[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION


                           SEPTEMBER 12, 2012


                           Serial No. 112-145


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

                            C O N T E N T S


                           SEPTEMBER 12, 2012


                           OPENING STATEMENTS

The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, 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


The Honorable Mike Lee (R-UT), United States Senator, State of 
  Oral Testimony.................................................     5
  Prepared Statement.............................................     9
Lori Windham, Senior Counsel, The Becket Fund for Religious 
  Oral Testimony.................................................    15
  Prepared Statement.............................................    16
Michael J. Gerhardt, Professor of Constitutional Law and 
  Director, Center on Law and Government, University of North 
  Oral Testimony.................................................    20
  Prepared Statement.............................................    21
Lee A. Casey, Partner, Baker Hostetler
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25


Material submitted by the Honorable Elton Gallegly, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................    34
Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    49

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Committee on the Judiciary.........................    67



                     WEDNESDAY, SEPTEMBER 12, 2012

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to call, at 10:10 a.m., in room 
2141, Rayburn House Office Building, the Honorable Lamar Smith 
(Chairman of the Committee) presiding.
    Present: Representatives Smith, Coble, Gallegly, Goodlatte, 
Lungren, Chabot, Issa, Pence, Forbes, King, Franks, Gohmert, 
Jordan, Chaffetz, Griffin, Marino, Gowdy, Ross, Adams, Quayle, 
Amodei, Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee, 
Waters, Cohen, Johnson, Quigley, Chu, Deutch, and Polis.
    Staff Present: (Majority) Richard Hertling, Staff Director 
and Chief Counsel; Travis Norton, Counsel; Holt Lackey, 
Counsel; David Lazar, Clerk; (Minority) Perry Apelbaum, Staff 
Director and Chief Counsel; Danielle Brown, Counsel; and Aaron 
Hiller, Counsel.
    Mr. Smith. The hearing will come to order. Without 
objection, the Chair is authorized to declare recesses of the 
Committee at any time. We welcome everyone to this hearing. We 
are going to begin with opening statements by me and the 
Ranking Member. Then I will introduce the witnesses. Then we 
will proceed to questions for those witnesses.
    This Committee has held hearings on many of the ways in 
which the Obama administration has abused its power, ignored 
its duties, evaded responsibility and overstepped the 
Constitution's limits on the President. Today's hearing will 
look at the pattern of ignoring constitutional limits created 
by all these examples of abuses.
    The Administration has repeatedly, in my view, put its 
partisan agenda above the rule of law. In doing so, it has 
eroded the constitutional and legal foundations that have kept 
America prosperous and free for over 200 years. President Obama 
has to an unprecedented extent failed to ``take care that the 
laws be faithfully executed.'' Instead he, has repeatedly 
issued blanket waivers that exempt large classes of the 
population from duly enacted laws.
    For example, the President once acknowledged that for him 
to ``simply through Executive order ignore'' the immigration 
laws on the books ``would not conform with his appropriate role 
as President.'' Nonetheless, he acted contrary to his own words 
and decided not to enforce some immigration laws. As a result, 
in these times of sustained unemployment, American workers will 
be forced to compete with illegal immigrants who, according to 
the law should not be given work permits.
    Similarly, the Administration has issued waivers to the No 
Child Left Behind Act and the Welfare reform bill that are so 
broad that they effectively rewrite the law instead of 
enforcing it.
    Just because you don't like the law, doesn't mean you can 
ignore it. Many people have gone to jail for doing just that. 
The President ignored the Senate's constitutional role in the 
appointment process in order to place partisans in key 
positions that regulate labor and the financial markets. To do 
so, he took the unprecedented position that he could make a so-
called ``recess'' appointment even when the Senate by its own 
rules, was not in recess.
    The Administration also has shown contempt for 
Congressional oversight of its activities. In order to hide 
documents related to the Fast and Furious scandal the President 
asserted a broad executive privilege that is not supported by 
precedent. Executive privilege cannot apply to documents that 
don't involve the President or his close advisers ``if there is 
any reason to believe government misconduct occurred.'' 
Operation Fast and Furious and the Administration's misleading 
statements to Congress about the operation are exactly the sort 
of misconduct that Presidents may not conceal behind a claim of 
privilege. By concealing the truth about Fast and Furious 
behind an improper claim of privilege, the President has 
undermined the constitutional requirement that the executive 
branch answer for its actions to Congress and the American 
    The President has also ignored the Constitution's 
protections of individual rights, most notably religious 
freedom. By mandating that employers pay for health care 
products and services that many employers believe to be morally 
wrong, he has forced Americans to choose between violating the 
law or violating their religious beliefs. The Constitution does 
not allow the government to put Americans to such a choice.
    Together, these abuses by the Obama administration form a 
disturbing pattern. When the Constitution and laws limit the 
Administration's ability to impose its partisan agenda, the 
President ignores the Constitution and the laws. This pattern 
of behavior hurts our country, disrespects the Constitution and 
undermines our democracy. It is easy to think of disputes about 
the President's power as abstract questions of constitutional 
theory, unimportant to anyone but law professors and D.C. 
Insiders. But when the Administration repeatedly ignores 
constitutional and legal limits on the President's power, it 
undermines the rule of law, with very real consequences.
    In 2008, the United States ranked number one in the World 
Economic Forum's Global Competitiveness Report. In just 4 
years, we have fallen to the seventh most competitive economy 
in the world. According to the report, a large part of 
America's lost competitiveness comes from the decline in faith 
in public institutions and the government. The Obama 
administration's continued abuse of authority contributes to 
this decline in faith in our institutions and creates 
uncertainty that undermines America's job creators and 
    America has been the most prosperous and free Nation in the 
world in large part because of our adherence to the 
Constitution and the rule of law. Today's hearing examines how 
the Obama administration has ignored this long tradition and 
how we can return to it.
    That concludes my opening statement. And the gentleman from 
Michigan, the Ranking Member of the Judiciary Committee, is 
recognized for his.
    Mr. Conyers. Mr. Chairman, we have had a respectful 
relationship in the way that you have Chaired this Committee, 
but I must observe that in the title for today's hearing it is 
unnecessarily open ended and provocative, and I would ask you 
to please consider withdrawing the hearing title from the 
official record when we go to print. And why? Because the use 
of such an incendiary term without having any conclusion or 
hearings or evidence that lead to this conclusion ``abuse of 
