[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] ENFORCING THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE LAWS ======================================================================= HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ FEBRUARY 26, 2014 __________ Serial No. 113-63 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://judiciary.house.gov ______ U.S. GOVERNMENT PRINTING OFFICE 86-841 PDF WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan Wisconsin JERROLD NADLER, New York HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT, LAMAR SMITH, Texas Virginia STEVE CHABOT, Ohio ZOE LOFGREN, California SPENCER BACHUS, Alabama 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 JOE GARCIA, Florida BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island DOUG COLLINS, Georgia RON DeSANTIS, Florida JASON T. SMITH, Missouri [Vacant] Shelley Husband, Chief of Staff & General Counsel Perry Apelbaum, Minority Staff Director & Chief Counsel C O N T E N T S ---------- FEBRUARY 26, 2014 Page OPENING STATEMENTS The Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia, and Chairman, Committee on the Judiciary 1 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary.................................................. 3 WITNESSES The Honorable Jim Gerlach, a Representative in Congress from the State of Pennsylvania Oral Testimony................................................. 7 Prepared Statement............................................. 9 The Honorable H. Tom Rice, a Representative in Congress from the State of South Carolina Oral Testimony................................................. 13 Prepared Statement............................................. 15 The Honorable Diane Black, a Representative in Congress from the State of Tennessee Oral Testimony................................................. 18 Prepared Statement............................................. 20 The Honorable Ron DeSantis, a Representative in Congress from the State of Florida Oral Testimony................................................. 24 Prepared Statement............................................. 26 Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University Law School Oral Testimony................................................. 30 Prepared Statement............................................. 32 Christopher H. Schroeder, Charles S. Murphy Professor of Law and Professor of Public Policy Studies, and Co-Director of the Program in Public Law, Duke University Oral Testimony................................................. 47 Prepared Statement............................................. 49 Elizabeth Price Foley, Professor of Law, Florida International University, College of Law Oral Testimony................................................. 61 Prepared Statement............................................. 63 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary..................... 5 Material submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary..................... 99 Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary............................................... 104 Material submitted by the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary..................................... 118 Material submitted by the Honorable Luis V. Gutierrez, a Representative in Congress from the State of Illinois, and Member, Committee on the Judiciary............................. 125 APPENDIX Material Submitted for the Hearing Record Material submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary..................... 150 ENFORCING THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE LAWS ---------- WEDNESDAY, FEBRUARY 26, 2014 House of Representatives Committee on the Judiciary Washington, DC. The Committee met, pursuant to call, at 10:17 a.m., in room 2141, Rayburn Office Building, the Honorable Bob Goodlatte (Chairman of the Committee) presiding. Present: Representatives Goodlatte, Coble, Smith of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Marino, Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, Smith of Missouri, Conyers, Lofgren, Jackson Lee, Gutierrez, Garcia, and Cicilline. Staff present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Majority Parliamentarian & General Counsel; Zachary Somers, Counsel; Kelsey Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, Parliamentarian; and James Park, Counsel. Mr. Goodlatte. Good morning. [Disturbance in the hearing room.] Mr. Goodlatte. Presently we do not have order in the hearing room. Members of the audience must behave in an orderly fashion or else they will be removed from the hearing room. Rule 11 of the House Rules provides that the Chairman of the Committee may punish breaches in order and decorum by censure and exclusion from the hearing. The Capitol police will remove the disruptive members of the audience immediately. The Capitol police will remove the members who are causing a disturbance. Mr. Conyers. Mr. Chairman, can I urge--thank you for yielding, Mr. Chairman. Could I say to our friends here that an unruly presence in the hearing room does not aid your cause in any way, my friends. I want to share that. Mr. Goodlatte. We welcome everyone remaining in this morning's hearing on enforcing the President's constitutional duty to faithfully execute the laws. And I will shortly begin by recognizing myself for an opening statement, but I do want to remind the other members of the audience that you are welcome to attend this hearing, but you must behave in an orderly fashion, or else we will have to remove you from the hearing room as well. And we thank you for your cooperation in that regard. I will now recognize myself for an opening statement. Since taking office, President Obama has increasingly pushed the boundaries on executive power beyond their constitutional limits. He has repeatedly declared that rather than faithfully executing the laws passed by the legislative branch, he will refuse to take no for answer, and that where Congress will not act, I will. These have not been empty proclamations. From Obamacare, to welfare and education reform, to our Nation's drug enforcement and immigration laws, President Obama has been picking and choosing which laws to enforce. But the Constitution does not confer upon the President the executive authority to disregard the separation of powers and write or rewrite acts of Congress. It is a bedrock principle of constitutional law that the President must faithfully execute the laws. The President has no authority to bypass Congress and unilaterally waive, suspend, or amend the laws based on his policy preferences. President Obama's actions have pushed executive power beyond all limits and created what has been characterized as an uber- presidency. The question that arises from the President's end runs around the legislative branch is what can Congress do to check these broad assertions of power and restore balance to our system of separated powers? Traditionally, to check presidential excesses, Congress has passed legislation to defund programs the executive branch administers and withhold confirmation for executive branch nominees. However, when the President ignores or rewrites the very legislation that places limits on his authority and circumvents the Senate confirmation process, the traditional methods of counteracting presidential ambition will not work to preserve the separation of powers. So what can be done? The Members of Congress on our first witness panel have all introduced legislation to attempt to check presidential failures to faithfully execute the law. These proposals include requiring the executive branch to report to Congress any time it adopts a policy to refrain from enforcing Federal law, and requiring the Administration to eliminate a position within the Immigration and Customs Enforcement Agency that Congress has already defunded. Two of the most widely discussed proposals involve authorizing one house of Congress to seek judicial review of the President's failures to faithfully execute the laws. [Disturbance in the hearing room.] Mr. Goodlatte. Again, we do not have order in the hearing room. Members of the audience must behave in an orderly fashion, or else they will be removed from the hearing room. The Capitol police will remove the disruptive members of the audience immediately. Mr. Conyers. Mr. Chairman? Mr. Goodlatte. The gentleman from Michigan. Mr. Conyers. I would like to tell the friends here that are about to be removed that this is counterproductive to the hearing and your views on what is taking place or going to take place in the hearing. So I would strenuously urge anybody else in the room that wants to display signs to only get evicted, that it is not helping your views on it. There are other ways that you can communicate with the Members of this Committee, including the Chairman and myself, and I urge that you use that instead. Mr. Goodlatte. I thank the gentleman, and the Capitol police will remove the members of the audience who are acting in a disruptive fashion immediately. Two of the most widely discussed proposals involve authorizing one house of Congress to seek judicial review of the President's failures to faithfully execute the laws. Asking the judiciary, a co-equal branch of our government, to step in and check one or the other branch's failures to stay within its constitutional limits would seem to be an obvious solution. Unfortunately, the courts have been reluctant to exercise their constitutionally conferred power to say what the laws are when doing so would require them to determine whether either of the political branches has exceeded its authority. Instead, when presented with cases and controversies involving disputes between the President and Congress, the Federal courts have used judge-made doctrines to avoid judicial review of these inter-branch conflicts. But this hostility toward deciding separation of powers disputes is not the role the Constitution's framers envisioned for the judiciary. The framers did not expect the judiciary to sit on the sidelines and watch as one branch aggrandized its own powers and exceeded the authority granted to it by the Constitution. Rather, the Constitution grants the Federal courts very broad jurisdiction to hear all cases arising under this Constitution and the laws of the United States. However, over time the Federal courts have read their own powers much more narrowly, refusing to exercise a vital check over unconstitutional action by the executive branch. When the courts refuse to step in and umpire these disputes, they cede the field to this and future presidents. They effectively make the constitutional requirement that the President take care that the laws be faithfully executed an unenforceable and meaningless check on executive power. It is up to the Congress and the courts to check the President's overreach and restore balance to our system of government. Preventing the President from overstepping the boundaries of his constitutional authority is not about partisan politics. It is about preserving the fundamental premise of our constitutional design, that a limited government, divided into 3 separate branches, exercising enumerated powers, is necessary to protect individual liberty and the rule of law. As James Madison warned centuries ago in Federalist 47, ``The accumulation of all powers--legislative, executive, and judicial--in the same hands may be justly pronounced the very definition of tyranny.'' I look forward to hearing from all our witnesses today, but first we will hear from the Ranking Member of the Committee, the gentleman from Michigan, Mr. Conyers. Mr. Conyers. Thank you, Chairman Goodlatte. I welcome the first panel of Members as witnesses, and begin this discussion from a different perspective about enforcing the President's constitutional duty to faithfully execute laws, which would be a fruitful undertaking if there was any evidence that the President has, in fact, failed to fulfill his duty. Yet today's hearing, which is very similar to the one we held in Judiciary on this same topic 3 months ago, is being held in the absence of any evidence of such failure. And although I explained much of this before, I will again highlight the reason why there is no problem. To begin with, let us acknowledge that today's hearing is really about yet another attempt by the majority to prevent the President's implementation of duly enacted legislative initiatives that they oppose, such as the Affordable Care Act and the Dodd-Frank Protection Act. Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation. Rather, it is the reality of administering sometimes complex programs, and is part and parcel of the President's duty to take care that he faithfully execute laws. This has been especially true with respect to the Affordable Care Act. The President's decision to extend certain compliance dates to help phase in the Act is not novel. For example, President George W. Bush, for instance, failed to meet some of the deadlines in implementing Medicare Part D, even though it was legislation that he strongly supported. Taking steps to deal with the realities of the implementation of a complex program hardly constitutes a failure to take care that the laws are faithfully executed. It is rather a necessary part of meeting the obligation. And even though not a single court has ever concluded that the reasonable delay in implementing a complex law constitutes a violation of the take care clause in the Constitution, some of the majority insists that there is a constitutional crisis. Surely there are more issues more worthy of the full Committee's consideration than this. Another fact that the majority appears to ignore is that the exercise of enforcement discretion is a traditional power of the executive. For example, the decision to defer deportation of young adults who were brought to the United States as children, who have not committed felonies or serious misdemeanors, and who do not pose a public safety--the Dreamers--is a classic exercise of such discretion. The Administration cannot legalize these individuals' status without a legal basis. But the Administration's decision to defer action against particular individuals is neither unusual nor unconstitutional. Again, there is a precedent where the exercise for such discretion. In 2005, President George W. Bush's Administration announced deferred action for approximately 5,500 foreign students affected by Hurricane Katrina. And it is no surprise that the Supreme Court has consistently held that the exercise of such discretion is a function of the President's powers under the take care clause. As the Court held in Heckler v. Chaney, ``An agency's refusal to institute proceedings shares to some extent the characteristics of a decision of a prosecutor in the executive branch not to indict,'' a decision which has long been regarded as the special province of the executive branch inasmuch as it is the executive who is charged by the Constitution to take care that the laws be faithfully executed. And for this reason, the Court concluded that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. I will insert the rest of my statement in the record, and yield back the balance of my time. Mr. Goodlatte. The Chair thanks the gentleman. Without objection, all other Members' opening statements will be made a part of the record. [The prepared statement of Mr. Conyers follows:] Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary A discussion about enforcing the President's constitutional duty to faithfully execute the laws would be a fruitful undertaking if there was any evidence that the President has, in fact, failed to fulfill this duty. Yet today's hearing--like the hearing we held on this very same topic just 3 months ago--is being held in the absence of any evidence of such failure. Although I explained much of this before, I will again highlight the reasons why there is no problem. To begin with, let's acknowledge what today's hearing is really about: it is yet another attempt by the Majority to prevent the President's implementation of duly enacted legislative initiatives that they oppose, such as the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation. Rather, it is the reality of administering sometimes complex programs and is part and parcel of the President's duty to ``take care'' that he ``faithfully'' execute laws. This has been especially true with respect to the Affordable Care Act. The President's decision to extend certain compliance dates to help phase-in the Act is not a novel tactic. President George W. Bush, for instance, failed to meet some of the deadlines in implementing Medicare Part D, even though it was legislation he strongly supported. Taking steps to deal with the realities of the implementation of a complex program hardly constitutes a failure to take care that the laws are faithfully executed. It is, rather, a necessary part of meeting that obligation. And, even though not a single court has ever concluded that reasonable delay in implementing a complex law to constitute a violation of the Take Care Clause, the Majority insists there is a constitutional crisis. Surely, there are issues more worthy of the full Committee's consideration than this. Another fact that the Majority appears to ignore is that the exercise of enforcement discretion is a traditional power of the executive. For example, the decision to defer deportation of young adults who were brought to the United States as children, who have not committed felonies or serious misdemeanors, and who do not pose a threat to public safety--the ``DREAMers''--is a classic exercise of such discretion. The Administration cannot legalize these individuals' status without a legal basis, but the Administration's decision to defer action against particular individuals is neither unusual nor unconstitutional. Again there is precedent for the exercise of such discretion. In 2005, President George W. Bush's Administration announced deferred action for approximately 5,500 foreign students affected by Hurricane Katrina. And, it is no surprise that the Supreme Court has consistently held that the exercise of such discretion is a function of the President's powers under the Take Care Clause. As the Court held in Heckler v. Chaney, ``an agency's refusal to institute proceedings shares to some extent the characteristics of a decision of a prosecutor in the Executive Branch not to indict--a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to `take Care that the Laws be faithfully executed.' '' For this reason, the Court concluded that ``an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.'' I am especially dismayed that 2 of the legislative proposals that will be considered today disrespect the aspirations of DREAMers and reinforce old prejudices and inflammatory views about DREAMers, including views expressed by some Majority members of the Committee. Indeed, the American people expect the Executive Branch, under President Obama's leadership, to work to address a whole host of issues that this House refuses to address, including enhancing protections for the environment, ensuring worker safety, and helping financially distressed homeowners, student-loan borrowers, and others who are struggling to achieve the American Dream. Rather than wasting precious time on a hearing like this, we should be working to address these and many other critical challenges facing our Nation. Not only are President Obama's actions constitutional, they are needed steps to helping the American people, and that should be the focus of our discussion today. __________ Mr. Goodlatte. We welcome our first panel today, and if you all will rise. As is the custom of this Committee, we will swear you in as witnesses. Please raise your right hand. [Witnesses sworn.] Mr. Goodlatte. Thank you very much. Let the record reflect that all the witnesses responded in the affirmative. Our first witness is Jim Gerlach. Representative Gerlach represents the 6th District of Pennsylvania. He was first elected to Congress in 2002. On January 13th, Representative Gerlach introduced H.R. 3857, the Enforce the Take Care Clause Act. This legislation puts a procedure in place for the House or the Senate to authorize and bring a lawsuit to seek immediate judicial relief in the event that the President fails to take care that the laws be faithfully executed. Our second witness is Tom Rice. Representative Rice represents South Carolina's 7th Congressional District. He is currently serving his first term in the House. On December 12th of last year, Representative Rice introduced H.Res. 442, the Stop This Overreaching Presidency Resolution. The resolution directs the House to institute legal action to require the President to faithfully execute the law. Our third witness is Diane Black. Representative Black represents the 6th District of Tennessee. She is currently serving her second term in the House. In December, Representative Black introduced H.R. 3732, the Immigration Compliance Enforcement Act. Her bill requires the Administration to eliminate the public advocate position within the Immigration and Customs Enforcement Agency, a position that Congress has already defunded. Our final witness on this panel is Ron DeSantis. Representative DeSantis is a Member of the Judiciary Committee and represents Florida's 6th Congressional District. He is currently serving his first term in the House. On January 29th, Representative DeSantis introduced H.R. 3973, the Faithful Execution of the Law Act. The bill strengthens existing law by requiring all Federal officials who establish or implement a formal or informal policy to refrain from enforcing a Federal law, to report to Congress on the reason for the non- enforcement. I would ask each witness to summarize his or her testimony in 5 minutes or less. