I generally in many respects
agree with Professor Turley about the growth of the imperial
presidency over the last half century or more. I am
particularly concerned about the abuse of the war powers by
many Presidents, the use of the state secrets doctrine to
prevent enforcement of constitutional rights, the dragnet
surveillance that we have seen under Bush and Obama beyond the
contemplation of the Patriot Act, warrantless surveillance in
the Bush administration, and things like that.
I must say that everything we are talking about today is
laughable in my opinion in the context of these problems. I am
particularly struck by the overwhelming hypocrisy of the claim
that the President, in interpreting the law, in refusing to
interpret the law in a way that would drive a stake through the
law, is not enforcing the law. In demanding that he enforce the
law on the dates in a way that the person making that demand
says we destroy the law is not taking care that the laws be
faithfully executed. I would say it is the other way around,
that it is the duty of the President to interpret the law
within the boundaries that he has in a way that makes practical
the implementation of the law to effectuate the will of
Congress. And the fact that people who want to sabotage the law
and want the law not to work and make no bones about it say,
hey, he is not obeying this particular sentence in order to
make the law work--talk about hypocrisy.
Let me ask a question, having made my statement. I want to
ask Mr. Lazarus the following question. The District of
Columbia Circuit recently in a decision by Judge Kavanaugh
recently wrote the following. ``The executive's broad
prosecutorial discretion and pardon powers illustrate a key
point of the Constitution's separation of powers. One of the
greatest unilateral powers a President possesses under the
Constitution, at least in the domestic sphere, is the power to
protect individual liberty by essentially under-enforcing
federal statutes regulating private behavior--more precisely,
the power either not to seek charges against violators of a
federal law or to pardon violators of a federal law.''
Now, this would seem to support broad discretion in the
executive branch to set enforcement and therefore
nonenforcement priorities of drug, immigration, and other laws.
Does it not? And how does that relate to the alleged violation
of the Constitution by the President in setting immigration
enforcement priorities as was outlined earlier?
Mr. Lazarus. Well, thank you very much, Congressman Nadler.
And of course, what Judge Kavanaugh, who is one of the most
respected and most conservative judges on the Federal bench--
what he said here is absolutely correct. And the principles
that he is enunciating are precisely why a court, if faced with
the issue, would undoubtedly uphold as perfectly compatible
with the President's discretion in the immigration area, in
particular the DACA program that my co-panelists here are
claiming is a gross violation of his duty to see that the laws
are faithfully executed.
I would like to, if I can, just quote one other authority,
and that is the Supreme Court in an important decision about a
year and a half ago, a 5 to 3 majority, including Justice
Kennedy who wrote the opinion and Chief Justice Roberts opined
that, quote, a principal feature of the removal system in the
immigration area is the broad discretion exercised by
immigration officials. Federal officials, he said, as an
initial matter must decide whether it makes sense to pursue
removal at all. And they went on to say that discretion in the
enforcement of immigration law embraces immediate human
concerns. Unauthorized workers trying to support their
families, for example, likely pose less danger than alien
smugglers or aliens who commit a serious crime. And that very
recent broad-based decision, like Judge Kavanaugh's remarks, is
completely at odds with the critics' cramped interpretation of
the President's immigration enforcement and his constitutional
authority.
Mr. Nadler. Well, I wanted to ask Mr. Rosenkranz if he
agreed with Judge Kavanaugh and the Supreme Court. I will ask
unanimous consent for an additional minute so Mr. Rosenkranz
can answer that, Mr. Chairman.
Mr. Goodlatte. Without objection, the gentleman will have
an additional 1 minute. Mr. Rosenkranz?
Mr. Rosenkranz. I am glad you asked because Judge Kavanaugh
also said quite recently in 2013, quote, the President may not
decline to follow a statutory mandate or prohibition simply
because of policy objections. Of course, if Congress
appropriates no money for a statutorily mandated program, the
executive obviously cannot move forward, but absent a lack of
funds or a claim of unconstitutionality that has not been
rejected by final court order, the executive must abide by
statutory mandates and prohibitions. I think Judge Kavanaugh is
exactly right.
Mr. Nadler. Of course, that is not the question. The
question was delay here. Thank you.
Mr. Goodlatte. The Chair recognizes the gentleman from
Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman.
Mr. Rosenkranz and Mr. Cannon, Mr. Lazarus had commented
upon previous writings of yours, but you were not afforded the
opportunity to respond. Did you want to take a moment to do
that? I will go with you first, Mr. Rosenkranz.
Mr. Rosenkranz. Thank you so much.0
So there was a comment about an op-ed that I wrote in The
Wall Street Journal comparing Lincoln's suspension of habeas
with President Obama's suspension of Obamacare. Of course, I
agree with Mr. Lazarus that these things are not the same.
Habeas and Obamacare are not the same. But what is striking
about the comparison is that President Lincoln welcomed the
involvement of Congress, welcomed Congress to ratify what he
had done, to pass a statute justifying what he had done. He was
concerned that perhaps he had overstepped his constitutional
authority. He welcomed Congress' ratification of his action.
President Obama, by contrast, actually threatened to veto a
statute that would have ratified his action. That I think is
the startling contrast that I was trying to bring out in that
op-ed.
Mr. Chabot. Thank you.
Mr. Cannon?
Mr. Cannon. Mr. Lazarus and, whenever this issue comes up
of whether premium assistance tax credits are authorized in the
34 States and Federal exchanges, supporters of the
Administration, of the IRS's decision to offer them in States
with Federal exchanges talk a lot about what Congress must have
been thinking or could possibly have been thinking or would
they have done this. And there is a reason they do that. It is
because the statute is clear and it contradicts what the Obama
administration is trying to do.
And unfortunately for the Administration, the legislative
history also is completely consistent with the clear language
of the statute. Despite 2 years of people like me raising this
issue that what the IRS is trying to do is illegal, they have
yet to offer one shred of--one statutory provision or one shred
of evidence from the legislative history that supports their
claim that this statute authorizes tax credits through
exchanges established by the Federal Government under section
1321 or that it was Congress' intent for this statute to
authorize tax credits through those exchanges.
So there is a lot more to be said about all of this.
If I may, I would like to respond to something that Mr.
Nadler----
Mr. Chabot. No. Let me cut you off at this point. I have
only got a limited amount of time.
Mr. Turley, let me ask you this. You had mentioned
something along the lines of you were concerned that President
Obama is becoming the very danger that the separation of powers
was meant to prevent. And Mr. Lazarus mentioned earlier that--I
do not know who exactly he is referring to but some are
hyperventilating about this whole topic. Would you want to
comment on both of those things, either in relation to each
other or not?
Mr. Turley. Sure. Mr. Lazarus may be responding to my
labored breathing with the flu, but it is not my testimony.
The reason I think that we have this disconnect in our view
of this clause is that we obviously read the history
differently. I view the Constitutional Convention as quite
clear. The Framers were students of history, particularly James
Madison, 150 years before they took a pen and wrote out this
clause, there was a fight with James I about what was called
the ``royal prerogative.'' It is very similar to what President
Obama is claiming, the right of the king to essentially stand
above the law to reform the law to the king's views. Now, I am
not saying that President Obama is a monarch. But that was the
issue that gave the impetus to this clause in my view. The
language of the clause did not change very much.
Later, people like Benjamin Civiletti dealt with this under
a different term, the ``dispensing power'' of the President.
And Civiletti wrote a very good paper about when the President
could refuse to enforce laws, and he basically said that it
could only be done where there is an intrusion upon executive
power--and by the way, that is what was involved in the Miers
case that we talked about and referred to earlier--or if it was
clearly unconstitutional. And that second issue--he established
it had to be very, very clear so the President does not
exercise dispensing authority.
So this is how I would respond. We do not have to
hyperventilate to look at a problem of this kind and say that
this is not about who the President is today or what he is
trying to achieve. What is lacking from the other side is any
notion of what the world will look like in a tripartite system
if the President can literally ignore any deadline in a major
piece of legislation, exclude whole classes of people from
enforcement. The question is what is left in that Newtonian
orbit that Madison described. And I would suggest what is left
is a very dangerous and unstable system.
Mr. Chabot. Thank you very much.
My time has expired. I yield back.
Mr. Goodlatte. The Chair recognizes the gentleman from
Virginia, Mr. Scott, for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Lazarus, first of all, on the ACA, it seems to me
absurd that the Federal exchanges that are there for all
intents and purposes to serve as the State exchange or State
marketplace--it would be absurd to interpret that they are
there for all intents and purposes except for the purpose of
the bill, which is the subsidies. Is that right?
Mr. Lazarus. It is obviously absurd, Congressman Scott. And
therefore, to say that the President is violating his duty to
see that the law is faithfully enforced because he interprets
the law in a way that is consistent with its purpose and
consistent with the known objectives of the Congress that
enacted it is also, it seems to me, quite absurd.
Mr. Scott. Thank you.
The Congressional Research Service provided several
examples in prior Administrations where the IRS delayed
enforcement despite a congressionally mandated effective date.
Can you say a word about the President's power to delay
implementations of provisions particularly when compliance is
logistically impossible?
Mr. Lazarus. Yes. And I think actually despite the sparks
that are flying around this room about the President's actions
with respect to the Affordable Care Act, really these
principles are really quite simple. Several people have noted
that the President cannot refuse to enforce a law for policy
reasons. It is obviously correct, certainly correct, and it is
also obviously not what the President is doing. Does the
President have policy objections to the Affordable Care Act? I
do not think so. Phasing in the enforcement of major statutes
like the Affordable Care Act or the Clean Air Act or other
laws, certainly laws that the EPA administers miss statutory
deadlines very, very frequently because it is simply
logistically impossible to prudently implement them in accord
with those deadlines. This is just a tempest in a teapot.
Mr. Scott. Thank you.
Mr. Lazarus. And if I can say one further thing about your
first question, Congressman Scott. We should understand what
the consequences of Mr. Cannon's interpretation of the ACA
would be and why it would drive a stake through the heart of
the ACA in every Federal exchange state. It is not just that it
would keep maybe 80 percent of the people who were expected to
enroll for insurance on exchanges from being able to afford
that insurance. 80 percent. So it would really wreck that part
of the program. But actually it would probably just cause the
entire individual insurance market, even for people who could
afford insurance, to implode because it would so screw up the
actuarial calculations. So it really would drive a stake
through the heart of the law in those States. And to say that
Congress intended--intended--to do that is--I do not know. It
is just pretty hard to stomach.
Mr. Scott. Thank you.
In November 1999, 28 bipartisan Members of the House wrote
the Attorney General a letter and expressed concern that INS
was pursuing removal in some cases, ``when so many other more
serious cases existed.''
How do you set priorities? If the President cannot set
priorities in enforcement when there is obviously not enough
money to enforce each and every provision to the letter of the
law, how do you set priorities if he cannot enforce each and
every provision?
Mr. Lazarus. The answer is it is the essence of the
executive responsibility to do just that. And I might note that
I think that President Obama has increased the number of
deportations, to the consternation of some of his own
supporters, a very great deal, as everyone here I am sure is
well aware, and my understanding is he has increased it to
400,000 people a year which is nearly four times as many as the
number was around 2000. The reason for that is that is all the
funds that Congress has appropriated for that.
Mr. Scott. My time is about to expire. I wanted to get in
one other question. Can you talk about the obligation of the
President to defend the Defense of Marriage Act when he
believes it to be unconstitutional?
Mr. Lazarus. Yes. I agree that the President should only
very, very rarely and with extremely good reason decline to
defend a law in court, and I have written about that. And I
think it is hard to fault what the President did in the case of
DOMA. He concluded with very good reason that there was simply
no argument that could justify DOMA. He notified the Congress
of this decision. He continued to enforce it. He invited
Congress to intervene in litigation to present that point of
view, and ultimately the Supreme Court vindicated his judgment.
So it seems to me it is very difficult to claim everyone on all
sides of these debates in both parties agrees that the Take
Care Clause contemplates that the President may decline to
enforce a law which he concludes in a responsible way is
unconstitutional.
Mr. Chabot [Presiding]. The gentleman's time has expired.
Mr. Scott. Mr. Chairman, I ask unanimous consent to
introduce into the record the letter I referred to.
Mr. Chabot. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Chabot. The gentleman from California, Mr. Issa, is
recognized.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Lazarus, I hear you on the President deeply believing
in his policy, his signature legislation, the Affordable Care
Act, but he deeply believes, I am sure, in every item that he
wants appropriated from Congress. But 2 years later, it
expires. Right? And 2 years later, he cannot just spend money
unless he comes back to Congress for more money. Is that not
true? That is implicit in the Constitution.
Mr. Lazarus. I apologize, but I do not really understand
the question, Congressman Issa.