power'' is one that should not be taken lightly. I believe it 
is inappropriate when no factual or legal predicate has been 
presented to justify this terminology and that in my judgment 
the tenor of this hearing by its mere title alone fails to 
distinguish the differences between opinion and true abuses of 
the public trust. And of course all Members are entitled to 
their political opinion, but they are not entitled, none of us, 
to label every disagreement with the White House as an abuse of 
    I know something about this because in 1965 when I came to 
this body I have had enough disagreements since then with 
enough Presidents to recognize that not every difference that I 
have with them in policy preference is evidence of an abuse of 
Executive power.
    President Nixon, for example, and I disagreed on many 
issues, including civil rights and crime policy. Those were 
political disagreements. The abuses were separate. They came 
later. In 1973 the Senate Watergate Committee uncovered 
President Nixon's enemies list. I was number 13 on that list, 
and so I am able to speak from firsthand experience. The 
investigation of this Committee revealed that the Nixon 
administration's plans to ``use the available Federal 
machinery'' to attack its ``political enemies,'' including 
illegal wiretaps, slush funds and break-ins, all of which 
happened. In 1974 we learned that the President had engaged 
directly in attempts to obstruct the Watergate investigation. 
These acts, damaging to the office and in many cases criminal 
as well, constituted true abuse of power.
    Now it is accurate that as the Chairman of this Committee 
in the 110th Congress I called a hearing examining the Bush 
administration's broad claims of Executive power. But we titled 
that hearing Executive Power and Its Constitutional 
Limitations. We were not conclusionary. We did not determine 
what we thought was the case and started off the hearing in 
that sense, as I think we are erroneously doing this morning. I 
believe we kept the tone of that hearing academic and 
respectful. We did not presuppose any wrongdoing in the title 
that was noticed to the public, as is the case here today.
    And it is also true that in March of 2009 the Committee 
issued a report titled Reining in the Imperial Presidency. In 
that report totaling 478 pages, 1,736 footnotes, we used the 
term ``abuse'' with respect to issues like the unlawful firing, 
hiring and firing of Justice Department personnel, warrantless 
wiretapping and torture of detainees. We concluded that this 
conduct constituted an abuse of executive authority only after 
years of research and documentation. Our conclusions were 
backed by successful litigation and numerous Inspector General 
reports. And we did not release these findings 2 months prior 
to a presidential election.
    So Mr. Chairman, you may believe that the President's 
recess appointments are unconstitutional, but this issue will 
be resolved by the courts. There is little we can do or say to 
change the outcome of that litigation. And similarly you may 
believe that the Obama administration's decision to invoke 
executive privilege in the Fast and Furious investigation is 
unprecedented and abusive. This case is not as clean cut as 
when the Bush administration invoked the blanket privilege over 
all testimony and documents in the U.S. Attorney's 
investigation, and I would argue that the implication of 
privilege here is not unprecedented. But it will be up to the 
courts to decide whether or not it is abusive.
    Again, there is little more that we can add to the debate 
today. So in the few working days that remain in this Congress 
I would urge my colleagues to address some of the issues that 
will not have the benefit of a first hearing in this Committee 
let alone a second. You see we have not had a single hearing on 
the incredible attempts to suppress the vote through new 
identification requirements and limits on registration and 
early voting. I was here for the passage of the Voting Rights 
Act of 1965, and I consider these new State laws, many of them, 
a direct threat to our democratic process and the very fabric 
of our Nation.
    We have not yet had a hearing, a single serious discussion 
about real comprehensive immigration reform or what steps we 
can take to invest in young people brought to the United States 
through no fault of their own who want to pursue an education 
or serve in our military.
    We have done nothing to address the stunning rate of 
incarceration in the United States, seven times that of the 
rest of the world, 40 times that for our African American 
population within the United States; 2.3 million Americans 
behind bars is a sign of gross injustice let alone misuse of 
funds and surely worthy of our discussion.
    We have had hearings, briefings, and a contempt citation on 
the floor targeted at Operation Fast and Furious but we have 
not yet held a single hearing in the Committee to address the 
flood of weapons trafficking across our borders and into 
Mexico, not a single discussion about gun violence in this 
country, the scourge of which claims 33,000 lives every year, 
one minor every hour.
    And so I urge my colleagues to the best extent that we can 
to put aside the partisan rhetoric and return to the people's 
business in this hearing and in this Committee. And I thank you 
Chairman Smith.
    Mr. Smith. Thank you, Mr. Conyers. I will proceed and 
introduce our witnesses. And our first witness is Senator Mike 
Lee of Utah. Senator Lee was elected in 2010 as Utah's 16th 
Senator. He is a member of the Senate Judiciary Committee where 
he serves as Ranking Member of the Antitrust, Competition 
Policy and Consumer Rights subcommittee. He is also on the 
Energy and National Resources, Foreign Relations, and Joint 
Economic Committees. Before his election to the Senate, Senator 
Lee had an impressive legal career, both in private practice 
and in public service. He worked as a law clerk for Judge Dee 
Benson of the U.S. District Court for the District of Utah and 
for Justice Samuel Alito both on the U.S. Court of Appeals for 
the Third Circuit and the Supreme Court. Senator Lee also 
served as an Assistant U.S. Attorney in Salt Lake City and 
General Counsel to Governor Jon Huntsman of Utah.
    Our second witness, Lori Windham, is a Senior Counsel with 
the Becket Fund for Religious Liberty. Ms. Windham has 
represented a variety of different religious groups, including 
cases under the Free Exercise Clause, Establishment Clause and 
the Religious Freedom Restoration Act. Ms. Windham is a 
graduate of Abilene Christian University and Harvard Law 
    Our third witness, Michael Gerhardt, is the Samuel Ashe 
Distinguished Professor of Constitutional Law and Director of 
the Center on Law and Government at the University of North 
Carolina. Professor Gerhardt's specialties include 
constitutional conflicts between Congress and the President. 
Professor Gerhardt has participated in the Senate confirmation 
hearings for five of the nine justices currently sitting on the 
Supreme Court. He has previously served as Dean of Case Western 
Law School, taught at Wake Forest and William and Mary Law 
Schools and been a visiting professor at Cornell and Duke Law 
    Our final witness, Lee Casey, is a litigation partner at 
the law firm of Baker Hostetler. After graduating from the 
University of Michigan Law School, Mr. Casey clerked for the 
Honorable Alex Kozinski, the Chief Judge of the United States 
Court of Federal Claims. From 1986 to 1993, Mr. Casey served in 
various capacities in the Federal Government, including the 
Office of Legal Policy and the Office of Legal Counsel at the 
Department of Justice. He also worked as the Deputy Associate 
General Counsel at the U.S. Department of Energy. He served as 
a member of the United Nations Subcommittee on the Promotion 
and Protection of Human Rights from 2004 through 2007.
    Welcome to all of our witnesses today. And Senator Lee, if 
you will begin.