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you will have 1 minute to conclude your testimony. When the light turns red, it signals the witness' 5 minutes have expired. As is customary, Members will not be asked to stay to answer questions. I would like to thank my colleagues for participating in this hearing. First of all, I want to turn to Representative Gerlach, and I welcome all of the Members of the House who are participating on this panel. And we will begin with you, Jim. TESTIMONY OF THE HONORABLE JIM GERLACH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA Mr. Gerlach. Thank you, Mr. Chairman, and Ranking Member Conyers, and all Members of the Committee for the invitation to testify today. There is no question that on several occasions in recent years we have witnessed an unparalleled use of executive power to selectively apply, enforce, and even ignore duly-enacted laws. Testimony presented to this Committee last December outlined a number of instances where, by regulation or executive order, the President has acted contrary to his power and duty under Article 2 to faithfully execute all laws. The Affordable Care Act is just one, and perhaps the most glaring, example. The ACA has been revised, altered, and effectively rewritten by the President and his Administration 23 times since July, with the most recent executive action coming 2 weeks ago when the President unilaterally declared a 1-year delay of the employer mandate for companies with 50 to 99 full-time workers. My reading of the testimony presented in the hearing in December made it quite clear that the President, through his actions on the ACA, as well as other areas of executive action, is fundamentally altering the delicate constitutional balance among the 3 branches of our Federal system, and the concept of an imperial presidency has reentered our national dialogue. It was because of this powerful testimony that I began thinking about how we in the Congress, as a co-equal branch of government, can work to preserve that critical balance between the legislative and executive branches that our framers worked so hard to establish. To start, I think we can agree that Congress has fairly limited means of redress in the event that the executive branch circumvents the legislative branch through its decisions not to enforce certain Federal law. Congress can try to pass new laws to either remedy or defund a violating action, but a president who undertook the action will not likely support the measure. Where the action rises to a high crime or misdemeanor, the House may initiate an impeachment proceeding, but such an avenue would surely be extremely divisive within Congress and the Nation generally, and would divert the attention of Congress from other important issues of the day. Finally, judicial relief could be sought, but we well know that that process can take years and years while the underlying transgression continues. So these thoughts ultimately led me to introduce H.R. 3857, the proposed Enforce the Take Care Clause Act. I drafted the bill to provide either house of Congress with a new fast-track process to have the Federal courts quickly and thoroughly review questions of whether a president is properly executing this take care clause, and, if not, present a mechanism for immediate judicial relief to remedy the situation. Specifically, this legislation authorizes the House or Senate, upon passage of a resolution in either chamber by a 60 percent super majority, to bring an expedited action before the U.S. District Court for the District of Columbia seeking review and declaratory or injunctive relief in the event a president fails to meet the constitutional requirements to faithfully execute the law. That Court's decision would have to be issued within 90 days and would be immediately and directly appealable to the U.S. Supreme Court for a final determination of whether a president has acted in a constitutional manner. Some have questioned whether Congress has standing to bring a legal action against a president in such a situation. I believe it does. Article I vests Congress with all legislative power, including in Section 8 the power to make all laws which shall be necessary and proper for carrying into execution all other powers vested by the Constitution, in the Government, or any officer thereof. One of the other powers is a president's executive power under Article 2, the power and duty to faithfully execute the law. Further, the Supreme Court has the authority to hear any cases arising from this legislation because the judicial power conveyed to it in Article 3 extends to all cases arising under this Constitution and the laws of the United States. In other words, I believe the Court may hear a case procedurally brought to it by a duly-enacted law on the issue of whether the Congress believes a president has failed to properly execute his constitutionally-vested power. Given the number of examples where this President has clearly failed to execute all law, I believe it is time for Congress to put in place a procedure for a fast-track, independent review of those executive actions. Consequently, I look forward to working with the Members of the Committee to implement the common sense procedural reform outlined in this legislation so that we can, one, establish a practical mechanism to resolve serious questions of executive overreach; two, retain the deep-rooted constitutional balance between the legislative and executive branches; and, three, help restore the public's overall confidence in our system of governance. Thank you very much, Mr. Chairman, for the opportunity to testify. [The prepared statement of Mr. Gerlach follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you, Mr. Gerlach. Congressman Rice, welcome. TESTIMONY OF THE HONORABLE H. TOM RICE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA Mr. Rice. Chairman Goodlatte, Ranking Member Conyers. Mr. Goodlatte. You may want to pull that a little closer still. Mr. Rice. Chairman Goodlatte, Ranking Member Conyers, and Members of the Judiciary Committee, thank you for inviting me to discuss the constitutional concerns raised by President Obama's unwillingness to faithfully execute the law as required by Article 2, Section 3 of the Constitution. We are a Nation of laws, and no man, including the President, is above the law. When charged with enforcing an unpopular tax in the Whiskey Rebellion, President George Washington noted in a letter to Alexander Hamilton, ``It is my duty to see the laws executed. To permit them to be trampled upon with impunity would be repugnant to that duty.'' Two hundred and twenty years later, President Obama has repeatedly proven himself willing to pick and choose which laws or portions thereof he wishes to enforce or rewrite the laws at his whim. My resolution, House Resolution 442, entitled Stop This Overreaching Presidency, or the STOP Resolution, is intended to enforce the separation of powers. If adopted by a majority of the House of Representative, the STOP Resolution would require that the House as an institution bring a lawsuit against the President to require that he carry out his duties pursuant to the take care clause of the Constitution. I have heard from many of my colleagues or from some of my colleagues that a legal action against the President would be radical. But, my friends, I believe when the President repeatedly says that if Congress fails to act on his agenda that he will enact his agenda through executive order, he is trampling our Constitution and our very freedom, and that is far more radical. The STOP resolution highlights four instances in which President Obama's Administration overstepped its bounds in enforcing our laws. One is the unilateral decision to delay the employer mandate for business owners. And I want to dwell on that for a minute. My history is as a tax lawyer as a CPA, and the Supreme Court has ruled that these penalties under these mandates are a tax. The President simply has no right to decide when and to whom he is going to apply the tax. If a President has that right, then what would prevent the next President from saying I do not like any of the mandates under Obamacare, and, therefore, I am not going to enforce any of them? Or what would stop the next President from saying, you know, I think the maximum tax bracket is too high; therefore, I am not going to enforce that? And all of these consistent changes to the Affordable Care Act. You know, businesses have to implement that, and unlike the Federal Government, they have more than a 3-month time horizon. So they plan out in the future. And when we have these constant changes at the President's whim, think about what that does to businesses' planning capabilities, to their hiring capabilities, to their expansion capabilities. And we should not wonder why our economy is struggling. Also, my act mentions the 1-year extension of the substandard insurance policy under the Affordable Care Act. After the President's promise, if you like your plan you can keep it, was judged the biggest lie of the year, the President opted for a quick political fix: the President's adoption by executive order of the Dream Act, which Congress considered and failed to take up, and the waiver of the work requirements under the TANF laws. Standing. My office has provided to this Committee a legal brief on H.Res. 442 in general and the standing issue in particular. In addition, since I introduced this resolution, several experts in constitutional law, including some in the panel behind me here, have weighed on the viability of H.Res. 442 in the media. To summarize, while standing is not guaranteed, we have a good argument based upon several factors. The first is this would be brought by the House as institution, not by a few random congressmen. Second, as opposed to prior cases, such as Raines, the President's actions here are in direct violation of existing law. STOP has garnered 117 co-sponsors, as well as significant interest from Americans across the country. I understand there are a number of alternatives here to enforce to enforce Article 2, Section 3, but this resolution has one distinct advantage: it only requires House action. As my colleagues are well aware, the Senate rarely acts on House-passed legislation. This is not a partisan issue. We have all heard then Senator Obama's concerns about executive overreach by President Bush, and another failed promise that he has as president to work with Congress. A hundred and seventeen of my colleagues and I support STOP because we believe, as our founders did, that we are a Nation of laws. And no person, including the President, is above the law. A government of the people, by the people, and for the people is more than just a broken campaign promise. It is the wellspring of our freedom, and it must not be ignored. My friends, we all took an oath when we took this office. We pledged to God to protect and defend our Constitution. President Obama took that same oath. We should not allow that oath to be one more broken campaign promise. Let us adopt H.R. 442 and require the President to abide by his word. Thank you. I yield back. [The prepared statement of Mr. Rice follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you, Mr. Rice. Congresswoman Black, welcome. TESTIMONY OF THE HONORABLE DIANE BLACK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE Ms. Black. Thank you, Mr. Chairman, for asking me to testify here today. By circumventing our Nation's laws, the Obama Administration has ignored constitutional duties and completely discredited itself, losing good will along the way with Members of Congress. While this Administration's lawlessness has been most widely noticed with President Obama's implementation of Obamacare, it applies to areas far beyond healthcare. For instance, in February of 2012, U.S. Immigration and Customs Enforcement appointed a so-called public advocate to act as a lobbyist for illegal and criminal aliens within the agency. This lobbyist disrupted detention procedures and undermined the hardworking men and women who have dedicated their careers to securing our borders and protecting the American people. In fact, Chris Crane, the president of the National ICE Council--the ICE employee's union--called this position, and I quote, ``nothing but waste, fraud, and abuse.'' In response to this outrageous appointment, I introduced an amendment, H.R. 5855, the Department of Homeland Security Appropriations Act of 2013, to defund this position. This amendment passed the House of Representatives by a voice vote, and this same language was included in H.R. 933, the Continuing Resolution, that was signed into law by President Obama on March the 26th, 2013. The clause read, and I quote, ``None of the funds made available by this Act may be used to provide funding for the position of the public advocate with the U.S. Immigration and Customs Enforcement.'' After we thought that the matter had been taken care of by an Act of Congress, approved by the President, last August, thanks to information obtained by the watchdog group, Judicial Watch, we learned that the most transparent Administration in history had quietly changed the title of the position to avoid complying with the very law that the President had signed. The Administration changed the title of ``public advocate'' to ``deputy assistant director of custody programs and community outreach. It was a change in name only. The Administration kept the very same person in the position and made no change to the job itself. This kind of outrageous shell game is a perfect example of this pen and phone President circumventing the will of Congress to force his own agenda, and is exactly why the American people cannot trust this Administration. Despite the House and the Senate passing language to defund this position and stop this waste of precious taxpayer dollars, this Administration and its ICE officials blatantly skirted the law and allowed the agency's employees to continue their activities as though nothing had changed. ICE records indicated that for exactly 1 week, the public advocate, Andrew Lorenzen-Strait, served as a management and programs analyst, only to be given yet another job title on April 1. And since that date, he has served as the deputy assistant director for customs programs and community outreach. This program did not exist prior to March the 26th of 2013, and since its creation has housed a number of programs and staff members who previously operated within the Office of the Public Advocate. When the reports of this shameless maneuvering began to surface, my office immediately began seeking an explanation from ICE, only to be repeatedly stonewalled. And on September 23, of 2013, after a month of constant requests for information, sometimes including several calls a day, yet given no clear answers for this behavior, I sent a formal letter to then-acting director, John Sandweg, requesting information about ICE's action following the enactment of H.R. 933. On December the 12th of 2013, following months of evasion and failure to respond by ICE, I introduced H.R. 3732, the Immigration Compliance Enforcement Act, legislation that would force the agency to comply with the law by shutting down any form of this illegal alien lobbyist. Specifically, the ICE Act would defund both the position and prohibit the creation of any new position within ICE that would allow the agency to ignore the law and continue its pro- illegal immigration activities. It is of the utmost importance that ICE be required to comply with the will of the American people as expressed through Congress. President Obama's flouting of the law cannot be allowed to continue, and if this Administration wants to maintain any credibility with Congress or the American people, they would stop flagrantly ignoring the laws that Congress writes and the President signs. Thank you for my time here today, and I yield back the balance of my time. [The prepared statement of Ms. Black follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you. Congressman DeSantis, welcome to have you on the other side of the table there on this Committee, and pleased to hear your testimony now. TESTIMONY OF THE HONORABLE RON DeSANTIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Mr. DeSantis. Thank you, Mr. Chairman. It is often said that ours is a government of laws, not of men. If there is any one principle that embodies this maxim, it is the constitutional separation of powers. The framers of the Constitution considered the protection of individual liberty to be the primary function of government, and they designed the Constitution so that the major delegated powers--legislative, executive and judicial--were lodged in separate branches of that government. Article 1 of the U.S. Constitution states, ``All legislative powers herein granted shall be vested in a Congress of the United States.'' The Constitution delegates no legislative authority to the President. Instead Article 2, Section 3 of the Constitution imposes upon the President the duty to take care that the laws be faithfully executed. Under our Constitution, the President cannot amend, suspend, or ignore duly-enacted, constitutionally-valid laws, but must instead faithfully execute the laws on the books. Yet in a number of areas ranging from welfare work requirements, to illegal immigration, to ObamaCare, the current Chief Executive has failed to fulfill this important and long-standing duty to take care that the laws be faithfully executed. Now, the justifications that have been offered in defense of the President's conduct have ranged from weak to completely baseless. First, the fact that some Presidents have issued more executive orders than the current incumbent is irrelevant. The number of executive orders does not tell us anything about their constitutional propriety. A President could issue hundreds of executive orders about rudimentary executive branch business as authorized by law and not threaten the constitutional order at all, while an executive that issued merely a handful of executive orders could pose a real threat to liberty if those orders exceed the boundaries set by the law and the Constitution. Second, concern for executive branch lawlessness is not limited to, or even primarily concerned with, formal executive orders. The suspension of Obamacare's employer mandate, for example, was done not through executive order, but via a blog post. When the President purported to ``extend the ObamaCare grandfather provisions'' last November, he issued a statement from the White House press room, not a formal executive order. Third, it is not correct to say that the President can simply do what he wants unless and until a court stops him. Article 3 courts, as has been mentioned, have traditionally been limited to deciding concrete cases and controversies. The framers did not expect courts to simply referee disputes regarding the separation of powers absent the existence of a concrete legal case. As Madison argued in The Federalist, 51, the framers designed the system so that ambition would counteract ambition; that is, they expected Members of Congress in both the House and the Senate to place the institutional interests of the legislative branch ahead of their personal political interests and to check the executive when he attempted to usurp legislative authority. Fourth, the President's constitutional authority as commander-in-chief of the armed forces is qualitatively different than the President's obligation to enforce domestic law. Presidents such as Lincoln and Roosevelt have exercised Article 2 authority during wartime in a manner which still provokes considerable controversy. The scope of that power is important, but also inapposite to whether the current incumbent is satisfying the take care clause by faithfully enforcing domestic laws regarding issues such as healthcare, immigration, and welfare. Finally, the Supreme Court decision in Heckler v. Chaney does not justify the President's conduct. That case involved a lawsuit filed by death row inmates who claimed that Federal law compelled the Food and Drug Administration to review the drugs that State officials were planning to use to kill them via lethal injection. The Court recognized that, given limited resources, the executive branch