[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART I)_HEALTH CARE AND
IMMIGRATION
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HEARING
BEFORE THE
EXECUTIVE OVERREACH TASK FORCE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2016
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Serial No. 114-63
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Printed for the use of the Committee on the Judiciary
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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
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
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Executive Overreach Task Force
STEVE KING, Iowa, Chairman
F. JAMES SENSENBRENNER, Jr., STEVE COHEN, Tennessee
Wisconsin JERROLD NADLER, New York
DARRELL E. ISSA, California ZOE LOFGREN, California
LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
TED POE, Texas Georgia
JASON CHAFFETZ, Utah JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
RON DeSANTIS, Florida SCOTT PETERS, California
KEN BUCK, Colorado
MIKE BISHOP, Michigan
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
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MARCH 15, 2016
Page
OPENING STATEMENTS
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Chairman, Executive Overreach Task Force.... 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Executive Overreach
Task Force..................................................... 3
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 5
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 7
WITNESSES
Elizabeth P. Papez, Partner, Winston & Strawn LLP
Oral Testimony................................................. 14
Prepared Statement............................................. 17
Josh Blackman, Associate Professor of Law, South Texas College of
Law, Houston
Oral Testimony................................................. 24
Prepared Statement............................................. 26
Simon Lazarus, Senior Counsel, Constitutional Accountability
Center
Oral Testimony................................................. 31
Prepared Statement............................................. 33
Elizabeth H. Slattery, Legal Fellow, Edwin Meese III Center for
Legal and Judicial Studies, The Heritage Foundation
Oral Testimony................................................. 56
Prepared Statement............................................. 58
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,
Executive Overreach Task Force................................. 9
Additional material submitted by the Honorable Sheila Jackson
Lee, a Representative in Congress from the State of Texas, and
Member, Executive Overreach Task Force....................97
deg.OFFICIAL HEARING RECORD
Unprinted Material Submitted for the Hearing Record
Supplemental material submitted by Josh Blackman, Associate Professor
of Law, South Texas College of Law, Houston. This material is
available at the Subcommittee and can also be accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=104663
Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Member, Executive
Overreach Task Force. This material is available at the
Subcommittee and can also be accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=104663
EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART I)--HEALTH CARE AND
IMMIGRATION
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TUESDAY, MARCH 15, 2016
House of Representatives
Executive Overreach Task Force
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10:08 a.m., in
room 2141, Rayburn House Office Building, the Honorable Steve
King (Chairman of the Task Force) presiding.
Present: Representatives King, Goodlatte, Issa, Gohmert,
Jordan, Poe, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen,
Conyers, Lofgren, Jackson Lee, Johnson, Chu, and Peters.
Staff Present: (Majority) Paul Taylor, Chief Counsel;
Tricia White, Clerk; Zachary Somers, Parliamentarian & General
Counsel, Committee on the Judiciary; (Minority) James J. Park,
Minority Counsel; Gary Merson, Counsel; and Rosalind Jackson,
Professional Staff Member.
Mr. King. The Executive Overreach Task Force will come to
order. And without objection, the Chair is authorized to
declare a recess of the Task Force at any time. I'll recognize
myself for an opening statement.
At our first Task Force hearing, we explored how Congress
itself, over the past many decades, has acted--or not acted--in
ways that have tended to cede its legislative power to the
executive branch. It's contrary to our Founders' original
intentions as well. Our hearing today focuses on examples in
which the President has exercised sheer will to wrest
legislative authority from Congress.
President Obama's actions in planning to grant amnesty and
work permits to millions of illegal immigrants, without
congressional authorization, and in unilaterally extending
statutory ObamaCare deadlines and spending unappropriated funds
to pay subsidies to health insurers, are two case studies in
the modern abuse of domestic executive power.
While the President has defined constitutional powers in
foreign and military affairs, he does not have any legislative
power under the Constitution. It's not outside his power to
veto legislation presented to him.
Consequently, Presidential abuses of power in domestic
affairs are particularly grave threats to the individual
liberty protected by the Constitution. I'll focus on the
example of immigration in my remarks.
Beginning on March 2, 2011, the Obama administration began
a series of memos that have radically transformed immigration
law without a single vote from Congress. March 2 was the first
of what were called the Morton memos.
I recall reading the Morton memos, and I recall its
discussion and hearing here with Janet Napolitano. I remember
her description of prosecutorial discretion. And I recall that
they said in some of the memos on an individual basis only, but
repeated something like seven times in one memo. But President
Obama's theory that prosecutorial discretion, which always
previously was applicable only on a case-by-case basis, could
be categorical in application. In other words, by groups.
I successfully offered an appropriations amendment to block
funding of the Morton memos on June 7, 2012. But not to be
deterred, the President went further, 8 days later, on June 15,
2012, with the creation of the Deferred Action for Childhood
Arrivals, or known as DACA.
DACA took an even more radical step for the Obama
administration's destruction of the traditional understanding
of prosecutorial discretion. With DACA, the President claimed
prosecutorial discretion not only was categorically applicable,
but further, there should be benefits conferred.
Prosecutorial discretion was always understood to be both
individualized, on a case-by-case basis, and simply a decision
to not act. DACA completely changed that with an entire program
created to process people for positive benefits as opposed to
simply refraining from action by the government. I also offered
a successful amendment to strip funds from DACA and the Morton
memos on June 5, 2013.
In November of 2014, President Obama unilaterally and
unconstitutionally created a program that would suspend
immigration laws for potentially over 5 million people who are
in this country illegally. The President could have urged
Congress to enact a statute to create such a program under law,
but he did not do so. Even when his party controlled both
houses of Congress, he did not do so. And despite claiming the
situation is urgent, the President didn't act unilaterally
until November 20, 2014.
Whether or not the President delayed action until November
of 2014 for political reasons, he knew the actions he
ultimately did take are unconstitutional. In particular, the
President said publicly, and I quote: ``What I have been able
to do is make a legal argument, which is that, given the
resources we have, what we can do is then carve out the DREAM
Act folks, but if we start broadening that to DACA, for
example, then essentially I would be ignoring the law in a way
that I think would be very difficult to defend it legally.''
Putting aside the legality of the President's unilateral
action regarding DREAM Act folks, clearly, the President's
statement regarding the illegality of expanding on that program
was true then, and it is true today. As The Washington Post's
own Fact Checker wrote recently, referring to the very same
quote: ``It's clear from the interviews that the President was
being asked about specific actions that ended deportations of a
subset of illegal immigrants,'' which is precisely the type of
action he took in November. And as The Washington Post's Fact
Checker concluded: ``Previously, the President said that was
not possible, using evocative language that he is not a king or
the emperor. Apparently, he has changed his mind.''
And, indeed, a week after he announced his immigration law
suspension program, President Obama announced in his own words:
``The fact that I just took an action to change the law.'' I
think that took place in Chicago.
The President claims the concept of prosecutorial
discretion allows him to permit at least 5 million people who
are here illegally to cut in line, to stay here under
suspension of the immigration laws by bypassing the legal
process that's being used by millions of people, and with great
financial expense to them under the law.
That number, 5 million people, is staggering, and under its
weight the concept of prosecutorial discretion, which is
intended to encompass individual, case-by-case determinations,
flattens to nothing. The 5 million people for whom President
Obama wanted the immigration law suspended, plus the 600,000 or
so provided amnesty under DACA, constitute nearly 50 percent of
the size of the entire unauthorized immigrant population in the
United States.
Further, the number of people for whom the immigration laws
would be unilaterally suspended by the President's actions is
larger than the roughly 4.2 million people today who are family
members of U.S. citizens and permanent residents who have paid
thousands of dollars for approved green card petitions and who
are currently waiting for their green cards to become
available.
Under the President's unilateral action, more people would
be allowed to essentially cut in line for work authorization
than are currently--and legally--waiting in line for such
authorization, because the resources that would normally be
devoted to processing legal applicants would be diverted to
processing illegal applicants. That's a shocking abuse of
executive power.
I look forward to hearing from all of our witnesses here
today. And I recognize the Ranking Member of the Task Force,
Mr. Cohen from Tennessee, for his opening statement.
Mr. Cohen. Thank you, Mr. Chair.
During today's hearing, we will hear a lot of heated claims
about President Barack Obama's supposed disrespect for the
Constitution and the separation of powers. We will probably
hear a little bit in response about the disrespect that
President Obama has suffered ever since he's been elected. We
will hear that the Administration's decisions regarding the
implementation of certain provisions of the Affordable Care
Act, the Patient Protection Act, and institute deferred action
programs for certain undocumented immigrants, amounted to a
usurpation of Congress' legislative authority and a failure to
meet the constitutional obligation to take care to faithfully
execute the law.
We have been hearing these same arguments on both of these
issues for quite a while. Indeed, they are of a piece with the
longstanding attempt to paint this President's actions, in
particular, as somehow illegitimate.
This has been a problem with Presidents elected from
Illinois for years. The previous President elected from
Illinois, Abraham Lincoln, was immediately questioned by the
Southern States, and they then decided to leave the country
because of his election and the fact that he was against
slavery, and they called him a Black Republican. Now, 150 years
later, we got a Black Democrat President, and we've had the
same visceral response to a President from Illinois.
It's regrettable. And I regret to inform the critics that
neither the facts nor the laws support their positions that
these hearings are based upon. In the case of both the
Administration's executive actions implementing the Affordable
Care Act and its deferred action programs, the Administration
was simply exercising the broad enforcement authority that we
in Congress delegated to the executive branch by statute,
authority that Congress could always curtail if it chose to.
For instance, with respect to delaying implementing the
ACA's employer mandate, section 7805(a) of the Internal Revenue
Code grants the Treasury Department broad administrative
authority to grant transitional relief to phase in major new
tax provisions.
Such reasonable delays in implementation are routine,
particularly when a complex new law like the ACA is being
implemented. Indeed, the George W. Bush administration relied
on such authority to postpone implementation of a provision of
a Medicare-related law in 2003.
Similarly, Congress granted the executive branch broad
enforcement authority with respect to immigration matters
involving the authority to set enforcement priorities in light
of limited resources. Specifically, the Immigration and
Nationality Act gives the executive branch broad authority to
issue regulations and instructions to carry out such other acts
as deemed necessary for enforcing that statute.
Additionally, the Homeland Security Act directs the
Secretary of Homeland Security to establish national
immigration enforcement policies and priorities. The
Administration's deferred action programs represent just such a
prioritization of enforcement resources, concentrating those
resources toward the removal of violent felons over the removal
of law-abiding people.
History reinforces the fact that the broad exercise of
enforcement discretion in the immigration context is
longstanding and legal, and it's logical. You don't just willy-
nilly act on people. You take the ones that are the most
harmful potentially to the society and you prioritize.
Indeed, the Reagan and George H. W. Bush administrations
pursued a deferred deportation policy for the spouses and
children of certain unauthorized immigrants who could qualify
for legalized status. This Reagan-Bush policy, moreover,
arguably was similar in scale to the Obama administration's
deferred action programs, and all three of those Presidents
acted using their intellect and not a lottery system.
The fact is the Constitution has little to do with the
debate we're having today. It's the President that we presently
have and the Mitch McConnell rule of saying doing all we can
from day one to defeat him that has to do with this debate
today.
The arguments arise from the fact that opponents of the
Administration's actions simply have not had and do not have
the votes to overturn these programs through the political
process, so they attempt to turn political and policy disputes
into constitutional crises. It won't work.
The Supreme Court has already upheld the Affordable Care
Act against constitutional and other legal challenges, in NFIB
v. Sebelius and King v. Burwell, and has rightly declined to
consider a challenge based on the origination clause. And I
believe it will similarly uphold the Administration's deferred
action programs this term in U.S. v. Texas. We will see.
Political and policy disagreements over health care and
immigration are one thing. The Administration, however, acted
well within its authority and in doing so faithfully executed
the law. And at least as far as the Constitution is concerned,
that is where today's debate should end. And the President was
not born in Kenya.
Thank you.
Mr. King. The gentleman's time has expired.
And I now recognize the gentleman, the Chairman of the full
Committee, Mr. Goodlatte, for his opening statement.
Mr. Goodlatte. Thank you, Chairman King, for convening the
second hearing of the Task Force on Executive Overreach. The
topic today includes recent case studies of the abuse of
executive power, and I'll focus my remarks on the President's
recent actions regarding the implementation of his own
ObamaCare law.