    Senator Lee. Chairman Smith, Ranking Member Conyers and 
other Members of the Committee, I thank you for the opportunity 
to testify before this distinguished body today on an issue 
that is at the heart of our Constitution's structure, the 
essential duty of the legislature to ensure that the executive 
branch does not exceed its rightful authority.
    Now, at the outset I want to point out I don't want to wade 
into a dispute between the Chairman and the Ranking Member. My 
purpose here today is to discuss the concerns of the founding 
generation, to discuss the concerns embodied in the 
Constitution itself. The founding generation, including the 
authors of the Federalist Papers, made clear that they 
understood based on their colonial experience with Great 
Britain that there was great potential for abuse in the chief 
executive. Consequently the Founding Fathers put together a 
document that put numerous checks on Executive power to make 
sure that this power wouldn't be used excessively or as they 
origin referred to it abused.
    Alexander Hamilton referred repeatedly in the Federalist 
Papers, most notably in Federalist 66 and in Federalist 77, to 
what he himself referred to as an abuse of power. He used that 
term sometimes not just as a legalistic term to describe what 
might have been perhaps a criminal violation of law, but also 
to describe an excess of power, one that might be offensive to 
the legislative branch. He made clear that it was not only the 
right but also the duty of the legislative branch to make sure 
that any such excesses of power were responded to appropriately 
by the legislative branch in order to protect the legislative 
branch's own prerogatives.
    So again, our discussion today about Executive power is a 
timely one. In recent decades we have witnessed the executive 
branch claim for itself more and more power. But this trend has 
arguably reached a new disturbing level under the current 
Administration. President Obama has treated the Constitution's 
separation of powers principles as if those principles were 
matters of convenience that may simply be ignored when they 
happen to get in the way. Rather than cooperating with Congress 
or respecting the Constitution's separation of powers he has in 
many instances chosen to go it alone. And in the process he has 
expanded the proper boundaries around Executive power 
boundaries that were put in place for a reason.
    The framers were very well versed in the dangers of 
excessive government power. With the abuses of King George III 
fresh in their minds they drafted the Constitution so as to 
provide each branch with the necessary means and the personal 
motives to resist the encroachments of the other branches of 
government. Among the means the Constitution affords Congress 
to check the President's power and ensure that he faithfully 
executes his responsibilities is the right to withhold consent 
to the President's judicial and executive branch nominations.
    Article II, Section 2 of the Constitution provides that the 
Senate must give its advice and consent to the President's 
appointment of such persons. Congress also has an essential 
oversight role with respect to the executive branch. When 
executive officials make mistakes or exercise poor judgment, 
internal procedures will sometimes but not always remedy the 
problem. Inherent in our Constitution's system of checks and 
balances is the need for Congress to have access and visibility 
into the executive branch's administration of our laws to help 
ensure the proper functioning of the Federal Government. 
Congress must also ensure that the executive branch does not 
usurp legislative power.
    Article I, Section 1 grants Congress all legislative 
powers. When an Administration agency makes broad legislative 
rules or when it enacts regulations that contravene Federal 
policy as embodied in Federal statute the executive branch 
violates Article I of the Constitution.
    I would like to briefly discuss just a few instances in 
which President Obama has exceeded the Constitution's 
    On January 4, 2012, President Obama made four controversial 
executive appointments even though the Senate had refused to 
give its consent for one of those appointments and had no 
opportunity to consider the others. The President asserted that 
these appointments were made pursuant to the Constitution's 
recess appointments clause, even though the appointments 
occurred at a time when the Senate did not consider itself in 
recess and even though the Constitution expressly grants the 
Senate and Congress generally the power for each body to set 
its own internal rules, including its own schedule.
    Even more troubling, in justifying its unconstitutional 
recess appointments the President relied on the Department of 
Justice Office of Legal Counsel memorandum which asserted that 
the President may unilaterally decide when the Senate is and is 
not in session for purposes of the recess appointments clause. 
President Obama's appointments were no different in kind--they 
were indeed different in kind than previous recess appointments 
made by any President of either party. It is often 
controversial when a recess appointment is made. But this kind 
of recess appointment, one made when the Senate did not 
consider itself in recess, is not one of those appointments.
    No President has ever unilaterally appointed an executive 
officer during an adjournment of less than 3 days as determined 
by the Senate's own rules. Neither to my knowledge has a 
President of either party ever asserted the power to determine 
for itself when the Senate is or is not in session.
    Another examine of President Obama's refusal to respect the 
Constitution's separation of powers occurred when he improperly 
asserted executive privilege in response to a legitimate 
congressional inquiry related to Operation Fast and Furious.
    Now, courts have recognized two different types of 
executive privilege. There is executive process privilege and 
the presidential communications privilege. The deliberative 
process privilege does not apply in this instance with respect 
to the Fast and Furious investigation because government 
misconduct here is misleading Congress in a February 2011 
letter that asserted that the Administration did not allow gun 
walking is the basis for Congress' request for documents. And 
the privilege disappears altogether when there is any reason to 
believe government misconduct has occurred. That is according 
to the standards set by the U.S. Court of Appeals for the 
District of Columbia Circuit.
    With respect to the presidential communications privilege 
the executive branch may assert that privilege only for 
communications made in operational proximity to the President, 
communications at a level close enough to the President to be 
the revelatory of his deliberations or to pose a risk to his 
advisers. Accordingly either high-level Administration 
officials were involved in misleading Congress or the White 
Houseis improperly asserting executive privilege.
    President Obama again abused Executive power when earlier 
this year he announced that he would stop enforcing key 
provisions of the Immigration Nationality Act. Specifically, he 
issued an Executive order providing that illegal immigrants who 
meet certain qualifications may apply for work permits. 
President Obama sought to justify this abuse of Executive power 
by claiming that he may properly rely on the notion of 
prosecutorial discretion. But prosecutorial discretion is 
something different than what happened here. That refers to the 
concept that the government may or may not be able to enforce 
the law with respect to each and every instance of a violation 
of the law. What happened here isn't that. Here the President 
outlined entire categories of individuals who while violating 
the law may nonetheless receive the express blessing of the 
Federal Government to remain here and work in violation of our 
    One of the reasons this is disturbing is because Congress 
had in fact specifically considered legislation that would have 
had this effect. That legislation was rejected by Congress. It 
didn't pass. The President nonetheless decided to go it alone 
and to implement this policy by means of an Executive order, 
thus usurping the proper role of the legislative branch.
    As these examples demonstrate, when faced with opposition 
from Congress President Obama has repeatedly sought to go it 
alone. It is thus all the more necessary and important that 
Congress continue to exercise its constitutional role and to 
check this President's abuse of power wherever it sees that 
    Mr. Smith. Thank you, Senator Lee.
    [The prepared statement of Senator Lee follows:]