has the discretion to prioritize enforcement actions. But possessing the discretion to prioritize how to enforce a statute does not mean the President possesses the ability to decide whether to enforce a statute at all. As the Supreme Court observed in Kendall v. United States in 1838, ``to contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.'' I think the President's conduct needs to be scrutinized by the American people. That is why I recently introduced the Faithful Execution of the Law Act. Currently, the Attorney General is required to report to Congress any time the Department of Justice stops enforcement of a law on the grounds that it is unconstitutional. My bill strengthens this provision by extending the reporting requirement to include any Federal officer who implements a formal or informal policy of non- enforcement, regardless of whether it is being done on constitutional or policy grounds. My hope is that this sunlight will prove to be a disinfectant that will serve to hinder the President from usurping the authority of Congress. The President is not a king. We are supposed to be a government of laws, not of men. The framers designed the Constitution to establish a system based on the rule of law in order to protect the liberty of the people. We in Congress have an obligation to use our authority to vindicate the intent of our founders and to check this executive. Thank you. [The prepared statement of Mr. DeSantis follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you, and I want to thank all the Members of the panel for your testimony, for the legislation that you have introduced, and the ideas you have contributed to the Committee on how to address this serious problem. As I indicated earlier and as is customary, the Members will not be asked to stay to answer questions, and I would like to thank my colleagues for participating in this hearing. And you are all excused. We now welcome our second panel today. And before you sit down, I am going to ask the other two to rise. As is customary, we will begin by swearing in the witnesses. If you would raise your right hand. [Witnesses sworn.] Mr. Goodlatte. Thank you very much. Let the record reflect that all of the witnesses responded in the affirmative. Our first witness is Jonathan Turley, the Shapiro Professor of Public Interest Law at the George Washington University Law School. Professor Turley is a nationally-recognized legal scholar who has written extensively in areas ranging from constitutional law, to legal theory, to tort law. He has published over 3 dozen academic articles and over 750 articles in newspapers, including the New York Times, USA Today, and Wall Street Journal. Professor Turley has been recognized as the second most cited law professor in the country. Our second witness is Christopher Schroeder, the Murphy Professor of Law and Public Studies at the Duke University School of Law. In December 2012, he returned to the faculty at Duke after serving for nearly 3 years as Assistant Attorney General in the Justice Department's Office of Legal Policy. Professor Schroeder has also served as Acting Assistant Attorney General in the Office of Legal Counsel at the Justice Department, and as chief counsel to the Senate Judiciary Committee. He is currently working on a book on presidential powers. Our final witness Elizabeth Price Foley, a professor of law at the Florida International University College of Law. She is the author of 3 books and several review articles, and is a frequent media commentator. Professor Foley has authored op-eds that have appeared in publications, including the Wall Street Journal, the New York Times, and the Washington Post. Prior to joining the faculty at Florida International, she was a professor at Michigan State University College of Law, and executive director of the Florida Chapter of the Institute for Justice. Welcome to you all. Your entire statements will be made a part of the record, and we ask that you summarize your testimony in 5 minutes or less. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you will have 1 minute to conclude your testimony. When the light turns red, it signals the witness' 5 minutes have expired. We will begin with Professor Turley, and welcome. TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL Mr. Turley. Thank you, Chairman Goodlatte, and thank you, Ranking Member Conyers, Members of the Committee, and also my esteemed panel that is joining me today. It is an honor to speak with you about a subject that is obviously important to everyone in this room, Members and citizens alike. I testified at the earlier hearing about the separation of powers, its history and its function, and also my view that the President has, in fact, exceeded his authority in a way that is creating a destabilizing influence in a tripartite or three- branch system. Now, I want to emphasize, of course, that this problem did not begin with President Obama. I was critical of his predecessor, President Bush, as well. But the rate at which executive power is being concentrated in our system is accelerating, and, frankly, I am very alarmed by the implications of that aggregation of power. What also alarms me, however, is that the two other branches appear not just simply passive, but inert, in the face of this concentration of authority. The fact that I happen to think the President is right on many of these policies does not alter the fact that I believe the means he is doing it is wrong, and that this can be a dangerous change in our system. And our system is changing in a very fundamental way, and it is changing without a whimper of regret or opposition. And so, it is a great honor to speak with you again today about the implications, but also about what this branch can do to assert its powers and to regain balance in the system. I am a typical Madisonian scholar. I tend to view all branches as equal, but some more equal than others, and that would be the legislative branch. If you take a look at Article 1 and Article 2, even a glance, you will see what I mean. The framers, particularly James Madison, spent a great deal of time developing this institution. It is the thumping heart of our system, and it has lost a great deal of power. And that power has largely been transferred to the executive branch. Before I talk about those options, I just simply want to note priorities and policies, and, yes, even presidents change. Our system is not supposed to change. It is the guarantee that we all have. It is an article of faith that we have with one another. It is a thing that has weathered wars and depression and social unrest. In our system, there is no license to go it alone. There is no freelancing. That does not mean that this is not difficult. It does not mean that we do not have divisions. I want to emphasize that last point. Recently, Congress has seemed, frankly, feckless and uncertain as to its authority. It surprises me given the institution created by people like James Madison. I do not, however, believe our dysfunctional government as it currently exists is simply the result of dysfunctional politics. It is simply untrue that we are living different or unprecedented times. The framers lived in these times. While people say you are acting like you want to kill one another, when the framers first joined this institution, they were literally trying to kill each other. They were using things like the Alien and Sedition Act to try to arrest their opponents. Thomas Jefferson referred to his opponents as the reign of the witches. This is not a different political time, and it should not be used as an excuse for extra constitutional action. Indeed, the branch that I blame the most for the problems we are having is the branch that is rarely mentioned, and that is the judicial branch. It was once referred to at least dangerous branch, but has made itself into the least relevant branch after Raines and other cases. Specifically, it has created barriers for Members' standing or legislative standing, which I think is key if we are going to rebalance this system. What is strange is that the Supreme Court has dealt with this by saying they are defending separation of powers by refusing to reinforce it. It is like a fire department refusing to put out fires because only you can prevent forest. They are tasked with the job of maintaining the separation of powers. I have listed the options in my testimony that this body can consider from direct legislative means, to things like appointments, to some of the legislation that is pending. I do want to emphasize one thing, however, in closing. This common article of faith that we have in our system has served us well. The short-term insular victories that are achieved in this term will come with prohibitive costs. I happen to agree with many of those policies, but I do not agree with the means. I believe we are now at a constitutional tipping point in our system. It is a dangerous point for our system to be in, and I believe that your response has to begin before this President leaves office. No one in our system goes it alone. Now, in closing, the fact is we are stuck with each other, whether we like it or not, in a system of shared powers, for better or worse. We may deadlock. We may even despise each other. The framers foresaw such periods. They lived in such a period. But whatever problems we have today in politics are of our making. We should not destroy the system that has maintained this country so well, that should be passed to future generations. And I thank you again for allowing me to address you. [The prepared statement of Mr. Turley follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you, Mr. Turley. Mr. Schroeder, welcome. TESTIMONY OF CHRISTOPHER H. SCHROEDER, CHARLES S. MURPHY PROFESSOR OF LAW AND PROFESSOR OF PUBLIC POLICY STUDIES, AND CO-DIRECTOR OF THE PROGRAM IN PUBLIC LAW, DUKE UNIVERSITY Mr. Schroeder. Thank you, Chairman Goodlatte, Ranking Member Conyers, Members of the Judiciary Committee. Thank you for the opportunity to testify before you today. You have my written testimony, and I will simply summarize its main points, illustrate them with one example, and then go to the general question of the meaning of the take care clause. When the executive branch exercises delegations of discretionary authority granted by law, it is executing the law. In deciding how to exercise discretion, the executive branch may appropriately consider equitable considerations and policy priorities that are not specifically prescribed by the Congress. Almost all statutes grant discretionary authority, including the discretion to set priorities and to determine not to engage in all possible enforcement actions. These choices are not intentioned with executing the laws. They are part and parcel of executing the law. Some of these actions may resemble legislative action in the words of the Chadha v INS Court, but the Court went on to say, ``The test of their legality is not that kind of eye test. Rather the test is to check them against the terms of the legislation that authorized them.'' Now, both DHS' deferred action decision and the actions the Treasury Department have taken, among others, but just to pick those two examples, have been explicitly justified as exercises of statutorily-delegated authority and prosecutorial discretionary authority. The Administration is not claiming any authority to suspend, nullify, or dispense with any law. Even assuming that it is possible to see a resemblance between these administrative actions and such labels, the proper approach to analyzing the actions must begin by taking the Administration at its word because if they are defensible as exercises of discretion granted by law, their resemblance to these other things is immaterial. So while Secretary Napolitano's memorandum memorializing her deferred action for childhood arrivals is brief, it relies explicitly on scarce resources, equitable considerations, and policy choices, which are classic factors influencing decisions not to enforce. And it also seems to be quite in line with the Supreme Court's recent recognition in the Arizona case of the important role that immediate human concerns play in immigration decisions. Not only does the deferred action seem to be well grounded in the general understanding of prosecutorial discretion and statutory discretion, both the Department of Homeland Security and the INS, prior to DHS' creation, have apparently long treated deferred action as a species of prosecutorial discretion with instances of exercising this authority extending back to at least 1975. It is fair to assume that Congress has been aware of this longstanding practice and has at least implicitly acquiesced in it. Now, I have more about Secretary Napolitano's decision and the Treasury decisions in my written remarks. But even there it is not my intention to delve deeply into these or other any questions of discretionary authority with regard to one or more of these actions. What I want to do is to articulate the appropriate way to understand what it means to execute the law faithfully in the context of statutes that grant discretionary authority, and to emphasize that analysis of the propriety of any exercise of discretionary authority must begin with the statutes and the authorities they grant. If the action can be squared with them, taking into account the full array of discretion that has been granted by law, then the action is faithfully executing the law. Suppose, however, that the executive branch oversteps, that it takes an action that is outside the boundaries that the statute has laid out. Is the President then guilty of violating his constitutional duty? In my view, not by virtue of that fact alone. The President's duty is to take care that the law is faithfully executed, not that it is flawlessly executed. No President could ever meet the standard of flawless execution. Because mere legal error is consistent with faithful execution of the laws, I do not believe the avoidance of legal error goes to the heart of the matter of the President's obligation. So what does? The heart of the matter, it seems to me, lies in exercising good faith and conscientious effort to take actions within the discretionary authority granted by law. So long as the President is taking are to ensure that this is being done, he is discharging his constitutional obligation. I thank the Committee for its time, and I look forward to answering your questions. [The prepared statement of Mr. Schroeder follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. Thank you, Mr. Schroeder. Ms. Foley, welcome. TESTIMONY OF ELIZABETH PRICE FOLEY, PROFESSOR OF LAW, FLORIDA INTERNATIONAL UNIVERSITY, COLLEGE OF LAW Ms. Foley. Thank you. Mr. Chairman, Ranking Member Conyers---- Mr. Goodlatte. You want to make sure that microphone is on and close to you. Ms. Foley. I believe it is on. Mr. Goodlatte. There go you. Ms. Foley. There we go. Okay. Mr. Chairman, Ranking Member Conyers, Members of the Committee, my name is Elizabeth Price Foley. I am a professor of constitutional law at Florida International University College of Law. I am absolutely honored to be here today to talk about this topic. I have provided the Committee with what I consider to be a road map of how the House can establish standing to sue the President as a means to enforce his constitutional duty to take care that the laws be faithfully executed. I believe Congress would, in fact, have standing to sue the President to enforce his duty of faithful execution, provided a four-part test is satisfied. First, the institutional injury alleged should be one that can be characterized as a nullification of a legislative act. The Supreme Court in Raines v. Byrd made it clear that if Members want to assert an institutional injury, the executive's act must effectively nullify a prior act of Congress. So, for example, if Congress declares X in a law, a nullification would be an executive act that effectively declares not X. So let us say Congress passes a law that says anyone who enters this country illegally shall be deportable. An executive act that declares a group of illegal immigrants to not be deportable would be a nullification of that law. Say Congress also enacts a law that says it shall, in fact, go into effect in 2014. An executive act that says the law shall not go into effect in 2014, but instead 2015, 2016, or whatever, would also clearly be a nullification. Second, the lawsuit should be explicitly authorized by a majority of the House. This is because the case law indicates that when Members assert an institutional injury, we have to make sure this is not a sore loser lawsuit that is brought by sort of an ad hoc, disgruntled group of legislators. Explicit authorization for litigation is critically important because what it does is it signals to the Court that the institution as an institution believes it has been injured. Third, the lawsuit should target the President's, what I call, benevolent suspensions of law, which means that there would be no private plaintiff available to adjudicate the constitutionality of the President's acts. A benevolent suspension of law is when the President grants a privilege or a waiver from the operation of law to a certain group of people that, of course, the President himself defines. So, for example, when the President delays provisions of Obamacare but not other provisions, or he decides not to deport some young people who have entered this country illegally, he benevolently has suspended the law with regard to that group of people. In these situations, the individuals are not sufficiently harmed to satisfy personal injury requirements of standing. In fact, no individuals are. Think about it. When you delay an employer mandate to provide health insurance, when you decide not to deport certain young illegal aliens, these actions undermine our laws certainly and our constitutional separation of powers. But they do not hurt any individuals enough to allow them to challenge the President's acts. In fact, if the constitutionality of benevolent suspensions of law is ever going to be resolved, it must be resolved through litigation by Congress against the President. Fourth, the lawsuit should target presidential acts for which legislative self-help is not available. The reason self- help is salient to the courts is because they want to make sure that Congress could not just simply undo the executive's acts by simple majoritarian vote. But think about it again. When a president fails to faithfully execute the law, there is no simple majoritarian remedy available because what Congress wants in this situation is for the existing law to be enforced. Repealing a law that the Congress simply wants executed is obviously not a remedy here. Congress also could not enact another law in this situation because it has already enacted the law it thinks it wants. Congress again wants the existing law to be enforced. We should not also have to resort to the drastic act of impeachment. Peaceful court resolution is going to be a lot easier here, and I think that is what the courts would find. What Congress wants here, again, is faithful execution of the law. It may not think that the President should be entirely removed from office. It just wants the President to faithfully execute the law. Peaceful resolution of disputes between Congress, and the Court, and the president has been accepted by the courts since Marbury v. Madison, and faithful execution of the laws disputes should be no different. Separation of powers is clearly a critically important principle, and I think it is something that all Members of Congress, regardless of political persuasion, should want to see preserved. In the case particularly of benevolent suspensions, the only recourse, again, is for Congress to seek a court's declaration of the constitutionality of the President's acts. These are serious constitutional questions. There are reasonable arguments on both sides. They deserve a full and fair hearing in our courts of law. Thank you. [The prepared statement of Ms. Foley follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Goodlatte. Thank you, Ms. Foley. We will now begin questioning under the 5-minute rule, and I will begin by recognizing myself. Professor Turley, many of the unilateral actions the Obama Administration has taken addressed controversial political issues effectively cutting the people's elected representatives in Congress out of the political process for a whole host of important issues. What is the effect on the political process of having the executive branch alone make these tough decisions? Is unilateral decision making good for our republican system of government? Mr. Turley. Well, thank you, Mr. Chairman. The greatest danger that we have really cannot be overstated when you have the concentration of power in one branch. That is precisely the danger that the framers were seeking to avoid. People like James Madison viewed the branches as sort of like bodies in orbit. They were locked in an orbit of shared powers. Once you have a concentration of authority