The witness invited by the minority to the Task Force last
meeting based his testimony around the proposition that the
most pernicious violations of the separation of powers involve
a President's ``inappropriate claim of indefeasible power where
even the most unambiguous legislative mandates may go
unenforced.''
With that in mind, consider that in the ObamaCare statute
Congress provided for clear statutory deadlines for compliance,
including this one regarding the mandates the statute imposes
on employers: ``The amendments made by this section shall apply
to months beginning after December 31, 2013.'' Few provisions
in statutory law could be clearer than a decline citing a date
on the calendar.
Yet the current Administration has unilaterally sought to
rewrite the law, not by working with the people's duly elected
representatives, but in the following ways. Through blog posts
which stated the Administration's unilateral removal of
penalties for employers who would otherwise be required to
provide insurance coverage for their employees. Through
regulatory fact sheets which create an entirely new category of
businesses and exempts them from their responsibility under the
law. And through letters which specifically cite the fact that
people are having their health insurance terminated under
ObamaCare in violation of the President's promise that if you
like your healthcare plan, you can keep it, and then claimed to
suspend the law's insurance requirements to a date uncertain.
One letter alone suspended the application of eight key
provisions of ObamaCare, namely, those requiring fair health
insurance premiums, guaranteeing the availability of coverage,
guaranteeing renewable coverage, prohibiting exclusions for
preexisting conditions, prohibiting discrimination based on
health status, and many others.
And why was this done? To delay the terrible consequences
of ObamaCare until after the next election.
As this headline from the Hill newspaper announced, ``New
ObamaCare delay to help midterm Dems. Move will avoid
cancellation wave before election day.'' And as The Washington
Post described the situation: ``White House delayed enacting
rules ahead of 2012 election to avoid controversy.''
The liberal Washington Post also weighed in on the subject,
stating in a board editorial: ``The administration is
unilaterally making distinctions between large businesses and
medium ones. The latter group, which will get hardest hit and
scream loudest when the employer mandate kicks in, will be
treated more leniently. The law is also explicit that the
government should be enforcing penalties already; that's the
plainest interpretation of Congress' intent. The administration
shouldn't dismiss that without exceptionally good reason. Fear
of a midterm shellacking doesn't qualify as good reason,'' said
the Washington Post editorial board.
University of Michigan Law Professor Nicholas Bagley, who
generally supports ObamaCare, wrote in the New England Journal
of Medicine that the Administration had encouraged ``a large
portion of the regulated population to violate a statute in the
service of broader policy goals,'' and had adopted a theory
that would, ``mark a major shift of constitutional power away
from Congress, which makes the laws, and toward the President,
who is supposed to enforce them.''
As one of our witnesses today will more fully explain, this
Administration has even unconstitutionally used Federal funds
that were not appropriated by Congress to subsidize insurance
companies. The Administration requested such appropriations,
which were denied by Congress, yet the Administration used the
unappropriated funds anyway, willfully, unilaterally, and
unconstitutionally.
I was one of the authors of the House resolution
authorizing a lawsuit on behalf of the House itself against the
Administration for the abuse of executive power in the
implementation of ObamaCare. And last year, a Federal judge
held the following: ``Neither the President nor his officers
can authorize appropriations. The assent of the House of
Representatives is required before any public moneys are spent.
Congress' power of the purse is the ultimate check on the
otherwise unbounded power of the executive. The genius of our
Framers was to limit the executive's power by a valid
reservation of congressional control over funds in the
Treasury.''
Disregard for that reservation works a grievous harm on the
House, which is deprived of its rightful and necessary place
under our Constitution. The House has standing to redress that
injury in Federal court.
As that case proceeds, the House has an independent duty to
pursue other responses to be executive overreach that are
within its legislative powers. And to that end, I look forward
to hearing from all of our witnesses today.
Thank you, Mr. Chairman. I yield back.
Mr. King. I thank the gentleman.
And I now yield to the venerable gentleman from Michigan,
the Ranking Member of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I want to welcome all of our witnesses and look forward to
their testimony.
Today's Executive Overreach Task Force hearing examines
whether President Obama has violated the Constitution with
respect to his authority to enforce the Affordable Care Act and
the immigration laws. These are both issues that the full
Committee has repeatedly considered in the past, and it's clear
to me that the President has not violated any constitutional
limitations on the exercise of his executive authority as to
either of these areas.
To begin with, the Deferred Action for Parents of Americans
and expanded Deferred Action for Childhood Arrivals immigration
programs are clearly lawful exercises of executive discretion.
Now, Presidents from both parties, including George H.W.
Bush and Ronald Reagan, routinely have used similar deferred
deportation policies to promote family unity in our immigration
system. These programs are commonsense solutions to our broken
immigration system that has divided families for decades and
subjected many to harsh immigration enforcement policies.
The Deferred Action for Parents of Americans and expanded
Deferred Action for Childhood Arrival programs are not only
appropriate, but perfectly lawful. Prominent legal scholars,
including liberal professors, such as Lawrence Tribe, and
conservative professors, such as Eric Posner, concur that these
programs represent a lawful exercise of the President's
executive authority.
Moreover, Supreme Court Chief Justice Roberts and Justice
Anthony Kennedy have previously held that the executive branch
retains broad discretion in immigration proceedings, and this
is a principal feature of the removal system. This discretion
permits the executive branch, through the Department of
Homeland Security, to set priorities, and, accordingly, the
agency has chosen to focus its enforcement efforts on those
with serious criminal convictions instead of focusing on
hardworking immigrants who simply lack documentation.
Although oral argument before the Supreme Court in the
United States v. Texas is scheduled for next month, I fully
expect the Court, in keeping with prior precedent, will uphold
the Administration's immigration programs.
And we must note that the principal reason why these
programs are necessary is because this Congress has repeatedly
failed to take any action to fix our Nation's broken
immigration system. Rather than addressing this problem, the
majority has chosen to focus only on legislative initiatives
aimed at deporting DREAMers and the parents of United States
citizen children, as well as denying basic protections to
children fleeing violence and persecution.
I sincerely hope this Congress can move forward toward
repairing our broken immigration system instead of blaming this
President for taking lawful actions that were well within his
executive authority.
Finally, with respect to the Affordable Care Act, the
majority in the House has on more than 60, 6-0, occasions,
voted to repeal this law, but to no avail. So their assertion
that it is an unconstitutional exercise of the President's
executive power should come as no surprise.
Specifically, the act's opponents claim that the
Administration, by providing transitional relief to large
employers that do not provide health insurance for their
employees by authorizing subsidies, usurped Congress'
responsibility under Article I of the Constitution and violated
the Constitution's take care clause. Yet, as Simon Lazarus, the
minority witness, has previously explained, the
Administration's actions in implementing the Affordable Care
Act's complex statutory scheme were well within his statutory
authority and consonant with the President's obligation to
faithfully execute the law.
Clearly, we should be able to have legitimate policy
differences without making unfounded accusations. There is
substantial precedent supporting the President's actions in
health care and immigration.
And I look forward to hearing the witnesses' testimony, and
I thank the Chair.
Mr. King. I thank the gentleman for his statement.
Without objection, other Members' opening statements will
be made a part of the record.
[The prepared statement of Ms. Jackson Lee follows:]
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Mr. King. Now I would like to introduce the witnesses.
Our first witness is Elizabeth Papez, a partner at the
Washington, D.C., law firm of Winston & Strawn and a former
deputy assistant attorney general. Our second witness is Josh
Blackman, an associate professor of law at South Texas College
of Law/Houston. Our third witness is Simon Lazarus, senior
counsel at the Constitutional Accountability Center. And our
fourth witness is Elizabeth Slattery, a legal fellow at the
Heritage Foundation's Edwin Meese III Center for Legal and
Judicial Studies.
We welcome you all here today and look forward to your
testimony.
Each witness' 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 you stay within
that time, there is a timing light in front of you. The light
will switch from green to yellow, indicating that you have 1
minute to conclude your testimony. When the light turns red, it
indicates that the witness' 5 minutes have expired, and we hope
you are summed up at that point.
Before I recognize the witnesses, it's a tradition of the
Task Force that they be sworn in. So please stand to be sworn,
witnesses.
Do you solemnly swear that the testimony that you are about
to give will be the truth, the whole truth, and nothing but the
truth, so you help God?
You may be seated. Let the record reflect that the
witnesses answered in the affirmative.
I now recognize our first witness, Ms. Papez.
Ms. Papez, you're recognized for 5 minutes. Please turn on
your microphone.
TESTIMONY OF ELIZABETH P. PAPEZ, PARTNER,
WINSTON & STRAWN LLP
Ms. Papez. Thank you, Mr. Chairman, Mr. Ranking Member,
Members and staff. I appreciate the opportunity to be here
today to discuss executive implementation of Federal
legislation, notably the Affordable Care Act, or ACA.
Executive action is obviously necessary to administer
complex statutes, but it presents special challenges where
agencies have to implement unfunded programs over time. In such
cases, agencies can be tempted to depart from statutory
mandates in order to address changing political or economic
circumstances.
The ACA is a prime example of such legislation, and its
implementation has been the subject of significant legal and
policy debates since its passage 6 years ago. My comments this
morning concern the governance issues underlying these debates
that this Task Force has resolved to study. These issues
transcend particular programs and Administrations, and as
Chairman Goodlatte observed just last month, ``are not partisan
issues but rather American issues that touch the very core of
our system of government.''
When one branch of government oversteps its bounds to
address perceived failings by another branch, it upsets the
system of checks and balances that protects our democratic
system. These upsets have real consequences for the millions of
people and trillions of dollars affected by executive
implementation of Federal law, and the issues they raise in the
ACA context require special attention, because they could have
important consequences for future governments and programs that
have nothing to do with health care. The few examples I'll
touch on this morning illustrate the point.
The ACA provisions on employer coverage, cost-sharing
subsidies, and premium tax credits present economic and
practical challenges that have prompted agencies to second-
guess appropriations and legislative decisions that the
Constitution commits to the Congress. The executive's employer
coverage regulations revise express statutory deadlines and
participation requirements, the Treasury's cost-sharing
regulations use money appropriated for specific tax credits to
pay for cost-sharing subsidies Congress expressly refused to
fund. And IRS regulations say that premium tax credits
expressly directed at insurance exchanges ``established by a
State'' may be used for insurance on exchanges not
``established by a State.''
The executive branch has obviously defended these actions
as lawful efforts to implement the act in the face of
unforeseen circumstances and a divided Supreme Court has now
upheld some of these efforts. But these developments do not
resolve the problems this Task Force has identified, and its
commitment to avoiding agency overreach in statutory
implementations is an important step toward protecting our
constitutional system of checks and balances not just in the
healthcare and immigration context we're discussing here today,
but also in future areas that will rely on today's programs as
precedent.
In the interest of time, I'll refer the Task Force and the
hearing to my written testimony on the specifics of some of
these case studies or examples of executive implementation. I'd
be happy to answer questions.
The one thing that is common to all three examples is that
we see the executive branch taking steps to try to implement a
statute in the face of circumstances that the statute itself
did not envision and that are not impossible to address. One
way of addressing them would be for the executive branch to
come back to Congress for initiatives that, if they are indeed
common sense and are indeed in the spirit or purpose of the
law, should be addressed by the legislature.
The disagreement over having to do that, I think,
illustrates that the Constitution is indeed at stake and that
we are in the midst of a time where the two branches have to
reconcile political differences because the courts cannot
resolve them all. These principles go back to the Declaration
of Independence, which recognized the danger of concentrating
power in a single person or body, and our Constitution answered
this concern with a division of government authority that is
often described as the essential basis of a free system of
government.
The scope and importance of ACA's healthcare initiative can
tempt and has tempted government action beyond certain of these
limits, particularly in the face of changing economic and
political circumstances. But it is precisely when the stakes
are high and stakeholders may believe that the end justifies
the means that the Constitution and laws must serve as a check
on government action.
These checks, again, cannot be enforced by Federal courts
alone, and where the political branches cannot work together to
enforce them Congress can and should exercise its legislative,
spending, and oversight powers to avoid the issues that have
arisen in ACA's implementation to date. New statutes or
amendments can minimize the extent to which Federal programs
are unfunded or depend on State actions beyond Federal control.