Mr. Issa. When the President's authority has run out, he
must come back to the Congress for new authority. In the case
of the Affordable Care Act, things which were not in the law
have gone wrong. This act, this 2,400 pages that had to be
passed and then read, has flaws in it, and these are fatal
flaws if not corrected. Isn't that so? Including the absence of
an answer to how do you subsidize if in fact a State chooses
not to do it.
Mr. Rosenkranz, if the law does not give the President
authority and something goes wrong, I am presuming that the
Framers always intended that you would come back to the
Congress to resolve that need for additional authority. It has
happened. It was earlier mentioned Abraham Lincoln came back to
have his suspension of habeas--attempt to have it ratified
because he knew, even if he did it by executive order, he had
limited jurisdiction. He wanted to have it codified.
I think a good example would be McArthur's promise in war.
They came back with the Rescission Act in order to undo some of
the promises that were made in war to the Filipino people and
so on.
Is there anything in the Affordable Care Act that is
different than any other time that something that is not in the
law occurs that is outside the law that you come to Congress
and say I need authority to do X? Please.
Mr. Rosenkranz. I quite agree, Congressman. It is really
quite startling that this Congress--this House offered to
ratify exactly what the President wanted to do, actually passed
a bill which would have delayed the employer mandate exactly as
the President wanted, and far from welcoming this, the
President actually threatened to veto it. To me that is quite
startling.
Mr. Issa. I want to go through a couple things I think we
can all agree on and get to something Mr. Turley said. Would
you all agree, without further pontificating, that when Andy
Jackson heard from the U.S. Supreme Court that he had no right
to move Native Americans out of their homes to Oklahoma and he
then did it anyway, saying essentially to the Supreme Court you
have no army, therefore I am doing it, that he was outside his
constitutional authority? You would all agree to that. Let the
record show I had all----
Mr. Lazarus. I certainly would agree to that.
Mr. Issa. Okay. I had all shaking heads.
When Richard Nixon tried to withhold his tapes, which were
essentially evidence of his complicity in the Watergate and the
cover-up and the court ordered those tapes, even after he had
fired a number of people and so on, you would all agree that
the court's action was appropriate that there was a crime, it
went to the White House, and ultimately led to Richard Nixon
resigning? You would all agree that it was appropriate, I
assume, for the court to intervene in this constitutional
dilemma of a President that did not want to turn over evidence
related to his crime. Would you all agree?
Mr. Lazarus. I would.
Mr. Issa. Good.
And would you all agree--maybe, maybe not--that when
President Bush asserted in the Harriet Miers case--and this was
referred to earlier--that when Judge Bates essentially said
Congress has a need to get people in front of it, whether that
person speaks or not, ultimately--and this is Mr. Conyers'
case--that in fact the court intervened and said, yes, I have a
right to decide and you must produce witnesses. You would all
agree that that was a good balance of power decision by Judge
Bates. Is that correct in George W.'s case? Okay.
Then on what basis does President Obama say he is above the
law when in Fast and Furious he asserted that the court had no
right to even decide whether or not a lawfully delivered
subpoena should, in fact, be complied with? And in this case,
Judge Amy Berman Jackson has ruled that, yes, she has the right
to decide it. The question for all of you is if we cannot go to
the courts as Congress with our standing after a contempt vote,
if we cannot go and get the court to decide the differences
between the two branches, then in fact as some of my Democratic
friends have asserted, the imperial presidency is complete?
Isn't that the most essential item that if in fact we do not
have standing, if in fact the court does not have a right to
decide, then executive power is essentially unlimited?
Mr. Turley, you have written on this.
Mr. Turley. May I answer?
Mr. Issa. I would ask for 1 minute for full answering.
Mr. Goodlatte [presiding]. Without objection, the gentleman
is granted 1 additional minute.
Mr. Turley. I certainly agree that that is part of the
problem here, that we have created a system by which Presidents
can assert powers that others view as unconstitutional. I think
the President is asserting clearly unconstitutional power in
this case. And then the Department of Justice proceeds to try
to block any effort of judicial review. This Administration has
been very successful largely on standing grounds. So there is
no ability to challenge these things even if they are viewed as
flagrantly in violation of the Constitution.
I will also add with reference to your earlier point one of
the things that the courts say when those of us who represent
Members go to the court and say the President is acting
unconstitutionally--we hear this mantra from the judges saying,
well, you have the power of the purse. But in this case, it is
the power of purse that is being violated, and we have hundreds
of millions of dollars that are being essentially shifted in a
way that Congress never approved. And so we have in many ways a
perfect storm. Even the power of the purse that is often cited
by the courts really does not mean much if the President can
just shift funds unilaterally without any type of review.
Mr. Issa. Anyone else?
Mr. Lazarus. I guess the only thing I would say--and I do
not claim to be an expert on standing, as I think some of my
co-panelists----
Mr. Issa. I am more interested in the standing of the
court, which was the question. Does the Federal court have the
right and obligation to make those final decisions on
essentially balance of power, and if not, aren't we doomed?
Mr. Lazarus. Well, I would just say two quick things. I
mean, first of all, the courts do not have authority--they have
authority under the Constitution to hear cases and
controversies, and the courts do not have constitutional
authority to decide matters that are not cases or
controversies. And that is why we have standing rules.
The second thing I would just say, Congressman----
Mr. Issa. So refusal to comply with a subpoena would not be
a problem. Therefore, Nixon should never have resigned because
his tapes never would have been discovered in your example.
Mr. Lazarus. I do not think that that follows.
Mr. Issa. He did not turn them over without being ordered
to.
Mr. Lazarus. Yes, he might have.
Mr. Issa. Mr. Rosenkranz, final.
Mr. Rosenkranz. I guess I would just say some of the
standing questions may well be tricky, but again the ultimate
check on presidential lawlessness is elections and in extreme
cases impeachment, but elections primarily should be the check.
Mr. Issa. So when the IRS prevents the word from getting
out by conservative groups, they in fact thwart the election.
Therefore, elections are no longer the final answer. Are they?
Mr. Rosenkranz. To the extent that the IRS targeting is an
example of discriminatory enforcement, you are quite right. It
is actually the most corrosive form of a Take Care Clause
violation because it does cast doubt on everything that
follows, casts doubt on the elections that follow. So you are
quite right.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Goodlatte. The gentleman from Georgia, Mr. Johnson, is
recognized for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman, for holding this very
important and significant hearing today.
This hearing is pure political theater. It is a farce plain
and simple. It is a comedy but the audience has seen it so many
times now that it is no longer funny. In fact, this hearing is
an egregious waste of this Committee's time especially when one
considers all of the legislation that remains unaddressed by
the House like immigration reform. The Senate has passed
comprehensive immigration reform, but the Speaker of the House
continues to refuse to bring the issue to the House floor.
Yesterday, as House Members walked down the Capitol steps
on their way home from an exhausting 1-hour workday, I watched
as most Members had their heads down. They wanted to avoid eye
contact with the 50 or so young people standing at the foot of
the steps in the cold wind. They had their hands clapped
together--the young people--in prayer. Their prayer was on
behalf of those families of immigrants that are being destroyed
as a result of this Nation's failure to pass comprehensive
immigration reform. Their prayer was a simple one, that Speaker
Boehner allow the House to vote on comprehensive immigration
reform before the end of this session of Congress. The
spectacle of those kids shivering in prayer in the cold last
night could not be avoided by the Members of Congress. So most
kept their heads down probably in shame as they hastily escaped
to the safety of their cars.
I suggest that this Committee hold a hearing on the
question of why, despite immigration reform being supported by
a majority of Americans, having been passed by the Senate and
the President having said that he will sign it if it ever gets
to his desk--why is it that we cannot bring that measure to the
House floor for a vote?
Mr. Chairman, this do-nothing House has only 7 legislative
days left before it adjourns for its well-earned year-end
holiday. The same Republican Party that has voted 46 times to
repeal the Affordable Care Act is today ironically complaining
that the President is not implementing the law quickly enough.
But at its essence, this hearing sadly is simply a continuation
of the majority's overwhelmingly obsessive and insatiable
desire to kill the Affordable Care Act which will enable 30
million Americans to have health care--32 million Americans. 46
times they have tried and failed to kill it. The result of this
hearing will not change the fact that Obamacare is the law of
the land.
And since today we are hearing testimony on the use of
executive authority, let's not forget that the key authority
for Congress to check the power of the executive is its Article
I authority over appropriations. And by the way, this Congress
has not yet passed a budget. Congress continues to shirk its
constitutional duties under Article I. funding the Government
through short-term resolutions is not leadership and the
American people deserve better.
So after holding yet another hearing to obstruct this
Administration, perhaps this Committee can also take up the
question of Congress' duties under Article I in a hearing
entitled ``The Congress' Constitutional Duty to Appropriate
Funds.''
Now, as far as the Affordable Care Act is concerned, the
individual mandate is constitutional. It will reduce costs,
prohibit discrimination against patients with preexisting
conditions, and extend coverage to the uninsured. It will
extend coverage to 32 million Americans. The individual mandate
is the key to this legislation being successful. It will ensure
that millions of Americans will not have to worry about being
denied health care because of a current medical condition or a
fear that their coverage will be capped if they get sick.
To the Members who have served longer than I on this
Committee, I invite you to look back to 2003 when a Republican-
led Congress enacted the law creating the Medicare prescription
drug program. Most Democrats voted against the bill in 2003.
The program was also very unpopular with most Americans, but
Democratic Members worked hard when the program was implemented
in 2006 and 2007 to make sure that their constituents received
the full benefits of the program. It is unfortunate that the
Republicans today are not doing the same thing.
Mr. Lazarus, this is not the first Administration to
temporarily postpone the application of new legislation. How
have prior Republican and Democratic administrations treated
the implementation of statutes when statutory deadlines become
unworkable?
Mr. Goodlatte. Without objection, the gentleman will have 1
additional minute to allow Mr. Lazarus the opportunity to
respond.
Mr. Lazarus. I will try not to take the whole minute. The
answer is that prior Administrations have done just what this
Administration is doing because they have to. I quoted
President Bush's Secretary of Health and Human Services,
Michael Leavitt, in saying that the President's current
decision to delay the employer mandate was wise, and he said
that and then cited his own experience in phasing in Medicare
Part D, the prescription drug benefit program.
The Environmental Protection Agency under all
Administrations faces statutory deadlines that cannot be met.
We all know that. The Bush administration was often chastised
by environmental groups for missing statutory deadlines and the
environmental community charged and charged in court, in fact,
that the Bush administration was using delays as a cover for
simply suspending the law as a de facto matter. I do not know
what the basis for that was or was not.
Of course, again if a President refuses to enforce a law
for policy reasons, that is a violation of his ``take care''
duties, but that is not what is going on here.
Mr. Johnson. Thank you.
I yield back.
Mr. Goodlatte. The Chair recognizes the gentleman from
Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I thank the witnesses for your testimony. This has been one
of the most interesting that I have been seated here more than
a decade on this Committee.
As I listened, I listened to Mr. Lazarus and often your
dialogue goes to the policy effect of this rather than being
tied to the constitutional language or the statutory language,
although you have referenced both. I am curious as to what you
think the limited powers of the President might be given you
grant him such latitude to amend Obamacare, extend the
statutory deadline because it conforms with the broader intent
of the law and your reference to the intent of Congress that
they really intended to allow for the application of taxes and
the distribution of refundable tax credits even though Mr.
Cannon testifies that that is not in the section that applies.
So from a broader perspective, could you tell me how you
think the President's powers are limited? And I would maybe
just ask, does he have the power to lay and collect taxes?
Mr. Lazarus. Well, first of all, I think that the
President's powers are limited by what the statute provides,
and I think I have said several times I agree entirely that the
President cannot simply refuse to apply or enforce a law for
policy reasons.
Mr. King. But can he regulate commerce, for example?
Mr. Lazarus. The President is obligated to phase in a new
law.
Mr. King. I am sorry, Mr. Lazarus. I hear that. But I am
trying to get to the constitutional limitations that you think
the President has.
Let me just bypass the enumerated powers with the exception
of what would happen--and I am concerned about Mr. Turley's
statement that we get into a pretty dangerous area here if we
do not have constitutional limitations. What if we just leap to
the end of this thing? What if the President declared war? What
if he assumed that authority? What is the recourse then? What
would your counsel be to this Congress if we objected to such a
thing or even if we objected to it on purely constitutional
grounds and we thought it was a good policy decision and vetoed
our resolution to declare war? That should get us to the bottom
of this discussion.
Mr. Lazarus. Well, the President does not have the
authority under the Constitution to declare war.
Mr. King. Correct.