in any one branch, it creates instability. But what people often miss is that separation of powers is really not about protecting Congress, about the institutional powers. Separation of powers was designed as a protection of liberty. It was to prevent the concentration of power by any of the branches that would threaten individual citizens. Mr. Goodlatte. Professor Foley, can you elaborate on what long-term institutional consequences would likely be if the current practice of benevolent suspensions of the law is not stopped? Ms. Foley. That is a really good question because I think, you know, if Congress cannot stop the President from these benevolent suspensions, I think the first thing that occurs to me is that people are going to become very cynical about government. They already are, but it is going to get worse, and particularly I think people are going to get very cynical about the Constitution. They are going to start thinking that law is politics. I already have students in my classes who think that, and it gets worse and worse every year because of situations like this. Situations like this, these benevolent suspensions, as they get more and more frequent and more aggressive, they are eroding our citizens' respect for the rule of law. We are a country of law and not men. You know, the other problem I would see from your perspective if I were sitting on the other side is that, you know, it is going to render Congress superfluous, right? You have a delicate situation here I understand, but think about whether or not you would ever want to tackle any super controversial issues if this continues. Think about, for example, comprehensive immigration reform. Why would you go to the trouble of reaching a very delicate political compromise on an issue like that if you actually think the President is just going to, you know, simply benevolent suspend those portions of the law he does not like after you reach that compromise? So if you want to stay relevant as an institution, I would suggest that you not stand idly by and let the President take your power away. Mr. Goodlatte. As Mr. Schroeder has noted, the President certainly has some discretion to set enforcement priorities in order to best allocate limited resources and to make a case-by- case enforcement decision. But does that discretion encompass the complete non-enforcement of multiple statutes without any argument that they were unconstitutional, Ms. Foley? Ms. Foley. You are talking about just discretion to not enforce something? Could you repeat the question because it got a little long there around the margins. Mr. Goodlatte. Sure. I apologize. But we acknowledge, as Professor Schroeder noted, that the President has some discretion on case-by-case enforcement decisions. But the question is, does that discretion encompass complete non- enforcement of multiple statutes without any argument that they are unconstitutional? Ms. Foley. Of course it does not. You know, there is a difference between enforcement discretion and non-enforcement of law with regard to an entire category of people. Enforcement discretion, for example, is when a prosecutor with limited resources says, you know what, I have got all these cases lined up, and I think I have got the best evidence to spend my limited resources prosecuting this one first, this 1 second, this one third. Prosecutorial discretion is not saying, well, I know I have this law and I know it says it shall do this and it shall do that. But I am just going to say it does not do that with regard to an entire category of people. That is an apple and an orange. This is not a simple matter of enforcement discretion. This is suspension of the law with regard to an entire category of people. Mr. Goodlatte. Professor Turley, it would appear that the largest impediment to Congress seeking judicial review of the President's failures to faithfully execute the laws is the doctrine of standing, which according to the Court is a doctrine required by the separation of powers. At what point must the separation of powers principles that standing is intended to preserve give way to the separation of powers concerns a congressional lawsuit would be intended to enforce? Mr. Turley. Well, it is an excellent question, Mr. Chairman. I have to say that I believe the Supreme Court has made an unholy mess out of the area of standing. And many of our problems are attributed to the fact that they have left the two branches to fight out in sort of raw power as opposed to resolving what are not political questions, but structural ones. And I have long believed, and I have represented Members of this Committee and other Committees challenging presidential action, that Member standing would go a long way to resolve some of these conflicts. They would not fester. Whatever the framers may have meant in the first three articles of the Constitution, it cannot possibly be this. It cannot possibly be a standing principle where literally no one seems to have standing to bring an issue before the Court. And it cannot possibly mean that a President can go to Congress and ask for something, be rejected, and then his unilateral authority to achieve the same result. Those things to me seem quite beyond the pale of anyone that looks at the Constitutional Convention. Mr. Goodlatte. Thank you. My time has expired. The gentleman from Michigan, the Ranking Member, is recognized for 5 minutes. Mr. Conyers. Thank you, Mr. Chairman. I first wanted to begin by asking the gentlelady or good witness about a statement that she posted on February 7 in which the title was that not even Congress can sue the President for failing to enforce the part of the Constitution, that sometimes, as has been argued here today, that he can successfully establish the standing. And it was titled ``Why Not Even Congress Can Sue the Administration Over Unconstitutional Executive Actions.'' Do you remember that was posted February 7 of this year? Ms. Foley. Absolutely. Yes. Yes, in fact, very recently---- Mr. Conyers. Do you still hold to that position? Ms. Foley. No, let me clarify, if I may. If you look on footnote 119 of my written testimony, which is on page 31, I specifically note that I did not pick that title. When you write an op-ed for a large blog, like the Daily Caller, you write the substance, but you do not write the title. As I express in that footnote 119, what the article is about, if you read the substance of the article, is that I am saying that if the courts will not enforce the faithful execution duty, and if Congress will not impeach the President, then we have a problem. That does not mean that I do not think Congress would not have standing to sue the President if they tried to do so. That is a separate question. Mr. Conyers. You did say in there, though, that Congress probably does not have standing. Ms. Foley. I said most people think Congress probably would not. I am not one of them. Mr. Conyers. But you are not one of them. Ms. Foley. That is correct. Mr. Conyers. But you wrote that in the article. Ms. Foley. That most people think that? Absolutely. Mr. Conyers. Okay. I am going to offer that into the record just for all of us to be able to examine it. Mr. Goodlatte. Without objection, it will be made a part of the record. [The information referred to follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Ms. Foley. Thank you. Mr. Conyers. Now, Professor Schroeder, can one house of the Congress, in your view, successfully establish standing to sue the President to enforce the take care clause? Mr. Schroeder. Not under existing Supreme Court interpretation of congressional or legislative standing. Mr. Conyers. Individuals can if they can get standing. Mr. Schroeder. Individual citizens who have suffered what the Court calls a cognizable injury, in fact, can certainly sue to challenge whether the President's action has strayed outside of discretionary authority, and, therefore, is unlawful and should be rescinded or whatever. But Members of Congress have never been granted standing by this Supreme Court, and I do not see any inclination for a shift in their standing doctrine simply to challenge whether a President's action under a statute is one side or another of the boundaries that that statute says. Mr. Conyers. Now, Professor Schroeder, the clause itself, ``take care that the laws be faithfully executed,'' does that clause itself not support and require the exercise of discretion by the President? Mr. Schroeder. Is that a question for me? Mr. Conyers. Yes, sir. Mr. Schroeder. Yes, it does. Mr. Conyers. And so---- Mr. Schroeder. It is inevitable that the President has to interpret what the statute means. He has to figure out whether it applies in individual cases. He has to make decisions about executing them. Even the simplest statutes are going to require those kinds of discretionary choices and judgments. Mr. Conyers. And we have numerous examples where Presidents have exercised that authority under the Constitution, so numerous that it is surprising that we are holding, I think this is the second hearing, on this same subject as if this President has gone overboard with this or something. As a matter of fact, I think there are numerous examples of other presidents actually exercising this discretion far more than the current occupant of the White House. Mr. Schroeder. You could not begin to number them. Mr. Conyers. No. And so, I want to kind of lower the room temperature, taking into consideration the two witnesses on either side of you that this is a very dicey proposition that the Committee on Judiciary is going into for the second time, as if this is getting out of hand. And so, I tend to agree with the proposition of the witness here, Ms. Foley, that probably not even Congress can sue the Administration over unconstitutional executive actions. As we all know, there are many other ways to get at a president who they think has really strayed far over the lines. And with that, Mr. Chairman, I yield back the balance of my time. Mr. Goodlatte. The Chair thanks the gentleman, and recognizes the gentleman from North Carolina, Mr. Coble, for 5 minutes. Mr. Coble. Thank you, Mr. Chairman. Good to have the panel with us this morning. It is my belief, folks, that President Obama's credibility rating presently is fragile at best, expired at worst. And I appreciate you all being with us today. Professor Turley, some defenders of the President's unilateral actions have asserted that his actions were merely an exercise of prosecutorial discretion. Are these assertions correct, or is there a fundamental difference between prosecutorial discretion and many of the President's unilateral acts? Mr. Turley. Thank you, Congressman. As a practicing criminal defense attorney, I must say this is not like any prosecutorial discretion I have ever dealt with. Prosecutorial discretion is normally based on individual cases or relatively nuanced classes of cases. They do not involve categorical exclusions, like the ones we are dealing with here. They also do not involve actions that are taken after submitting to Congress requests for changes, being rejected on those changes, and then implementing them in the name of prosecutorial discretion. If that is allowed, then obviously it would turn our entire system into a pretense of democratic process. It would make a mockery out of the separations. What is fascinating about these areas is they happen to be areas in which we are deeply divided as a Nation. And that really makes this more serious, in my view, that there is a reason why compromise was not reached on these issues. The country is deeply divided. The framers never guaranteed that you could get compromise. What they guaranteed, or they thought they did, was that you have to try, that you cannot go it alone. You cannot freelance. So I do not view this as prosecutorial discretion. You can call it that if you want, but from my view, it is the clear circumvention of Congress, and for Congress not to act, in my view, borders on self-loathing. I do not understand why Congress would allow a president to come to this body and ask for reforms, some of which I happen to agree with, and then simply take unilateral action once this body refuses to implement those reforms. Mr. Coble. Thank you, Professor. Professor Foley, let me get your opinion on a hypothetical. Sometimes hypotheticals can be treacherous. I do not intend for it to be, however. During his presidency, George H.W. Bush proposed that Congress lower the tax rate on capital gains. Congress did not enact his proposal. Under President Obama's assertion of executive power, could President Bush simply have instructed the IRS not to enforce the tax code on capital gains greater than 10 percent? Ms. Foley. Well, I do not see why not. I mean, it seems to be an apt analogy to me. That was a benevolent suspension of law does, right? So you're hypothesizing that a conservative President essentially takes the Internal Revenue Code. He does not get the tax relief he requested for Congress, and so he unilaterally decides to change the rates that are explicitly mentioned in the Internal Revenue Code itself. And, of course, when he would do that, that would be a benevolent suspension of law because it is benevolent in the sense that it is not hurting anybody. People are paying fewer taxes. To the extent that, you know, the residual rest of the country, the taxpayers, are hurt by that, the Supreme Court had made abundantly clear that there is no generalized taxpayer lawsuits allowed. They do not have standing. So you would have to find some individual that had suffered a concrete, particularized personal harm from the President's lowering of the tax rates, and I do not see it. So you would have a classic benevolent suspension scenario, and I do not think that that is any more farfetched than what President Obama has been doing. Mr. Coble. I thank you. Professor Schroeder, let me try to get another question in before that red light illuminates. In your opinion, sir, at what point does a President cross the line from exercising his enforcement discretion to violating the duty of care that laws be faithfully executed? Mr. Schroeder. When he is no longer making a conscientious and good faith effort to interpret the statutory authorities that you have granted him and using that effort to stay within them. I think that is the boundary, because making any particular mistake by itself does not warrant the conclusion that he is no longer faithfully executing the laws. Mr. Coble. I thank you again for being with us today. Mr. Chairman, I yield back. Mr. Goodlatte. The Chair thanks the gentleman, and recognizes the gentlewoman from California, Ms. Lofgren, for 5 minutes. Ms. Lofgren. Thank you, Mr. Chairman. Before asking my questions, I would ask unanimous consent to place in the record a statement from the American Immigration Lawyers Association and a statement from the National Immigration Forum. Mr. Goodlatte. Without objection, they will be a part of the record. [The information referred to follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. Lofgren. Now, I recognize the Chairman's discretion to allow Members who testify not to answer questions, and so I did not raise an issue on that. But I also do not want people to feel that I am taking an unfair opportunity to point out that our colleague, Congresswoman Black, was the one--I have just got to say this because it is very easy for us in Congress to attack career civil servants. They are not able to defend themselves. And I think sometimes it is important that other Members of Congress provide their defense. She talked about a lawyer who works for ICE, Mr. Andrew Lorezen-Strait, who is a career civil servant. He has been a lawyer in the agency since long before President Obama was elected. He was appointed to serve as the liaison for immigration detention policies with interested parties, community groups, associations of lawyers, and bar associations. This is not very different than, you know, what local police agencies do where you have somebody who can interface with community who are interested in policies. To call him an illegal alien lobbyist, I think, is quite a slur and very unfair. And Congresswoman Black, of course, as all of us do, has the opportunity to provide legislation. She did. She is a relatively new Member and apparently did not know that if you just prohibit funding for a title, it complies with the law to eliminate funding for that title, but essentially to maintain functions. So I guess she is doing a re-do, but I think to blame the agency for inept drafting is really, again, rather unfair to the agency and also to the career individuals. And I just felt it was important for some of us at least--I mean, ICE is not my favorite agency, but fair is fair. I wanted to talk, if I could, a little bit, Mr. Schroeder, about the take care clause as it relates to immigration. You know, I went over and listened to the arguments during the Arizona v. United States case, and it was a fascinating hearing before the Supreme Court. But in the decision itself, this is what they said, ``A principal feature of the removal system is the broad discretion exercised by immigration officials who, as an initial matter, must decide whether it makes sense to pursue removal at all.'' That is what the Court said about what the executive's authority is today and always has been. Deferred action has been part of immigration law for decades. This is nothing new. And so, I guess the question for me is, if there is agreement that the Department has to make some decisions in terms of resources on what to do, given that the Supreme Court has said there is broad discretion to make decisions about what priority to make. Do you think somehow it is a violation if there is order put into those decisions by the heads of the agency for policy, or does this have to be left to officers without any kind of guidance to make that decision on their own? Mr. Schroeder. Not at all, Congresswoman, and I thank you for the question. As a matter of fact, if you think about it, if one of the rationales for granting deferred action are the equitable considerations that relate to the circumstances of the people affected by that decision, one of the things that is most inequitable to those people is the uncertainty of their situation, not knowing whether somebody is going to come and take an action against them, being completely at sea as to what their status is. Now, that is the normal situation, but if you were going to take deferred action on the basis of a consideration of the equities of childhood arrivals, one of the things you would want to do is put their mind at ease. It would be part of the equity of the situation to do that. Ms. Lofgren. Can I ask one further question because it is something, you know, I have often thought about. If you have this discretion, and you do according to the Court, is there not an equal protection issue here where if you have an officer in, you know, one part of the country saying we are going to exercise discretion for childhood arrivals, but an office in another part of the country saying we are not? Does that not call out for a policy decision on the part of the agency itself on what to do? Is there not an equal protection motivation there? Mr. Schroeder. One of the most fundamental principles of our jurisprudence equitable application of the law is that like cases be treated alike. And if you think the dominant explanation of your treatment of a group of people is shared by all of them, then you need to treat everybody alike. And a case-by-case approach to the problem, in fact, will not lead to that. Ms. Lofgren. I see my time is up, Mr. Chairman. I yield back. Mr. Goodlatte. The Chair recognizes the gentleman from Texas, Mr. Smith, for 5 minutes. Mr. Smith of Texas. Thank you, Mr. Chairman. Rather than ask questions, I have a brief statement to make, after which I yield you the balance of my time. ``Mr. Chairman, the Obama Administration has ignored laws, failed to enforce laws, undermined laws, and changed laws by executive orders and administrative actions. These include laws covering healthcare, immigration, marriage, drugs, and welfare requirements. Other presidents have issued more executive orders, but no president has issued so many broad and expansive executive orders that stretch the Constitution to its breaking point. As for not enforcing laws, in 2011, the President instructed the Attorney General not to defend the Defense of Marriage Act in court. This Monday, the Attorney General declared that State attorneys general are not obligated to defend laws they believe are discriminatory. At other times, the President has decided not enforce immigration laws as they applied to entire categories of individuals. And the President has decreed a dozen changes to the Affordable Care Act, known as Obamacare. But neither the President nor the Attorney General have the constitutional right to make or change laws themselves. That is what happens in a dictatorship or a totalitarian government. The President and the Attorney