Congress can expressly limit appropriations in ways that the
Supreme Court and other courts have said they will uphold in
the future. And Congress can use its oversight authority to
monitor agency implementation of statutes and consider whether
further legislative or appropriations action is necessary under
particular mandates.
Thank you again for the opportunity to address these
important issues.
[The prepared statement of Ms. Papez follows:]
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__________
Mr. King. Thank you, Ms. Papez.
I now recognize Mr. Blackman.
TESTIMONY OF JOSH BLACKMAN, ASSOCIATE PROFESSOR OF LAW, SOUTH
TEXAS COLLEGE OF LAW, HOUSTON
Mr. Blackman. Thank you. Mr. Chairman, Mr. Ranking Member,
and Members of the Committee. My name is Josh Blackman. I'm a
constitutional law professor at the South Texas College of Law
in Houston, Texas.
I am honored for the opportunity to testify today about
executive overreach and the Constitution, an area I have
studied very closely. I am the author of ``Unraveled:
Obamacare, Executive Power, and Religious Liberty'' from
Cambridge University Press. I have published several articles
on the constitutionality of DAPA. As well, I have filed several
Supreme Court briefs with Cato Institute on immigration and
ObamaCare.
In my brief time, I wish to make three points concerning
the President and how he has seized upon congressional gridlock
to aggrandize the executive's power. Rather than focusing on
whether these actions are constitutional, which Ms. Papez and
Ms. Slattery have ably covered, I want to highlight the
relationship between Congress and the President that gave rise
to these actions.
First, after Congress rejected the President's immigration
agenda, he took unilateral executive action to grant lawful
presence to millions of aliens and accomplished the very sort
of reforms that Congress rejected.
Second, even where bipartisan consensus emerged to minimize
the harmful effects of the Affordable Care Act, the President
has modified the law's mandates.
Finally, I will sound an alarm: executive lawmaking poses
an encroaching threat to the separation of powers and rule of
law and that Congress, and not just the Court across the
street, must take steps to halt.
So let's start with ObamaCare. In what has become a
troubling pattern of abuse, the executive branch has modified
the law's mandates, the individual mandate and the employer
mandate. What makes these alterations particularly harmful is
that bipartisan support existed to amend the ACA to ameliorate
these mandates. However, the President has rejected the
legislative process through a series of memoranda, regulations,
and even blog posts. Executive officials have remade the law in
their own image.
The ACA's employer mandate was supposed to go into effect
on January 1, 2014. On July 2, 2013, in a blog post titled,
fittingly, ``Continuing to Implement the ACA in a Careful and
Thoughtful Manner,'' the Obama administration nonchalantly
suspended the employer mandate till 2015. I have called this
process regulation by blog post.
What makes this unilateral delay all the more remarkable is
that 2 weeks after the blog post, this House passed the
``Authority for Mandate Delay Act.'' The two-page bipartisan
bill would have delayed the implementation of the mandate until
2015. This is precisely what the blog post accomplished, except
it had the backing of the legislative branch. In response to
this bill, which would have given him the authority to take
action, what did the President do? He issued a veto threat.
A similar pattern played out with respect to the ACA's
individual mandate. In 2013, as millions of Americans received
cancellation notices, a bipartisan consensus emerged that the
mandate had to be delayed to help people who liked their plans
to keep them. In October, Senator Landrieu introduced a bill
that would grandfathered all active plans that were valid in
2013. On November 15, this House passed a similar bill on a
bipartisan basis, 261-157. Once again, the President issued a
veto threat to the House bill. He said that it would ``sabotage
the healthcare law.'' This body cannot sabotage a law. All this
body can do is change the law.
On November 15, 1 hour before the House voted on this bill,
the President announced what became known as the administrative
fix. The fix allowed people to keep their plans. Ironically,
the exact bill that he threatened to veto accomplished the same
thing as his executive action. The President enacted through
executive action what this Congress was willing and able to do
in a rare instance of bipartisan agreement.
Let's move on to immigration. Much like with the ACA, for
immigration the Presidenthas transformed congressional defeat
into executive action. In June 2014, the House announced that
they would not bring for a vote the Gang of Eight bill, the
comprehensive immigration reform bill. Okay? Within hours of
learning that the Senate bill was dead, the President announced
he would act alone. He said, ``I take executive action only
when we have a serious problem, a serious issue, and Congress
chooses to do nothing. I will fix as much of our immigration
system as I can on my own, without Congress.''
On November 20, after the elections, he revealed DAPA. Like
the mythical Phoenix, DAPA arose from the ashes of
congressional defeat, and DAPA, again, accomplished several of
the key objectives of a bill that Congress voted down. The
pattern has become all too clear. First, Congress passes a
statute. Second, the statute is inconsistent with the
President's evolving policy preferences. And third, the
Administration modifies or suspends enforcement of the law to
achieve results inconsistent with what Congress designed.
During the hearing today, I hope to discuss steps Congress
and the President can take to remedy these serious threats to
our separation of powers. Thank you. I welcome your questions.
And beware of the Ides of March.
[The prepared statement of Mr. Blackman follows*]
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*Note: Supplemental material submitted by this witness is not
printed in this hearing record but is on file with the Subcommittee and
can be accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=104663.
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__________
Mr. King. Thank you, Mr. Blackman.
And I recognize now Mr. Lazarus for his testimony.
TESTIMONY OF SIMON LAZARUS, SENIOR COUNSEL, CONSTITUTIONAL
ACCOUNTABILITY CENTER
Mr. Lazarus. Thank you, Mr. Chairman, Ranking Member
Cohen----
Mr. King. Mic.
Mr. Lazarus. I just said thanks to everyone. And thanks to
my friend Professor Blackman for warning about the Ides of
March.
I am senior counsel of the Constitutional Accountability
Center. CAC, as we are called, has filed amicus curiae briefs
in the Supreme Court, in the lower Federal courts in two cases
concerning the Affordable Care Act in which we have represented
leading Democratic Members of the House and the Senate. And in
Texas' challenge to the Administration's DAPA immigration
initiative, CAC is representing a bipartisan group of former
Members of the House and the Senate who served while provisions
of the immigration laws that figure in that case were adopted.
Respectfully, but regrettably, I must observe, as borne out
by the Supreme Court's rejection of last year's King v. Burwell
challenge, these claims that we are hearing of wayward
executive conduct import the Constitution and law into what
are, in reality, political and policy debates. They twist or
simply ignore the text and manifest purpose of pertinent
statutes and of the Constitution's take care clause and they
contradict the consistent practice of all modern Presidencies,
Republican and Democratic, to responsibly implement complex
laws like the ACA and the immigration statutes. Thus,
exercising Presidential judgment in carrying laws into
execution is what the Constitution requires and what the
Framers expected of the President.
So I will take the two areas that we're considering today
in the order in which they emerged as major issues, health
first and immigration second. And I'm going to have to
obviously be very generally, don't have a lot of time. Perhaps
questions will bring out, give me an opportunity to go into
greater detail.
The ACA-related claim which has garnered the most attention
has been the theory that the ACA barred tax credits to help
purchase insurance in the 34 States using Federally Facilitated
Marketplace exchanges for their residents. As explained by the
four conservative Justices who dissented from the Supreme
Court's 2012 decision to uphold the ACA's individual mandate,
the exchanges without the subsidies would not operate as
Congress intended and they may not operate at all.
But last year, in June of 2015, the Supreme Court rejected
ACA opponents' gutting interpretation. The Court agreed with
the Administration that the opponents improperly ripped an
isolated four-word phrase out of context. Writing for a six-
Justice majority, Chief Justice Roberts held that, ``A fairer
reading of legislation demands a fair understanding of the
legislative plan.'' It is implausible, he ruled, that Congress
meant the act to operate in a way that would cause that plan to
fail.
Now, this is a very significant decision, which my
copanelists want to ignore, skip over.
And I do want to make a point, Ms. Papez, that this was not
a decision deferring to the agency's interpretation. Chief
Justice Roberts and the Court very expressly said this was such
a significant decision that they would not defer under the
Chevron doctrine. This was an interpretation of the act that is
the Court's own interpretation and it is its approach to
interpreting the act that will govern in other cases.
As my copanelist, Ms. Slattery, quite appropriately noted,
it will apply to other cases, probably including the
immigration case.
So I want to note four things about that. First, we ought
to note the chasm between the rhetoric about the
Administration's alleged lawlessness and what the relevant law
actually was and is, as the Supreme Court decisively held. That
chasm should engender a certain degree of skepticism when we
hear other over-the-top cries that the Administration is
trampling on the Constitution.
Second, I think we should note a point that Ms. Slattery
made in an article she wrote the day the decision came down
that the kind of conservatives who brought that lawsuit brought
it not because they were worried that it was being improperly
implemented, but precisely because they wanted to block its
implementation. This was a result at the top of their political
agenda, but not properly a matter for the courts, as the
Supreme Court's bipartisan majority quite plainly recognized.
And actually I've heard similar sentiments coming from my
copanelists here, that these are policy and political disputes,
Congress ought to try to do something about them and work with
the Administration, they don't belong in the courts. And that's
what Chief Justice Roberts made clear in that case, and I have
every confidence that the same approach will govern the Court's
response to the effort to turn into a legal and constitutional
case what is really a policy and political dispute about
immigration policy.
And I'll stop there. Sorry that I ran over a little bit.
And perhaps we can pay some more attention to these details
when we get questions.
[The prepared statement of Mr. Lazarus follows:]
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__________
Mr. King. Thank you, Mr. Lazarus.
And I now recognize Ms. Slattery for her testimony.
TESTIMONY OF ELIZABETH H. SLATTERY, LEGAL FELLOW, EDWIN MEESE
III CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE
FOUNDATION
Ms. Slattery. I'd like to thank Chairman King, Ranking
Member Cohen, and the other Members of the Task Force for the
opportunity to discuss the Obama administration's unilateral
actions. I would like to make three points this morning.
First, the President's constitutional duty to take care
that the laws be faithfully executed is just that, a duty, and
not an independent source of power. This duty includes
complying with statutory mandates, enforcing laws and
regulations, which includes prosecuting lawbreakers, and
defending the validity of laws in court.
The take care clause does not allow the President to
effectively amend or repeal existing laws through non-
enforcement or creative interpretations. The Constitution does
not vest lawmaking authority in the President.
For example, President Harry Truman seized the Nation's
steel mills to prevent strikes during the Korean war, and this
was right after Congress considered and rejected giving the
President this very authority by statute. The Supreme Court
ruled this seizure was unconstitutional. Likewise, the Court
has said that allowing the President to ignore statutory
mandates would clothe him ``with a power to control the
legislation of Congress.''
Second, there is no question that the President and
executive branch officials appointed by him have considerable
discretion in how they execute the law, but that is not a blank
check to effectively change the law through under-enforcement.
Prosecutorial discretion is a necessary part of the President's
duty to enforce the law, given the large body of laws and
regulations on the books today.
Simply put, it would be impossible for the executive branch
to prosecute every single lawbreaker of every law. For example,
the government has only passively enforced the draft, and when
a draft-dodging young man challenged his conviction on
selective prosecution grounds, the Supreme Court ruled in favor
of the government, because it ``retains broad discretion as to
whom to prosecute.''
However, this does not mean the President can effectively
nullify or change a law by under-enforcement. And that is where
the Obama administration's deferred action policies for illegal
immigrants differ from the draft situation. In the case of DACA
and DAPA, Congress considered but never passed bills that would
make similar changes.
An additional problem with these programs is that on top of
not enforcing the law, the Administration would confer benefits
through these programs, and this is clearly beyond the scope of
prosecutorial discretion. As the Supreme Court has explained,
the President's duty to execute the law ``gives a governmental
authority that reaches so far as there is law.''
That is the situation we are dealing with today. President
Obama is asserting an authority that reaches beyond where there
is law.
My third and final point is that Congress, rather than the
courts, is the branch of government best suited to solve this
problem. It's inevitable that each branch of government will
seek to expand its authority. That is why checks and balances
were built into the constitutional design, making ambition
counteract ambition, as James Madison explained in the
Federalist Papers.
Members of Congress have the tools to resist the
President's intrusion into the legislative sphere through
appropriations, oversight hearings, and even impeachment
proceedings. Senators have the additional tool of providing
advice and consent on judicial and executive branch
nominations.