Mr. Lazarus. The Congress does. The Congress has not been
enormously eager to exercise that authority in my lifetime. But
that is a very complicated subject and it is the subject of----
Mr. King. Thank you, Mr. Lazarus.
Mr. Lazarus [continuing]. Interplay between Congress and
the executive branch. There is a War Powers Act. There are
disputes about----
Mr. King. Let me then pick it up from there. I am
illustrating this point that if there is an incremental march
down through, is the President overreaching his constitutional
authority in my opinion and I think the opinion of many people
on this Committee in this room. He could assume among that any
of the enumerated powers, and the recourse that Congress would
have--all the way down to the declaration of war--and the
recourse that Congress would have would be pass a resolution of
disapproval or we could shut off the funding through the power
of the purse. And the President has already assumed the power
of the purse. So the next recourse is go to the courts, and if
we find out that the courts do not grant standing for Members
of Congress, then the next recourse is, I think as Mr.
Rosenkranz said, the word that we do not like to say in this
Committee and I am not about to utter here in this particular
hearing.
The balance I want to come to is ask Mr. Cannon this
question. The frustration of this balance of power is because
of the disrespect for the various branches, the competing
branches, of Government that come. And I will argue that the
Founding Fathers envisioned that each branch of Government
would jealously protect its constitutional power and authority,
and that static balance that would be there would be the
definition of a brighter line between the three articles of the
Constitution.
But what then finally resolves this? I know we said
elections. If the elections are affected by decisions of the
executive branch, what do the people do who are the final
arbiters of this definition of the Constitution if they are
even frustrated by the election?
Mr. Lazarus. Is this to me or----
Mr. King. I am asking Mr. Cannon, please.
Mr. Cannon. I think it was to me. And you are asking if
there is no judicial remedy and there is no electoral remedy,
what do the people do? To what particular sort of abuses are
you----
Mr. King. Any one of the list of the enumerated powers, for
example, ending with the declaration of war because that is the
starkest of all.
Mr. Cannon. There is a procedure in the Constitution that
allows the people to amend the Constitution without going
through Congress. That is another method where the people can
try to restrain the executive.
Mr. King. May I suggest then if that should happen, why
would an executive with such disrespect for the Constitution
today honor an amended Constitution from a constitutional
convention?
Mr. Cannon. That is an excellent question.
Mr. King. I would like to turn to Mr. Turley and ask him if
he has had a chance to reflect upon that earlier statement of
the situation that we are in and where this goes. We need to
look into this future. I would ask unanimous consent for that
additional minute. I ask each of the witnesses to tell us what
does America look like in the next 25 years if we have
executive upon executive that builds upon this continual
stretching or disregard of the constitutional restraints and
the disrespect for Article I. I would start with Mr. Turley.
Mr. Gowdy [presiding]. You may answer the question as
quickly as you can.
Mr. Turley. I really have great trepidation over where we
are heading because we are creating a new system here,
something that is not what was designed. We have this rising
fourth branch in a system that is tripartite. The center of
gravity is shifting, and that makes it unstable. And within
that system, you have the rise of an uber-presidency. There
could be no greater danger for individual liberty. And I really
think that the Framers would be horrified by that shift because
everything they have dedicated themselves to was creating this
orbital balance, and we have lost it.
Mr. Rosenkranz. As I have said before, I think the ultimate
check is elections. But I do not think you should be hesitant
to speak the word in this room. A check on executive
lawlessness is impeachment, and if you find that the President
is willfully and repeatedly violating the Constitution, if on
your hypothetical he were to declare war, I would think that
would be a clear case for impeachment.
Mr. Lazarus. Well, I guess this is the first time I have
heard anyone complain about the possibility that this President
is going to unilaterally declare war and be over-aggressive
about that. I do not really think that is much of a description
of his foreign policy.
But the Congress has lots of power if it chooses to use it.
The power of the purse is an enormous power. And I think that
if I were you, I would find ways to influence policy using the
Congress' powers, which you are not doing. I mean, for example,
we are hearing complaints about the President's actions to not
enforce deportation against certain classes of immigrants. You
know, instead of complaining about that, this Committee could
hold a markup and report out a comprehensive immigration reform
bill, send it to the floor.
Mr. Gowdy. Mr. Lazarus, you are--not you but the questioner
is 2 and a half minutes over. So if you can dispense with
giving us advice on what our legislative agenda should look
like and answer the question, I would be grateful to you.
Mr. Lazarus. Well, but that is an answer. I think the
Congress has a lot of power and it can use it.
Mr. Gowdy. Okay. And I assume that the failure to exercise
is also an exercise of power, the failure to act.
Mr. Cannon, would you like to briefly answer?
Mr. Cannon. Maybe Mr. Lazarus knows better than I do how
many bombs the President has to drop without congressional
authorization before that becomes war. I do not know the actual
number.
But I think what Mr. King was getting at is there is one
last thing to which the people can resort if the Government
does not respect the restraints that the Constitution places on
the Government. Abraham Lincoln talked about our right to alter
our Government or our revolutionary right to overthrow it, and
that is certainly something that no one wants to contemplate.
But as I mentioned in my written and my delivered
testimony, if the people come to believe that the Government is
no longer constrained by the laws, then they will conclude that
neither are they. That is why this is a very, very dangerous
sort of thing for the President to do, to wantonly ignore the
laws, to try to impose obligations on people that the
legislature did not approve.
Mr. King. An excellent conclusion.
Thank you, Mr. Chairman. I yield back.
Mr. Gowdy. The Chair would now recognize the gentleman from
Pennsylvania, former United States Attorney, Mr. Marino.
Mr. Marino. Thank you, Chairman.
Professor Lazarus, you made a statement about--at least I
inferred, about this being political. I want to assure you that
I left a lucrative law practice to come to Congress in 2011
because I continually see the eroding of the Constitution. I am
a constitutionalist. It is what protects us. So I am not here
for the pomp and circumstance, for the notoriety or to promote
my career. I am here because I am concerned about the future of
my children and the Constitution. So I want to make that
perfectly clear.
Number two, you made a comment, and again I inferred that
the intent was not an issue or was an issue in part of the
Affordable Care Act. And I do not want to get into the details
of that, but I find that interesting that you made intent the
issue when the Speaker of the House at that time, Nancy Pelosi,
said we have to pass it before we know what is in it. Okay? So
let's get real about this.
Now we are finding what is in it or what is not in it, and
I am hearing consistently from my constituents, small
businesses, how this is destroying them. Let me be the first to
say that I think everyone needs health care, and those that
cannot afford it--we that can afford it have to help those
individuals. I firmly and truly believe that.
So with that, I would like to read you something. I am not
a constitutional expert, but I loved constitutional law. I
follow constitutional law ad nauseam. Just ask my wife. I am
always talking about constitutional law.
But in Federalist No. 51, it said, what is government
itself but the greatest of all reflections on human nature? And
it referred to--but the great security against a gradual
concentration of the several powers in the same department
consists in giving to those who administer each department the
necessary constitutional means and personal motives to resist
encroachment of the others. And the Government was set up to
specifically prevent that.
And the problem is I am seeing here not only in this
Administration but in the previous Administration and several
Administrations the executive branch is taking for granted that
they have exclusive power over issues that they do not. And I
am concerned about that and what do we do to prevent that. But
where does it stop?
Here is my question. We have seen the President and past
Presidents concerning the Wars Powers Act, which I think
violated the Constitution. But this Administration stopped
enforcement of detaining illegal immigrants, stopped
enforcement of drug laws. I know that because I am a
prosecutor. I saw it. Stopped enforcement of mandatory
sentencings, stopped parts of Obamacare, the Benghazi issue,
the AG being held in contempt, the IRS issue. How many more
things do you think have to occur?
And I am thinking like a prosecutor. One of those in and of
itself is not enough evidence. Two of those in and of itself is
not enough evidence. But the violations that I see here that I
just listed--and there are many more--I think is enough
evidence to start asking questions. Where do you see the line
drawn in what I have recited here as enough evidence to start
asking questions about Presidents exceeding their power?
Mr. Lazarus. Well, first of all, Congressman, I cannot
address all of the----
Mr. Marino. And I do not expect you to.
Mr. Lazarus [continuing]. Things that you have raised. But
many of those things--I mean, let's be honest about it--are
honest disagreements about policy or about how to interpret the
law.
Mr. Marino. So your interpretation of the law--you are
saying you do not agree with the way perhaps I am interpreting
the law. So you say I am wrong.
Mr. Lazarus. No. Just to finish the sentence, raising the
specter of some kind of grotesque presidential assertion of
unwarranted authority here is just not based on fact. Mr.
Cannon, for example, strongly believes that his interpretation
of the law, which would sink Obamacare in his view, is correct,
or I guess he does. The President disagrees with that. The
President has very good reason to disagree with that. So to say
that he is not taking care that the----
Mr. Marino. Let me reclaim my time here.
But when laws are enacted, they should be followed to the
letter, and it is not being done here. I have heard you raise
the issue of, well, prior Administrations have done it. To me
that is no excuse not to pursue this from a congressional
standpoint because whether it is Obamacare, whether it is the
War Powers Act, whether it is going into Iraq, these are all
issues that I am deeply concerned about.
So you criticized and you have made some, I think, remarks.
I do not think you take some of this seriously of what your
colleagues have to say up there. So give me an answer as to
what you think we need to do to curtail the executive power the
way I think it has been abused over the years.
Mr. Gowdy. You may answer the question quickly.
Mr. Lazarus. Well, I think you can pass legislation to
overturn an executive action you disapprove of. You can
withhold funds for it.
Mr. Marino. Well, let me ask you--show something right
there that you are not reciting either. 94 percent of Obamacare
is mandatory spending, and the Democrats passed that
unanimously without any votes from the Republicans. So it is
mandatory spending. Nothing can be done about that at this
point. It is the law.
And I yield back my time. Thank you.
Mr. Gowdy. I thank the gentleman from Pennsylvania.
The Chair will now recognize the gentleman from New York,
my friend, Mr. Jeffries.
Mr. Jeffries. I thank the distinguished Chair, as well as
the distinguished Ranking Member for his leadership, and the
panelists for their participation this morning.
If I could just start with Professor Rosenkranz. And I want
to explore this issue of prosecutorial executive branch
discretion particularly in the context of the enforcement of
our Nation's immigration laws. But if I can just start with
some foundational questions.
The Department of Justice, for example, is an executive
branch agency. Correct?
Mr. Rosenkranz. Yes.
Mr. Jeffries. And Federal prosecutors within the Department
of Justice are exercising executive branch action in the
context of their participation in the criminal justice system.
Correct?
Mr. Rosenkranz. Are exercising executive authority, yes.
Mr. Jeffries. Executive authority.
Now, when prosecutors make a decision, after initially
charging someone with a serious offense and then agree to a
plea bargain to a lesser included offense, short of what they
may have concluded the evidence provides that particular
defendant was guilty of, is that an appropriate exercise of
prosecutorial discretion within the four corners of the
Constitution?
Mr. Rosenkranz. Well, I guess it depends on the
circumstances of your hypothetical. It would not be appropriate
if it were, for example, motivated by race or something, but on
the facts you have described, if the prosecutor thought he did
not have the resources to prosecute a particular crime or
perhaps was not sure that he had the evidence for a particular
element of the crime, then yes, that is an appropriate exercise
of discretion.
Mr. Jeffries. And the executive branch in the prosecutorial
context, for instance, the Department of Justice or in the
immigration context within Homeland Security--they have an
ability to prioritize the nature of the offenses that they
enforce. Is that correct? As an appropriate exercise of their
constitutional authority.
Mr. Rosenkranz. The executive branch has authority to
husband its resources in the most efficient way that it sees
fit. So the President does not have the money or resources to
completely execute every law, and so he does have to, by
necessity, make decisions about enforcement priorities, yes.
Mr. Jeffries. Now, so you have concluded, I believe, that
the presidential exercise of authority in the DACA context with
respect to deferred action, a certain class of individuals--do
you believe that that is an unconstitutional exercise of his
authority?
Mr. Rosenkranz. Sorry. In the immigration context?
Mr. Jeffries. In the immigration context.
Mr. Rosenkranz. Yes, I do.
Mr. Jeffries. And you believe that is the case because of
the fact that you contend it was a wide-ranging exercise that
was not made on a case-by-case basis? What is the foundation of
your belief that it is unconstitutional?
Mr. Rosenkranz. I think there are two basic reasons. One is
that it goes dramatically further than the hypotheticals we
were discussing before. This is not a prosecutor deciding on a
case. This is a President deciding on 1.8 million cases.
And the second striking thing about it is the President
deciding on exactly the set of cases that Congress considered
exempting and decided not to exempt. That is what is
particularly shocking about it.