General do have a constitutional obligation to enforce existing laws. If they think a law is unconstitutional, they should wait for the courts to rule, but their opinion is no substitute for due process and judicial review. It is their job to enforce existing laws, whether they personally like them or not. Ours is a Nation of laws, not a Nation of random enforcement. To put personal preferences above democratically- approved laws reeks of arrogance and conceit, especially when citizens could be penalized or jailed for not following those same laws. Officials violate the Constitution they have sworn to uphold if they ignore laws or counsel others to do so. Mr. Chairman, all true reform starts with the voice of the people. If American voters rise up and speak loudly enough, they will be heard in the corridors of the White House and in the halls of Congress.'' Thank you, Mr. Chairman, and I will yield back. Mr. Goodlatte. I thank the gentleman for yielding to me. And, Ms. Foley, in following up on the discussion that the gentlewoman from California just had with Mr. Schroeder, the argument is made that deferred action on a whole category of people, somewhere between half a million and a million people, is acceptable. Now, the principle on which that is founded is prosecutorial discretion. Has prosecutorial discretion such elasticity that an entire category of people could be recipients of deferred action simply based upon their being in the category when the Congress has on the books for many, many years laws signed into law by presidents of the United States, made it illegal for those people to be present in the United States? Are we not talking about here the exception swallowing the rule when you essentially carve out the vast majority of people in the category to have deferred action? Ms. Foley. Yes. I mean, this is sort of a dangerous and scary moment. That is not discretion. I mean, that is raw, lawmaking power is what that sounds like to me. Think about what discretion is. Discretion inherently by the executive is a case-by-case decision, just like a, you know, U.S. attorney makes discretions as to whom to prosecute first. And I believe Mr. Schroeder a second ago mentioned equity. We are trying to do equity here. Equity itself is inherently individualized. When courts exercise equity powers, the whole point of equity is to do an individualized case-by-case assessment as to what is right. That is not what President Obama is doing. He is not doing case-by-case assessment. He is doing entire categories with a giant magisterial brush. He is wiping out an entire category of people to whom the law applies. In my book, that cannot possibly be characterized as prosecutorial discretion. Mr. Goodlatte. And there is a great debate going on here in the Congress right now about what the appropriate action is to be taken with regard to children brought here illegally by their parents. Is not the whole point of that if the Congress does not act and the President is impatient with that, does he somehow have the power to reinterpret the law and stretch the meaning of deferred proceeding to say, well, I am going to effectively create a new law by allowing 500,000 to a million people to remain here in a deferred action legal status that the law was never intended to provide for? Ms. Foley. Well, let us hope not, right? And I am sure if you ask the American people they would say that is not their understanding of what the President is supposed to do when he is charged under Article 2 with the faithful execution of law. And as Professor Turley pointed out a second ago, when the President does something like that where he proposes a legislative reform to a law to Congress and Congress discusses and debates it extensively and rejects his proposal, and then he turns around and through, again, executive order as his own unilateral act decides to simply implement those reform proposals by himself without congressional authorization, that is the worst possible fact pattern. I cannot imagine that a court looking at that fact pattern would say, oh, that is just prosecutorial discretion. Mr. Goodlatte. I thank the gentleman for yielding, and his time has expired. The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 5 minutes. Ms. Jackson Lee. Let me thank the witnesses who have taken their time to be here this morning. There is no doubt that each of you, scholars that you are, believe in your position and certainly are students of the Constitution. And I respect and appreciate that. I want to recount a comment made by some former senators who were at a program yesterday morning. And one said that she has no doubt that all Members who come here come here with a belief and an opportunity--excuse me--come here with a belief and an opportunity to do what is right. And I want to place that on the record. However I may disagree with Members' approach, whether it be House or Senate, I cannot doubt their integrity and their belief. On the other hand, listening to the leader of this House, after making a commitment to comprehensive immigration reform, and we all were inspired by the collaborative nature of that discussion representing his conference, came back 5 days later and indicated that he could not go forward because of the lack of trust in the President of the United States. Now, I did not approve and felt there was a constitutional question on the Iraq War, and certainly as we proceeded and went beyond our seeming authorization, maybe the Afghan War. But I wanted to recollect as to whether or not during that timeframe we spent time introducing legislation that I hold in my hand. So let me quickly read one paragraph: ``Whereas, because of President Obama's continuing failure to faithfully execute the laws, his Administration's actions cannot be addressed by the enactment of new laws because Congress cannot assume that the President will execute the new laws any more faithfully than the laws he already ignored, leaving Congress with no legislative remedy to prevent the establishment of what is, in effect, an imperial presidency.'' If that is not over the top in a legislative document with no basis in form whatsoever. So I disagree with Professor Foley because in actuality, deferred adjudication, Mr. Schroeder, if you would, does give discretion. What it does is it puts in place a procedure for the dreamers to have a process of application. And the authorities, meaning the Administration, the executive branch, then makes an assessment of whether you are eligible. There is discretion. There is a framework. There is equal protection of the law. It is not a vast wave, a tsunami. And I am going to be posing a question, because I took down the words of Professor Foley that indicted dangerous and raw. Maybe Ukraine, maybe places that we have confronted in South Sudan or Sudan. But to suggest that we have a chief executive officer that is dangerous and raw, if I am correctly saying it. So let me just pose this question to you. First of all, why are Republicans so insistent on deporting dreamers, so much so that they would distort the executive position the President and what ICE is doing faithfully, and, I believe, appropriately? And then why would legislation be introduced after a Member has indicated that a particular member of the public service is an illegal alien lobbyist, and finds no insult to that? I respect all of you here, and I respect my colleagues. But I raise a question of frivolity, legislative milk toast. Mr. Schroeder, would you comment on this question of raw and abuse of power, and as well the question of equal protection, and whether or not this is a broad sweep that should be subjected to a question of whether the President can be trusted, and whether or not, as I put in the record very quickly these numbers that I had on a sheet of paper. And I am going to let you start, Mr. Schroeder. Go right ahead until I find them, and I will just shout out in a moment. Thank you. Mr. Schroeder. Thank you, Congresswoman. Well, two basic points. One is I think trying to incorporate or encompass all the actions that have been discussed over the months in this general conversation about whether the President is discharging his duty or not ignores the fundamental point. You have to make individualized decisions that hold up the President's action against existing statutory authority and discretionary function, and decide on a case-by-case basis whether or not the action is over the line or not. I believe that most of these actions are legally defensible as matters of the exercise of that discretion, but that is the analysis you have to go through. Let me just clarify the relationship of the immigration decision and the President's authorities with respect to the Congress' failure to pass the Dream Act, because a lot has been made of that. The Congress also did not pass the Anti-Dream Act. The Congress did not act in this area, so that left in place existing immigration laws. If the President's legal authority after you debated and did not pass the Dream Act justifies the deferred action that was taken, it is only because it would have justified it if he taken it a year before, because he has never claimed anything more than to act on the basis of existing discretionary authorities in the immigration laws. Ms. Jackson Lee. But is it raw? Is it power that is raw and dangerous? Mr. Schroeder. No, ma'am. Ms. Jackson Lee. Is it, in essence, a violation of the equal protection law or anything other than other presidents have done to clarify policy? Mr. Goodlatte. Regular order. Mr. Schroeder. Absolutely not. Ms. Jackson Lee. Mr. Chairman, let me ask unanimous consent to introduce into the record very quickly as it relates to executive orders, President Clinton introduced 364, President Bush introduced 291, and President Obama 168 as of January 20, 2014. And I think that clarifies the record. Mr. Goodlatte. If that is a document, without objection, it will be made a part of the record. [The information referred to follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Goodlatte. And the Chair recognizes the gentleman from Alabama, Mr. Bachus. Ms. Jackson Lee. I thank the gentleman, and I yield back. Mr. Bachus. Thank you. First let me ask you this, just following up on the gentlelady from Texas. It is my understanding that President Bush--George W.--and President Obama have used these executive orders quite frequently. Was that also true of President Clinton? From what she said, he actually issued more. I was thinking he had issued much fewer. Mr. Schroeder. Congressman, I do not have the numbers in hand. This is an authority that presidents have used across Administrations for decades, but I am not familiar with the numbers. Ms. Foley. And, you know, again I have stated publicly and in articles that we need to be clear that quantity has nothing to do with it. Presidents issue executive orders all the time, and you can look them up online. And if you look them up, it is routine things like creating this little group, this little commission to do this, you know, things that have to do with his independent Article 2 authority. So plenty of executive orders are perfectly constitutional, so it is not a numbers game. It is about the quality of what the President is doing. And that is the question: is this President doing things of a qualitatively different nature than his predecessors? Mr. Bachus. All right. You are the Democratic witness, Mr. Schroeder. It is pretty true that what Professor Foley is saying. Is it not just the last two presidents that have sort of pretty much by executive order either refused to do what a statute said or not follow that statute? Mr. Schroeder. Well, I agree with the point that Professor Foley made. It is not the numbers, it is the quality. It is a longstanding practice. I think in the current executive order numbering system, we are in the 13,000's. President Eisenhower issued an executive order establishing affirmative action and non-discrimination requirements of Federal contractors in the 1950's. President Kennedy followed that up. So those were already in the 11,000's. Mr. Bachus. But in quality, is it getting worse? Mr. Schroeder. Well, there again, I cannot hazard a global assessment. I believe that if we are talking about the last three last presidents, with whom I have had some familiarity, and their executive order practice, I believe that the activity is fairly comparable across all three of those president. Mr. Bachus. How about Mr. Turley? Do you agree with that? Mr. Turley. I agree, Congressman, with my colleagues that you cannot look at the raw numbers any more than you can look at raw numbers of bills passed to determine how effective a Congress is. You have to look at what is being done. And I do think that situation has gotten far worse in the last two presidencies. George W. Bush, I thought, was rightfully criticized for his signing statements where he adopted interpretations that seemed to be wholly at odds with what Congress had said. But this has accelerated under President Obama to a point that I think is alarming, that we can disagree with the policies with regard to the Dream Act. But Members of this body thought that they had a consistent rule. They rejected an Anti- Dream Act because they believed that the law itself should remain the same. Now, we can agree or disagree with that, but the fact is what the President achieved unilaterally was precisely what he had been refused by Congress. And that has to raise separation issues of great import. Mr. Bachus. Professor Schroeder, you have testified on this. You at least, I think, have represented yourself as somewhat of an expert on this. What is the most egregious example, in your mind, of an abuse by the President of an executive order? Mr. Schroeder. I thought that President Bush's decision to authorize the NSA to engage in warrantless wire taps when there was pretty clear law on the books that the only two means that you in Congress had intended wire taps to be utilized was either through the normal criminal process or pursuant to a FISA warrant was a pretty egregious misuse---- Mr. Bachus. Of course, you know the War Powers Act and national security are sort of carved out. The final question, if Congress were to bring action, how long would it take? I mean, the courts, they are sometimes so slow to respond, it is into the next Administration before you get an answer. Mr. Schroeder. Well, regrettably, Congressman, because I do not have anything against the effort by Congress to enforce what it believes are principles of right law, I think it would not take long because I believe the Court would throw it out quite quickly. I just do not think there is congressional standing in this area to entertain the kind of litigation that is being contemplated. The President would immediately reply, if he replied on the merits at all, by saying I am within my discretionary statutory authority. Then the court would be faced with answering a garden variety legal question about the application of law to certain facts that is just the kind of thing that it has said that this body, or the other body, or the two of you together does not have standing to litigate. So I just do not think these lawsuits will bear much fruit, regrettably, from the point of view of enabling you or others who advocate for the legislation to pursue that kind of litigation that Professor Foley advocates. It would take a dramatic change in the existing Supreme Court jurisprudence, which I do not see on the cars. Mr. Bachus. Professor? Ms. Foley. It would not take a dramatic departure from existing precedent. Look, the Supreme Court has only decided two legislature standing cases other than Powell v. McCormack, which was not an institutional injury suit, it was a personal injury suit, when he was excluded from the chamber. So we have two cases. We have Coleman v. Miller, and we have Raines v. Byrd. Coleman v. Miller, there was standing for the legislators to bring an institutional injury suit. Byrd v. Raines, there was not. The reason is patent because in Coleman v. Raines, what you had was a group of Kansas State legislators. In fact, you had 21 out of 40, a majority, of Kansas State legislators basically saying that the lieutenant government acted unconstitutionally when he broke a tie regarding that State's ratification of a child labor amendment. The Supreme Court said under those circumstances we are convinced that both the institution, i.e., the Kansas Senate, has alleged an injury, an institutional injury, of sufficient magnitude that it satisfies the injury requirements of standing. And second, we actually believe that this group of legislators is appropriately authorized. It does represent the institution as an institution because it is a majority of them. Now, compare and contrast that to what was going on in Raines. In Raines you had a group of six congressmen and senators who were challenging the constitutionality of the Line Item Veto Act. Basically you can see just by the way I have set up the fact pattern that this is a disgruntled group, a small group, of disgruntled legislators who believed that the law that their own colleagues just passed should not have been passed and was unconstitutional. There is no way the Supreme Court is going to uphold standing under those facts. If you follow the four-part test that I have laid out, you have a very good shot at standing. Mr. Bachus. All right, thank you. Mr. Goodlatte. The time of the gentleman has expired. The Chair recognizes the gentleman from Illinois, Mr. Gutierrez, for 5 minutes. Mr. Gutierrez. Yes, thank you, Mr. Chairman, and welcome to all of you for testifying here. Unfortunately, everything you said will never translate into any legislative action as none of the people that spoke before you or any of the things that you said. This is political theater. That is why we are here. We are not here to really hear about your interpretations of the Constitution, as wise and as well founded as they are. Let us skip over the obvious. The obvious is we had some principles on immigration reform. We do not want to deal with them, so why do we not blame the President? So what we have here is another do-nothing hearing in a do-nothing Congress which will arrive at do-nothing legislation. Mr. Issa [presiding]. Would the gentleman yield? Mr. Gutierrez. No, I have 5 minutes, and I know how serious you are about limiting people to their 5 minutes. Mr. Issa. I was going to be kind. Mr. Gutierrez. Okay, then fine. [Laughter.] Mr. Issa. I, for one, would like to testify that I am interested in a lot of other executive orders. I thank the gentleman. Mr. Gutierrez. Thank you. I hope I will get the extra 15 seconds back at the end. [Laughter.] And so, the gentleman says that that is what he has raised already. But, you know, Ms. Foley talked a lot about the Dream kids, and most of the conversation here has been about immigration. Let us not kid ourselves, right? And Obamacare, which they do not like obviously to begin with, so I am not sure why they are so angry about his delaying the implementation of a law they all voted against and detest. But here is another thing. They have a very clear policy on immigration, and they brought forward some principles. So why are we here? We are here because it is really a do- nothing Congress. And here is what they say to the President. They say, you know, the leaders of the do-nothing Congress, you know, they are really going to come after you, Mr. President, if you do something about immigration, if you dare be a do- something President because we want a do-nothing President to go along with the do-nothing Congress, because that is what they said to us. They said, well, we have some principles, and they articulated those principles, and they brought those principles forward. And you know what they did? They elevated the debate. What happened as a result of that? I am going to tell you what happened as a result of that. I, the President, Nancy Pelosi, and everybody on this side of the aisle said, great, let us have that conversation and let us have that dialogue so we do not have a do-nothing Congress. Instead they want to talk about the dreamers, half a million young kids, right? Well, let me just tell you, Ms. Foley, you are wrong. There is prosecutorial discretion. Every last one of them has to pay nearly $500 in a petition before the government to get prosecutorial discretion. And while hundreds of thousands of them have received it, thousands upon thousands of them have been denied. It is on a case-by-case basis that it is done, just as it should be. It is not as though somebody waved the wand and said everybody who arrived here before they were 16. That is wrong. And let me just say something else. It is not that the Congress did not necessarily say let us not hurt the Dream kids. No, they affirmatively said in the House of Representatives that they should have a pathway to legalization, and they should have a pathway. That law was passed in the House of Representatives. And 55 senators said that the same thing should happen in the