Even when the action taken by Congress is not directly
related to the President's overreach, it can be very effective.
For example, Senator Robert Byrd once held up 5,000 military
promotions because President Reagan made recess appointments
without consulting the Senate first.
All Members of Congress, regardless of their party, should
work to safeguard their prerogatives. It may be tempting for
the next Republican President to copy President Obama's example
and refuse to enforce laws that Republicans may not like. But
for the sake of our liberties, Congress should encourage the
current and future Presidents to comply with the limits placed
on executive power. Otherwise, we will become a government of
men rather than one of laws, as intended by our Founding
Fathers.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Slattery follows:]
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__________
Mr. King. Thank you, Ms. Slattery, for your testimony.
And I thank all the witnesses for your testimony.
We'll now proceed under the 5-minute rule with questions.
And I'll begin by recognizing myself for 5 minutes.
And I'd turn, first, to Ms. Papez. Could Congress, in
thinking about the Federal exchanges that were wished for by
the Obama administration, conferred by the Supreme Court, could
Congress discipline that by simply blocking funding to the
Federal exchanges through an appropriations process?
Ms. Papez. I certainly think that's one way that this body
could do that, presuming the legislative solution didn't work
in the first place as the Supreme Court, I guess, concluded the
opinion. By the way, I have it here, the King v. Burwell
majority opinion, in response to Mr. Lazarus.
I don't know about the deference point. I mean, the Court
does, at page 8, cite the Chevron doctrine, the Constitution
underlies that, all the way through the end of the opinion
Marbury v. Madison. And the Court concludes that the text is
ambiguous, which is something the dissent obviously debates,
and then it says that it's resting its opinion on what Congress
meant or what the Court thinks Congress meant.
And I think that's the issue. I think the first line
response should be hopefully the legislation is clear enough.
In this case, some would argue it was. And if it isn't, then
perhaps appropriations is the next step or an amendment to make
clear what apparently some other branches found unclear.
Mr. King. Well, am I just imagining a happier world that a
Supreme Court would have looked at the plain language in the
Affordable Care Act and realized it was missing three words--
``or Federal Government''--and wrote a decision that it doesn't
include the--it doesn't lawfully allow the Federal Government
to establish an exchange, and then simply send it back to
Congress for the discretion of Congress to decide whether or
not to act?
Ms. Papez. It's interesting you raise that point. So the
Court did obviously purport to look at the text. It concluded
the text was ambiguous, which is what then allowed it to go on
and say: Well, let's decide what we think Congress really had
in mind.
Interestingly, to your point, the Court in that analysis
relied on the prospect of State, you know, death spirals and
asked the Solicitor General. Justice Scalia, actually, the late
Justice Scalia asked this question. He said: Why couldn't this
work exactly as you said, it could go back to the Congress. And
the Solicitor General candidly said: I don't think we could get
it done that way. So this was an example of sort of a
Realpolitik invading the court, although the opinion doesn't
quite read that way, obviously.
Mr. King. It just seems to be, and it causes me to think
about this, if the Supreme Court's involved in deep policy
effect deliberations and then configuring decisions so it
brings about their preferred policy result, I wonder if this
Congress could just simply make our own ruling on the
Constitution and ignore the court.
But I won't ask you to answer that question. I'd instead
turn to Mr. Blackman.
Because I wanted to dig a little deeper into your statement
about the narrative of the Congress that was prepared to mirror
the wish of the President, who said he would veto the bill if
it got to his desk, but within an hour of the time that that
might have happened then issued his executive edict, which was
a verbatim copy of what was on the way to the desk as a proper
legislative act of Congress. How would you interpret that?
Mr. Blackman. So what's stunning about the Affordable Care
Act is how the law has been amended by executive action. It's
indeed the case that this body considered laws that would have
delayed the employer mandate. This body has considered laws
that delayed the individual mandate. And rather than working
with Congress, the President said: I will veto them.
Now, I'll give the President some credit. The reason why he
did that was he was afraid that various amendments would be
attached saying: Okay, if you delay the individual mandate,
repeal the Medical Device Tax, repeal that, repeal that.
That's part of the process, right? You don't get everything
you want. So rather than risk the law being amended by the duly
enacted process, the President said: I'm going to veto that,
and, oh, by the way, I'm going to issue an executive action
that does exactly that, and, by the way, this relieves Senators
of taking a difficult vote.
Because the President takes these actions, it relieves the
Congress of actually engaging in this process, and this is
actually very deleterious to the rule of law, because now
Congress is not even part of it. Yes, Congress has voted to
repeal the ACA 60-odd times, but there were provisions that
would have been actually modified to the benefit of Americans,
and because of that, the President disregarded this process.
Mr. King. There were some times that we wanted to help him
with it on both sides of the aisle, and in this case, I took
the President's actions to mean him saying: I am the executive
and the legislative branch of government, and you, Congress,
don't be sticking your nose in the legislative portion that the
President wanted to conduct.
And so I'd just turn to Mr. Lazarus, and quickly, please,
the same question that I asked Ms. Papez. Why didn't the
Supreme Court just read the ACA plainly and clearly and sent it
back to this Congress say: If you want to have Federal
exchanges, you're going to have to add the language to the
bill.
Mr. Lazarus. I'm very pleased to have an opportunity to
answer that question. The challengers in that case focused
entirely on one four-word phrase, which you quoted. What the
Supreme Court said, and in agreement with the Administration,
is, yes, we have to look at what the text of the statute says,
but we have to look at the text of the whole statute. We
construe statutes, not individual words or phrases.
And when we look at the overall text of the statute, there
are many provisions which make it clear that you couldn't
construe that one four-word phrase in a way that would make the
entire statute fail.
What the Chief Justice said--and I think it's very
important, because, again, it's an approach, it was adopted as
an interpretation by the Court, and it will apply to other
cases--in every case we must respect the role of the
legislature and take care--take care--not to undo what it has
done. Congress passed the Affordable Care Act to improve health
insurance markets, not to destroy them. If at all possible, we
must interpret the act in a way that is consistent with the
former and avoids the latter.
Mr. King. Thank you, Mr. Lazarus.
Mr. Lazarus. That's the approach that the Court took. It's
not ignoring the act, it's actually reading the act as a whole.
Mr. King. Thank you.
The Chair now recognizes the Ranking Member from Tennessee,
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
Mr. Lazarus, how have the actions of this President and
President Bush, Reagan differed as far as constitutional reach
taking?
Mr. Lazarus. Well, again, I think that if you look, if you
peel back the allegations of lawlessness and so forth and you
look at the actual record, you really see that the President's
implementation of the ACA and his implementation of the
immigration laws exercises discretion in ways that all previous
Administrations have done and have been upheld by the courts in
so doing.
I might point out, Chairman Goodlatte, if you look at
exactly the same issue of the New England Journal of Medicine
from which you quoted one article, there is an article by
myself and Professor Tim Jost which explains how, in detail,
what the Administration did to phase in the employer mandate is
indistinguishable from what President Bush did to phase in the
prescription drug benefit. His HHS Secretary, Bush's HHS
Secretary said delaying the employer mandate was wise and
explained why they had had to do the same thing.
The same thing has happened with respect to environmental
laws. The Clinton administration had to delay implementation of
a whole lot of statutory deadlines. It has to be done
sometimes. And exercising that kind of judgment is really what
the Constitution expects of the President.
And the same thing is true in the immigration law context.
The precedents are even clearer. And President Bush actually
conferred the equivalent of deferred action on 40 percent of
then undocumented persons in the United States, which is the
same percentage that's affected by DAPA. So we're really
talking here about practices that have been going on and have
been endorsed by Congress for decades.
Mr. Cohen. We know that consistency is the hobgoblin of
small minds and we don't want to be considered that. But were
there congressional hearings over the actions of President Bush
or President Reagan on the immigration policies that they used?
Mr. Lazarus. Well, the Reagan administration, for example,
adopted an important regulation that recognized work
authorization, which is one of the things that people are
complaining about with respect to DAPA. That was adopted. Yes,
it was adopted with proper notice and comment proceedings
administratively. And then it was subsequently endorsed in a
statute in 1986 by the Immigration Reform and Control Act, I
believe it is.
So there really was a dialogue. There's always been a
dialogue between Congress and Administrations over immigration
policy. It's been ongoing, and Administrations have exercised
discretion. Sometimes that discretion has been endorsed
subsequently.
I do want to point out one thing. I attached a letter to my
testimony, which was sent in 1999, it was signed by 28 Members
of Congress, including four distinguished gentlemen whose
portraits are on the walls above us, Congressman Sensenbrenner,
former Chairman Smith, former Chairman Conyers, and former
Chairman Henry Hyde. This letter recommended to Attorney
General Reno and INS Commissioner Meissner that the INS adopt
guidelines for the use of prosecutorial discretion in removal
proceedings in order to promote consistency in individual
removal decisions.
And I have to point out, Chairman King, that discretion
does not mean every individual enforcement official gets to do
whatever they want to do. Discretion is conferred on the
President and on the department head. And when they decide that
the best way to implement something requires at least
presumptive respect for certain guidelines, and they make that
transparent in writing those guidelines out, that's exactly
what your predecessors and some of you in person recommended
and quite properly so.
Mr. Cohen. Thank you. And I yield back what I don't have.
Mr. King. I thank the gentleman from Tennessee and
recognize the Chairman of the full Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Blackman, let's follow up on the discussion we just
had. If a President can unilaterally suspend immigration laws
for at least 4 million people by using the discretion that's
almost always granted of prosecutorial discretion, meaning the
hard case, the tough case you have discretion about whether or
not to pursue that case, if that can be taken to swallow up the
law by granting prosecutorial discretion and suspension of the
laws for 4 million people, what limiting principle could stop
the President from granting, for example, capital gains tax
amnesty to the almost 3 million households who make more than
$250,000 a year?
Mr. Blackman. So this is the million-dollar question that
the government does not like answering--what is the limiting
principle? The short answer is there is none, right? If the
argument is, ``Due to Congress' lack of resources I can't
enforce every action and I'm going to simply prioritize,'' the
President can say, ``instead of going after capital gains tax,
I'm going to go after people who don't file tax returns at all,
I can't go after everyone, this is a category of people that I
don't deem particularly dangerous, much worse is people who
don't file any returns,'' there isn't.
Indeed, the Attorney General's argument with respect to
deferred action for immigration doesn't have much of a limiting
principle. The fact that the President chose people without
criminal backgrounds and people who are generally upstanding
human beings is nice, but that doesn't have to be the answer.
What we effectively have here is a very dangerous slippery
slope.
And if I may respond to a point my friend Mr. Lazarus made,
this is a job for Congress. When I'm writing briefs I'll make
argument with the courts, but, fortunately, here I am today
talking to Congress. This body needs to reassert itself in the
separation of powers. And if it actually views the President
taking these actions, they should do something about it.
The mere fact that past Presidents have done stuff and
Congress didn't object does not make it constitutional, right?
This is like when your kid starts jumping up and down on the
bed and you say, ``Stop it, stop it, stop it,'' and he says,
``Well, Daddy, I've done this before,'' right? That doesn't
necessarily make it right. Past practice is helpful but it does
not by itself render it constitutional. And I think this body
has a duty to try and reinsert itself.
Mr. Goodlatte. So the correct answer is, if the President
says, ``Well, I don't know what the limit of prosecutorial
discretion is, I think it could include 4 or 5 million
people,'' the response of the Court at the case that's now on
its doorstep and the Court has said, ``We want to also look at
the question,'' they asked the parties to brief the question of
what the take care clause provision means to this case, the
response of the Court should be, ``If you're not sure what that
limit is, you shouldn't come to us, the United States Supreme
Court, you should go to the United States Congress, because the
Congress under Article I writes the laws. And if you're
uncertain about the limit of that law, you should go back to
Congress for direction on that, not come to the Court.'' Is
that----
Mr. Blackman. Absolutely. Yes, sir. I mean, in the
ObamaCare case in 2012, which the government won, they could
not identify a limiting principle in the commerce power. And
the court said, ``You know what? If you won't draw a line,
we'll draw it for you.'' I will be very pleased if the Court
takes up the take care issue and actually writes about this,
because, indeed, the President has not seen fit to have any
sort of line of what he can and cannot accomplish through
prosecutorial discretion.