    Mr. Smith. Ms. Windham.

                       RELIGIOUS LIBERTY

    Ms. Windham. Mr. Chairman and distinguished Members of the 
    Mr. Smith. Let me make sure your mike is on.
    Ms. Windham. Mr. Chairman and distinguished----
    Mr. Smith. It is still not working.
    Ms. Windham. Mr. Chairman and distinguished Members of the 
Committee, thank you for the invitation and the opportunity to 
be with you today to offer testimony on the Obama 
administration's abuse of power in violating Americans' 
religious freedom.
    I am here today representing the Becket Fund for Religious 
Liberty, where I serve as senior counsel. At the Becket Fund we 
protect religious freedom for all religious traditions, 
including Buddhists, Christians, Hindus, Muslims, Jews and 
    I will summarize my remarks and ask that my full written 
testimony be entered into the record.
    Nearly a year ago, on October 5, I sat with my colleagues 
before the United States Supreme Court. We were there to argue 
that churches and synagogues have a constitutional right to 
choose their clergy according to religious principles and not 
government regulations. I was not alone in being shocked when 
the Obama administration's lawyers stood up to oppose us and 
argued that churches are no different than bowling clubs; that 
our First Amendment guarantee of religious freedom does not 
protect religious organizations. We said that this would be a 
clear breach of the First Amendment and a power grab by the 
executive branch. The Supreme Court agreed. As you know, the 
justices ruled in our favor unanimously. In a 9-0 decision in 
Hosanna-Tabor v. EEOC the Supreme Court rejected the 
Administration's arguments and called them extreme. But I am 
saddened to report that this Administration's overreach and its 
attempt to redefine the limits of our religious liberty did not 
end or begin with Hosanna-Tabor.
    Unfortunately, this Administration has kept us very busy. 
At the Becket Fund we call them as we see them and that means 
we are on the same side as the Department of Justice when they 
get it right and we oppose them when they get it wrong, and 
today they are getting it wrong. The ability of millions of 
Americans to practice their faith is now at risk. If the 
government can trample First Amendment freedoms then none of 
our fundamental rights are secure.
    Last summer the Administration, acting pursuant to the 
Affordable Care Act, issued a regulation requiring all employer 
health plans to provide contraceptives, sterilization and 
abortion causing drugs. Much has already been said before this 
Committee about that mandate and the constitutional problems 
with it. Because the mandate violates both the Religious 
Freedom Restoration Act, RFRA, and the Constitution the Becket 
Fund filed the first lawsuit in the Nation challenging the 
mandate on behalf of Belmont Abbey College in North Carolina. 
Since then at least 22 additional lawsuits have been filed. And 
the Becket Fund has filed five more legal challenges on behalf 
of Colorado Christian University, Eternal Word Television 
Network, Ave Maria University, Wheaton College, and just this 
morning Hobby Lobby, a family owned retail chain that faces 
nearly half a billion dollars in fines for following its faith. 
These religious individuals and organizations must now choose 
between following their faith and paying a government fine. 
That is a choice no American should have to make.
    Not only has the Administration restricted religious 
freedom, it used questionable tactics both to create the 
mandate and then to insulate it from judicial review. The 
Administration issued the mandate without first publishing a 
proposed regulation or accepting public comment as Congress 
requires of it under the Administrative Procedures Act. When 
the Administration finally did take public comments on the 
mandate it refused to budge.
    What the Administration did do in response was to attempt 
to delay any judicial scrutiny of its actions until after 
November 2012. First, the Administration created a 1-year safe 
harbor for some nonprofit religious organizations. Then it 
proposed an alleged compromise, an inadequate compromise, and 
used that proposal to try and keep the mandate out of court. 
The government has treated both its proposed new rule and its 
safe harbor guidelines as a moving target altering and 
manipulating them as needed to avoid judicial scrutiny of the 
mandate. Six months after the announcement the government 
refuses to publish a proposed rule or say when it might do so. 
The government has also changed the safe harbor three times in 
7 months in order to avoid defending lawsuits against it.
    This Administration has paid lip service to the importance 
of religious freedom while at the same time launching an 
unprecedented governmental encroachment on a fundamental right. 
When it comes to the First Amendment the Administration should 
not be saying one thing and then doing another. Protecting 
religious freedom, as we well know at the Becket Fund, often 
means defending people who disagree with you. If these abuses 
are permitted to continue they will set a terrible precedent 
for even more serious restrictions on liberty. Every American 
should be concerned regardless of their political or religious 
    Mr. Smith. Thank you, Ms. Windham.
    [The prepared statement of Ms. Windham follows:]
          Prepared Statement of Lori Windham, Senior Counsel, 
                 The Becket Fund for Religious Liberty
    Mr. Chairman and distinguished Members of the Committee, allow me 
to thank you for the invitation and opportunity to be with you today to 
offer testimony on the Obama Administration's abuse of power in 
violating Americans' religious freedom.
    I am here today representing The Becket Fund for Religious Liberty, 
where I serve as Senior Counsel. At the Becket Fund, we protect 
religious freedom for all religious traditions, including Buddhists, 
Christians, Hindus, Jews, Muslims, Sikhs, and others. I will summarize 
my remarks and ask that my full written testimony be entered into the 
                            i. introduction
    Nearly a year ago, on October 5th, I sat with my colleagues before 
the United States Supreme Court as we argued that churches and 
synagogues have a constitutional right to choose their clergy according 
to religious principles, without government interference. I was not 
alone in my shock when the Obama Administration's lawyers opposed our 
position by arguing that churches are no different than bowling clubs, 
and that our First Amendment guarantee of religious freedom does not 
protect religious organizations. In fact, the position taken by the 
Administration was so extreme that several Justices criticized the 
argument from the bench, calling it ``extraordinary'' and ``amazing.'' 
The government stood before the Supreme Court and argued that it could 
control the hiring decisions of religious institutions. We said that 
this would be a clear breach of the First Amendment, and a power grab 
by the Executive Branch.
    The Supreme Court agreed. As you know, the Justices ruled in our 
favor unanimously. In a 9-0 decision, the Supreme Court rejected the 
Administration's arguments and its attempt to regulate how religious 
organizations choose their leaders, calling its position ``extreme.'' 
But I am saddened to report that the overreach of this Administration 
in redefining the limits of religious liberty in this country did not 
end--or even begin--there.
    The Becket Fund for Religious Liberty is a non-profit organization 
which, for the past eighteen years, has worked to defend the religious 
liberty rights of people of all faiths. Our work crosses political and 
religious lines and focuses on the constitutional and legal guarantees 
enshrined in our founding, guarantees that enable every American to 
live with the dignity they deserve. We call them as we see them, and 
sometimes that means we side with the government and sometimes we 
don't. We've been on the same side as the Department of Justice where 
they get it right and oppose them when they get it wrong.
    Unfortunately, this Administration has kept us very busy. And 
``unfortunately'' is actually not strong enough a word, because the 
ability of millions of Americans to live according to the dictates of 
their consciences is now at risk. If the government can trample First 
Amendment freedoms, then none of our fundamental rights are secure.
    I would like to share a few of the cases where the Becket Fund has 
been fighting back against overreach by the Administration.
     ii. the administration's attempt to trample religious freedom 
                        in hosanna-tabor v. eeoc
    In the recent U.S. Supreme Court case, Hosanna-Tabor Evangelical 
Lutheran Church and School v. EEOC, which I referred to at the 
beginning of my testimony, the Becket Fund sought to protect the 
Lutheran church's ability to hire and fire religion teachers according 
to the teachers' ability to represent the Church's religious message. 
The doctrine at issue--the ``ministerial exception'' doctrine--is one 
that has long existed in our religious freedom jurisprudence. It 
springs from the well-settled understanding that our Constitution 
protects religious groups from government interference, including and 
perhaps especially when it comes to matters of internal governance and 
religious autonomy. Another way to put it is this: If the separation of 
church and state means anything, it means that government officials 
shouldn't be in the business of picking priests and rabbis.
    Yet the Obama Administration in Hosanna-Tabor veered far off the 
path of established precedent. It argued that the First Amendment 
provides no special protection to religious organizations in the 
selection of their own clergy. This position was so drastic that 
Supreme Court Justices called it ``untenable,'' ``remarkable,'' and 
``extreme.'' All nine Justices agreed that the Administration's 
position had to be rejected
    The Becket Fund won a unanimous victory in Hosanna-Tabor and sent a 
strong message to the Administration that it could not tell a church 
whom it should choose to teach its beliefs.
    But apparently the Administration did not get the message.
 iii. the administration's attempt to trample religious freedom under 
                     the hhs contraception mandate
    Last summer, the Administration, acting pursuant to the Affordable 
Care Act, issued a regulation requiring all employer health plans to 
provide contraceptives and abortion-causing drugs. That regulation, 
``the Mandate,'' applies to most religious organizations that are 