Senate. So let us make it clear, except, of course, they brought something up, cloture. I think that is in the Constitution. Yes, Thomas Jefferson, and George Washington, and Madison, they all brought up the rule of cloture. That is the way they stopped it in the Senate otherwise. And the thing is I do not know why they are complaining so much. While their principles were very good and very welcoming, and I was very happy to see them, do you know what they said about the Dreamers? They should get legal permanent residence. Do you know what that means? A green card. No fines. I read their principles very clearly, and they should have an immediate pathway to citizenship. So why are we not celebrating what the President did in that case? And then said they said the Hastert rule, the Hastert rule, the Hastert rule. Really? The Hastert Rule never really existed. Who says that? Dennis Hastert, the former Speaker of the House. That is what he says about the Hastert Rule. And moreover, the former Speaker of the House--I know we can be silly about this and laugh about this and make everything a joke, but it really is not because since you proposed those principles, this do-nothing President who does not enforce the law has deported 29,000 people. He detains more people than any President, over 400,000 a year. So let us not kid ourselves. There are hundreds of thousands, millions of American citizen children who every day are in fear of losing their mom and their dad. This is not a laughing matter where we can simply just laugh about it. There are Americans, American citizens, yes, born here in this very country. And I think we should take that seriously. But this meeting is not about that. It is about attributing some fault to the President of the United States. You know, I can show you time and time again prosecutorial discretion. This is a letter, November 8, 1999, signed by Henry Hyde and Lamar Smith, along with dozens of other Republicans Members saying to then President Clinton, you are not using prosecutorial discretion, on what, on immigration. I would like to introduce it for the record, please, because I think that that is very, very important. Mr. Issa. Without objection, it will be placed in the record. [The information referred to follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Gutierrez. So what are we doing here? We are doing nothing. We have a problem in America, 11 million people. They need help. And you know what? You know what really, really hurt me the most was that we raised the expectation. We said to those people there is hope that, yes, the gentleman from California and the gentleman from Illinois, who many times do not get along on ideological issues, but maybe can find common ground on immigration issues. And, you know, when they said this is hard, when the Speaker said this is hard, I said, so what else is new. That is what we were sent here to do, hard things. If it were easy, they should have another group of people come here. And you know how they felt? They felt dashed. They felt destroyed. They felt disillusioned. And that is why I have to just say, listen, if you are not going to do anything, then do not tell the President not to do anything. Let him help---- Mr. Issa. The gentleman's time has expired by 1 minute and a half. Mr. Gutierrez [continuing]. So those dreamers do not have to have their moms and dads deported from this country. Let somebody do something on behalf of the American people and for the immigrants of this Nation. Thank you very much, Mr. Chairman. Mr. Issa. I want to thank the gentleman. I now recognize myself in order. And I join with the congressman's thoughts in one sense: Congress does need to act. But, Mr. Turley, I would like to leave that particular executive function aside and go to a couple of other questions, some of which I think have not been covered. Is it not true that every action of every confirmed individual--secretary of fill in the blank, EPA administrator, and so on. Every one of those individuals offered up and confirmed by the Senate for a Cabinet-level position, every time they say do something, even in an email, is it not effectively an executive order, not a presidential executive order, but an executive order of the executive branch duly distributed throughout authorized Cabinet positions. Mr. Turley. Well, I think it could be executive action. It certainly could be a policy. You are allowed to challenge under the Declaratory Judgment Act policies that are implemented sometimes outside of strict executive order. Mr. Issa. Right. But the term ``presidential executive order,'' which the gentleman from Illinois was relatively animated about, these are a relatively few actions of the executive branch compared to the tens of thousands of actions that occur through the regulatory process, through guidance, and as much as possible through--and I will give you an example. And this is Article 3. I am sorry, it is still Article 2. The U.S. Attorney in the Southern District of California some years ago basically made a decision not to go after Coyotes, simply not to prosecute them, that it was not worth it. That is an order by an executive delegated down, is that not correct? Mr. Turley. It is, and one of the things I would point you to is that the Declaratory Judgment Act allows people to challenge acts and policies of the executive branch. The vast majority of those things are not technically executive orders, but they are executive action. They are policies. Mr. Issa. Right. So following up on, if you will, all of these actions which affect somebody somewhere or, quite frankly, the will of Congress as often signed by a President. You know, Mr. Conyers and I go back a lot of Congresses, so we may have passed something signed by a previous Congress. We may have signed something over the objection, the veto, of a president. But ultimately, laws have been passed, and they become the basis under which all executive action occurs. Is that correct? And I just ask is that true to both the other witnesses, that that is really the entire universe of what we are talking about, even though this hearing is pulled up to the level of the chief executive. But you all would agree that this is all executive action. Mr. Schroeder. Yes, I would agree with that. Ms. Foley. [Nonverbal response.] Mr. Issa. Okay. Then let me ask the salient question that has nothing to do with immigration, but has to do with all of these executive orders, executive actions, rules, regulations, and the like. At current, the United States Congress has not formally given itself standing to intervene on a regular basis, going to Article 3, when they believe that an entity of the executive branch has failed to properly execute or even interpret existing law. Is that correct that standing does not basically exist? The courts have generally found that we have not given ourselves standing on behalf of the American people. Is that agreed by all three? Mr. Turley. Well, I would---- Mr. Issa. I heard your answer, Ms. Foley, at one point. But, Mr. Turley, in general, if I were to object to the President's executive order, or to Gina McCarthy's at EPA action, I would not in the ordinary course have standing as an individual Member. Is that correct? Mr. Turley. As an individual Member. Mr. Issa. And this Committee, if it were to find that the President's actions were inconsistent with the Constitution or with existing law, they would not have predictable standing. Mr. Turley. That is where I would quibble a bit because I have long taken the view that Members do have inherent standing. And also we have had, particularly in subpoena cases where standing of Committees have been recognized. Mr. Issa. No, and I have one out in Fast and Furious. Mr. Conyers had one in Harriet Miers. So we are two people who believe in Article 1 power. So let me ask the follow-up final question. It is only one question of this entire line. If we either or do not have standing, in your opinion, does the Congress have the ability through statute to give itself explicit standing to go to Article 3 to resolve such disputes as we shall determine in statute? In other words, by statute do we have the ability to give ourselves standing on behalf of the American people? And let us presume for a moment that the standing was based on a house, a house of Congress, as Mr. Conyers and I did each during our time, where only one house made a determination and was granted standing in the district court to have it decided. His was decided and mine is in the process of being decided. From a statutory standpoint, which is really the constitutional question, do you believe we have the ability to pass a statute which would then explicitly give ourselves standing? And let us just use executive orders, even though I would anticipate that the regulatory process that often leads to regulations or rules which are inconsistent with our belief of what the law says. Do you believe we can give ourselves standing through statute explicitly? Mr. Turley. If the question is to me, I do believe that. Whether the courts would accept it--there is obviously hostility toward it. I would simply hasten to add that when you look at standing, you have to look at two different barriers that are presented by the courts. One is Article 3 cases, and one is called prudential principle cases. On prudential principles, this body can do a lot in advancing a claim of standing. In terms of the interpretation under Article 3, you cannot statutorily change the meaning of Article 3 as set by the Supreme Court. Only the Court can do that absent a constitutional amendment. Mr. Issa. Okay. Well, I want each of you to be able to answer briefly. But you are both familiar, I presume, with the Harriet Miers, the Bates case, and now with Amy Berman Jackson, her decision to grant standing and to find that the executive branch cannot assert that the court, Article 3, lacks the ability to decide differences of opinion between our bodies. Would you then say that at least we have the ability to pass a statute, and that they would have to give it similar consideration? Mr. Schroeder. Well, purely as a predictive matter, no. I think you have drawn an apt distinction between the ability of this body to enforce its own internal legal processes against the executive. I would distinguish those situations versus a disagreement with the President over how the laws that apply to the citizens of the United States are being interpreted. But that is just my predictive reading of the cases. It is worth what you are paying for it. I mean, ultimately it is going to be decided by a court, and whether the three of us agree or disagree, is not going to---- Mr. Issa. But you would agree, and, Mr. Gohmert, I will go quickly to you. I apologize. You would agree that it is only a question of standing because ultimately it is a question of whether you are an injured party and have standing, and whether or not each of us representing 700,000 people and collectively representing 318 million people, have standing on behalf of one or more of those people that may be affected. That is the only question before the Court. Mr. Schroeder. Right. Ultimately a question of standing, there are two problems. One is the peculiar jurisprudence with respect to the legislature suing. I read those cases to say essentially the lawsuits are allowed when it is a question of process. Is there some ambiguity in the process by which a law is being followed through the tracks to get to enactment or not that is ambiguous to justify a lawsuit? So can the lieutenant government in Kansas be involved in a constitutional amendment decision, or does the Constitution prohibit that, and it made a difference as to whether the resolution was adopted or not? Mr. Issa. Thank you. Mr. Gohmert, thank you. You are recognized. Mr. Gohmert. Thank you, Mr. Chairman. And, Mr. Chairman, I am going to follow up on your questions. I am just going to read from Article 3, Section 1, so we all know what we are talking about. ``The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.'' Congress has the power to create district courts. If we want to create more district courts, we could do so. Does everybody agree with that? Mr. Schroeder. Yes. Ms. Foley. Absolutely. Mr. Gohmert. And we have the power to create more Federal circuit courts, Federal appellate courts, if we wish, correct? Ms. Foley. Yes. Mr. Gohmert. We have the right to eliminate district and appellate courts, correct? [Nonverbal response.] Mr. Gohmert. You all are nodding your heads. I take that as an affirmative answer. Ms. Foley. Yes. Mr. Schroeder. Right. There is a little problem at the margins about totally denying a remedy of a citizen for due process or other constitutional problems. But absent that, yes. Ms. Foley. And assuming concurrent jurisdiction by state courts, you would not have a due process problem. So, yes. Mr. Gohmert. Well, but actually there is only one court we cannot eliminate, and that because it is created in the Constitution, and that is the Supreme Court, correct? Ms. Foley. Correct. Mr. Schroeder. Right. Mr. Turley. Although you do have the power to add members to that Court. Mr. Gohmert. Yes, we do have the power to add members to that Court if we wish. I agree with you, and that has been tried, and I am glad it was not successful. But I come back to this: if we have the power to create courts, whether we call them district courts, or immigration courts, or tribunals, or whatever inferior courts that we choose to create, then following up on Chairman Issa's question, why would we not also have the power to say what standing would be allowed in the court that we create? Any of you. Ms. Foley. Well, actually I think it is because the relevant language of the Constitution is not Article 3, Section 1, but Article 3, Section 2, which extends the judicial power to certain cases and controversies, including cases that arise under the Constitution, treaties and laws of the United States, and cases between citizens of diverse States. So in interpreting---- Mr. Gohmert. But if we eliminate every court but the Supreme Court, which we can do, and let them hear the Section 2 issues, then we should be able to create courts and say these courts will give standing to these litigants. We do that with immigration courts. We have done that with Uniform Code of Military Justice creating military courts or courts martial. So I know very intelligent people get to argue, well, you have the language of Coleman, and then the Raines position and all. But I am saying if you stand on the Constitution alone, I do not understand how Congress would not have power to say we are creating these district courts, and you will give standing to Members of Congress, whether it is one who voted for or voted again a bill, or whatever. Whatever we chose to say, these have standing, understanding that we cannot change the powers of the Supreme Court to hear the things in Section 2. Just because the Supreme Court has the power to hear the things in Section 2 does not mean that every court we create has to hear all of those things in Section 2. Is that not correct? Otherwise, we could not create immigration courts, or courts martial, or district courts, correct? Ms. Foley. With respect, I think you are actually incorrect about this, and let me just briefly explain. The courts that you are referring to are non-Article 3 courts. You are right in the sense that certainly constitutionally only the U.S. Supreme Court has to exist. What would happen if Congress exercised its power to---- Mr. Gohmert. What power do we have to create courts other than Article 3? Ms. Foley. Correct. Mr. Gohmert. I know we have power over immigration and things like that under Article 1. Ms. Foley. Article 1. Mr. Gohmert. But under Article 3 is where we derive our courts power, correct? Ms. Foley. Right. So let us say Congress used its power and eliminated all district courts and U.S. courts of appeal, as you are hypothesizing. What would happen? What would that world look like? Would the U.S. Supreme Court be able to hear direct, immediate trial, essentially, of congressional standing? And the answer, I think, has to be no. I hope everyone on the panel will agree with me here because under Article 3, Section 2, the Supreme Court has original and appellate jurisdiction. It only has original jurisdiction under Article 3, Section 2 for a very narrow category of cases. Mr. Gohmert. That is correct. Ms. Foley. And what you are hypothesizing would not be an exercise of appellate jurisdiction, but original jurisdiction. And this standing lawsuit that you are hypothesizing would not be an exercise of appellate jurisdiction, but original jurisdiction. For example, Article 3, Section 2 says the Supreme Court has original jurisdiction over cases involving ambassadors, public ministers, and consuls, I believe, and that is it, right? Is there anything else there that I am missing? That is it. Mr. Gohmert. Well, I could read it to you, but my time has expired, and I am still looking for an answer to my question. Ms. Foley. So, no. So the answer would be, no, you could not eliminate the courts and allow the Supreme Court to hear-- -- Mr. Gohmert. I am not wanting to eliminate any courts. I am saying that by implication, if we can create a court, we can also create that court's jurisdiction, understanding the limits of Section 2 for the Supreme Court. Ms. Foley. And I am respectfully disagreeing because under the Constitution, the Supreme Court can only hear original jurisdiction cases as a trial court in very narrowly-defined categories. It otherwise can only exercise---- Mr. Gohmert. You are still talking about if we eliminated all of the courts, and I am not talking about that. I do not want to eliminate the courts. I am talking about the power of Congress, if we have the power to create a court, then we have the power to say which courts will hear which disputes. Ms. Foley. And I am telling you that I do not think that is correct. Mr. Gohmert. We could divide up the district courts and say these can hear these disputes, these can hear these disputes, correct? Ms. Foley. No, only for non-Article 3 courts. Mr. Gohmert. We do not have power to say what the jurisdiction is of a district court---- Ms. Foley. No, you have---- Mr. Gohmert [continuing]. And that they will have jurisdiction to hear appeals from bankruptcy court? We do not have the power to say that? Ms. Foley. If you are asking the basic question could you give standing to an Article 3 court, a lower Article 3 court now that you are not hypothesizing---- Mr. Gohmert. Well, you said no when I said---- Mr. Issa. The gentleman's time has expired. Ms. Foley. The answer I gave was no. Mr. Gohmert. Well, she said that I was wrong about an issue, and I want to establish that when she said I was wrong about us being able to split up the district courts and give some district courts some authority, other district courts other authority, we have the power to do that. And when you said I was wrong, you were inaccurate. You were going back to your assessment over standing, correct? Ms. Foley. I am sorry. I must have misunderstood your question. However, if you are asking can the Congress give jurisdiction to the court to establish standing, the answer is clearly no. Mr. Gohmert. I asked does Congress have the power to divide district courts---- Mr. Issa. Would the gentleman yield the time he does not have for just a moment? Mr. Gohmert. Sure. Mr. Issa. Under Justice Breyer, the Fed Circuit was created to hear appellate of patent and trademark. And Justice Breyer has very publicly said that perhaps he should have created special courts, Article 3 courts, to consider them. So would it be reasonable to say, on behalf of Mr. Gohmert, that that type of decision of what kinds of cases go to what kinds of courts and what appellate process is at least proven in the case of the Fed Circuit to be in law and well recognized? Ms. Foley. That is correct, but I understood that the congressman was asking could you give the court standing. And the answer would be no. Mr. Gohmert. Well, I have moved onto other questions. Mr. Issa. And we will now move onto the gentleman---- Mr. Gohmert. And I appreciate the Chairman's indulgence for giving me almost as much time as he took. Mr. Issa. No problem at all. Mr. Poe will forgive you in time. The gentleman from Texas is recognized. Mr. Poe. Thank you for being here. I enjoy and think it is quite worthwhile for us to engage in conversation about the Constitution. We ought to do more about that. I want to cut to the chase. The Congress has given under the Clean Water Act, if I understand it correctly, a cause of action to, let us say, environmental groups under the Clean Water Act so they can go to court. What if we use that same analogy--I am not talking about standing--cause of action. Congress receives under legislation a cause of action to sue under the concept of a violation of the law regarding this issue of executive orders. I did not frame the question very well, Professor Turley, but you could frame it better