Mr. Goodlatte. So, Ms. Papez, taking a step back from that
individual case, what do you think are the best reforms for us
on this Task Force to consider that would restore the role of
Congress as originally understood?
Ms. Papez. Well, you know, again, it's a hard question. I
think there are several tools at the legislature's disposal
that, you know, could be brought to bear in light of some of
the recent court decisions.
I think something like the ACA illustrates the difficulty.
I would imagine there are many in Congress who thought that the
provision that the Supreme Court found ambiguous was indeed
clear. So I think part of the job is going to be looking at
some of these decisions and saying, ``What can we do
differently going forward as a legislative matter, number
one?''
But the second piece is the power of the purse, right, and
the spending power. I think that's an area where there is
really no debate. Both sides of the aisle would agree that that
power is constitutionally vested in the Congress. And so making
appropriations very clear and using the oversight process to
discipline executive branch spending and budgetary decisions is
another powerful way to do it. Because, again, if there is a
debate about how the legislation, what it means or how it was
written, and there is not going to be a process of coming back
to the legislature to revise the statute, the one way that I
think Congress can and perhaps should compel that is with the
power of the purse.
Mr. Goodlatte. Thank you.
Ms. Slattery, do you want to comment on that as well?
Mr. Lazarus. Thank you for the opportunity.
Mr. Goodlatte. I think I said Ms. Slattery. Thank you.
Mr. Lazarus. Oh, I'm sorry. Okay.
Ms. Slattery. I would say an important first step is
changing the culture in Congress by holding hearings like this
one, getting out of the habit of delegating broad amounts of
authority to unaccountable agencies, by not pinning their hopes
on the courts to resolve problems with the executive branch,
and using the tools that Ms. Papez also mentioned.
Mr. Goodlatte. Thank you very much.
Thank you, Mr. Chairman.
Mr. King. The Chairman returns his time.
And now I recognize the Ranking Member of the full
Committee for his 5 minutes, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Lazarus, can we get your view on prosecutorial
discretion?
Mr. Lazarus. Yes, you can. And also I apologize once again
for misinterpreting who was being asked the question by
Chairman Goodlatte.
I think the question was asked, what are the limits on
prosecutorial discretion and is the Obama administration
setting examples where there are no limits? And the answer to
that is, no, there are limits.
I would want to point out that in the immigration area
Congress has given the executive branch a great deal of
discretion. And so that already is a limiting principle, the
amount of discretion that the executive branch has and has
traditionally had in immigration, which may be partly
constitutionally based, but it is largely statutory, and you
have done it.
I should just say, in the Homeland Security Act of 2002,
which many of you must have voted for, you, Congress, directed
the Secretary of DHS to establish national immigration
enforcement policies and priorities. There it is, that's his
responsibility.
So I think there's a lot of agreement here actually that
these issues we are debating are really mainly issues that
belong in the political arena and belong between the President,
the executive branch and Congress, and not in the courts. If
Congress thinks that that grant of discretion is too broad,
then Congress has the ability to try to do something about
that, and you can do it.
So the fact that the President has a huge amount of
discretion in the immigration area does not necessarily mean
that the same degree of discretion exists in other areas. And,
again, in the ACA area what we have is phasing in, not
suspending or refusing to enforce. All Administrations have to
do this because it is not always possible to comply with
effective dates.
So I think that the concerns about not only that the
Administration is acting lawlessly, but is setting precedents
about abusing discretion that are worrisome, I don't think that
that's true, but I do think that it is something for Congress
and the executive branch to work out and not something to dump
in the courts.
Mr. Conyers. Now, some of the critics have said that the
President's oral comments urging Congress to pass comprehensive
immigration reform means that he himself may not believe that
DACA and DAPA are legal. Do you think the President may have
contradicted himself, as his critics assert?
Mr. Lazarus. Well, I think that what happened is that the
President was hopeful that Congress would adopt comprehensive
immigration reform. After all, the Senate passed it, and, after
all, people felt that if the Senate bill ever got on the floor
of the House, it would also pass the House. So there was reason
to be encouraging that result.
When he figured out that this was not going to happen,
because then Speaker Boehner told him it was not going to
happen, he ordered an extensive legal review of what authority
he did have. I think that was the exactly responsible thing for
him to do, it is exactly what is contemplated when the
Constitution directs him to take care that the laws are
faithfully executed.
And as a result of that long, I think it was like 9-month
analysis that resulted in a very careful memorandum from the
Office of Legal Counsel and Justice, he decided that he had the
authority to do what he did in DACA and DAPA. And as I said, I
believe that what he did is clearly within his discretion, very
much in line with what previous Republican as well as
Democratic administrations have done, and will be upheld by the
Court.
Mr. Conyers. Let me ask you this quickly about the strict
conditions as to who qualifies for a green card and that the
President effectively nullifies congressional decisions by
granting a legal status without Congress acting. Are his
critics right in saying that he's being in some ways out of
line or contradicting himself when he can act in this way?
Mr. King. The gentleman's time has expired. The witness
will be allowed to answer the question.
Mr. Lazarus. The answer is no. DAPA does not confer legal
status, it does not confer amnesty. It provides for deferred
action for people who are not going to be removed in any event,
and everyone knows that, the courts have all acknowledged that.
So it is a very different thing. It doesn't contradict what
Congress wouldn't do. It acts in a very limited way basically
to codify temporarily what was going to be the reality on the
ground anyway.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. King. The gentleman returns his time.
The Chair now recognizes the gentlemen from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you.
I think we just heard one of our problems. Mr. Lazarus,
when you say all acknowledge that, that's simply not true; and
I'm one who does not acknowledge that. And we have people
running for President, who are doing well, who have not
acknowledged what you said.
And when you say that the President was told that the law
was not going to be passed by Speaker Boehner, then he decided
to see how far he could go basically. And it appears what was
not written in the memos is that basically, Mr. President, you
can do just about anything because Harry Reid's got your back
in the Senate. So, even though the House is going to rise up
and try to enforce existing law as it is, Harry Reid will not
let them enforce the law as it is, so you can pretty much get
away with whatever you want to do.
And I think that when the book is written about the rise
and fall of the freest, greatest country--with more
opportunity, least imperialistic--testimony in this hearing
could be very helpful as your statement talking about the
President, he decided he had authority to do what he did.
That is what happens when, as Ben Franklin said, you know,
giving you a republic if you can keep it. You can only keep it
if the top leaders are kept in check with checks and balances.
But when the top leaders feel there are things they can do and
not be stopped, they have authority, basically because they
won't be stopped, then that is when the checks and balances
break down.
Now, Ms. Papez, you were mentioned by Mr. Lazarus, and your
demeanor, your countenance appeared to change. I mean, I used
to be a judge. I have watched lawyers' appearance. Did you have
a response that you have not made to what he said when your
name was invoked?
Ms. Papez. I think we agree on a lot of things. The one
point that did jump out about Mr. Lazarus' testimony, it is in
the written statement too, is that he has on page 14 of his
paper a statement that says: Where is the Constitution in all
of this? And his answer is it's nowhere. I think we do disagree
on that. I think it is everywhere. I think you see it in the
court decisions we've been talking about. And I think you see
it in this hearing, and I think both sides have acknowledged
that. So that's the one place I think we might part company a
bit.
Mr. Gohmert. Alright.
And, Ms. Slattery, you mentioned Mr. Lazarus' statement
giving credit for your sense of humor. Could I ask you to
elaborate on what you meant by your sense of humor when you
talked about a terrible, horrible, no good, very bad day for
conservatives who pinned their hopes on blocking ObamaCare on
the Supreme Court?
Ms. Slattery. Sure, I'm happy to. That was a blog response
for the Heritage Foundation the day that the King v. Burwell
decision came out. And I would just like to respond to what Mr.
Lazarus said.
Mr. Gohmert. Please, please.
Ms. Slattery. Yes. Essentially, I think he's characterizing
the lawsuit as something that's nakedly partisan, but I think
even Chief Justice Roberts acknowledged that the challengers
had good statutory arguments and, in fact, theirs were better
if you look at the plain text of statute. But the Court, the
majority, unfortunately, chose to look at the aspirations of
what they thought Congress wanted rather than the law that
Congress actually passed.
Mr. Gohmert. Well, any time you have any Justice--and
particularly in this case the Chief Justice--who writes around
page 14 or 15 of his decision that Congress knows best whether
something is a tax or a penalty and it is only imposed if
conduct occurs that Congress does not want to happen, or in
this case they don't buy an insurance policy that Congress
wants them to buy, clearly it is a penalty. It is not a tax,
because if it were a tax, the Anti-Injunction Act would apply,
the plaintiff would not have standing, and we would not have
jurisdiction. So, it is clearly a penalty, and it is not a tax.
And since it is a penalty and not a tax, we have jurisdiction,
plaintiff has standing, and we can go on to consider the
merits.
And then 40, 50 pages later, that same judge that's smarter
than this, loses his intellectual integrity by saying clearly
this is a tax, and that's why it needs to be saved. And, yes,
we lawyers know we can play games and say it can be one thing
under one law and a different thing under another, but the
Supreme Court lost its integrity. And this is the way you lose
a republic that Ben Franklin and his friends gave us.
I yield back.
Mr. King. The gentleman yields back.
The Chair would now recognize the gentlelady from
California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
I think sometimes the rhetoric we hear about the
President's immigration actions is a bit overheated and that's
unfortunate, because I think it confuses the public about
what's actually occurred. And I hear some of the things that
are being said around the country, and even in Congress. And I
think if you don't like what's happened, look in the mirror,
because if you take a look how much money we've appropriated
every year, it's less than would be necessary to remove
everybody who is undocumented in the country. In fact, we
appropriate about less than 4 percent of what would be
necessary to remove every person who lacks lawful status in the
country.
And as you've mentioned, Mr. Lazarus, we have repeatedly
delegated to the Administration the obligation to prioritize
who should be removed in light of the fact that we have failed
to appropriate funds sufficient to remove everyone. In 1952, we
authorized the executive to establish such regulations, issue
such instructions, perform such other acts as he deems
necessary for carrying out his authority. And as you've
mentioned in 2002, when we adopted the Homeland Security Act,
we explicitly charged the Secretary of Homeland Security with
the obligation to ``establish national immigration enforcement
policies and priorities.''
Now, when you put the appropriations level together with
the explicit obligation to the Secretary to figure out what to
do, it's pretty clear, if you don't like what's happening, look
in the mirror. It's what we asked him to do.
Now, some have said that the work authorization is a
problem. Well, once again, look in the mirror. When President
Reagan was President in 1981, they codified the rule, providing
the administrative practice granting work authorization to
people who had received deferred action. And in IRCA, 1986,
Congress explicitly recognized the authority of the Attorney
General and now the Secretary of Homeland Security to do
exactly that.
So I guess my question to you, Mr. Lazarus, is, is this an
unlawful delegation to the Administration? Has Congress
unlawfully delegated this?
Mr. Lazarus. I think we're pretty far past the days when
the Supreme Court is brandishing the nondelegation doctrine
about it. That's about 100 years out of date.
No, it is not an unlawful delegation. It's
a perfectly sensible delegation and it's one that's been
working for many years. And as I said, it's been an ongoing
dialogue between Congress and the immigration enforcement
authorities as to how this should be used. And as I also
pointed out, a dialogue in which a very significant
contribution was made by Members of this Committee and other
Members of Congress in 1999.
Ms. Lofgren. Right.
May I ask you another question? Now, ordinarily the
Administrative Procedures Act does not require rulemaking when
you take discretionary actions. If it did, every time the
Attorney General decided not to prosecute a particular person
you'd have to do 90-days of rulemaking. Do you think these
discretionary actions required rulemaking under the
Administrative Procedures Act?
Mr. Lazarus. I certainly do not. The Fifth Circuit decision
that the Justice Department is appealing to the Supreme Court
that held that the Administrative Procedure Act required DAPA
to be done through a notice and comment rulemaking made that
point based on an allegation that the DAPA guidelines were
binding--binding, I guess, on the public.
Ms. Lofgren. Right.
Mr. Lazarus. They certainly are not--and that the
references that are replete throughout the DAPA memoranda that
individual officials retain case-by-case discretion to apply
the guidelines but also to look at other factors in the public
interest, were pretextual. Now, this was before it had even
been put into effect.
Ms. Lofgren. Right. Mr. Lazarus----
Mr. Lazarus. It is really an outrageous interference with
executive authority, I think.