opposed to contraception or abortion, and to many business owners who 
want to ensure their practices are consistent with their faith. The 
Administration's actions were met with public uproar, with religious 
groups opposed to contraception or abortion decrying the violation of 
their religious freedom.
A. The Mandate's Lack of Protection for Religious Freedom
    Although the Mandate is riddled with exceptions--exceptions for 
certain religious organizations, exceptions made for convenience or 
expediency--the Administration has stubbornly refused to create an 
exception that would protect thousands of religious organizations and 
individuals who cannot follow both the Mandate and their faith.
    The Mandate has a very narrow religious exception. The Mandate 
exempts certain religious employers, but it defines ``religious 
employers'' so narrowly that millions of employers who are inspired by 
and implement their faith through their work have been left 
unprotected. Indeed, the exception is so narrow that even Mother 
Theresa would not have qualified as a ``religious employer.'' For 
example, the exception requires that an employer primarily employ and 
serve people of their own faith. This has effectively penalized those 
who express their faith by serving the community at large. The same 
religious organizations that help the government in fulfilling the 
essential needs of all Americans are now being forced by the 
Administration to choose between following their faith or facing hefty 
fines for non-compliance with the government's Mandate.
    The Mandate also applies with full force to businesses that are 
religiously-oriented or owned and operated by religious individuals. 
The government has effectively said that you forfeit your free exercise 
rights when you open a business. But in the only decision on the merits 
of the Mandate to date, a Colorado federal district judge disagreed. 
The government argued that businesses, even small family businesses, 
have no constitutional or statutory protections for religious freedom. 
The judge rejected this argument and issued an injunction against the 
    The assault on religious liberty the Mandate represents is 
unprecedented. Until now, federal policy has generally protected the 
conscience rights of religious institutions and individuals in the 
health care sector. Moreover, Democratic congressman Bart Stupak, when 
offering the critical vote that enabled the health care bill to become 
law, reaffirmed his belief in the President's assurances that the 
conscience rights of Americans would be secure. As it happened, he was 
completely mistaken.
    The government Mandate is also far broader than any state 
contraception mandate to date. At least 22 states have no contraception 
mandate at all. Of the 28 states that have some mandate, none require 
contraception coverage in self-insured and ERISA plans, and the vast 
majority exempt plans for other reasons as well. The Mandate ends those 
exemptions and forces organizations that were exempt from state 
mandates to comply with the federal Mandate.
    Because the Mandate violates both the Religious Freedom Restoration 
Act (RFRA) and the Constitution, the Becket Fund filed the first 
lawsuit in the nation challenging the Mandate, on behalf of Belmont 
Abbey College in North Carolina. Since then, the Becket Fund has filed 
four more lawsuits on behalf of Colorado Christian University, Eternal 
Word Television Network, Ave Maria University, and Wheaton College. At 
least twenty-three additional lawsuits, brought by a wide variety of 
religious organizations, are currently pending in federal courts across 
the country.
B. The Government's Attempts to Circumvent Both the Administrative 
        Procedure Act and Judicial Scrutiny
    Not only has the Administration restricted religious freedom, it 
has used questionable tactics to create the Mandate and insulate it 
from judicial review. The Administration issued the Mandate without 
first publishing a proposed regulation or accepting public comment, as 
is required by Congress under the Administrative Procedure Act. The 
Administration claimed the ability to subvert and radically accelerate 
the normal APA procedures because of the great importance of the 
regulation. It accepted comments on the rule only after it was put into 
place, and it has refused to rescind the rule or expand the narrow 
religious employer exemption as a result of those comments.
    Predictably, this example of executive overreach caused a great 
public outcry. Rather than revise or rescind the Mandate, the 
Administration has responded to the complaints of hundreds of thousands 
of objectors with a series of inadequate measures. First, the 
Administration announced that while it would not expand the religious 
employer exemption, it would give certain non-profit religious groups 
an extra year to comply with the Mandate. This so-called ``safe 
harbor'' meant that such religious groups would have one more year to 
decide whether to comply with the Mandate and violate their faith, drop 
health care insurance coverage for their employees altogether and incur 
a hefty fine, or try to offer non-compliant insurance and incur even 
larger fines.
    Second, when this did not end the public protest against the 
Mandate, the President announced a supposed compromise. He promised 
that in a rule yet to be developed, insurance companies--not the 
religious employers themselves--would be forced to pay for the 
abortion-inducing drugs, sterilization, and contraception. In March, 
the Administration issued an Advance Notice of Proposed Rulemaking 
(ANPRM), in which it suggested ``potential means of accommodating'' 
religious organizations subject to the Mandate. However, the 
administration's proposed ``accommodation'' fails in many important 
    The first problem is that it leaves out many entities that should 
be protected. It is limited to non-exempt, ``non-profit religious 
organizations.'' Although the Administration does not say how it 
intends to define ``religious organizations,'' it suggests that the 
definition should be limited to churches or tax-exempt organizations 
that are ``controlled by or associated with a church or a convention or 
association of churches.'' Under the definition (and other alternative 
definitions), a small business owner will not be covered by the 
accommodation because she is a not a non-profit. Similarly, a non-
profit, non-religious organization dedicated to caring for women in 
crisis pregnancies will not be covered by the proposed accommodation, 
nor will fraternal organizations, religious colleges, or parachurch 
ministries, which are not ``controlled by or associated with a church 
or a convention or association of churches,'' be covered.
    An even deeper problem with the proposed ``accommodation'' is that 
it does not actually relieve the burden on many of the religious 
organizations that qualify for the accommodation. Under the proposals 
outlined in the ANPRM, religious organizations will still be obligated 
to assist in providing these drugs and services by providing their 
insurers with the information and authorizations necessary to provide 
these drugs. The ANPRM does not offer any adequate solution for self-
insured organizations, who must otherwise pay for these drugs out-of-
pocket. The proposals in the ANPRM for dealing with self-insured 
organizations range from impractical to illegal, and have been 
criticized by an industry group, the Self-Insurance Institute of 
America, on this basis.
    Worse yet, the government has treated both the ANPRM and its safe 
harbor guidelines as a moving target, altering and manipulating them as 
needed to avoid judicial scrutiny of the Mandate. Although the 
government has offered suggestions for a new regulation in the ANPRM, 
it has not yet published a proposed rule, and has repeatedly used the 
tentative nature of the ANPRM to avoid judicial review of the rule 
already in place. The government has argued, in some cases 
successfully, that courts should not review the existing Mandate 
because the forthcoming rule might change its impact on those 
challenging the Mandate. But nearly six months after the ANPRM, the 
government still refuses to state what that new rule is going to look 
    The government's manipulation of the safe harbor guidelines has 
become even more transparent over time. First, the government has 
promised not to enforce the Mandate for a year, but it has refused to 
exempt religious organizations from private enforcement. That means 
that religious organizations may face lawsuits in the coming year from 
private individuals who object to their policies. Second, the 
government's safe harbor guidance document indicates that employers who 
object to some, but not all, forms of contraception are not eligible. 
But the Administration has since stated in court papers that those 
organizations are eligible for the safe harbor. Third, just last month, 
the government quietly revised the safe harbor to cover some additional 
organizations. It did this because it faced a lawsuit from Wheaton 
College, which was not eligible under the original safe harbor. Time 
and again, the government has changed the rules in order to insulate 
the Mandate from judicial review. But there is one rule they won't 
change: forcing religious organizations to pay for drugs contrary to 
their religious beliefs.
C. The Mandate's Threat to Religious Liberty
    Congress has made it clear that federal laws, including the 
Affordable Care Act, should not compromise religious freedom. But the 
Administration has trampled upon that guarantee time and time again. 
The Administration has ignored the intentions of Congress and 
restricted the rights of religious individuals and organizations. In 
doing so, it has violated the Constitution, ignored the Congressional 
command of RFRA, and endangered the rights of millions of Americans 
seeking to work, worship, and serve others.
                             iv. conclusion
    The Administration has paid lip service to the importance of 
religious freedom, while at the same time launching an unprecedented 
government encroachment on the fundamental right of religious freedom. 
When it comes to the First Amendment, the Administration should not be 
saying one thing and doing another. Protecting religious freedom often 
means defending the rights of people with whom you disagree. If these 
abuses are permitted to continue, they will create grave injustice and 
set a terrible precedent for even more serious restrictions on liberty 
in the future. Every American should be concerned, regardless of 
political or religious beliefs.