Mr. Jeffries. Reclaiming my time, you are familiar with the
criteria that has been set forth for the determinations that
are made, I believe, on a case-by-case basis as it relates to
who qualifies for this deferred action. Are you not?
Mr. Rosenkranz. Yes.
Mr. Jeffries. So, for instance, one of the criteria, you
must have entered the United States before their 16th birthday
and be younger than 31 as of June 15, 2012. That is one
particular criteria.
Another is cannot have convictions of any felony offense,
significant misdemeanor, or have committed any three
misdemeanor offenses.
Those are pretty specific enumerated categories.
But another category which helps to determine whether
discretion is appropriate is you cannot pose a threat to public
safety or national security. Isn't that a pretty broad category
within which discretion can be exercised on a case-by-case
basis as to whether in fact you pose a threat to public safety
or national security, that that is not a specifically
constrained factor that people either automatically fall within
or automatically fall without?
Mr. Rosenkranz. Well, I think it is quite a dramatic shift
in the status quo. So 1.8 million will presumptively be allowed
to stay. I cannot imagine that but a tiny fraction of them will
be found to fall within that exception.
Mr. Jeffries. Okay. And I would just note that of these
individuals, more than 450,000 have been granted deferred
action, but in excess of 100,000 have been denied access or
have not received that grant of discretion.
And I yield back.
Mr. Gowdy. I thank the gentleman from New York.
The Chair will now recognize himself for 5 minutes of
questions.
It strikes me that the law can require action or forbid
action. The law can forbid the possession of child pornography.
The law can, in some instances, require you to file an income
tax return.
Mr. Lazarus, is the chief executive constitutionally
capable of ignoring both categories of law?
Mr. Lazarus. Well, as I said several times, Congressman
Gowdy, the President cannot refuse to apply or enforce a law
for policy reasons.
Mr. Gowdy. Well, let's analyze that for a second. The
Congress decided in its collective wisdom that if you possess X
amount of a controlled substance, you are going to get X amount
of time in prison. You may like mandatory minimums; you may not
like them. This Administration summarily dispensed with that
law.
So my question to you again is, can the chief executive
fail to enforce categories of law that are both permissive and
mandatory?
Mr. Lazarus. It is well established that the executive
branch has prosecutorial discretion to decline----
Mr. Gowdy. And what are the limits of that prosecutorial
discretion?
Mr. Lazarus. You know, very frankly I am not an expert on
that.
Mr. Gowdy. Well, let me ask you this. Let's assume that a
statute required you to show two pieces of identification to
purchase a firearm. Can the chief executive knock that down to
one?
Mr. Lazarus. I guess I'd have to know a little bit more,
but I would----
Mr. Gowdy. It is a very simple fact pattern. You have to
show two forms of ID to possess or purchase a firearm--to
purchase a firearm. Can the chief executive under his pardon
authority or his prosecutorial discretion authority knock that
down to just one form of identification?
Mr. Lazarus. Well, I am not aware of limits on the
President's pardon authority.
Mr. Gowdy. So you would say he could.
Mr. Lazarus. Under the pardon authority, the President can
pardon just about anyone, not that he should----
Mr. Gowdy. Even before the act is committed?
Mr. Lazarus. That is the reason for----
Mr. Gowdy. Can he do it before the act is committed? That
is my question.
Mr. Lazarus. I am sorry?
Mr. Gowdy. Can he do it before the act is committed?
Mr. Lazarus. Again, that is above my pay grade. I do not
really know that.
Mr. Gowdy. If the President can fail to enforce immigration
laws, can the President likewise fail to enforce election laws?
Mr. Lazarus. Did you ask whether the President can pardon
someone before a prosecution is initiated or before an act----
Mr. Gowdy. Well, I think I know the answer to that
question. My question was before the act was committed. He
certainly can before prosecution.
My question is this. If you can dispense with immigration
laws or marijuana laws or mandatory minimums, can you also
dispense with election laws?
Mr. Lazarus. Again, I think we have gone over this ground
many times.
Mr. Gowdy. Well, just humor me. Let's do it one more time.
Can the President suspend election laws?
Mr. Lazarus. No.
Mr. Gowdy. Why not? If he can suspend mandatory minimum and
immigration laws, why not election laws?
Mr. Lazarus. Because we live in a Government of laws, and
the President is bound to obey them and apply them.
Mr. Gowdy. Well, he is not applying the ACA, and he is not
applying immigration laws, and he is not applying marijuana
laws, and he is not applying mandatory minimums. What is the
difference with election laws?
Mr. Lazarus. We have a disagreement as to whether, in fact,
he is applying those laws. My view is that he is applying those
laws.
Mr. Gowdy. Did Eric Holder instruct his prosecutors to no
longer follow the mandatory minimums with respect to charging
decisions?
Mr. Lazarus. This is an area where I really do not know
nearly as much as you do, Congressman.
Mr. Gowdy. I would find that shocking that anybody would
not know more than I do on any topic.
Do you want me to ask Professor Turley?
Mr. Lazarus. I would say that my impression is that he is
not exactly doing what you have just said.
Mr. Gowdy. Well, tell me how I am wrong because Eric Holder
sent out a memo that we are no longer going to put in the
indictment the drug amounts.
Do you agree with me that Congress can pass mandatory
minimums?
Mr. Lazarus. Constitutionally? Yes.
Mr. Gowdy. Do you agree that Congress can pass statutory
maximums?
Mr. Lazarus. Pardon me?
Mr. Gowdy. Can Congress also pass statutory maximums? In
other words, you cannot get more than 30 years for a crime.
Mr. Lazarus. Of course.
Mr. Gowdy. Can a President exceed a statutory maximum?
Mr. Lazarus. Can he extinguish did you say?
Mr. Gowdy. No. Can he exceed it?
Mr. Lazarus. Can he exceed it? Well, how would he do that?
You mean keep someone in prison beyond his prison term.
Mr. Gowdy. Well, if you can put him in prison for less time
than Congress says is the law, can you also do it for more time
than Congress says is the law?
Mr. Lazarus. You know, this is kind of fruitless because it
is an area that I really do not know----
Mr. Gowdy. Professor Turley, what are the limits of
prosecutorial discretion? And if the President can suspend
immigration laws, marijuana laws, why not election laws?
Mr. Turley. Well, I think that some of these areas, I
cannot imagine, can be justified through prosecutorial
discretion. It is not prosecutorial discretion to go into a law
and say an entire category of people will no longer be subject
to the law. That is a legislative decision. Prosecutorial
discretion is a case-by-case decision that is made by the
Department of Justice. When the Department of Justice starts to
say we are going to extend that to whole sections of laws, then
they are engaging in a legislative act, not an act of
prosecutorial discretion. Wherever the line is drawn, it has
got to be drawn somewhere from here. It cannot include
categorical rejections of the application of the law to
millions of people.
Mr. Gowdy. Well, my time is up, but I would just tell you
that I always thought prosecutorial discretion was an
individual prosecutor determining whether she or he has enough
facts to substantially result in a conviction on a case-by-case
basis. If a President is ignoring entire categories of the law,
whether it be immigration, marijuana, mandatory minimum, the
ACA, what is the remedy for the legislative branch?
Mr. Turley. Well, first of all, the first part of the
question is--as you may know, I do criminal defense work. I
would never go to a prosecutor and say I want your
prosecutorial discretion to say that the entire class of which
my client belongs cannot be subject to this law because
prosecutors would look at me and say are you insane. I am not
Congress. So I would not even raise the question.
Now, in terms of where we go from here, I am not too sure
because the great concern I have for this body is that it is
not only being circumvented but it is also being denied the
ability to enforce its inherent powers. Many of these questions
are not close in my view. The President is outside the line.
But it has to go in front of a court, and that court has to
grant review. And that is where we have the most serious
constitutional crisis I view in my lifetime, and that is, this
body is becoming less and less relevant.
Mr. Gowdy. With that, we will recognize the gentlelady from
Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the majority and the
minority, Mr. Conyers, for holding this hearing.
Let me thank the witnesses. Whenever witnesses come before
our body, it is of course valuable and we trust your judgment,
although we may disagree with you vigorously.
Let me say that the wasteland that Mr. Lazarus spoke of--
and, Mr. Lazarus, please let me cite you and indicate that I
will be using this across the land, the vast lands of this
Nation, which is a rhetorical make-waste that this hearing
equates, but also to suggest that the reason why this body that
Professor Turley has suggested may be on the verge of some
basis of irrelevancy, which I take issue with, is because under
the present House leadership, we have passed no legislation for
the President to be able to implement in the first place. We
have not passed immigration reform. We have not dealt with the
question of mandatory minimums. We have not dealt with a budget
process. We have not dealt with sequester. If we would simply
do our job, the relevance to the American people would exceed
our expectation.
I just came from the Fast for Families. Just a few hours
ago, we had in this room DREAMers. As far as I am concerned,
the duty of the President is to be the ultimate giver of relief
within the context of the Constitution and the necessary relief
of the people who are begging for relief. If you read the lines
that we are so intellectually gifted to interpret, along with
precedents, it says that he shall take care that the laws be
faithfully executed and shall commission all of the officers of
the United States. Well, I could be a believer, and therefore,
my faith says that the President is taking, within the context
of the laws, the ability to implement to help the most
vulnerable. And what we are doing here is a rhetorical
wasteland of ignoring the pain of our Nation.
And let me give you an example. First of all, my good
friend from South Carolina knows full well as a Federal
prosecutor that each day prosecutors are making distinctive
decisions about who to prosecute and how within the context of
the law.
And to answer the question for you, Mr. Lazarus, the issue
is that in election laws you follow the law, but you have the
right in a prosecutorial posture to determine whether you are
prosecuting or not. That is what happened with mandatory
minimums. That is what is happening with the issue of drugs.
That is what the Attorney General is speaking of. He is not
throwing laws to the wasteland. We are in this hearing, for it
has no sense to it.
And then it is interesting that we have not understood the
question of the Secretary of Homeland Security. She issued a
memo to her staff. She has an inherent authority to deal with
policy. Each of the deferred adjudications or the deferments
for DREAMers is individually assessed. What is the
constitutional gobbledygook talking about? They do not
understand the difference between policy and the ability to do
that?
And so I have had DREAMers come to my office. I could not
waive a magic wand. They had to go through the process. The
memo indicates that it went to CBP, ICE, immigration
enforcement, and others.
And so I am taken aback that this issue does not come with
humanitarianism, and that if there should be a hearing, it
should be a hearing of the failure of this Congress to act on
its constitutional responsibilities.
Let me ask on the Affordable Care Act, which is now just
another way, if I might say so, of having the 50th and the 52nd
and the 53rd challenge on the Affordable Care Act. Mr. Lazarus,
to go back to a comment about these exchanges, another
wasteland, that if your State does not have an exchange, just
on practical English, it means that you in the State cannot
comply, meaning you, the citizen, are left in a wasteland of
noncompliance, what do you get on? And so we have established
the national exchanges. Would we have preferred to have State
exchanges and to have a list of State insurers? Yes. Would we
prefer for Republicans not to encourage young people not to do
what is best for them by getting covered? Yes.
But my question is if the directive is to run such
exchanges, that means the same characteristic, Federal
exchange, including the tax credit that allows poor people to
have insurance, obviously, these are allowed. I am sort of
coming in the middle of my question, Mr. Lazarus. This is for
you. In essence, in States that have refused exchanges, the
Federal Government stands in the shoes of the States. Does that
not further illustrate why you, not Mr. Cannon, are correct
based on the pure text of the law and that the President is
carefully, faithfully implementing the law? Would you go over
that for us again so that it can be in the record?
Mr. Lazarus. Well, that interpretation is what I support,
what the President, and the Administration supports, and what I
think will certainly prevail in court, and that is that what
the law provides is that if a State declines to set up an
exchange, then the Federal Government shall establish such
exchange. It says such exchange in the law. And as you just
stated in common sense terms, the Federal Government then will
stand in the shoes of the State in operating that exchange and
the exchange will be exactly the same, have all the same
powers, authorities, and responsibilities that an exchange that
is being managed by a State government would have. Any other
interpretation, the one that my friend, Mr. Cannon, here is
promoting so vigorously, makes no sense and would actually
cause the whole exchange part of the ACA to fail in every one
of these States. So it makes no sense whatsoever I think.
Ms. Jackson Lee. May I just have an additional 30 seconds?
He did not answer. Does this not exceed----
Mr. Lazarus. I am sorry.
Ms. Jackson Lee. Does this not exceed the authority of the
President----
Mr. Gowdy. We are already 2 minutes over. So if you could
give us a very pithy response, it would be great.
Ms. Jackson Lee. You are very kind, Mr. Chairman. Thank
you, Mr. Chairman.