Ms. Lofgren. It would change the presidency forever, I
think.
I just want to close with this. I'd like unanimous consent
to put page 16 of the Committee report from August 28, 1985,
into the record. And here's what the Committee said: ``It's the
intent of the committee that the families of legalized aliens
will obtain no special petitioning rights by virtue of the
legalization. They will be required to wait in line in the same
manner as the immediate family members of other new
residents.''
Following that, President Reagan decided to grant amnesty,
if you will, to the family members who had been specifically
excluded by the legislation and he did so by a grant of
deferred action. It was about 40 percent of the population, the
same general percentage as what we're talking about today, and
also provided work authorization.
With that, I would yield back. And I ask unanimous consent
to put this in the record.
Mr. King. The unanimous consent request has been accepted.
Without objection, it will be entered into the record.**
---------------------------------------------------------------------------
**Note: The material submitted by Ms. Lofgren is not printed in
this hearing record but is on file with the Subcommittee. Also, see
Lofgren submission at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=104663.
The Chair will now recognize the gentleman from Idaho, Mr.
Labrador.
Mr. Labrador. Thank you, Mr. Chairman. And that was
Reagan's worst mistake as a President. So I think we wouldn't
have the problem that we have today if Reagan had not done
that. And I think if he were here today he would say the same
thing.
So thank you, Mr. Chairman.
Thank you to the witnesses for being here today.
This Task Force is engaged in very important work and I'm
encouraged by the discussion. I wish we would broaden it just a
little bit, because I think, Mr. Lazarus, you and I may agree
on something. I think Congress has failed to be specific in
what the executive should do and should not do.
I disagree with your interpretation of prosecutorial
discretion, but I completely agree that sometimes Congress has
punted and has given the executive too much authority. And I
think it's pure laziness. It's just we don't want to write
precise laws, so we write these broad laws and then we give the
executive all this power, all this authority.
And I hope that we get to that issue some time in this Task
Force, because we're going to fight all day about whether the
President did something right or wrong pertaining to
immigration and pertaining to the health care law. But we can
agree that, if we were more precise in our writing and we were
more precise in our orders to the executive and our guidelines
to the executive, we wouldn't be giving all this prosecutorial
discretion, all this discretion to all these individuals.
Now, I ran for Congress after actually seeing President
Bush's flagrant examples of overreach in some of his signing
statements. So as a Republican, I was dumbfounded and it was
abhorrent to me that the President was not following. And many
of my friends on the left, they were with me, they actually
disagreed with President Bush and they looked at what he did as
something that was taking away from the power and authority
that Congress has.
It shocks me every single time we have one of these
hearings and I don't hear a single Democrat go after the
President for his executive overreach. And it actually saddens
me because I thought we were more honest than that. And I have
been upset with my own party when we have done it, and it
really saddens me to never hear one single Democrat, not one,
say, ``You know what? Maybe we should reconsider the executive
overreach of this President.''
They are okay when it is their goose that is being cooked,
but they are not okay when it is our goose. When we are getting
what we want, they are not okay with it. But they seem to be
okay with it when they're getting what they want.
And what that means is that there is no real respect for
the powers and authorities that we have here in Congress. There
is no real respect for the Article I authority that we have
been given, it really is just a political football, that when
Republicans are doing it, then we're going to defend it, when
Democrats are doing it, they are going to defend it. And I hope
we get beyond that.
With the constant contradictions between current law and
executive actions, it is not surprising that immigration
enforcement is weak. Moreover, this continued overreach
provides a concerning precedent for future Administrations to
act. Imagine what a President Trump is going to do with the
precedent that this President has set forth. He's already told
us that Congress doesn't work. He's already told us that he
doesn't need Congress to act. Imagine what he would do.
And I want to see--I hope that they are consistent when a
President Trump does the same thing that a President Obama does
and that they actually say it's okay because they have
prosecutorial discretion. I know they won't be consistent, but
I hope that they can be consistent with this.
Mr. Blackman, do you believe that there is a difference
between prosecutorial discretion and the President's executive
action on immigration?
Mr. Blackman. Yes, sir, absolutely.
With respect to prosecutorial discretion, on a case-by-case
basis the President can make a decision on the merits of
whether someone is warranting this treatment.
What DACA and DAPA do is set a classwide basis. For example
with DACA, nearly 97 percent of the people who are eligible and
applied got it. The government could not identify a single
case, not one, where a person was denied for discretionary
reasons. To this day they still can't deny one.
This it is not prosecutorial discretion. This is an
exercise of a categorical blanking, a categorical suspension of
the law to an entire class of people.
Mr. Labrador. Should this or any other Administration
unilaterally decide which immigration violations are a priority
for enforcement and which are not?
Mr. Blackman. There is no problem with a prioritization,
let me make this point clear. Texas has never challenged a
prioritization. What they have challenged is the decision to
categorically grant work authorization between an entire class
of people who really are contrary to the will of Congress. The
President--this Congress considered the DREAM Act. Congress
said no. And the President decided these people are still
warranting of this treatment.
Mr. Labrador. All right. Thank you. I yield back.
Mr. King. The gentleman returns his time.
The Chair would now recognize the gentlelady from Texas,
Ms. Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, thank you so very much.
Thank you to the witnesses.
Although I will ask for a moment of silence in the full
Committee, I did not want the first Judiciary Committee that I
was attending to not go without mentioning the tragic loss of
Tiffany Joslyn, that many of you know was the deputy chief
counsel of the Judiciary Committee on the Democratic side, in a
tragic car accident 1 week ago Sunday, that lost the only two
children of her family, of her mother and stepmother. That is,
she and her brother were lost in the accident at the same time.
I hope that when we convene as a full Committee--I will not
be here tomorrow, I will be attending her wake services--that
we'll have an opportunity for a moment of silence.
Thank you, Mr. Chairman, for allowing me to make mention of
that.
Let me proceed with the questions to the witnesses and let
me thank you for those. It is obvious that we have much to
agree on in this Committee and we have much to disagree on. I'd
offer to say that as we proceeded in this Committee of
Executive Overreach, and I'm very glad to be on it, I still
think that majority has failed to reach out or obtain any
direct information or witnesses from the affected health care
exchanges or immigration agency tasked with implementing the
program.
We know the Supreme Court has already ruled on the
constitutionality of the Affordable Care Act and the issues for
today are now established law. So let me proceed. In addition,
it is well to acknowledge that the executive orders regarding
DAPA have been stayed, but as we know, when the Affordable Care
Act and aspects of it were litigated it was found to be
unconstitutional.
The staying of this district court action does not mean
that we have yet fully litigated the President's authority. So
that would be my line of questioning.
I know that there is also a district court proceeding where
one aspect of it was found that the Congress did not have
standing and the other aspect dealing with the appropriations
part--and I'm saying this to you, Mr. Lazarus--was found to
have--the Congress was found to have standing. And I'm not
going ask you about those court cases, but I'm just suggesting
that there is a whole list of litigation pursuing the executive
authority of the President or, might I say, the constitutional
authority of the President.
Let me offer to say to you, Mr. Lazarus, I'm going to offer
something that's far afield, but hopefully will lead me into my
questions as my time runs. I'm reminded of history, and during
the Civil War the fugitive slave law was still the law of the
land. Lincoln chose not or did not care to enforce this law.
Would it be your position that Lincoln's actions would be
unconstitutional?
Mr. Lazarus. It certainly wouldn't be. And I think that all
Justice Departments in all Administrations and scholars
generally agree that a President has an independent obligation
to evaluate the constitutionality of laws. At least in a case
where an Administration conscientiously and carefully makes a
determination that they cannot defend the constitutionality of
a law, they have an obligation to do that.
Obviously, the Civil War is a rather exceptional set of
circumstances, and actions that President Lincoln took to make
it possible to prosecute the war, such as that one, might not
be a precedent for taking similar actions under peaceful
circumstances. But Presidents have that obligation, and as
several people here have said, the Congress has an obligation.
Ms. Jackson Lee. It is similar. Let me get two other
questions. It is similar. And I thank you for that.
Let me quickly ask a question on DACA and DAPA. The
President's critics have tried to score political points by
quoting some of his oral arguments and comments and that he's
contradicted himself. The President's critics have argued that
he's abdicated his duty to enforce our immigration laws.
Looking at removal rates under his Administration and legal
precedent on abdication of immigration enforcement, are his
critics correct?
And as I understand, the legislation allowed some--the
latitude in discretion, I'd appreciate that, in the enforcement
aspect of immigration laws.
Lastly, if I could quickly get in, Mr. Chairman, a question
about the Affordable Care Act. In Mr. Blackman's testimony he
alleges that implementing, the administrator made a variety of
suggestions for statutory effective date. Does the executive
branch have the authority to provide transitional relief when
implementing legislation, ACA?
Two questions--if I could quickly, Mr. Chairman, be yielded
to--for you to answer, one on the immigration latitude and one
on transitional implementation latitude under Affordable Care
Act.
Professor.
Mr. Lazarus. On the immigration point, real quickly, I'd
just like to point out that very prominent conservative legal
scholars, prominent as scholars and as conservatives, who my
copanelists are very familiar with, acknowledge that the
executive branch has exceptional latitude to determine
priorities and to exercise discretion in the case of
immigration.
One of those is Jonathan Adler, who is a very prominent
professor who all of us here know very well and respect a great
deal, and who was actually a main architect of the King v.
Burwell challenge. But he wrote on the Volokh Conspiracy, which
is a leading conservative blog, basically expressing great
skepticism about the legal challenge to DAPA, as did Ilya
Somin, who is an another very prominent conservative and very
fine professor. Both of them just acknowledge that immigration
is special and has special discretion.
As far as phasing in is concerned of the Affordable Care
Act, I don't know what else there is to say. Most of the
adjustments that my friend Professor Blackman is objecting to
are history. I mean they've already happened. They were done on
a temporary basis. They're old news.
And the big news is that the Affordable Care Act is being
implemented very successfully. Tens of millions of people now
have access to health care who didn't have it before. As the
Hospital Corporation of America said in its amicus curiae brief
in King v. Burwell, the Administration is implementing the
Affordable Care Act as Congress intended and it is having
effects that give more access and also make it possible for
providers like the Hospital Corporation----
Mr. King. The gentlelady's time has expired.
Mr. Lazarus. So in any event, that, I think, is the answer.
Ms. Jackson Lee. I thank you.
Mr. King. I think the gentlelady.
And the Chair would recognize the esteemed gentlemen from
South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Slattery, I listened carefully as Professor Lazarus was
asked the limits of prosecutorial discretion and I did hear him
make a series of arguments about statutory construction. I did
not hear him address the constitutional implications of
prosecutorial discretion and what limits, if any, may exist. So
I thought I might take my chances with you.
Can you tell me what are the limits, if any, on this thing
my friends on the other side call prosecutorial discretion?
Ms. Slattery. Well, I don't think there are any hard and
fast limits, you know, set in the Constitution, of course, not
many that have--much guidance that has come from the Supreme
Court on this. But certainly as one of my copanelists
mentioned, prosecutorial discretion does not allow the
President to exempt entire classes of individuals, it shouldn't
allow that. That should be at a minimum outside of the scope of
that discretion.
Mr. Gowdy. Do you think the power emanates from his ability
to pardon after the fact? What's the constitutional origin of
prosecutorial discretion?
Ms. Slattery. I think it's inherent in his duty to take
care that the laws be faithfully executed, you know, it says
faithful--take care to faithfully execute the laws. It doesn't
just say shall execute all laws. So it is inherent,
particularly given the scope of----
Mr. Gowdy. But if I accept that theory, take care that the
laws be faithfully executed, the use of the article, or the
word ``faithfully'' seems to minimize the duty to take care
that the law be executed. If I were to accept that theory, then
``faithfully'' is a limiter. And I view it differently. I view
it as more of an exclamation point that we really, really mean
that your job is to make sure that the laws are executed.
I want to ask you about this fact pattern. Are you familiar
with the case Zadvydas? Are you familiar with that case in the
immigration context?
Ms. Slattery. No, I'm not.
Mr. Gowdy. Well, I'm going to butcher this, but I am going
to give it a try anyway. And I'm sure one of the professors
will do like they did in the past and correct me if my factual
summary is wrong.