    Mr. Smith. Mr. Gerhardt.

                         NORTH CAROLINA

    Mr. Gerhardt. Thank you, Mr. Chairman and Ranking Member 
Conyers and Members of the House Judiciary Committee. It is 
always an enormous privilege and honor for me to have the 
opportunity to meet with you and to speak with you and I 
greatly appreciate the invitation. I should tell you as a 
constitutional law professor nothing has greater meaning for me 
than the opportunity to be able to be of service to this 
Committee and to government in general.
    You have my written statement and I won't rehash it here. 
Instead I would just like to try to make two observations, and 
I would be happy to take any questions you have later.
    The first observation I make again is as a constitutional 
law professor, and I simply want to state that I take great 
heart in a robust system of checks and balances. I have for 
many years believed in the system of checks and balances and I 
heartily uphold and support Congress and this Committee's 
strong assertion of its prerogatives. I believe that this 
Committee has the ability and the power to exercise oversight 
and to strongly push the President to defend the constitutional 
basis for his actions.
    At the same time I believe that the President has the 
ability to strongly defend his actions and to strongly support 
his actions and to strongly push back against any inquiry into 
either the motivations or support for his actions. That is what 
makes for a system of checks and balances. It is the give and 
it is the take, it is the back and it is the forth. And in this 
system of checks and balances I might point out there are many 
different facets. One of them is today's hearing. Another one 
is fast approaching, and that is the presidential election. And 
I should just point out that on every single one of these 
matters that are being discussed today the President stands 
politically accountable before the American people in just a 
matter of weeks. That check is not insignificant and I think it 
should be something that we all might want to take into account 
in the course of determining the next issue I want to mention, 
and that is how do we determine whether or not there is an 
abuse of power.
    I don't take that lightly. I am sure none of us do. The 
question of whether or not a President or his Administration 
abuses power is about as serious a question as can ever be 
asked, not just in constitutional law but in law generally. I 
don't think you can answer that question by asking whether or 
not you agree with what the President did. There just simply 
are too many things that a President does, countless numbers of 
things that a President does, to allow agreement or 
disagreement with a particular decision as the basis for 
determining whether or not there is abuse of power.
    Also, I think you must ask a different question. Imagine 
for example if this were a President from your party what would 
you say. What would be the test if, for example, you were 
Republican and this were a Republican President? Would you 
still think there were abuses of power? Or reverse the sides. 
Exchange them. See where you come out. If you come out the same 
place that means something. If you don't come out the same 
place that also has meaning.
    I think there is other sets of questions we should ask as 
well. For example, I think we should ask has the President and 
his Administration acted in good faith. Has he and his 
Administration been transparent and open and deliberative in 
the process of making decisions about recess appointments, 
executive privilege and every other matter that we will discuss 
today. Other questions we could ask include what are the bases 
for the President's judgments? Do they have a basis in past 
practices, do they have a basis in judicial precedent, do they 
have a basis in a balancing of the different consequences 
involved in the decision? These are all questions I think that 
are perfectly reasonable to ask, and these are the kinds of 
questions I think we should be asking in determining whether or 
not there has been any kind of abuse of power.
    For myself I think it is pretty obvious that there has been 
no abuse of power. I believe in answering those questions that 
you can find that the President has been both transparent, open 
and deliberative and reasonable. Of course we could disagree, 
but that again is not the matter. For me the issue is whether 
or not I can have confidence in the process by which he has 
made those decisions and by which the Administration has made 
its decisions in all the areas we are talking about, and my 
answer today to that is yes.
    Thank you.
    Mr. Smith. Thank you, Mr. Gerhardt.
    [The prepared statement of Mr. Gerhardt follows:]
 Prepared Statement of Michael J. Gerhardt, Samuel Ashe Distinguished 
  Professor of Law and Director of UNC Center on Law and Government, 
                            UNC--Chapel Hill
    I am honored by the invitation to participate in the House 
Judiciary Committee's hearing, ``The Obama Administration's Abuse of 
Power.'' It is always a great privilege to appear before this 
Committee, and I appreciate the opportunity to share my perspective on 
the important subject of your hearing. There is nothing more meaningful 
to a constitutional law professor than the opportunity to be of service 
to this institution on significant questions about the meaning and 
scope of the Constitution.
    I cannot imagine a topic of greater concern to the Congress, this 
nation, and its citizens than the possibility (or fact) of a 
president's or his administration's abuse of power. As you know, this 
is not a new subject for me. For more than 20 years, I have studied the 
impeachment process and presidential misconduct. I take the possible 
occurrence of official misconduct quite seriously, and I have thought 
long and hard--and written one book and numerous articles--on the 
constitutional issues arising from the misconduct of high-ranking 
officials, including the President.
    Although I have had the privilege of advising members of Congress 
on various issues relating to official misconduct in the past, I of 
course speak today only for myself and not for anyone else or my home 
institution, the University of North Carolina, where I have the 
privilege of teaching constitutional law and professional 
    Given that I did not receive your invitation until Tuesday morning 
and my uncertainty over the particular matters you will be reviewing at 
this hearing, I thought the best way I could help you is to share with 
the Committee the two, fundamental principles that guide my thinking 
about the possibility of this President's or this administration's 
possible abuses of power. I know we agree about these principles, but I 
thought it might still be useful to make them explicit beforehand.
    The first guiding principle is recognizing and abiding by the all-
important distinction between politics and the Constitution. I say 
``all-important'' because it is so easy to forget and confuse political 
with constitutional choices. Yet, they are distinct, even though they 
frequently overlap. For years, many scholars rightfully criticized the 
Supreme Court for sometimes confusing political decisions with 
constitutional law; they argued, persuasively I thought, that the Court 
should not strike down a political decision with which it disagreed but 
only those things that violated the Constitution. A similar principle 
applies to presidents, or, for that matter, members of this august 
institution: The fact that we disapprove of something does not make it 
unconstitutional. Not every action with which we might disagree, or 
with which we might disapprove, is unconstitutional. Most of what a 