Mr. Lazarus?
Mr. Lazarus. I think the President is not violating his
``take care'' responsibilities by acting on the interpretation.
Ms. Jackson Lee. And do you associate with my
interpretation of the statements I made previously?
May I ask for a submission into the record? I am finished.
Mr. Gowdy. You can submit all your questions for the
record.
Ms. Jackson Lee. No, no. May I just submit a document of an
op-ed----
Mr. Gowdy. Without objection.
Ms. Jackson Lee [continuing]. Dated August 15, 2007 by
myself on signing statements? I ask unanimous consent.
Mr. Gowdy. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gowdy. Before I recognize the gentleman----
Ms. Jackson Lee. I thank the Chairman and I thank the
witnesses. I yield back.
Mr. Gowdy. Before I recognize the gentleman from Idaho, for
those of our panelists who may not be able to avail themselves
of the history of this Committee from 2008 to 2010, the other
side controlled this Committee, and not one single solitary
piece of immigration reform was produced. Now, let's be fair. I
have got colleagues like the gentleman from Illinois who are
equally desirous of immigration reform no matter who the
President is. But let's do not rewrite history. From 2008 to
2010, the Democrats controlled this Committee and nothing with
respect to immigration reform. So do not talk to me now about
what a huge priority it is.
I recognize the gentleman from Idaho.
Ms. Jackson Lee. Will the gentleman yield?
Mr. Labrador. Mr. Chairman, thank you for the time.
Panelists, thank you for being here.
Mr. Lazarus, I have been listening to you for 2 and a half
hours now, and I have not heard a single time where you have
told me where in the law the Federal exchanges are given the
authority to grant these subsidies. You talk about policy. You
talk about what you think the President wants. You take about
what you think the Democrats want. Tell me in the statute just
one time where it says that the Federal exchanges are supposed
to give this subsidy.
Mr. Lazarus. Yes. I did not go into detail and I do not
think that my friend, Mr. Cannon, did either.
Mr. Labrador. I think he did. He mentioned the numerous
times where it gives this solely to the State exchanges.
Mr. Lazarus. Let me answer the question.
First of all, I ask that the Committee include written
testimony that I gave to a Subcommittee of Congressman Issa's
oversight Committee that goes into detail about what the----
Mr. Labrador. Just name one. I just want one section of the
law. I do not have that much time. Name one section of the law.
Mr. Lazarus. And secondly, I also----
Mr. Labrador. You do not know.
Mr. Lazarus. No, no. I did not say I do not know.
Mr. Labrador. You name one section of the law.
Mr. Lazarus. I want to say that I had----
Mr. Labrador. One section of the law, Mr. Lazarus, where it
says that.
Mr. Lazarus. I would cite two sections.
Mr. Labrador. Okay, thank you. That is all I am asking.
Mr. Lazarus. The first section is one that Congresswoman
Lee referred to and that is where the law says that in the
event that a State does not set up its own exchange, then the
Secretary of Health and Human Services shall establish such
exchange. Our interpretation and the Administration's
interpretation is that the words ``such exchange'' should be
interpreted to mean that the exchanges will operate on the same
terms and have the same authority. Michael does not agree with
that, but that is the interpretation.
Secondly--and I think this is really quite important--when
the statute defines exchange with a capital E--it puts a
capital E in there--it says the exchange shall be an exchanged
established by the State under the relevant section. And then--
--
Mr. Labrador. I reclaim my time. I just asked you a simple
question.
Mr. Lazarus. So the----
Mr. Labrador. Mr. Turley and Mr. Cannon, I think both of
you, coming from different political points of view, had some
of the same concerns that I had about the prior Administration,
about the Bush administration. In fact, I read some of your
writings, Mr. Turley, before I was a Member of Congress.
Mr. Turley. Bless you. [Laughter.]
Mr. Labrador. And I was very concerned about the imperial
presidency. I was very concerned about having a Republican with
Republicans in Congress who were not willing to be a check and
a balance on a Republican President. And in fact, like Mr.
Cannon stated in his testimony--I think it was you. I cannot
remember which one of you it was who stated that maybe the one
thing that you liked about Obama--you seem to agree with his
policies. You seem to kind of like the fact that he was going
to be a check on what previous Presidents had done.
So I am actually really disappointed that we are here at
this hearing today, and I am surprised that my friends on the
other side do not think that this is an important hearing
because they seem to bitch and whine for 8 years about what the
Bush administration did. And all of a sudden, they do not seem
to have one single concern about what this President is doing
with this authority.
What do you have to say about that, Mr. Turley?
Mr. Turley. Well, I believe that this institution is facing
a critical crossroads in terms of its continued relevance in
this process. What this body cannot become is a debating
society where it can issue rules and laws that are either
complied with or not complied with by the President. I think
that is where we are.
And where Mr. Lazarus and I disagree, Mr. Lazarus keeps on
saying, look, a President cannot ignore an express statement on
policy grounds. I am not too sure what is involved here. If you
look at the individual mandate, the policy issue there was that
a great number of people were upset. They felt that there was a
bait and switch. That is not the same thing that we see with
like the environmental statutes that Mr. Lazarus points out.
That is a political issue, a policy issue where the President
said I do not want this to happen now and a lot of people are
upset with it. That would seem to me if that is not a policy
question, I do not what is. And by Mr. Lazarus' own definition,
that would seem to be outside the authority of the President.
But in terms of the institutional issue that you are
raising, look around you. Is this truly the body that existed
when it was formed? Does it have the same gravitational pull
and authority that was given to it by its Framers? You are the
keepers of this authority. You took an oath to uphold it. And
the Framers assumed that you would have the institutional
wherewithal and, frankly, ambition to defend the turf that is
the legislative branch.
Mr. Labrador. Mr. Cannon, it seems to me that Mr. Lazarus
is arguing that the President can do anything that we refuse to
act on. And I think that goes beyond what the constitutional
powers that were given to the President by our Founding
Fathers. In fact, if you follow his logic, it seems to me that
if he next decides that he wants to make sure that nobody who
came here illegally, who came here just to work in agriculture,
for example, can be deported because there would be some
humanitarian concerns about deporting these people that he has
the express authority to actually do that.
I am actually a proponent of immigration reform. I want
immigration reform to be done. And I think the actions of the
President have made it less likely that this body is going to
act because we are not sure what he is going to enforce and
what he is not going to enforce.
What are your comments on that?
Mr. Cannon. I think that there is no bright line, as far as
I know, to be drawn between enforcement discretion and
legislating. I think that the President's actions with regard
to the Patient Protection and Affordable Care Act--wherever you
draw that line, he is on the wrong side of it.
But I think the best way to curtail the abuse of
prosecutorial discretion is to have fewer crimes. We have a lot
of crimes in our immigration laws that I just do not think
should be here. I think our drug war creates a lot of
criminals, and there are a lot of crimes on our books as a
result of the drug war that should not be there. And that is
why prosecutors across this country are stretched so thin, why
prisons are overcrowded. And when you have a situation like
that where you have got a surplus of crimes and not enough
resources to prosecute all of them, then you put a lot more
power in the hands of individual prosecutors, as well as the
executive branch generally, to decide how these laws are going
to be enforced or not enforced. I think on a macro level that
is how you try to attack this problem.
Mr. Labrador. Thank you.
I yield back my time.
Mr. Gowdy. The gentleman yields.
The Chair would now recognize the gentleman from Illinois,
my friend, Mr. Gutierrez.
Mr. Gutierrez. Thank you very much, Mr. Chairman.
Well, once again we are not legislating in this Committee.
We could be using this time to find common ground and even have
a strenuous and substantive debate on important public policy
matters, but instead I think what we are doing is offering
empty assurances and shaping political messages for next fall.
Rather than worrying about whether the President we know--and
you ``distrusts'' is enforcing our laws the way you would like
him to, we could be making meaningful progress toward crafting
and passing laws for the betterment of the American people.
The President is not a Member of this Committee. He does
not sit on this Committee. He does not have a vote in the House
of Representatives. We should craft legislation and get it
done. And then we should make sure that that legislation is
enforced.
Now, I know that some people say, well, he is not enforcing
the legislation. Let me just suggest to everybody when he got
sworn in as President of the United States, Secure Communities
was nothing in this country. There are hundreds and hundreds of
agreements with county, State, and local--how do you think the
apparatus was created to deport 2 million people in the last 5
years? By accident? That apparatus did not exist under George
Bush. It was created under his Administration and implemented
by this President. And that is something that I am happy about,
287(g) agreements that have been made with one locality after
another.
We are going to sit here and actually that Congresswoman
Sinema, our colleague, who hired one of the DREAMers after she
applied for DACA and successfully got her work permit and is
now her district--her mom is under a current order of
deportation. She quit her job today as a congressional aid to
go and fight for her mom. And we are saying that he is not
enforcing the law? I assure you that if you are fighting this
Administration, as I and many others are fighting this
Administration each and every day, you will find this President
is, indeed, enforcing the law. Unfortunately, he should not be
limiting his prosecutorial discretion. He should be expanding
his prosecutorial discretion.
Now, on the substantive issue of DACA, the fact is we
passed the DREAM Act in the House of Representatives in the
fall of 2010, 216 to 208. But then we went to the Senate, Mr.
Turley, and over there they said you need 60 votes now to get
something done. We always talk about the Framers. I do not
remember any Framers saying you need more than one vote in the
majority in the Senate. But now you need 60. So they only got
55. So clearly the established will of the majority of the
Senators and the House of Representatives was to do what? To
protect the DREAMers. That is what the President did. He took
the express will of the House and the Senate, if not for this
new rule that they invented that they have had, I think, now
for 35 years that you need the super majority of 60 votes. If
we needed that here, even my colleagues on the Republican side
would have a difficult time getting legislation passed.
So all I am trying to say is when we move the ball forward,
the President looked at it. And I just want to say that I do
not know about the other, but it seems like Bo Cooper, former
INS General Counsel; Paul Virtue, former INS General Counsel--
these are general counsels of the INS. Each of them established
that the President of the United States does have prosecutorial
discretion when he gets to decide who to prosecute and who not
to. And that is what he did. He set children aside and said I
am no longer going to prosecute them because they do not
present an imminent threat.
And guess what, Mr. Chairman. A year and a half later,
500,000 of them are walking around, and I assure you because I
know the way this place works if you can find one and bring
them up here that shows how he has caused some danger or some
harm, that person would have already have come. But the fact is
that they are not. They are working in congressional--three of
them are working in my congressional office filling out more.
Look, they are American citizens in everything but a piece of
paper.
And all I want to do--and I want to establish because the
Chairman is absolutely correct. I am going to say this. When we
were in charge in 2007 and 2008, we were worried about losing
our majority because your side was beating the crap out of us.
I am sorry. Maybe that word should not be used here. But that
is what you were doing. So if a Democrat voted for immigration
reform, your side went boom, boom, boom, boom and knocked them
out. Right? And then we were in the majority in 2009 and 2010,
and we did nothing. I agree with you we did nothing.
But let's not repeat history. Let's not say you did not do
anything, so we are not going to do anything. No. Let's do
something.
I want to end with this. Here is what I would like to do. I
want to step outside of my Democratic Party because I know
there are men and women on your side of the aisle that want to
step outside of their Republican Party and join an American
party on the issue of immigration because I know there is
common ground that we can reach. And then the President will
not have to be taking these actions because more and more what
you are going to find is people are going to say Congresswoman
Sinema's staffer--we should not deport her mom. Mr. President,
stop the deportation of that mom.
So all we are going to do is--look, they are here. There
are 11 million of them. Let's figure out a way how we legalize
their status, and let's figure out--if you want triggers, let's
put the triggers in. But in the end, we are going to have to
come back here, and when they become American citizens, they
are all going to become American citizens. We should get over
that because you know what is going to happen, Mr. Chairman? If
we pass legislation and they all do not go to citizenship, the
next day somebody is going to show up and say that Congressman
Gutierrez did not do a good enough job. That is the positive
thing. Somebody comes and says we did not do a good enough job.
Thank you. You have been so kind and so generous. I know
one thing. Eventually we are going to have a hearing here. We
are going to call you all back and you are going to let us know
how we are going to get this done. I pray that that happens. It
is the right thing for America. Thank you very much.
Mr. Gowdy. I thank the gentleman from Illinois.
The Chair will now recognize the gentleman from Arizona,
Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, the subject of today's meeting is pretty
profound related to the rule of law, and there are so many
examples that some of us point to, and it is hard to name them
all. So I am just going to point to a few that this
Administration seems to have stepped outside the boundaries of
``the rule of law.''
Taxing political contributions. Again, not in the law.