Zadvydas is a Supreme Court case where the government
cannot indefinitely detain convicted criminals who have
finished serving their time but the host country will not take
them back.
So think about the worst host country you can. Let's think
about what used to be Somalia. We have someone from Somalia who
commits, let's say, murder in the United States and he or she
serves the sentence and they are supposed to be removed, but
Somalia won't take them back. So guess what happens? They're
released. They can't gain lawful entry into the country, but
we're going to release them into the very same country that
they couldn't gain lawful entry into because the Supreme Court,
in a 5-4 decision, doesn't think you ought to be able to
indefinitely detain criminal aliens who have finished their
sentence.
You with me so far factually?
Ms. Slattery. Yes.
Mr. Gowdy. All right. What if a President King, God forbid,
but what if a President King were to decide that he doesn't
like that law?
Mr. Issa. All in favor of God forbid.
Mr. Gowdy. He doesn't like that law so he is going to not
prosecute anyone in the penal system for false imprisonment,
for violation of 1983, he really thinks you ought to be
indefinitely detained and not released back on the innocent
public? Can we do that if Republicans were to somehow retake
the White House? Can we decide we're not going to enforce that
law?
Ms. Slattery. I think that's certainly a tough situation,
and I would hope that the President would work with Congress to
change the law.
Mr. Gowdy. Well, that was the Supreme Court that did it and
they're tough to work with. You got to wait till one of them
retires.
Ms. Slattery. That is certainly a difficult situation, and
I'm certainly not ratifying or endorsing what President Obama
has done. And I think that clearly his interpretation of
prosecutorial discretion is very broad.
Mr. Gowdy. It's a little closer to anarchy than it is
prosecutorial discretion. And I don't say that to be
hyperbolic. The reality is this. Today it's immigration laws--
actually, it's not just immigration laws, it's also mandatory
minimums in drug cases, it's the so-called Affordable Care Act.
Tomorrow it might be election laws, it might be discrimination
laws, it might be some other category of law that he's waited a
couple of years for Congress to act on, but Congress has not
acted in the time period that he thinks that they should, so
he's just going to do it summarily.
I'll just caution--I know I'm out of time, Mr. Chairman--
but I'll just caution my friends, you may like the use of
prosecutorial discretion today; you will really not like it at
some point. So this notion that we're going to conflate the
episodic use of discretion to not prosecute a case with the
wholesale announcing ahead of time that we're not going to
prosecute certain broad categories of cases, I promise you
there will be come a day where you cry out for the law to be
executed and I hope I live long enough to see it.
I will yield back to the Chairman.
Mr. King. I thank the gentleman from South Carolina.
I now recognize the gentlelady from California, Ms. Chu.
Ms. Chu. Mr. Lazarus, I support the President's proposal to
and decision to expand DACA and to expand the program to DAPA.
When implemented these actions would mean that families could
stay together and immigrants could continue to work and
contribute to our economy with dignity without the fear of
deportation.
And the reaction from the community is strong as well. In
fact, in an immigrant workshop that I had in LA, I had the
opportunity to meet remarkable people like Andrea, who was a
graduate from her high school, at the top of her class, the
first member in her family to attend college. And as a DACA
recipient, Andrea can work toward her dream of becoming a
teacher. Because of people like Andrea, it was even more
heartbreaking when the courts prevented DAPA and the expanded
DACA program to go into effect.
Now, Mr. Lazarus, the majority wants us to believe that
there is no difference between Andrea and a hardened criminal.
Under what authority does the executive branch have to
prioritize the removal of criminals over children and their
families?
Mr. Lazarus. Well, that's very good, and obviously we all
understand that there is a difference between the person with
whom you were talking and a hardened criminal, and the law does
too. And so the fact that the President in DAPA has simply
codified that difference is only reflecting a practice that was
a sensible and appropriate practice and had to be engaged in
because, as several people have pointed out, Congress has not
appropriated anywhere remotely enough funds to deport every
undocumented person.
And I just want to mention, since it's been said that the
President is somehow making all these things up, on the point
that you raised, the House report accompanying a relatively
recent DHS appropriations bill specifically instructed DHS not
to ``simply round up as many illegal immigrants as possible,
but to ensure that the government's huge investments in
immigration enforcement are producing a maximum return in
actually making our country safer.''
So the DAPA priorities are just what Congress has directed
and endorsed and quite appropriately so.
And I also want to make another point, although Congressman
Gowdy is no longer here. Several people have said that there's
a difference between case-by-case discretion and singling out
classes of people for discretionary and it isn't amnesty, it is
temporary nonremoval.
When Congress passes a law, as it did in the Homeland
Security Act, directing the Department to establish priority--
enforcement policies and priorities, it is telling the
Administration it is your responsibility to establish
priorities. Priorities, Professor Blackman, means you've got to
identify groups of people who get priority enforcement and who
do not get priority enforcement. So that's where that authority
comes from.
Ms. Chu. And let me follow up on that case-by-case issue.
Of course Judge Hanen halted the expansion of DACA and the DAPA
program because he believed that the original DACA applications
were not being adjudicated on a case-by-case basis and other
programs' guidance instructs USCIS officers to use their
discretion and make decisions on a case-by-case basis. And the
fact that there was a 95 percent approval rate, he says, says
that--he said that they weren't actually reviewing the case
individually.
Why do you think applications have been approved at a 95
percent rate? And does this mean that the cases were not being
adjudicated on a case-by-case basis?
Mr. Lazarus. Well, I think it's been pointed out by a
number of experts that the way DACA set distinctions between
those who would be eligible and who would not be eligible,
people who thought that they might not be determined to be
eligible were not going to apply. Because once they have
applied they are now known to DHS. So everybody who applies for
deferred action under either DACA or DAPA is taking a huge
personal risk and therefore they are going to be very cautious
about applying.
My understanding, I'm not really an immigration policy
expert, but my understanding is that the bar was so high in
DACA that it is perfectly expectable that everybody who did
apply or most people who did apply would qualify and that may
not be true under DAPA, from what I understand.
Ms. Chu. Thank you. I yield back.
Mr. King. The gentlelady yields back.
The Chair now recognizes the gentleman from Michigan, Mr.
Bishop.
Mr. Bishop. Thank you, Mr. Chairman.
And thank you to the panel for being here today.
Before I was elected to Congress I had the opportunity to
practice law. And as a part of that practice I taught a class
at the local law school, third-year-level class that really
looked back on legislative process and the historical precedent
of legislative process.
I gave the students one responsibility when they first
started and that was to explain the role of each branch of
government and then to give me the derivation of that power for
each one of those branches. Where did they get their power
from? And the rest of the class was spent on that process, of
Article I and Article II in particular.
But I now look back having now been serving in Congress now
for my first term, I feel like I should go back and round them
all up and reteach the class, because I have completely missed
the mark on what legislative process is all about, especially
in Congress. And I have never seen so many acronyms, so many
boards, so many delegations of nondelegable power ever. And it
concerns me that we have a situation where the tail is now
wagging the dog and it leaves Congress powerless.
I want to raise to your attention, we just were talking
about immigration, let me take you to another issue altogether.
This is one that illustrates my concerns. The Independent
Payment Advisory Board, or the IPAB, is a new executive branch
agency created by the President's healthcare law. The law
empowers the Board of 15 unelected officials with the authority
to reduce Medicare coverage for seniors. Unless overturned by a
supermajority of Congress, the recommended cuts dictated by
this Board will become law.
Bipartisan concerns have been raised regarding several
aspects of this board. While the proponents claim that
beneficiaries will be held harmless from the Board's decisions,
how can the IPAB impose sharp cuts to providers without any
adverse impact on their patients?
Furthermore, according to Medicare's former chief actuary,
Richard Foster, the healthcare law will pay doctors less than
half of what their services cost at the end of the decade and
down to 33 percent in the decade ahead. Foster also warns that
these cuts are driving Medicare providers out of business and
resulting in harsh disruptions in quality and access for
seniors.
We can all agree that Medicare does need to be put on a
budget, there is no question about that, to save the program in
the long run, but it should not be done by a group of
unelected, unaccountable bureaucrats which have the ability to
endanger the beneficiary for which the program was intended to
benefit.
I don't know who to address this to. This is one of those
questions that could take the whole time because I just don't
understand how I can get an adequate answer on this.
But, Ms. Slattery, given their unprecedented new power over
Medicare, to whom are the 15 bureaucrats accountable? Because I
know it is not to us.
Ms. Slattery. That's an excellent question and it really
turns the Founder' intent on its head. They vested the
lawmaking power in Congress because Members of Congress would
be closest to the people, and the people could express their
displeasure with bills that are passed either by complaining to
their Members or voting them out. So this Board is certainly a
problem from that perspective, and it's my understanding that
there is currently at least one lawsuit pending in the courts
to challenge its constitutionality.
Mr. Bishop. Indeed. Thank you.
Mr. Blackman, I have a question for you too. You can answer
that question as well, but I'm wondering if you can tell me
whether or not this power is delegable in the first place.
Mr. Blackman. So, unfortunately, the lawsuit was dismissed
because it wasn't ripe against the IPAB. The court said it
hasn't gone into effect yet, so come back later.
The broader question is one of delegation. This is one
that's been raised many times. The take care clause, take care
that laws as faithfully executed, that means the executive has
the executive power, not the legislative power. And to the
extent that the President's exercising legislative powers or to
the extent that Congress is delegating away its legislative
powers is a serious breach of the separation of powers which
this body must take steps to remedy lest they give up their
constitutional prerogatives.
Mr. Bishop. Anybody else want to chime in on that subject?
I thank you for your time. It's a big subject. I appreciate
your input. Thank you.
Mr. King. The gentleman yields back.
The Chair now recognizes the gentleman from California, Mr.
Peters.
Mr. Peters. Thank you so much.
I appreciate the witnesses here. I guess just to follow up
on my colleague's comment about the President's healthcare law,
the President's healthcare law was passed by Congress. And
actually the particular thing you referenced, the gentleman
referenced, is not one of my favorite aspects of it, but it was
explicitly passed by Congress. So Congress decided under the
President's signature to give up this power. You can't blame
the President, I think, for that. That was the Congress' act.
Mr. Bishop. Will the gentleman yield?
Mr. Peters. No, I only have 5 minutes. I have to ask about
something else.
Mr. Bishop. Well, you are not being honest with that
statement, and if you are going to say that, you ought to give
me----
Mr. Peters. All right, I'll yield. Go ahead.
Mr. Bishop. I was not saying--first of all, I was not here
when that law was passed.
Mr. Peters. Nor was I.
Mr. Bishop. And I was merely suggesting that this was, in
fact, something that was not delegable, and I want to find in
the law where we do delegate that power. The fact that it was
delegated does not mean it was authorized by law. In fact, it
was not.
Mr. Peters. Reclaiming my time. I guess that I would, with
respect, suggest that that's a question for the Court to
answer. But I wanted to make the point that it was Congress
that explicitly voted on this, that was not something that the
President did, and that was my only point.
The American Action Forum estimates it would take 20 years
and cost between $400 and $600 billion to deport all the people
who are here without documentation.
Mr. Lazarus, do you think there's a duty by Congress to
appropriate that much money to enforce this law?
Mr. Lazarus. Congressman, I'm sorry. I didn't quite
understand the question.
Mr. Peters. Do we have a duty to appropriate all the money
it would take to deport all these people who are here, as some
say, illegally?
Mr. Lazarus. No, I certainly don't think so.
Mr. Peters. Right. So the answer is kind of obvious. What
we do is we--I think we--if Ms. Lofgren's previous comments are
right, 4 percent, about $1.2 billion----
Mr. Lazarus. Probably high, actually.
Mr. Peters. What we do is we tell the President, here's the
amount of money that we want to--you know, we don't want to
spend more on deporting these people than we do on
transportation, for instance. We are going to give you $1.2
billion. You figure out the best way to enforce the law given
that budget. Isn't that what we do?
Mr. Lazarus. Yes, but I also think--that is true, but it's
not as if the President makes up what the enforcement
priorities are going to be out of thin air.
Mr. Peters. Right.
Mr. Lazarus. The priorities that are reflected in DAPA are
commonsense priorities. They've been developed over decades.
They've been developed, as I said, in a dialogue that's ongoing
between Congress and the immigration enforcement officials and
the Department, and they are sensible priorities. Nobody really
disputes them. I think a number of Members have already said
that.