president does involves political choices; it involves making choices 
about policy. I do not come before you to discuss politics or policy, 
and I have nothing to say about the President's political choices, nor 
any of yours, except to say that the Constitution allows for national 
political leaders to make a wide range of political, even partisan, 
    As we consider the possible abuses of power that the President, or 
people under his direction, may have made, we cannot ignore the timing 
of today's hearing. Charging any president or administration with abuse 
of power is serious business, and the timing of today's hearing, with a 
presidential election just weeks away, may lead many people to wonder 
why now. Some people may even believe that there are political 
incentives, or motivations, for conducting such an inquiry at a time 
like this. My reverence for this institution precludes me from agreeing 
with this criticism. But, at the same time, my reverence for this 
institution leads me to suggest, with all due respect, that you take 
the time to explain your timing, you maintain your focus on the 
Constitution, and you do what you can to ensure the hearings do not 
deviate from a legitimate constitutional inquiry into political 
    Once we focus on the Constitution, at least one thing should become 
glaringly clear: Presidents, like members of Congress, make 
constitutional choices all the time, and many people within their 
administrations are of course charged with implementing or assisting 
them in making those choices. The fact that a president's 
constitutional choices have political ramifications does not make them 
political or purely partisan acts. Nor should those ramifications be 
confused with the arguments that support, or oppose, the constitutional 
judgments in question. Moreover, the fact that a president makes a 
constitutional choice different than the one that you or I would have 
preferred does not make it unconstitutional. An important consideration 
for me is not whether I agree with a president's constitutional choices 
but rather whether I think they have been made in good faith. To assess 
whether they have been made in good faith, we can examine the 
President's transparency and candor in making constitutional judgments. 
I believe that this President, like most presidents, has made his 
constitutional reasoning quite openly and deliberately, and on that 
basis, at least, I cannot take issue with how he has handled his 
constitutional responsibilities.
    If you disagree that a demonstration of good faith in making 
constitutional judgments is not enough, inconsequential, or perhaps 
irrelevant, I can suggest another, possibly more effective test: 
Consider whether you would think what the President did was 
unconstitutional if he were a member of your party. Thus, I think we 
can all agree that Richard Nixon's ordering the IRS and FBI to 
investigate his political enemies was an abuse of power. It was not an 
abuse of power because he was a Republican. It does not matter whether 
he was a Republican. It should not matter that President Obama is a 
Democrat or running for reelection. What should matter, in my judgment, 
is whether Democrats or Republicans on the Committee would make the 
same charges, or raise the same defenses, regardless of the President's 
    You may use this same test for any of the officials whose legal or 
constitutional judgments you may question. I know many members of this 
Committee may not, for instance, agree with the President's, the 
Attorney General's, and the Office of Legal Counsel's judgment that 
executive privilege may be extended to cover documents that were 
produced in internal deliberations within the executive branch. Would 
you reach the same conclusion and hold the same kind of hearing if the 
President, the Attorney General, and the Office of Legal Counsel had 
different political affiliations? The judgment about whether executive 
privilege applies is, at bottom, a constitutional choice, albeit one 
that obviously has political ramifications. I think there is credible 
support for the President's and administration's judgment on executive 
privilege, including historical and judicial precedents, and this 
credible support would exist, regardless of the President's party or 
the political affiliation of the people who lead his Justice 
    The second principle I follow is affirming the Constitution's 
establishment of a robust system of checks and balances. I believe that 
the Constitution vests Congress with substantial responsibilities, 
including oversight. In virtually all of my publications and prior 
testimony before Congress, I have expressed this belief, indeed, this 
conviction. You certainly have the power and opportunity to second-
guess the President's constitutional choices, and of course you may 
subject him or other department heads to rigorous oversight. You may 
urge close scrutiny of the constitutional and legal judgments of these 
officials and question them. At the same time, the President 
undoubtedly has the authority by virtue of the Constitution, and I 
believe the prerogative, to push back, to defend himself, to explain 
his constitutional reasoning and of course to stand his ground. For 
example, many of you may argue that Congress and Congress alone has the 
authority to determine when a recess occurs, including how long it may 
last. At the same time, the President may argue that he is not bound by 
this judgment, just as President Andrew Jackson argued that he was not 
bound by the Supreme Court's decision in McCulloch v. Maryland because 
he was entitled, by virtue of his oath, his election, and his stature 
within the constitutional scheme, to make his own, unilateral judgments 
about the Constitution's meaning and scope. President Obama is 
entitled, in my opinion, like Jackson, Lincoln, and every other 
president, to make independent constitutional judgments, just as each 
of you is entitled to push him hard to defend or explain those 
    As a constitutional law professor, I appreciate the robust system 
of checks and balances the founders gave us in the Constitution. 
Today's hearing is plainly an exercise in checks and balances in 
practice. Of course, this system does not always require, or entail, 
conflict, but conflict is inevitably a dynamic within it. Another, 
critical feature of this system is the accountability of the officials 
who serve in our government: High-ranking executive officials serve at 
the pleasure of the President and are subject to congressional 
oversight and subject to the impeachment process, and national 
political leaders are all electorally accountable. The same check 
applies to congressional and presidential overreaching--the fact that 
members of Congress and the President require the public's approval in 
order to continue in office. Ours is of course a government of laws not 
men (or women), which means that everyone who serves in government 
should abide by the law and is subject to the accountability that the 
law--the Constitution--provides. Whatever you may think of the 
President's constitutional choices, he now stands politically 
accountable for all of them before the American people. This is true 
for recess appointments and every other matter we may discuss at 
today's hearing. For, as you well know, it is not just constitutional 
law professors, members of Congress, or presidents who get to interpret 
the Constitution and debate its meaning; the American people get to do 
that as well. Indeed, I think that is a major reason we are here 
today--to educate the public. I expect that the Constitution will be 
discussed a good deal over the next several weeks. I look forward to 
that discussion and to what it will teach us about the Constitution and 
the President's constitutional record.