Political speech disclosures for Federal contractors. The deep
water drilling ban. Mr. Holder's attempt to reform criminal
justice by selectively enforcing our laws. Mr. Obama's
unilaterally ignoring immigration laws in many cases.
Unconstitutional recess appointments. Fast and Furious,
unconstitutional efforts there to walk guns. Unconstitutional
wiretaps of the AP. The IRS scandal, one of the more egregious
ones, as the gentleman mentioned that it subverts the entire
political process. And of course, Obamacare, which I will touch
on in a moment.
But all of these are examples where this President, in the
words of my friends on the left, has exercised prosecutorial
discretion--that is the word--presidential pardon powers. But I
think they are more along the lines that Professor Turley said.
These could be considered royal prerogatives, which if my
history is right, that is what we had that little
unpleasantness with Great Britain about. So the subject here is
of profound significance.
And I would suggest, Mr. Chairman, that not only in the
application of the law has this Administration held themselves
unconstrained by the Constitution or even the truth in many
cases, but even in the process of getting the law.
On Obamacare, this was passed in a unique situation. You
know, I see in Mr. Cannon's testimony especially--it is
probably the perfect citation. I see in your testimony that you
write, ``President Obama's unfaithfulness to the PPACA is so
wanton it is no longer accurate to say that the Patient
Protection and Affordable Care Act is `the law of the land.' ''
You know, it is kind of ironic because some of my colleagues,
about 53 of us, have signed on to the House resolution stating
that we believe that Obamacare has yet to be the law of the
land because it violated the Origination Clause of the U.S.
Constitution when it was passed. And we do not talk about that
a great deal, but it is significant because the Origination
Clause, which was vital to the Constitution ever coming in to
existence in the first place--it was the critical negotiation
that took place to allow the Constitution to exist--requires
that all bills for raising revenue originate in the House.
And incidentally, Mr. Cannon, your colleague Ilya Shapiro
at Cato has written an excellent piece laying out this
argument, and I am going to ask that this be placed in the
record here in a moment and also would like to ask you to
address it if you have a perspective of it.
But the bottom line that is at issue here is that if the
U.S. Senate can take a totally unrelated piece of legislation
and strike everything but the number and take legislation that
they called the Senate health care bill and place it in its
entirety, which raises taxes to an enormous degree--if they can
take any bill in the House and do that, then I would suggest to
you, especially after the Supreme Court has labeled Obamacare a
tax--they have officially called it a tax. And if indeed it can
be done this way, then I would suggest to you that the
Origination Clause is a dead letter. There is no more purpose
for it being in the Constitution. And it is something that I
hope that we will look at more carefully.
So if it is all right, Mr. Cannon, I am going to address my
question to you. Do you have anything that would help
illuminate this in ways that the rest of us can understand?
Mr. Cannon. Well, this is a provision of the Constitution
that has not really been used or employed by the Supreme Court
to knock down any revenue measures that were alleged to have
originated in the Senate instead of in the House as required by
the Constitution.
I think that what happened with the PPACA is a more extreme
example of the abuse of--or a more extreme violation of the
Origination Clause than what we have seen in the past. As you
say, a bill came up with a totally unrelated revenue measure,
came over from the House. The Senate stripped out everything
within that bill, kept only the bill number, H.R. 3590, I
believe, and inserted into that the Patient Protection and
Affordable Care Act, which had all sorts of revenue measures,
including the individual mandate, which we did not know then
was a tax, but now we know it is a tax until the Administration
changes its mind again, which it continues to do.
There is nothing in the bill number that is a revenue
measure. All the revenue measures had been stripped out of that
bill. So if the Origination Clause means anything, then it
means that that revenue measure that the Senate passed and then
the House passed and that we now call the Patient Protection
and Affordable Care Act originated in the Senate and the Senate
did not have the power to originate a bill--a revenue measure
like that.
But the difficulty is will the courts enforce that part of
the Constitution. There is a difficult line to be drawn between
when are you amending a revenue measure that came from the
House and when are you originating a new bill. I think that
reasonable people can disagree about where that line will be
drawn. I do not think that reasonable people can disagree about
whether the Senate's gutting of H.R. 3590 and inserting into
that a totally new revenue measure--I do not think anyone can
disagree that that is on the wrong side of that line. It
remains to be seen whether the courts will uphold that part of
the Constitution. If they do, then probably they would have to
strike down the entire PPACA.
Fortunately, there is a lawsuit that is making its way
through Federal courts--it has been filed by the Pacific Legal
Foundation--that challenges the individual mandate under the
Origination Clause.
Mr. Franks. Mr. Chairman, thank you. I guess if this
Administration does not succeed in stacking the D.C. Circuit,
we should find out whether the Origination Clause still means
anything at all with the case that the gentleman mentions.
Mr. Gowdy. I thank the gentleman from Arizona.
The Chair would now recognize the gentleman from North
Carolina, the former U.S. Attorney, Mr. Holding.
Mr. Holding. Thank you, Mr. Chairman.
Professor Turley, throughout your testimony, you have
alluded several times that there are incidents that you believe
that the President has stepped over the line, and we have
talked about a number of them. But I would just ask for you to
recap and maybe give us your top five instances where you think
that he has overstepped the line and breached the Constitution.
Mr. Turley. Thank you very much, Congressman.
First of all, I do think that there is a number of
provisions in the ACA where he did overstep the line. The
decision on individual mandates strikes me as a rather obvious
policy determination from the President that he did not want to
see it enforced, given the amount of public opposition that
occurred and accusations of a bait and switch. Those are all
political issues. This was not Clean Air Act regulation that
was stuck in the mire of regulatory disagreements as to a
command and control statute.
I also believe that the employer mandate, which was also
extended, constitutes a significant change in the legislation.
I also believe that the immigration issue is well across
the line. I actually agree with the President on the decision
that was made, but that does not matter because it was not made
in a way that is allowed under our Constitution.
One of the things that I would point your attention to,
Congressman Holding, is that if you look at each of these
questions, a couple of things jump out at you. One is they
happen to occur in areas of tremendous political division, if
not deadlock. That is precisely the type of issue that the
Framers wanted to go through the legislative process because
our process, unlike other systems that would explode into the
streets of Paris and other cities, we have a type of
constitutional implosion. We direct those pressures to the
center of Congress, and from that, we take disparate factional
interests and turn them into a majoritarian compromise.
Mr. Holding. If I could get you to keep going down the list
of instances where you think that he has overstepped.
Mr. Turley. The other two that really come out to me is
really the issue of the $454 million in the prevention fund
issue for the Federal health care insurance exchange and also
the $700 billion for the State exchanges and then finally
essentially the subsidies for congressional employees, which is
less significant than those other ones. And what bothers me
about those last examples is that it goes directly to the power
of the purse. And we have seen over and over again courts
saying do not worry, you have the power of the purse. And this
Administration is now directly challenging that and saying we
can take money that was dedicated for one purpose and give it
to an unspecified disallowed purpose, and that challenges the
very rock foundation of the Congress.
Mr. Holding. Mr. Rosenkranz, do you want to add any to this
list of--I have got four.
Mr. Rosenkranz. Well, I agree with all the items on that
list.
You know, a recent D.C. Circuit opinion spoke of the
Nuclear Regulatory Commission refusing to make a decision about
Yucca Mountain. That is quite a striking example. That is the
example where Judge Kavanaugh--the Judge Kavanaugh quote came
from.
And the other example that I really want to keep returning
to is the IRS-targeted enforcement. So to my mind, taking care
that the laws be faithfully executed--the core of that
requirement is nondiscriminatory enforcement.
Mr. Holding. Mr. Lazarus, do you want to add any to this?
Perhaps not.
Mr. Cannon, would you like to add any to this?
Mr. Lazarus. I would like to ask isn't the Nuclear
Regulatory Commission----
Mr. Holding. I am going to reclaim my time, Mr. Lazarus.
Before I go to you, Mr. Cannon, I want to use my last
minute with Mr. Rosenkranz. Mr. Rosenkranz, you said that in
extreme instances, impeachment would be appropriate to address
one of these transgressions. We used the example of declaring
war without congressional authorization. Say, on a scale of 1
to 10, that being a 10 as necessitating impeachment
proceedings, we have reeled off six instances where the
President has exceeded his constitutional authority. I would
add a seventh in there with what he is doing with our drug laws
and the mandatory minimums and the insistence that our
prosecutors not charge all of the relevant facts.
Out of any of these seven, which ones rise to being the
most egregious and would any of them trigger what you would
think impeachment to be appropriate?
Mr. Rosenkranz. Well, I would not want to opine on quite
what the impeachment line ought to be, but I think this body
should think about a pattern, if they see a pattern and
particularly if they see willful conduct. That is really the
most egregious thing a President can do is willfully violate
the Take Care Clause or display a pattern of disregard for a
constitutional prohibition. So that is what I think the
Committee should keep their eye on.
Mr. Holding. Mr. Chairman, I yield back.
Mr. Gowdy. I thank the gentleman from North Carolina.
The Chair would now recognize the gentleman from Georgia,
Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
I have sat here and I have listened and I have listened in
the back. I listened to both sides. The thing that just
disturbs me more about this hearing probably--Congressman King
said it was one of the most interesting hearings that we have
done and one of the relevant hearings. I am not going to
disagree with that.
But I think for me it actually brings out one of the most
disturbing hearings that we are having to have. And I think it
is a progression issue here. And I am not going to be
Republican or Democrat. It has happened more in the last 15 to
20 years. I think this is a progression of executives that both
Republicans and Democrats have used really in some ways, pushed
that boundary, stretched that boundary, and I think in the case
of this, the President now has outright stepped over those
boundaries.
And we can have legal discussions up here all the time. But
the problem is from where I come from up in northeast Georgia
people do not get it. They look at a government. They look at
an executive. They look at what is going on right now, and they
just basically say this is not the way it is supposed to work.
You can go back to schoolhouse rock. You can go to civics
class. You can do whatever, and you can be graduated law
professors. But at the same point, if you cannot communicate it
to the people who have to live under the situation, then there
are mass problems. And I believe there is a right to have a
mass problem right now.
We have talked about the power of the purse. I have talked
all session ever since I got up here about I believe truly that
this institution has got to matter again. It is Article I. We
have talked about Article III a lot. We talked about Article II
a lot, but it is Article I. Congress has to matter again, and
that means that we have to take seriously our role of
budgeting. We have to take seriously our role of legislating,
but also holding accountable when we are being bypassed. And
that is a concern.
And we talked about using the power of the purse. I think
that has been an issue that has been well trodden today. We
have talked about elections, and I think that is an issue that
has been discussed.
But the other issue for me that is bothersome and you try
to explain is what can you do. I am often asked this. You got
to go up there and you just impeach him. Or you go up there.
You just impeach the President. Or you go up there and you just
cut funds off. You shut everything down. And it just becomes a
blur.
And now we have Mr. Lazarus--and I respect your right to a
differing opinion than mine on most things here--to say that I
believe he has stepped over and you believe he has not. That is
where we differ.
And, Mr. Turley, we will agree on some things and probably
not agree on others. But you made a statement that said, agree
or not, it was not in the bounds of the Constitution. And I
think that is interesting for us to talk about for just a
moment because it comes back to what do we do besides getting
our ``act together,'' if you would, as Congress. What can we
do? Because standing is an issue that we are having.
So I want to ask you just this question. Where do we go to
begin that process of reclaiming our Article I, our
constitutional role so that it is a three-legged stool and not
right now a one and a half.
Mr. Turley. Well, it is an excellent question. Despite my
deepest concerns, I remain optimistic. I am a Cubs and Bears
fan. So I have spent most of my life with unrequited desires.
But it is as serious as you suggest, and there is a good
reason why people cannot understand what is going on because we
are acting outside the system. We have essentially taken the
Madisonian system offline, and we are in this ad hoc
improvisational world of constitutional law that is very, very
dangerous.
Where I disagree with my friend, Mr. Rosenkranz, is I am
always leery about people who say the solution is elections.
The Framers did not intend for elections to be the solutions to
constitutional problems. They created a system of checks and
balances to allow the system to correct itself because there
are plenty of abuses. You can have majoritarian terror that
would be just promulgated and continued through elections.
Also, impeachment is not a good device for regulation. It
is a very difficult thing. I testified at the Clinton
impeachment hearings. It is a very difficult standard and is
certainly not there as a substitute.
I think that a hearing that this body should seriously
consider is to have a hearing on Member standing. I have been
writing about this for years. I have represented Members. If we
had Member standing, if Members could go to court and raise
unconstitutional acts, much of these problems would go away
because we have been guaranteed review. Much of what we have
seen from the White House in my view is based on the
assumption, not necessarily a bad one, that nobody will be able
to call them to account.