and then answer it for me. Mr. Turley. No, it is framed perfectly well. And the problem is that unfortunately all these roads end up back at Rome. You know, you can create those causes of action. You can create what are called private attorneys general in statutes like the Clean Water Act. But the Court has placed an overlay on that question that said even if you satisfy the standards of the statute, you must still establish for us that we have Article 3 standing. Now, I think that the Court has really made a mess of this in that it is almost incomprehensible as you look at all these cases of what they are meaning, including the recent Windsor decision, which was splintered all over the place on standing. And I am still not quite sure what Justice Kennedy ultimately found standing on. But I will note that standing was found by Members of Congress in the Blagg organization, and that was from one house. So the answer is the Supreme Court has said no matter what Congress does, we have to be satisfied that there is a case or controversy under Article 3. Now, to make things even tougher, because of Marbury v. Madison, the Court has always said we alone are the final interpreter of Article 3. So the end result is what they say Article 3 is is what Article 3 is until we can get them to change their minds. But what Congress can do is to maximize the ability to get standing under an alternative basis, which is called prudential principles. Now, that will not negate the Article 3 limitations, but the Court has recognized that it can grant under prudential principles standing. And notably in the Windsor decision, the Court did say that they felt that really they had to grant those because of the abandonment of the defense of the statute--in this case, DOMA--by the Administration. And they needed to guarantee an adversarial process. Mr. Poe. I have two more questions, so I had better make them quick. I do think, however, on the cause of action that may get us to the courthouse front steps as opposed to not even getting there. Same situation is going on. I mean, Congress has become, I think, because of the executive orders, you know, the whim of this Administration. It could be the whim of any Administration of whether they are going to ignore the law or write its own law. Let us switch to the judiciary branch, which is supposed to be the weakest branch of government if I remember my constitutional law history that you all taught us. What if the judicial branch in a lawsuit, hypothetical lawsuit--you all love hypotheticals--the judicial branch, the Supreme Court rules that the Administration cannot do this, and the Administration ignores the judicial ruling of the Supreme Court. Oh, I am going to use my pen and phone and just ignore the judicial ruling of the Supreme Court. What is their remedy? If we do not have a remedy, what is the Supreme Court's remedy? Mr. Turley. Well, of course, that is the question that I believe President Jackson asked when he asked where is your army to the chief justice of the United States. Mr. Poe. You made your ruling, now you enforce it. Mr. Turley. That is right. And so fortunately, this country has been committed to the rule of law, and presidents have rarely taken that position. In terms of the enforcement, it would be left to Congress that has the most direct ability to combat the other branch. And, you know, Madison assumed that in these fights, the branches would jealously protect their own authority, but they would be equally worried about authority being taken from another branch by a third branch because they want to prevent the concentration of authority. Mr. Poe. Last question briefly. You mentioned impeachment in your written testimony, Professor Turley. Quick comment about what you think that might be as an alternative. Mr. Turley. You know, I testified at the Clinton impeachment and I was the lead counsel in the last judicial impeachment, so I am very leery of even mentioning that word. Mr. Poe. But you did. [Laughter.] Mr. Turley. Well, the reason I did is because courts routinely, almost as a mantra, refer to the power of the purse, legislative oversight, and impeachment when they say checks and balances on the President. I don't believe impeachment is a solution here because courts have really enabled the President in this sense by creating ambiguous standards where he can claim that he believes he is acting within the law. But more importantly, we will be in seriously bad shape if impeachment is the only remaining check and balance. It is like running a nuclear plant with an on/off switch. We cannot do it, and it will not bring stability to our system. Mr. Poe. Thank you very much. I yield back. Mr. Goodlatte [presiding]. The Chair recognizes the gentleman from Pennsylvania, Mr. Marino, for 5 minutes. Mr. Marino. Thank you, Chairman. Welcome, everyone. It is good to get involved and engage in this debate. First of all, let me preface my statements and my questions by saying I am displeased with executive orders that past presidents have executed, Republicans and Democrat, but I was not in Congress at the time. I am in the Congress now, and I am very displeased with what is taking place in the executive branch. Professor Schroeder, you are one of three authors in Keeping Faith with the Constitution. And I have not read the entire book, but I have looked through passages of it, and I was impressed by what the three of you agreed to. And I am just going to cite some things here. It says, ``The authors have described what they call constitutional fidelity, a principle that serves not only to preserve the Constitution, meaning over time--but here is the line I think is critical--``but also to maintain its authority and legitimacy.'' And there is no doubt in my mind that from the heart and soul that you mean that. I do have concerns about at what point do you draw the line at discretionary implementation of the law? I was a prosecutor, a Federal prosecutor, and a district attorney for 18 years, and I know the authority that I had. But that authority was based on that precise case given the fact that there were specific instances or lack thereof that would determine whether I would prosecute or not prosecute. Are you saying that the President has the authority to elevate that in a broad stroke? For example, do not pick up illegals or detain them coming from the President to the Attorney General. Do not implement parts of the healthcare program. The Attorney General, which I am sure was through the direction of the President, telling States' attorneys general not to enforce certain laws if they do not like them. So, sir, I ask you, where do you draw the line, and that is a broad group, not a specific case. I took an oath as a prosecutor, but it was all based on specific facts, the facts of that particular case. So could you please address that, where you see the distinction? Mr. Schroeder. Well, Congressman, thank you. I certainly agree with you entirely that when you are sitting as a prosecutor and a case file comes before you or you have got to make a judgment in consultation with an FBI agent or other law enforcement agent as to whether is sufficient evidence to proceed, you may make a judgment on an individual basis, well, I think there is sufficient evidence to proceed, but I would rather put the office's priorities someplace else. That happens inevitably on a case-by-case basis. But presidents and attorneys general make these kinds of decisions all the time. Look what happened after September 11th. The entire FBI pivoted to combat terrorism. They converted thousands and thousands of agents into counterterrorism agents. The JTTFs and the U.S. attorneys' offices in all of the hot spots that people were worried about---- Mr. Marino. I was part of---- Mr. Schroeder [continuing]. Focused like a laser beam. At the same time that was happening, other crimes, and people have criticized the Department for this. White collar crime prosecutions went way down. All kinds of prosecutions that before the FBI was investing resources in investigations that would lead to prosecutions were neglected. Those kinds of reallocation decisions are made all the time. Mr. Marino. Yes, but that is where I disagree with you. They were not neglected. Priorities were established. Mr. Schroeder. Priorities were established, exactly. Mr. Marino. But they did not say I am not going to prosecute these white-collar crimes because I do not believe they should be prosecuted. So are you going to allow the Attorney General or the President or states' attorneys to say, okay, I am not going to prosecute sex crimes when it involves a 16-year-old and an 18-year-old because I think the 16-year-old is capable of making that decision? That is not the intent behind that. And the President and the attorneys general are just as responsible for criminal laws and civil laws, not painting it with a broad brush. There was a statement that you made in your opening statement, or at least when I read through this, you said, ``While I have not examined all the statutes relevant to the recent Administration's actions on this point, I am not aware of any statutory restrictions on enforcement discretion that bear on those actions.'' My question to you is then how can you come to the conclusion that you have without exhausting all the relevant recent Administration actions. That would be like you saying to a law student who you ask a question, and they gave you an answer. And you asked them, well, did you forget about this particular research? Well, yes, I did. Well then, I do not want to hear your answer. Mr. Schroeder. Congressman, I agree with you entirely. I did not intend to, and I hope I have disclaimed appropriately, I do not mean to here offer you a final definitive legal conclusion on any of these actions. Some of them may be without the boundary. I was trying to indicate in my testimony that they have plausible justifications rooted in traditional exercise of prosecutorial discretion and understandings of the appropriate statutes. We would have to dig into them to see if those justifications are warranted. Mr. Marino. Okay, and I accept that, and I thank you. I like that response, and I do appreciate that response. So Has my time run out? I am color blind. I cannot tell what is going on over there. All right. I guess my time is up. Thank you so much. I yield back. Mr. Goodlatte. That is the best excuse I have heard so far. [Laughter.] Voice. I am going to use that. Mr. Goodlatte. So for any other Members of the Committee that are suffering from this same affliction, the red light is the one on the left. [Laughter.] But the Chair now recognizes the gentleman from South Carolina, Mr. Gowdy, for 5 minutes. Mr. Marino. I have a little dyslexia, too. Mr. Gowdy. Thank you, Mr. Chairman. I want to take a quick survey of executive power for those that are watching from home and hope that my old con law professor is watching from whatever nudist colony he retired to. [Laughter.] A president can veto legislation for any reason or no reason. A President can, through his or her attorney general, fail to defend the constitutionality of a law or portion thereof, even if that same president signed the very law into existence. A president can invite suit against a law and then fail to defend its constitutionality. A president, under some curious definition of prosecutorial discretion, can fail to enforce certain laws, even though money has been appropriated and there has been no challenge to its constitutionality. And Professor Schroeder used a new test called good faith, which I have not heard previous to today. That, in essence, Mr. Chairman, is a second veto, but it is more insidious than the first veto because now you can pick certain portions of a law and enforce it and ignore other portions even if the bill was only passed because of a compromise between competing positions. The president can pardon offenders even before they are indicted or prosecuted. And individual Members of Congress have no standing under Raines. We may or may not have standing under Coleman based on vote nullification and institutional standing. So, Mr. Schroeder, it seems to me that if you like part of a law, enforce it. If you do not, do not enforce the rest. You used the phrase ``good faith.'' I want to ask you this: what is the mandatory minimum for possession of 5 grams of cocaine base? Mr. Schroeder. I do not know, Congressman. Mr. Gowdy. It is 5 years, and it is set by statute. So the judicial branch has to follow that. The judicial ranch would never entertain the thought of saying even though there is a mandatory minimum, we are going to ignore it. So tell me how the Attorney General can. Mr. Schroeder. Well, Congressman, I think a lot of the discussion about non-enforcement of the law is focusing too much on the donut hole and not enough on the donut. Mr. Gowdy. With all due respect, Professor, you talked about immigration, and you talked about healthcare. I am talking about mandatory minimums. They could not be more clear. The legislative branch has the power to set the minimum and the maximum. And rather than this Attorney General doing what he should have done, which is say, you know what, I disagree with the law, I am not going to enforce any narcotics laws because all 50 States have concurrent jurisdiction in narcotics, he wants the best of all worlds. He is going to continue prosecute narcotics cases, just not tell the court what the drug amount is, thereby getting around the law. How does he do that? Mr. Schroeder. Congressman, I am sorry. I am not familiar with that decision that the Attorney General made that you are describing. I would be happy to take a look at it. Mr. Gowdy. Trust me. Even though I am a lawyer, trust me. He has said he is not going to inform the courts anymore about the drug amount because he disagrees with mandatory minimums. How is that the proper exercise of prosecutorial discretion? That is rewriting the law, Professor. Mr. Schroeder. Congressman, I would very much like to be able to answer your question. I am not going to be able to answer it until I look at the specifics of the situation. I just apologize for not being that thoroughly versed on this particular issue. Mr. Gowdy. All right. Well, let me ask Professor Turley. If he can do that with drug laws, why can he not do it with election laws? Mr. Turley. Well, I think that it really does hit the nail on the head. I mean, the problem with the Administration's argument is that it just simply proves too much. It would effectively make all of the separation of powers principles discretionary. And I do not see how you could possibly ascribe that purpose to a group of men who were remarkably pragmatic and practical. These are people that spent a lot of time trying to create balances and checks between the branches. This is the last group of people that would say, you know, we have this massive apparatus in Article 1 and Article 2 and Article 3. But in the end, it really will come down to the President making this decision. These are the last people that would say that. And I also believe they would feel the same way about the idea that we have plenty of cases now where the Court seems to say virtually no one has standing to bring up a constitutional violation. That is the reason I think a lot of the solution is right here in front of this table. Members of Congress are a relatively small group of people that, in my view, have all the elements of people that should have standing. We usually limit standing to parties that can present the best case, the ones that have the greatest interest. When it comes to separation of powers, these Members have the greatest interest. They have skin the game. Mr. Gowdy. I think the Court signaled that in Raines. The Court said this in dicta. We attach some importance to the fact that the House has not authorized this group to represent them, which I read to mean that perhaps if the House does authorize a group to represent them, and that is in Raines, not in Coleman. I know I am almost out of time, Mr. Chairman. Can I ask Professor Foley one question? It is quick, I promise. Mr. Goodlatte. Without objection, the gentleman is recognized for 1 additional minute. Mr. Gowdy. What happens if there is a technical violation of Miranda? Even though you got the right person, you know they committed the crime, but the police just failed to say, you know what, you can stop answering questions any time you want? What is the remedy for that for those watching at home? Ms. Foley. The exclusionary rule. Mr. Gowdy. Right, even though we have got the right person. In other words, to Professor Turley's point, I like the policy, but the process you used is wrong. And it is the same with 4th Amendment, and it is the same with the 5th Amendment. We are going to kick out evidence, and we are even going to let people we know are guilty go because we value process, and the end does not justify the means. So to your point, Professor Turley, that you agree with the policy, but you dispute the method by which this Administration is achieving it, I salute you, and I wish more of my colleagues cared enough to do the same. And with that, I would yield back. Mr. Goodlatte. The Chair thanks the gentleman, and recognizes the gentleman from Idaho, Mr. Labrador, for 5 minutes. Mr. Labrador. Thank you, Mr. Chairman. And actually to follow up on this last comment from Mr. Gowdy, Mr. Turley, I appreciate you being here, and I appreciate the courageous stance that you have taken. In fact, I found it interesting after your last testimony the last hearing that we had how much you got attacked in the media. And I want you to explain what you went through because there was even a moment where actually a reporter who is here today just went off about the impeachment part of our hearing when there was only maybe one sentence uttered about impeachment in an entire 4- or 5-hour hearing. Could you go through a little bit? Mr. Turley. Well, there was certainly a lot of anger, and I am just talking about within my family. [Laughter.] I come from Chicago, a really staunchly Democratic and liberal family, so it has been months since I returned to the house. The fact is I realize that this is an area fraught with passions and politics and people feel very deeply about it. Many people feel that I have, you know, sort of betrayed folks that I usually work with. And in all truth, even though I have written and taught about separation of powers for many years, I have to admit that on some occasions when President Obama has done things that I liked--and I will list one, you know, the greenhouse gas regulations--I privately was glad he acted, and then I had to sort of catch myself because I did know that Congress had rejected some of those measures. And what is being implemented is a massive new regulatory scheme. And the fact is, even though I agree with the President in that area, this is a prototypical example of something that Congress needs to weigh in. And all of the passions that we have seen here is precisely why this is the institution that has to make the decisions. It is not enough to say I agree with what he has done, and it is certainly not enough to say this would not have happened if you had just done what the President told you to do. Mr. Labrador. Which is what I am hearing here. I have heard Mr. Schroeder say it. I have heard several of my colleagues say that if you would have done what the President told you to do, he would not have needed to act in the manner he acted. That, to me, sounds so dangerous. Why do you think, Mr. Turley, that that is dangerous for the future of this country? Mr. Turley. Well, what I would say to those that I often work in the environmental field and other areas where I happen to agree with the President, I believe that in time people will loathe the day that they remained silent during this shift of power. There will be a future president you do not agree with. And just as some laws are being negated or delayed or nullified today, the next round of laws may be something you care more deeply about, and that is what the framers warned us about when they said we are giving you not solutions. We are giving you a process, and this is the all-terrain vehicle of constitutional systems. It has been through everything. It is not a particularly beautifully written Constitution. Anybody who has said that has never read it. It was written by a wonk. You want a beautiful Constitution? Read some of the French constitutions. There are lots of them because they failed repeatedly. Our Constitution was written by practical people, and it has served us well. I do not think it is asking a lot of this institution to pass along that Constitution in the same shape that you inherited it. Mr. Labrador. Ms. Foley, you spoke one moment about the dangerousness of the magisterial power, and I do not think people understand what that means when you talk about a magistrate. What is the difference? Why is it dangerous to actually have magisterial power? Ms. Foley. Well, I mean, it is basically, you know, why we revolted