So saying that the President is running around making
things up and so forth and exercising huge amounts of
untrammeled discretion just is really not accurate.
Mr. Peters. Right.
Mr. Lazarus. These are commonsense priorities. Congress has
said, as you just said, we're going to give you this much
money, we want you to figure out what the priorities are, but
we're going to give you a lot of guidance as to what we think
they should be.
Mr. Peters. Right. And then also someone used the term
looking in the mirror. I would just say that in 2013 the Senate
passed a bill 68-32, with significant bipartisan support, not
just one or two people, not just eight people, as someone
referred to the Gang of Eight, that included a lot of things
that would deal with the immigration law, give Congress the
chance to deal with it.
The Senate passed it. We never even got a vote on it. So
all of us may have different views about what the right answer
was. We never even took it up in this House of Representatives.
We were not allowed even to talk about it. And yet we sit here
and complain that the President has taken on too much power.
That would have provided a 13-year path to citizenship, if
you were in the U.S. before 2012, had no felony, had a job,
paid a $500 fine, application fees, all back taxes, would have
provided a legislative pathway to citizenship for DREAMers if
you were in the U.S. before 16, high school degree, had been in
the U.S. for 5 years.
E-Verify, which is something that a lot of folks have been
calling on to make sure that we are getting enforcement. Would
have allowed a greater number of H-1B visas for highly skilled
workers, which a lot of us agree on. And it would provide
substantial border security, $46 billion in improvements,
38,000 border security agents on the Mexico border, a 17,000
increase, 350 miles of new fencing, new technology cameras,
ground sensors, radiation detectors, drones, helicopters, and
electronic exit checking at air and seaports.
All of this was before us as a legislature. And if we want
to know what the problem is, it's not down the street. It's in
the halls of the United States Congress.
I yield back.
Mr. King. The gentleman returns his time.
The Chair would now recognize the patient gentleman from
California, Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. And I apologize for not
being here at the opening bell. I was sitting next to Chief
Justice Roberts for my twice-a-year opportunity to talk about
the organization of the courts and the like. So you were my
second choice, trust you.
But this has been a very, very interesting dialogue, and I
think I've been here for most of it and enjoyed it, and it's
caused me to perhaps change slightly the questions I'm going to
ask.
And, Professor Blackman, let me ask you a question, because
you and Mr. Lazarus have had quite a good time agreeing to
disagree, but I think there's two interesting points. Justice
Roberts, siding in the majority--oh, by the way, when you teach
law, do you teach that Justices are partisans, that one's a
Republican, one's a Democrat?
Mr. Blackman. I do not, sir.
Mr. Issa. So Mr. Lazarus' claim that it was bipartisan
would be a little inconsistent, perhaps, with what most law
schools are taught about Justices and Federal judges, that
regardless of who appoints them, they are truly nonpartisan
once they get to the court. And we certainly have proof
historically that who appoints you doesn't necessarily dictate
how you vote.
So I just want to make that clear, because I know Mr.
Lazarus didn't mean any disrespect from it. But we are a very
partisan group here, and every 2 years we're reminded. As a
matter of fact, today we're seeing one of the Gang of Eight
have a very different outcome in Florida in the Presidential
primary than we would have otherwise have seen, undoubtedly, if
he hadn't helped authored the piece of legislation that didn't
go anywhere in the House.
But I want to get back to that original intent. Justice
Roberts, in good order, believed that what he was doing is
looking at the full statute and the intent. And I was here for
that, and I voted no. Those who were here and voted yes
clearly, I believe, wanted the provision that they now have. So
even though they talked about it, said they didn't, they wanted
it.
So Justice Roberts has, in fact, in siding with the
majority, given them what Democrats wanted in the Affordable
Care Act, which was somehow, some way, they would fund
everything.
And so my question to you is, if that's the case--two-part
question for your future law students--one is, if we take that,
does that mean that language doesn't have any particular matter
as long as we knew what they were trying to achieve? In other
words, what the politics of the majority were versus what they
actually are able to get their own members to agree to? And let
me--okay. And then I'll follow up.
Mr. Blackman. Yes, sir. My students are on spring break
right now, but they'll be listening to this question next week.
So the short answer is the Chief Justice's decision rewards
a lazy Congress, is a phrase we've used very often. If Congress
doesn't want to call it a tax because it's unpopular, call it a
penalty and we'll uphold it as a tax. If Congress doesn't want
to take time to read a 3,000-page bill and they omit a few
words here and there, don't worry about it, we'll save you on
the back end.
One of the themes of our discussion today is how when the
courts back up a lazy Congress, it encourages Congress to be
lazier. This body can be more vigorous, not lazier.
Mr. Issa. Now, let's go through the same thinking, though.
In that same piece of legislation, Members of the majority who
were pro-life had a bargain that abortion not be mandated by
this act in the funding of abortion. Bart Stupak and others
clearly had agreed to that. But the Court apparently did not
agree with, if you will, the minority of the majority--agreed
with the minority of the majority, rather than the majority of
the majority in this case. In other words, the compromise
necessary to get that legislation did include an exclusion of
abortion.
The President immediately began mandating abortion payment
in the healthcare portion of the--you know, you have to pay for
prescriptions--but the Court went the other way.
So how do you--and maybe, Ms. Slattery, you would be
helpful in this--how do you reconcile that the same Court,
looking at the same majority and the same majority intent,
allowed an abuse of the words of it in one case but not in
another case?
Ms. Slattery. You know, that's a difficult question and----
Mr. Issa. Because we're here to talk about overreach, and
in both cases, the President got something--was getting
something that he didn't have in the letter of the law, but the
Court ruled completely differently in two cases related to the
same law.
Ms. Slattery. It highlights the problem of Congress and the
President, rather than trying to settle these disputes outside
of court, leaving it up to the determination of nine Justices,
or eight Justices as we currently have.
And I would say I agree with the Court's decision in the
Hobby----
Mr. Issa. Hobby Lobby.
Ms. Slattery [continuing]. The Hobby Lobby case that you
referred to, which was a 5-4 decision, and I disagree with the
King v. Burwell, the more recent decision. You know, it's hard
to reconcile how a particular Justice votes in any particular
case.
Mr. Issa. Okay.
Mr. Chairman, I would presume I could have a little more
time, sort of my own second round? Would that be okay?
Mr. King. I hear no objections.
Mr. Issa. Thank you.
Well, I want to move now to another case. And, Mr. Lazarus,
I'm going to also want to let you in on this one, and you can
comment on the other one if you'd like.
In the case of former Federal worker Lois Lerner, after
multiple Committees evaluated the Administration's use of the
IRS to essentially stop conservative groups on and before the
2012 election and the abuse thereof, the Ways and Means
Committee, the Committee of jurisdiction over the IRS, referred
to the U.S. Attorney's Office a criminal prosecution. And in
that criminal prosecution, I think pursuant to 18 U.S.C. it
said that the U.S. Attorney for the District of Columbia shall
present to the grand jury.
What part of discretion or cost analysis allowed the U.S.
Attorney, upon orders directly or indirectly of the President,
to simply disobey it and return a letter that said: We think it
was mismanagement; therefore, we shall not do what the law says
we shall do.
Mr. Lazarus. Thank you. First of all, I would just like to
acknowledge a fair criticism of my bipartisan characterization.
Judges and Justices certainly shouldn't think of themselves in
partisan terms, and most of them most of the time certainly do
not do so. Chief Justice Roberts has expressly stated his
concern about the polarization of the political branches
spilling over and affecting the Court. So you were right, I
shouldn't have said that, and I didn't mean it.
Now, with respect to your question about prosecutorial
discretion in the IRS----
Mr. Issa. In the criminal referral by the Ways and Means
Committee pursuant to the law.
Mr. Lazarus. You know, this is not a subject in which I--
it's not just that I'm not an expert, it's that I barely know
very much about it at all and you know a great deal. So I
really, you know, don't want to say anything really about the
facts in that case.
The question of prosecutorial discretion that you were
raising, I think is a legitimate legal question, and there may
be other members of the panel who know more about this than I
do. If Congress orders the executive branch, the Justice
Department, to actually prosecute a case, I would think--and,
again, I'm not really an expert here--I would think that that
actually does raise a question about congressional encroaching
on inherent constitutional executive branch authority to make
those kinds of decisions in the end by itself. I'm not saying I
know the answer to it, but----
Mr. Issa. Well, let me follow up with that, because right
here, sitting almost where you're sitting, the former Attorney
General, Eric Holder, sat and said to me--actually, it was last
Congress, I was sitting over there--and he said: I wear two
hats. And it's an interesting point, because he wears one hat,
which is he's a political appointee serving at the pleasure of
the President, and that makes him a partisan Democrat, clearly.
But he also wears the hat of the law, the highest law
enforcement official, which is really not an executive branch
position. That position is much more one that belongs as the
input to the third branch of government.
So under current law, whether it's constitutional or not,
we have given ourselves the ability to take to the court
certain things. One of them, by the way, is impeachment. We
have a process, obviously, and we can remove anyone in the
executive branch--well, almost anyone--and we have that. And,
of course, we can demand that the court hear it.
Under the law, there's no prohibition on Congress bringing
to the court a case. As a matter of fact, it's constitutionally
provided for in the case of impeachment. For decades, we have
had the ability--actually, I think many, many decades--the
ability to refer a criminal prosecution with that statute that
says: and shall present to the grand jury.
Now, we don't say shall present with all of his powers and
best case. You know, we presume that the U.S. Attorney shall
present it in a reasonable fashion to a grand jury.
We, I believe--and I'd like Professor Blackman and others
comment in closing--I believe that, in fact, that maintains a
separation of power, that although we're insisting that it be
presented as we would say, that you must prosecute a certain
category 100 percent, which we would have the ability to do,
discretion is not something that the executive branch gets.
It's something that they may have, if there's ambiguity or
limited resources.
In this case, they had all the resources to prosecute Lois
Lerner. They had a grand jury. And they didn't say anything
except that they thought they shouldn't do it in spite of the
fact that the statute--and they didn't object to the
constitutionality. They simply decided that--and this is why
it's here at Overreach. If the Administration, as Chairman
Gowdy said, if the Administration decides that they shall not
prosecute in the case of DACA, but they also shall not
prosecute in the case of a statutory referral under a law that
says, shall present to the grand jury, then what tool do we
have left if, in fact, appropriation is ignored, because they
do something without appropriated money, and that they don't
just have discretion to not prosecute criminal aliens, but in
this case they choose not to prosecute a statutory referral
that says, shall?
So I listened for this whole time, and I heard the
immigration issue endlessly, but I want to juxtapose it on a
statute that says, shall, and they choose not to.
Mr. Chairman, you've been very patient, but I'd appreciate
anyone who would want to answer.
Mr. King. Yes. The gentleman's time is deemed expired, but
the witness will be allowed to briefly and concisely respond.
Mr. Blackman. Respectfully, sir, I have no knowledge on
this issue, so I will pass. Thank you, sir.
Mr. King. That's concise.
Hearing from no other witnesses, the gentleman from
California returns his time.
This concludes today's--the gentlelady from Texas is
recognized.
Ms. Jackson Lee. Thank you.
I will not pretend to answer the gentleman's question, but
I do think it lays on the table a moment for the minority to be
able to respond. And I would only just say this. I brought up
to Mr. Lazarus, and this is going to be pithy and concise, the
fugitive slave law, and I would make the point that it
represented sort of a blanket exemption. And the relevance of
that, of course, to DACA and DAPA is that large classes of
cases were exempted. So when the executive order is deemed
unconstitutional, there's precedent that you can have an
executive order that is widespread based upon interpretation,
statutory and/or constitutional.
With that, however, let me indicate that I'd like to put
into the record, Mr. Chairman, your courtesy, The Atlantic,
``John Roberts Calls a Strike,'' and ask unanimous consent to
put it into the record.
Mr. King. The gentlelady has been recognized for a
unanimous consent request. Hearing no objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Ms. Jackson Lee. Thank you so very much.
Mr. King. The gentlelady returns her time.
This concludes today's hearing.
Thanks to all the witnesses for attending. Without
objection, all Members will have 5 legislative days to submit
additional questions for the witnesses or additional materials
for the record.
I thank the witnesses, the Members, and the audience. This
hearing is adjourned.
[Whereupon, at 12:17 p.m., the Task Force was adjourned.]