Mr. Collins. I believe you are right on that.
You know, you said were an optimist. I am too if you have
watched some of our sport teams lately in Atlanta. But I am an
optimistic realist, and I do not get on the plane to come to
Washington, D.C. I still look at this capital and I still
believe it matters. I still believe that we are a shining light
for the world. But I want to spend all of my time, as best I
can, to bring us back to a balanced checks and balance system
in which Congress' Article I authority is respected and honored
and we also have the system that most people in this country
grew up understanding. And I think that is what this hearing
ultimately is about, is the respect of the people who sent us
here, and we have got to continue that.
Mr. Chairman, I yield back.
Mr. Gowdy. I thank the gentleman from Georgia.
The Chair would now recognize the gentleman from Florida,
Mr. DeSantis.
Mr. DeSantis. Thank you, Mr. Chairman.
Mr. Lazarus, if Congress passes a statute that applies to
whatever parameters you want, can the President enlarge the
parameters of the statutory text and apply it to areas outside
that the statute contemplated?
Mr. Lazarus. No.
Mr. DeSantis. Okay, because it is interesting because in
your----
Mr. Lazarus. Let me just qualify that. This is an abstract
question and it really depends on how the statute is worded.
Mr. DeSantis. I understand that and I will give you a
chance to respond because you cite bureaucrats within the
Administration to justify some of the President's conduct, but
you actually do not cite any quotes from the President himself
justifying his conduct. And I think it was interesting with
this most, quote, legislative fix for grandfathered plans, here
is what the President said. Already people who predate the ACA
can keep those plans if they haven't changed. That was already
in the law. That is what is called a grandfather clause that
was included in the law. Today we are going to extend that
principle both to people whose plans have changed since the law
took effect and to people who bought plans since the law took
effect. In other words, Obamacare has a grandfather clause.
Anything after the enactment of Obamacare is illegal unless it
meets the statutory requirements. So what the President is
saying is he is extending a grandfather clause to cover plans
beyond what the statute contemplates. So you think that that is
appropriate.
Mr. Lazarus. I think you are making a good point. I think
that it is appropriate if it is temporary.
Mr. DeSantis. And, oh, by the way, let me just say. We
passed in the House a bill that would have grandfathered in the
plans, and I think that we should do that.
Mr. Lazarus. What I meant to say was I think it is
appropriate as a temporary measure if it is necessary to----
Mr. DeSantis. It is directly contrary to the statute. The
whole point of Obamacare was that you needed to force people
into these exchanges.
What about this idea? If a political environment is tough,
would that be a reason to delay a law or grant a waiver to a
law if you cite the political environment as your
justification?
Mr. Lazarus. I think that would be----
Mr. DeSantis. Congress is not doing what I want. I may
suffer political damage. So I am going to do it anyway.
Mr. Lazarus. Clearly that would not be appropriate.
Mr. DeSantis. Well, because I think in your testimony--and
you did make some good points. I will give you that. You did
not cite the President's stated justification for delaying the
employer mandate. He was asked about it at a press conference.
He said, you know, in a normal political environment, I would
pick up the phone, call the Speaker, say, hey, this is a tweak
that does not go to the essence of the law, and we would delay
it for a year. But there is not a normal political environment
when it comes to ``Obamacare'' is what he said.
Now, to me, I think that that is totally outlandish of an
explanation. It is even more outlandish because Congress, by
the time he made that statement, had already passed a bill to
delay the employer mandate precisely for the reason that the
President suggested.
Let me ask you one more question. Professor Turley, I
really appreciate your written testimony, and you cite a lot of
examples of the Founding Fathers.
And, Mr. Lazarus, you made the point that, hey, the Take
Care Clause does not mean what the rest of these guys say.
Original understanding--the Founders understood it. But you did
not cite any actual Founding Fathers. So can you cite for me a
Federalist Paper? Hamilton wrote a number on executive power.
Can you cite a Constitutional Convention debate, a ratifying
convention debate, early practice in the republic that would
substantiate your assertion that that is consistent with the
original understanding?
Mr. Lazarus. Yes.
Mr. DeSantis. Jefferson?
Mr. Lazarus. There is very----
Mr. DeSantis. Madison?
Mr. Lazarus. No. There is very little discussion----
Mr. DeSantis. Hamilton?
Mr. Lazarus. There is very little discussion, but what
there is----
Mr. DeSantis. All right. So you are making an assertion
that is not justified by the historical facts. I understand the
theory that you are positing, but I think it is tough. You got
to back it up. And I think Professor Turley backed up what he
was trying to say. And so I am asking you who would you point
to.
Mr. Lazarus. Can I finish?
Mr. DeSantis. Well, I want you to answer the question.
Mr. Lazarus. The answer to the question is that during the
Constitutional Convention--this is what I said in my testimony
and this is what the basis of the interpretation is, and I
think it is widely accepted. Originally what became the Take
Care Clause did not have ``faithfully'' and did not have ``take
care'' in it. It just said that the President shall carry into
execution the laws. As the debate went forward, that got
changed and ``faithfully'' and ``take care'' were added.
Mr. DeSantis. I understand that.
Mr. Lazarus. What I said what that clearly shows--and I
think what scholars on all sides have accepted--that shows that
the President is to faithfully, in good faith----
Mr. DeSantis. Let me reclaim my time because you have made
that point. That was not my question. My question is about show
me something I can go where Hamilton is saying this or not. You
are talking about----
Mr. Lazarus. This is even more powerful. It does----
Mr. DeSantis. And I think Mr. Turley's point about the
language is more correct.
But let me just say one other thing.
Mr. Lazarus. This is the actual legislative record, and it
is more----
Mr. DeSantis. So the text matters there but it does not
matter with the ACA because you are saying the purpose is
different from what the text actually says.
But I do think, though, the idea of when you are talking
about Mr. Cannon's argument, about, oh, nobody in Congress--
they did not intend for this subsidy to do--the idea that we
know what Congress intended on a 2,600-page bill that many
Members did not read, much less understand--there were Members
here swearing you could keep your plan, you could keep your
doctor. And now we have Members of Congress running around
saying, oh, my gosh, I did not know you would not be able to
keep your plan, your doc. So the idea you are going to rely on
that over the text of the actual statute to me I do not think--
I am a textualist--I would do that anyway. But with this health
care law I think of any law, surely you cannot point to what
Congress intended and to these intricate provisions because
many of them did not read or understand it.
And my time is up and I will yield back.
Mr. Lazarus. But it is Mr. Cannon who is claiming that it
was the intention. It was intentional and purposeful of
Congress to construe the law in the cramped way in which he
does.
Mr. Gowdy. I thank the gentleman from Florida.
The Chair would now recognize the gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
And I thank all of our witnesses. It is good to see some of
you back. I do not remember seeing all of you. Otherwise, it
would be all of you.
If you would suppose with me that you are in a town hall
back in a congressional district and you had an elementary
school child, student, stand up and ask this question, I would
like to know how each of you would answer this child's
question. What right does the House of Representatives have to
pick and choose what part of Government gets funding? What is
your response? We will start with Professor Turley.
Mr. Turley. I am sorry. The last part of the question?
Mr. Gohmert. What right does the House of Representatives
have to pick and choose what part of Government gets funded?
Mr. Turley. Well, I think the answer is clear. In this sort
of orbital world, these three branches are placed by the
Framers. The key power given to Congress and the House of
Representatives was the power of the purse, to control the
funds. What is alarming about the situation is that even that
power is being challenged and being marginalized.
Mr. Gohmert. Professor Rosenkranz?
Mr. Rosenkranz. Article I, section 8 gives you the power to
decide what you want to fund and what you do not want to fund.
Mr. Gohmert. And, Professor Lazarus?
Mr. Lazarus. Professor Rosenkranz took the words right out
of my mouth.
Mr. Gohmert. Article I, section 8? Okay.
Mr. Cannon. Article I, section 8, along with the Senate.
Mr. Gohmert. Mr. Chairman, I would ask that we provide a
copy of the answer to this question to Senate Leader Reid since
he asked that question.
Now, with regard to Libya, the President said he did not
need to come to Congress in order to get our authority to start
bombing in Libya. And that was a concern to some of us. He had
been asked by the Organization of the Islamic Conference, all
50 or 57 states, whatever they got, 50, 57, and also by some of
the NATO allies that use Libyan oil. So he did not need
Congress' approval because he had those requests.
He was initially prepared to help the Syrian rebels, which
al Qaeda had become, not initially, but they have become the
most profound part, and he was ready to start bombing the
Syrian leader that Hillary Clinton had called a reformer.
Initially he planned to do that without Congress' consent. He
did not think he needed Congress' consent, but obviously once
there was a lot of political pushback, he threw it to Congress
and let them decide.
But I am curious from each of you. What gives the President
the authority to order bombing, even if he promises to limit
the numbers of people that he will kill? What gives him
authority to go start bombing a country? Obviously we would
consider it an act of war if any country started dropping bombs
over us. But what gives him that authority? I am curious, from
each of you.
Mr. Turley. Well, first of all, I think it is a great
question because I was a little confused when Mr. Lazarus says
no one has accused President Obama of being inclined to engage
in war without a declaration. I was in court with Members of
this Committee saying exactly that in the Libyan war conflict.
And what disturbed us is that the White House came back and
said the reason we do not need a declaration of war is because
the President alone defines what a war is, and he is simply
saying this is not a war.
And when we talk about the dangers, this is a danger of a
different kind. It is not only a danger of separation of
powers, obviously, and a direct violation of the express
language of the Constitution, but this Administration through
these acts and through the large number of drone attacks is
returning the world to a state of nature. We are taking down
critical international legal principles that have governed this
world, that have respected territorial limitations.
I just spoke to the NATO parliamentarians, and I told them
you will loathe the day that you endorsed the U.S. position
that they can take unilateral action when somebody vaporizes
someone in the middle of London.
Mr. Gohmert. My time is about to run out. So let me morph
that into this question to each of you and get your answer.
Now, the President had ordered Anwar al-Awlaki killed by a
drone strike in Yemen, an American citizen, without any due
process as we have come to know it. I asked the question in
this room at another hearing, how far does that order extend? I
mean, if al-Awlaki came back to Capitol Hill and led prayers,
as he had before, of congressional staffers, was that order
still good? I wanted to know in case a drone strike was still
on.
What authority do you think the President has to order
American citizens killed in other countries in which we are not
at war or in the U.S.? My time is up, but if I can get answers
to that question from each of you.
Mr. Gowdy. As quickly as you can, given the subject matter.
Mr. Turley. I do not believe he has authority to do that.
They have cited things like hot pursuit, which makes no sense.
It is not an imminent threat. I believe the President's kill
list policy is flagrantly and dangerously unconstitutional.
Mr. Rosenkranz. I think it is quite a difficult question,
but the Obama administration's Office of Legal Counsel memo on
this is certainly quite strained. So they are reaching for
analogies and analysis that is quite unconvincing I would say.
Mr. Gohmert. Professor Lazarus?
Mr. Lazarus. I am very, very far from an expert on these
matters. But I would just offer one observation and that is I
do not really see why the American citizenship issue in the
case that the Congressman is referring to is all that
significant. I think that if a Nazi general happened to have
been an American citizen, it would not alter the way we could
deal with him militarily. But there are weighty questions about
the President's authority to implement the drone program. I do
not really have an expert view on that.
Mr. Gohmert. Briefly, Mr. Cannon.
Mr. Lazarus. I think it has been very effective militarily,
so that is a good thing.
Mr. Cannon. I will just associate myself with Professor
Turley's comments.
Mr. Gohmert. Okay. Thank you very much. I appreciate you
all's testimony.
Mr. Gowdy. I thank the gentleman from Texas.
The Chair would now recognize another gentleman from Texas,
Mr. Farenthold.
Mr. Farenthold. Thank you very much, Mr. Chairman, and I
appreciate the opportunity to ask some questions here.
I am going to ask for you all's help in answering what is
probably the number one question I get at town hall meetings
and people who are running up to me at the grocery store when I
am back home in Texas. And it goes something like this. In
light of--and you can insert whatever you want, Benghazi, Fast
and Furious, the IRS targeting of advocacy groups, NSA
overreach, if you like your health care, you can keep it,
varying the terms and waivers of Obamacare. The number one
question I get is what can you do about it. We sent you to
Congress to do something about this.
And I have listened today, and I have heard we could enact
new laws. Well, that does not work if they cannot get through
the Senate and the President himself will not sign it. We can
use the power of the purse. Well, that is pretty much dead. We
have heard testimony about that. And in the era of continuing
resolutions, we do not have a lot of options here. Well, we
could go to the court. We have heard about the standing issue.