against Great Britain, you know. We were concerned that we had a monarch who basically could suspend our laws and do what he wanted to do. When you get to the point where the only limitation on the President's, or the only definition of the President's, duty to faithfully execute the laws is what Mr. Schroeder suggested, which is sort of an overarching idea that the President has to act in good faith, I do not know what that would mean. I have no idea how anyone would enforce that. And what that is is, you know, effectively having a monarch. Mr. Labrador. Which is the danger of this. And, in fact, I believe--I have been a Member of the Tea Party. I think the Tea Party arose because there was a frustration with not having spoken up during the Bush years. And many people who were upset, like myself, that we did not say enough because Bush over exerted his constitutional authority. And we actually stood silent because it was our President who was doing it. And I think it was not necessarily an attack on the new President. It was a frustration that many of us had that we did not say enough, and I think that is why many of us are saying now. One last question for Ms. Foley and Mr. Turley. Can you please explain, because I have heard again and again prosecutorial discretion? And apparently there seems to be a misunderstanding of what prosecutorial discretion is. The people on the other side seem to think that if the Administration just decides there are three or four things that they have to comply with, then that is prosecutorial discretion. That is not the way I understand it. Ms. Foley. It is not the way I understand it either because think about what the President has done in the Dream Act situation, right? He has created a whole new category of people who are not deportable. And basically what this is, it operates as a blanket waiver for these particular people. And I believe it was Congressman Gutierrez when he was here earlier, he was the one who made the point that, you know, this is a case-by- case adjudication. Well, it is only case-by-case if what you mean is that the President's people are checking to make sure that the President's boxes are checked. That is not what most people think of when they talk about prosecutorial discretion. Mr. Labrador. Mr. Turley? Mr. Turley. I have to agree with that. And my problem with the argument of prosecutorial discretion is that when I listen to the arguments, my question is, if that is prosecutorial discretion, what is not prosecutorial discretion? It would seem like everything would be prosecutorial discretion. Now, we can call a raven a writing desk. We can use whatever terms we want. But I cannot see how what is clear acts of circumvention of Congress can simply be forgiven in the name of prosecutorial discretion. Mr. Labrador. Thank you very much. I yield back my time. Mr. Goodlatte. The Chair thanks the gentleman and recognizes the gentleman from Iowa, Mr. King, for 5 minutes. Mr. King. Thank you, Mr. Chairman. I thank the Chairman for holding this hearing. I would point out as I observed the first four witnesses, they are Republicans, and I had also observed that likely there was an offer made to the minority party to bring a Member forward that might have had some legislation to protect this Constitution. But I am sure they would have voiced that concern if they had had someone to offer. But here as I listen to each of the presenters of the Members who have drafted legislation to fix this issue, I was engaged by each one of their testimony and their presentation. But when I got down to the end of it, I had to kind of do an exhale of despair because it circled back around to Congress passes another law that tells the President to now follow and obey a new law. And so, it should be obvious to all of us by now that there is unlikely any law that we could possibly pass here in the Congress that is going to compel the President to enforce it unless it is to his political interest to do so. And I will say that is one thing that we can count on the President to do with regard to keeping the portions of his oath, and that is if it is in political interest and his philosophical interest, he will enforce it. If it is not, then he will look at the consequences, which might be a public pushback of great enough magnitude that it could be embarrassing. I think one of those points would be when in Obamacare, the conscience protection did not adequately protect, especially the Catholic church, but our religious institutions, and he was compelling them to provide contraceptive, abortafacients, and sterilizations, which was a direct violation of the principles of not just the Catholic church, but many other religious institutions. And individuals should stand in the same shoes, by the way. And so, the President did a press conference at noon on a Friday and he said, well, now I am going to make an accommodation to the religious institutions, and I am now going to require the insurance companies instead to provide these services--he called them services--for free. He repeated himself, for free. And if you scoured the rule that was written by Sebelius' HHS, there was not a letter changed in that rule. The President had spoken orally in a press conference, and the insurance companies lined up to do his will and his bidding. That was a chilling thing to witness as a sworn to oath to protect the Constitution Member of Congress. So all of this that we might do to pass legislation is not the answer. Things we might to do to cut off funding leaves us vulnerable to, oh, intradepartmental transfers of appropriations or even interdepartmental transfers of appropriations. That threshold is the patience of the public. And now we are talking about going to court and figuring out how to get standing because maybe Article 3 will save us. Well, they are the creatures of Congress. We could abolish them, I suppose, if they do not do the will and the bidding of Congress, everybody but the Supreme Court. But in the end, what if the President has the same level of disrespect for Article 3 as he does for Article 1? What if he wraps himself in the cloak of ``I have spoken and there is nothing you can do about it?'' And we have used the ``I'' word here, and we know that it is an impractical tool in this room. I was not a Member of Congress, but I know exactly where I sat back there behind David Schippers when he delivered the summary of the prosecution in the impeachment of Bill Clinton. And it went over to the United States Senate where we did not get constitutional justice out of the Senate. What we got instead was one vote that wrapped up all questions of whatever kind of violations the President might have had. And then into that question was should he be removed from office. We have Harry Reid as a shield in the Senate, so now all of these provisions that our founding fathers have laid out, if they did anticipate the circumstances, they could neither come up with a solution that they could write into the Constitution to offer to us. So I want to ask this question and go down to the line, first with Professor Turley. And that is, if the President shows the same level of disrespect for the judicial branch as he does for the legislative branch of our government, and refused to abide by a court, should we grant ourselves standing and somehow maybe overturn the veto of a President that would refuse to give us standing? What next is our recourse? And I think that is the question we should ask, but bleep through that. I know we are linear thinkers here, but we need to leap to what is our recourse if the legislative and the judicial branches of government are disrespected to an equal level, and the President is wrapped completely in the cloak of ``I am President; therefore, I can do what I want?" Mr. Turley. Well, what you are describing would be tyranny if it went that far. Then we would have issues of removal. But I do think that you have avenues which you can pursue. I complement those that are focusing on standing and focusing, for example, on litigation abandonment issues of defending statutes. I do not believe that the book is closed on Member standing, and I do not agree that it is so clear that Members do not have standing. Having litigated this issue for Members, I think there is room that can be expanded upon. That is the reason I think these are good ideas. But when you are talking about, well, what happens if all the safeties go off, you know, do we have the sort of meltdown. And the answer is that the framers, I think, assumed that there would always be two branches aggrieved by any aggregation of power in the third branch; that in the desperation of the separation of powers, you find alliances. What I think they never anticipated was the degree to which the judicial branch would be absent without constitutional leave on this issue. But I am hoping that that will change. Mr. King. Thank you. Professor Schroeder? Mr. Schroeder? Mr. Schroeder. Congressman, thank you. As you can imagine, I part company with you at the articulation of the problem. I think if you look at the President's actions that are being controverted, one by one, you will see that each and every one of them is justified argumentatively by application of statutory law. So I do not accept the proposition that the President is disrespecting this body. He came into office trying to distance himself from President Bush, who did say on some notable national security- related questions that he had the ability to override---- Mr. King. You are not going to contemplate my hypothetical then, Mr. Schroeder? Mr. Schroeder. Because I do not think we are in that situation. Were we---- Mr. King. Since we are actually out of time then, I would just thank you and ask if Ms. Foley could respond. Thank you. Mr. Schroeder. Yes, thank you. Ms. Foley. Yes. I mean, it is a great and scary question. You know, if the President does not appreciate Congress' constitutional prerogative to make the law, and if courts are not willing to defend that constitutional prerogative because of standing or whatever issues, or maybe Congress itself is too hesitant to even challenge the President in court---- Mr. King. Or if the President does not honor a judicial decision. Ms. Foley. Or if the President goes even further and does not even honor judicial decision, you know, the bottom line-- Jonathan is actually right--we are in tyranny. We do not have a constitutional republic anymore. Mr. King. Thank all the witnesses. And, Chairman, I yield back. Mr. Goodlatte. The Chair thanks the gentleman and recognizes the gentleman from Florida, Mr. DeSantis, for 5 minutes. Mr. DeSantis. Thank you, Mr. Chairman. So just following up, Professor Schroeder, you said that the President's actions are justified by the applicable statutes. So for the Dream Act administrative amnesty, I think that is beyond prosecutorial discretion. You disagree. But where does the President get the authority to issue work permits for people who are in the country illegally when Congress has not even agreed to grant them legal status? Mr. Schroeder. Part of the regulations that the DHS has with respect to deferred action that have been on the books for a while, my understanding is, authorizes people who have been deferred to apply for work---- Mr. DeSantis. So the regulation basically would trump the statute, which said they are not lawfully in the country. You would have to do that, correct? Mr. Schroeder. Well, in steps. Step one, what DHS is saying it has got longstanding authority, going back to 1975, to defer deportation actions. So that is step one. They claim they have that authority under the general discretionary statutes. Mr. DeSantis. But they are making a categorical determination. Mr. Schroeder. And then at step two, once you are in that category authorized by discretionary judgment, there are regulations, and if you looked at the regulations, they would back those up with references to the statute, authorized work authorization. So it is a two-step process. Mr. DeSantis. There is a distinction between regulations being asserted by an agency and what Congress has actually legislated definitely. But I take your point on that. You agree that this idea of if someone makes a criticism of the President acting one way to say, well, Reagan did 200 more executive orders, the number of executive orders tells us nothing about their quality, correct? Mr. Schroeder. Yes. Mr. DeSantis. Okay. And, two, most of the disputes that we are discussing are not formal executive orders. You can go to whitehouse.gov and look up executive orders--the mandate delay, the keep your plan, DACA. Those are not formal EOs with a number, correct? Mr. Schroeder. Correct. Mr. DeSantis. Okay. Professor Foley, well, first of all, part of the problem, I think, here is with respect to Obamacare particularly, these suspensions and delays are really designed for the President to help his political party in an upcoming election. I mean, this is not a notion of, oh, the statute is so complicated. They have had 4 years to impose these penalties. They obviously could do that. They are not doing it because they know if they were to do that there would be a political price to pay because the mandate would mean businesses would not expand or have a disincentive to expand. There would be an incentive to put people to 29 hours. And there was a cook who confronted the President directly about this at a Google town hall not too long ago. And so, that, to me, is why it is so problematic. I mean, it is not like they are just trying to kind of do it. They are doing it in a way to lessen the pain before this election and spread it out so they can evade political accountability for the decisions that they have made. And I just think that that is wrong. Let me play devil's advocate with you, Professor Foley, because, look, I mean, I am supporting kind of trying to do whatever we can. But in terms of enlisting the courts with this, you know, Hamilton said that the judiciary is beyond comparison, the weakest of the three departments. So the idea that they would kind of sit as a Mount Olympus and referee all these political disputes, I do not know that the Federalist Papers would necessarily justify that. And I would quote from Justice Scalia's dissent in the Windsor case, which concerns standing. It was a different issue, but he frames it like this, and I would just get your response. ``Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us,'' meaning the Court, ``to do so. Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not faithfully implement Congress' statute, what then? Only Congress can bring him to heel by, what do you think, yes, directly confronting the President.'' So I guess my unease with it is it kind of seems like we are not really willing to do anything in Congress. I mean, we could withhold funding. The Senate could deny the President any appointments. They could say we are not going to consider any of these nominations until you start enforcing the law. So we have not really done anything in Congress, but yet we are kind of going to the courts basically hoping that they will bail us out. And again, like I said, I want to try whatever could be effective because I think we need to do checks, but I do not think from what Justice Scalia said that he would necessarily agree with going to the courts in this instance. So what is your response? Ms. Foley. Yes. I think you may be over reading Justice Scalia a bit because, first of all, the basic procedural posture of the Windsor case would be very different from a lawsuit that we are hypothesizing here. Mr. DeSantis. Absolutely. Ms. Foley. A couple of things. First, the only thing that is required constitutionally for a Member of Congress or Members of Congress to bring a lawsuit against the President would be the injury-in-fact, right? It also has to be redressable, you know, in causation. Those are the other two elements. I am assuming those would be satisfied by this kind of lawsuit. So it is injury-in-fact that we have to focus on, which is the constitutional possible impediment to Congress bringing a lawsuit. And when it comes to injury-in-fact, the Court has made clear that it is looking for in an institutional injury lawsuit nullification, some act by the President that is tantamount to nullifying what Congress has done. And if you are confident that you could pick a test case where it would be sort of the best poster child, right, for this fact pattern where Congress has declared X, and the President effectively said not X, then you can have confidence that you will satisfy the injury-in- fact requirement. Now, the next level of analysis is, frankly, what I think Professor Turley has been emphasizing, which is the Court also very briefly mentioned, like in Raines, some prudential factors that it also is concerned about in institutional injury lawsuits by Members of Congress, things like the availability of self-help, which is what I think you are highlighting here, things like the possibility of explicit congressional authorization. So you would have to make sure that you had the best case, again, for checking those prudential boxes as well. When it comes to a lawsuit alleging presidential failure to faithfully execute the laws, you have to ask yourself, what would Congress be able to do to help itself? It cannot repeal the law, right, because it wants the law faithfully executed. It cannot reenact the law because what is it going to do, reenact the same law and say we really, really mean it this time? The other possibility is impeachment. And so you have to say, well, would a court actually go to the drastic step of saying we are going to require that Congress actually try to impeach the President or actually impeach the President before we will even consider a lawsuit challenging the President's failure to faithfully execute? I do not think a court would go that far because impeachment actually is not a remedy in the failure to faithfully execute scenario. Impeachment goes well beyond what Congress is seeking. Congress is simply seeking to faithfully execute the law, not get the guy out Congress. Mr. DeSantis. Well, what about the funding? I mean, could they not say you guys could just defund the deferred action program? No funds shall be used to implement a deferral of adjudication. Would that not be self-help? Ms. Foley. I do not think so for this reason: it depends on what case you pick, right? But, for example, let us take Obamacare. Most of Obamacare is self-funding. There are some things that are not self-funding that maybe you could toy with. But you again have to ask yourself, okay, say I am a judge. Would I say that I would demand that Congress go to the lengths of defunding all kinds of things that have nothing to do with Obamacare just so Congress can get leverage against the President to force the President to faithfully execute? That seems a little bit like overkill to me. There is not a tight means end fit there. I do not think that is what the courts mean when they reference self-help. So, for example, in the court where they first reference self-help, and this is the only Supreme Court where they reference self-help is in Raines v. Byrd, they mention it at the very end of the opinion in a separate section, Section 4, after they have already decided that the members failed constitutional injury-in-fact. So they are tacking this on at the end as prudential factors. And when they mention it very quickly in one sentence, you can immediately see the wheels turning, and you can say, well, what could Congress have done in Raines v. Byrd to provide self-help? That answer is clear. They simply could have repealed the Line Item Veto Act. When we are talking about President Obama's failure to faithfully execute, that option is not available. Mr. DeSantis. Great. Well, thank you. I yield back the balance of my time, if any. Mr. Goodlatte. The Chair thanks the gentleman. The Chair thanks all the Members, and most especially thanks all the witnesses for their valuable contribution, and our first panel for their ideas with regard to the legislative initiatives they have offered. This is an issue that concerns a great many people in the country and a great many of us in the Congress. So we will continue to work on this in a legislative fashion to try to make sure that any president is held within the authority that the Constitution grants him, and does not stretch the meaning of prosecutorial discretion and other clauses that, in my opinion, were never meant in statutes to be as elastic as this President has found them to be. I thank you all for your participation. Without objection, Members will have 5 legislative days to submit additional written questions for the witnesses, and we would ask that you answer those questions promptly, or additional materials to be submitted for the record. And this hearing is adjourned. [Whereupon, at 1:08 p.m., the Committee was adjourned.] A P P E N D I X ---------- Material Submitted for the Hearing Record Material submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]