Also even when there is standing, a delay tactic leaves you--
probably the President will be termed out by the time any of
these court decisions are held. We talked a little bit about
elections. I think Chairman Issa brought up the issue with the
IRS scandal interfering with elections, that is kind of off the
table. And I will admit my party did not do as well as we
probably should have in the other election, but we did do well
in the 2010 election when in historic numbers Congress changed.
And then we have also talked about the ``I'' word, impeachment,
which again I do not think would get past the Senate in the
current climate.
Am I missing anything? Is there anything else we can do?
Mr. Turley?
Mr. Turley. Well, it does paint a dire picture. As we have
said before, for years I have encouraged Members to consider
Member standing as a standalone issue, of trying to find a way
to establish, either constitutionally or through statute, to
allow Members of Congress to have----
Mr. Farenthold. Okay. So there is one fix to the court
system. But you are still not going to get that through in any
amount of time.
Mr. Turley. Yes. To me the most troubling thing is--I just
published a Law Review article on recess appointments, which I
also testified on.
Mr. Farenthold. We forgot that one in the list.
Mr. Turley. What is fascinating about it is that because
Congress has been stripped of more and more of its power, it
has actually put more emphasis on appointments as a way of
controlling the White House.
Mr. Farenthold. Have we been stripped of it or have we
inadvertently given it up?
Mr. Turley. I am afraid it is either by acclaim or it has
been----
Mr. Farenthold. I have to ask the rest of the panel. Mr.
Rosenkranz?
Mr. Rosenkranz. Well, I have said it before. I am sorry to
say that the ultimate remedy for this sort of thing is
elections, and democracy is slow and messy. But at the end of
the day, the right answer for this Committee is to hold
hearings like this, to publicize what it takes to be violations
of the Constitution and for that to become an election issue.
Mr. Farenthold. Mr. Lazarus, I realize you do not think we
have the problem with the President a lot of my constituents
have. But have I missed anything on a remedies against any
rogue--again, I use the term in broad, general--not pointing to
anybody in particular--a rogue President?
Mr. Lazarus. I think that is, with all due respect, a gross
misrepresentation of this President.
Mr. Farenthold. I was not pointing to this President. A
hypothetical rogue President.
Mr. Lazarus. Well, we know. We had a rogue President who
was driven from office and who would have been impeached and
convicted had that not happened. Actually that result was
guaranteed in this very room when the ranking Republican Member
of the Judiciary Committee voted to impeach Nixon. So, sure----
Mr. Farenthold. Mr. Cannon?
Mr. Cannon. Well, I think what Professors Turley and
Rosenkranz said is accurate or would help Member standing. Yes,
you have to win elections, but something that has not been
mentioned is getting Democrats to care about this issue when
there is a Democratic President and getting Republicans to care
about these issues when there is a Republican President.
Right now, I do not know if anyone who is watching this at
home has noticed, but all the Democratic Members of the
Committee have left room. I think they left about 20 minutes.
We are 3 and a half hours into this hearing. They are obviously
not as interested in this as----
Mr. Farenthold. And finally, I think one of our problems
here is we have a President right now who is not willing to
work with Congress. We just had a Democrat walk in.
Mr. Cannon. I retract my statement. My apologies.
Mr. Farenthold. I have talked to a constituent who worked
for the Bush White House whose job it was to lobby with
Congress, and I have met with somebody from the Obama
administration exactly twice in 3 years. And I do think it is
the President's duty to engage. I had a question on that, but I
am out of time. But I do think there is a disappointment with
the President not being engaged.
Mr. Cannon?
Mr. Cannon. If I may. Republicans are very concerned about
executive power when the executive is a Democrat. Democrats are
very concerned about executive power abuses when the executive
is a Republican. I think the Members of each party need to care
about these issues a lot more when someone from their own party
occupies the White House and not just when someone from the
opposite party----
Mr. Farenthold. Thank you. I see my time has expired,
Chairman Gowdy. I will give it back to you.
Mr. Gowdy. I thank the gentleman from Texas.
The Chair would now recognize the gentleman from Tennessee,
Mr. Cohen.
Mr. Cohen. Thank you, sir.
I have obviously missed some of this hearing, although I
have caught some of it on the magic of video television. And I
was interested the gentleman, Mr. Cannon, had mentioned the
possibility of impeachment or some impeachable offenses. Is
that accurate?
Mr. Cannon. I cannot remember if I brought that up. I may
have.
Mr. Cohen. And in what context would you have brought that
up?
Mr. Cannon. I think in response to a question. I am not
sure if I did or if someone else----
Mr. Cohen. Can anybody on the panel refresh his memory?
Mr. Cannon. I think what I brought up was a constitutional
amendment convention. I do not think I brought up impeachment.
I agree that it is certainly a tool that the Congress can use
to restrain the executive.
Mr. Cohen. Constitutional amendment. You suggested we
should have a convention?
Mr. Cannon. The question I was asked was--I was asked about
ways the people can restrain the executive, and I offered that
as one way.
Mr. Cohen. That has never been done before. Has it?
Mr. Cannon. Not that I am aware of, no.
Mr. Cohen. Anybody else on the panel have any thoughts
about impeachment?
Mr. Rosenkranz. I mentioned impeachment earlier. We have
been asked several times questions about possible remedies if
we find that a President is behaving lawlessly. I have not said
that this President has or that these examples rise to that
level. But the ultimate constitutional check on a lawless
President is impeachment and ultimately election.
Mr. Cohen. Right. That is the check. But nobody has
suggested that the President has certainly not committed any
impeachable offenses, I presume. Nobody here thinks that. Is
that right? Mr. Cannon?
Mr. Cannon. Well, I do not know. As Professor Rosenkranz
mentioned, I think an important element is that whatever crimes
or misdemeanors he has committed were committed knowingly and
whether there is a pattern of abuse of his office. And in my
testimony, you will see that I actually lay out a pretty
consistent pattern whereby President Obama has ignored and
tried to rewrite portions of the Patient Protection and
Affordable Care Act. And I think that the most egregious of
these is the one where he is implementing the law in a way such
that he is taxing and borrowing and spending, over the next 10
years, $700 billion that this Congress never authorized.
Now, you may disagree with my interpretation of the law. I
know Mr. Lazarus does. But I think that you and I and Mr.
Lazarus would all agree that if a President were trying to tax
and borrow and spend $700 billion without congressional
authorization, that might be an impeachable offense.
Mr. Cohen. Does anybody here think any actions of the Bush
administration and going into Iraq without actual knowledge of
weapons of mass destruction or anything else would have been an
impeachable offense? Mr. Lazarus, you seem to be nodding.
Mr. Lazarus. No. Disregard the nod behind the curtain or in
front of the curtain. I was very upset by that, but whether it
is impeachable is a political decision that Congress would have
to make.
Mr. Cohen. Mr. Turley?
Mr. Turley. Well, the war powers issue does come closest
for me for both President Obama and President Bush. The reason
I do not think it rises to that level is because court
decisions have made this so much of a mess, first of all, by
judicial passivity in not reviewing it and by the use of
historical practice. So I think it is very hard to maintain an
impeachable offense when you have that degree of ambiguity. I
do not believe that ambiguity is found in the Constitution. I
believe that President Obama violated the Constitution in
Libya, for example. But because of that history and precedent,
they can claim that were acting on a reasonable interpretation
of the law.
Mr. Cohen. Thank you.
Mr. Gowdy, I congratulate you, I guess, on South Carolina's
victory, and I yield back the balance of my time.
Mr. Gowdy. Thank you, Mr. Cohen. I have got to be careful
how I respond to that since they are both State schools. I
thank the gentleman from Tennessee.
I would now recognize another gentleman from Texas, former
judge, Judge Poe.
Mr. Poe. I thank the Chairman.
I disagree with you, Mr. Cannon, on that Republicans are
only concerned about executive abuses when Democrats are in
control. I personally do not like any executive abuses no
matter who the President is. And I think our executives have
gotten out of control over the last several executives, not to
mention the judicial branch which I served in for 22 years. I
think it has exceeded its boundaries of the Constitution.
But we are talking about the executive branch. In the
Constitution, if I remember correctly, the executive branch is
mentioned second. The first one mentioned in the Constitution
is the legislative branch. That would be Congress. Third is the
judicial branch. My understanding of the writers of the
Constitution--they put the most important one first and least
important last because we are elected and the guys on the other
end are appointed forever. In the middle is the executive
branch.
The President said we are not a banana republic. There are
a lot of definitions to banana republic, but my view of a
banana republic is a lawless country. We are proud of the fact
in the United States we are a country of laws not people. But
yet, we are in a situation where the law means different things
to different people and it is not enforced.
And like many have said here, back home in Texas they just
do not understand where the President gets the authority to do
some of these things without congressional intervention. I
agree with the people that I represent, and they are from both
parties. They are not just Republicans. They are saying, well,
how can he do that? If I hear that once, I hear it a hundred
times when I go home on weekends. How can he do that and what
are you going to do about it, Congressman Poe? I get asked that
a lot.
We have had some discussion about those things. We know
subjects. There are a lot of subjects when people question
where the President has authority. But let's spend one moment
on one issue.
Obamacare, according to the Supreme Court, is a tax. The
President has used the law and has said that I am going to
postpone that tax for this group first, big business. Then I am
going to postpone the tax for 6 weeks for individuals, and then
I am going to postpone the tax a year for small businesses. He
is postponing taxes. Since I have no life, I have read
Obamacare. I do not see that in there where the President--we
gave him the authority to postpone a tax, but he does it.
Now, if he has the legal authority to do that, which I
doubt--but he used that authority--what is to prevent him from
just going looking at the IRS Code, which is a mess. I do not
know any American that thinks the IRS Code is a good bill, but
rather than fix it, we just make it bigger every year. So the
President goes to the IRS Code and says, well, this group of
businesses--they are just having a bad year like green
businesses, or we could use the energy companies on the other
end, the oil and gas industry. I am just going to postpone them
paying income tax for a year. Why? Because I said so. Or I will
take this group and do something similar, tweak their tax.
Rather than paying 38 percent, they are going to just pay 20
percent for the next year.
It seems to me if he has the legal authority to amend
taxes, which the Affordable Care Act is a tax according to the
Supreme Court, what is to prevent him from just amending any
tax to his liking? Mr. Turley, weigh in on this, if you would,
Professor.
Mr. Turley. Thank you, Congressman.
I have to agree. First of all, on your first remark about
Article I, as I have said before, it is true that they are all
equal branches, but the Framers spent the most time on Congress
because it is this thumping heart of the Madisonian system. It
is where the magic happens, and that magic is to take those
factional interests, those interests that destroyed countries,
and turn them into a majoritarian compromise.
And when we get to the issue of taxes, as you have raised,
that is one of the most divisive issues facing the country. And
so when someone comes before Congress and says I want my group
to be excluded, it obviously produces a great deal of heat from
people saying, well, how about my group. How long should this
apply? It is perhaps the most divisive issue that is raised in
Congress, and that is precisely why it was given to Congress so
that those types of issues would be subject to this
transformative process of legislation.
Mr. Poe. So do you believe that that would be an unlawful
constitutional act if the President started amending the tax
code on his whim?
Mr. Turley. Yes, I do.
Mr. Poe. Let me ask you one other question, if I may, Mr.
Chairman.
You mentioned remedies. What about the remedy of a
mandamus? Would a mandamus remedy lie in any situation where
Congress thought the executive had not enforced the law?
Mr. Turley. Mandamus can be very difficult in some of these
if you are trying to use mandamus against the President, but
you can challenge some of these decisions, for example, the HHS
decisions as violating APA, for example. You can go with--if
you have standing to do so. Those are obviously a long process.
And this is one of the things where I tend to get off the
train with at least one of my colleagues. This is not an APA
issue. This is a constitutional issue. It is a President
usurping the authority of Congress. And to say that this is
just something that we leave to agencies I think radically
misunderstands the severity of the situation.
Mr. Poe. Thank you, Mr. Chairman. I yield back.
Mr. Goodlatte [presiding]. I want to thank all of our
witnesses for an excellent hearing, a great discussion on what
I think is one of the most important issues facing our country
today.
I want to also thank the Members for a very strong
participation in today's hearing, and that means the witnesses
had to stay maybe a little longer than they had originally
thought they would, but that only means that you have had the
opportunity to talk through and think through and debate this
issue even more extensively. So I thank all of you for your
participation.
This concludes today's hearing.
And without objection, all Members will have 5 legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
And this hearing is adjourned.
[Whereupon, at 1:36 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Supplemental Material submitted by Michael F. Cannon,
Director of Health Policy Studies, Cato Institute
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ATTACHMENT A
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Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Member, Committee on the
Judiciary
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