    Mr. Smith. Mr. Casey.


    Mr. Casey. Thank you, Mr. Chairman and Members of the 
Committee. It is an honor to appear here today to discuss the 
question of the abuse of presidential power. I should at the 
outset note that I am speaking here on behalf of myself.
    Strong Executive power is very much part of the 
Constitution's design. However, the framers also established a 
separation of powers between the President, Congress and the 
courts. Although they anticipated conflicts between the 
branches, they also expected a basic level of respect by each 
branch for the other's legitimate authority. Unfortunately, the 
Obama administration has broken with this tradition, most 
especially in its disregard for the legitimate authority of 
    The most troubling instances of unconstitutional behavior 
involve the Administration ignoring clear statutory 
requirements by claiming to exercise prosecutorial or 
enforcement discretion, particularly in limiting enforcement of 
the immigration laws for certain classes of individuals.
    The President must take care that the laws be faithfully 
executed. He has no power either to dispense with statutory 
requirements in individual cases or to suspend the particular 
law's operation. A legitimate exercise of prosecutorial 
discretion ordinarily involves a determination whether a 
particular individual or entity should be subject to an 
enforcement action for past conduct. In this instance the 
Administration has eschewed enforcement actions against whole 
categories of persons whose violations are continuing.
    In addition, legitimate prosecutorial discretion involves 
resource allocation rather than direct challenges to Congress' 
basic policy judgments as the Administration did in providing 
young undocumented aliens much of the relief it championed as 
part of the DREAM Act. The President must enforce the law as 
adopted by Congress and must respect its policy choices until 
changed through legislative action.
    The Administration also ignored constitutional limits on 
presidential appointments when the President made recess 
appointments to the Consumer Financial Protection Board and the 
National Labor Relations Board earlier this year. Recess 
appointments are a narrow exception to the general rule 
requiring Senate confirmation for high-level Federal officials. 
Presidents have increasingly used this power to install favored 
nominees in the face of Senate opposition. The Senate moved to 
check this practice in 2007, choosing often to remain in 
session on a pro forma basis during congressional adjournments. 
The Administration argues that the Senate is not available to 
receive an act on nominations during such sessions, but that 
body has in fact conducted business, including passing 
legislation, when it is convened pro forma. The Senate, not the 
President, is the constitutional judge of what business can or 
will be transacted during its sessions however brief. The 
Senate's reliance on pro forma sessions to prevent recess 
appointments may be frustrating to the President, as it surely 
was to his predecessor, but he cannot arrogate to himself the 
power to judge the adequacy of the Senate's rules.
    The Administration has also acted to frustrate legitimate 
congressional oversight of the ill-conceived Operation Fast and 
Furious. The President asserted executive privilege with 
respect to materials sought by Congress as part of its 
legitimate oversight functions, materials which the House 
Oversight Committee believes may have involved deliberate 
misrepresentations to Congress. But executive privilege is 
manifestly unavailable here. Because the President and his 
immediate advisors deny any involvement the constitutionally 
grounded presidential communications privilege does not apply. 
The common-law deliberative process privilege also does not 
apply where, as here, there is any reason to believe that 
government misconduct has occurred. The Administration's 
assertion of the privilege cannot be legally justified and 
again reveals a determination to ignore or evade lawful limits 
on Executive power.
    Overall the Obama administration has disregarded some of 
the most basic constitutional limitations on presidential power 
in order to achieve its policy goals or to avoid congressional 
scrutiny. Whether this is a deliberate effort to undercut the 
role of Congress or simply impatience with political opposition 
and legal constraint the result is the same; a direct and 
sustained assault on the balance of power so carefully 
constructed by the Constitution's framers.
    Thank you.
    Mr. Smith. Thank you Mr. Casey.
    [The prepared statement of Mr. Casey follows:]
      Prepared Statement of Lee A. Casey, Partner, Baker Hostetler
    Thank you Mr. Chairman and Members of the Committee.
    It is an honor to appear here today to discuss the very important 
issue of the Obama Administration's abuse of presidential power. I 
should note at the outset that I am speaking here on my own behalf.
    I am a strong advocate of vigorous executive power, which I believe 
was very much a part of the Framer's design for our Constitution. 
Indeed, an examination of the records of the Constitutional Convention 
makes clear that few questioned the need for a strong executive at the 
heart of the new national government. Most of the discussion was 
directed at what form that executive would take, what specific powers 
it would enjoy, and how best to ensure that--once established--the 
executive did not overstep the bounds of its proper authority.
    The system the Framers ultimately adopted was one of separation of 
powers, dividing power first between the federal government and the 
States, and then among the executive, legislative & judicial branches 
of government. Each of these branches was vested with different powers 
and responsibilities and there is little doubt that the Framers 
anticipated conflicts between the branches regarding the proper scope 
of their respective authority and overall role in our system of 
government. Indeed, it is in that very conflict that they saw the most 
important guarantee of constitutional government and liberty.
    Nevertheless, for all of the potential rivalries built into the 
system, the Framers assumed a fundamental level of respect between and 
among the three branches of government, and an appropriate deference to 
the claims of each when operating at the core of their constitutional 
role. And, by and large, this has been our national experience. 
Congress and the Courts over time have deferred to the Executive Branch 
in the formulation and execution of foreign policy, the President and 
Courts defer to Congress in fiscal matters, and Congress and the 
President defer to the Courts on questions of law.
    Unfortunately, the Obama Administration has broken with this 
tradition in several critical ways, most especially in its disregard 
for the legitimate authority of Congress. In particular, focusing on 
what I believe to be the most egregious examples, the Administration 
has worked to undermine statutory requirements duly enacted by Congress 
as the national legislature, it has ignored the limits on the 
President's power to fill federal offices by recess appointment, and it 
has worked to frustrated legitimate congressional oversight of its 
activities. The Administration has done all of this in a manner that 
goes beyond the normal cut and thrust of partisanship and politics, 
evincing a marked impatience and even disdain for the Constitution's 
limits on presidential power.
                1. suspension of statutory requirements
    By far the most troubling of the Administration's instances of 
unconstitutional behavior involve ignoring clear statutory requirements 
as a matter of supposed executive enforcement discretion. First among 
these was its determination, in June 17, 2011, effectively to limit 
enforcement of the immigration laws to undocumented aliens who have 
committed other, criminal violations, followed more recently by the 
Administration's grant of enforcement immunity to undocumented young 
people who entered the United States as children.
    The Constitution specifically requires that the President ``shall 
take Care that the Laws be faithfully executed.'' U.S. Const. Art. II, 
Sec. 3. This language was not surplusage. It represents one of the most 
important constitutional limits on the executive power--the President 
must enforce the laws enacted by Congress--and it is there for a very 
good reason.
    Two generations before our revolution, the British Crown claimed 
the legal right to suspend enforcement of duly enacted statutes. This 
was accomplished either through individually granted dispensations or 
simply by suspending the law's operation across the board. This 
dispensing/suspending power was claimed to be part of the king's 
inherent ``prerogative,'' invested in the monarch as a necessary 
attribute of executive power. These claims, were among the factors 
which ultimately led to the ouster of King James II in the ``Glorious'' 
Revolution of 1688. Parliament, in other words, refused to be reduced 
to the level of a mere debating society, unable to enact laws the king 
was required to respect and enforce.
    One hundred years later, the Constitution's Framers--with this 
history very much in mind--made plain that no American president could 
claim similar power, permitting nullification of the laws by simple 
executive fiat. Such authority would, of course, cripple the very 
separation of powers they hoped to achieve. As the Supreme Court noted 
in an early case, where a presidential suspending power was suggested 
(although not, significantly, by the incumbent President Martin Van 

        This is a doctrine that cannot receive the sanction of this 
        court. It would be vesting in the President a dispensing power, 
        which has no countenance for its support in any part of the 
        constitution; and is asserting a principle, which, if carried 
        out in its results, to all cases falling within it, would be 
        clothing the President with a power entirely to control the 
        legislation of congress, and paralyze the administration of 

        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 
        entirely inadmissible.

Kendall v. United States, 37 U.S. 524, (1838).
    Of course, it has long been recognized that the President and his 
delegees may exercise a certain level of discretion in determining how 
best to carry out his constitutional duty to enforce the laws, and 
especially to establish his administration's enforcement priorities. 
The courts have recognized this ``prosecutorial discretion'' as 
legitimate, see, e.g., Nader v. Saxbe, 497 F.2d 676, 679 n.18, n.19, 
and it is therefore hardly surprising that the Obama Administration has 
characterized its most flagrant acts of suspension/dispensation merely 
as exercises of such discretion. See Memorandum from Janet Napolitano, 
Secretary of Homeland Security, June 15, 2012, Exercising Prosecutorial 
Discretion with Respect to Individuals Who Came to the United States as 
Children; Memorandum from John Morton, Director, U.S. Immigration and 
Customs Enforcement, June 17, 2011, Exercising Prosecutorial Discretion 
Consistent with the Civil Immigration Enforcement Priorities of the 
Agency for the Apprehension, Detention, and Removal of Aliens.
    There are, however, fundamental differences between the simple 
exercise of prosecutorial discretion and the Administration's actions 
here. First and foremost, a legitimate exercise of prosecutorial or 
enforcement discretion ordinarily involves a determination whether a 
particular individual or entity should be the subject of an enforcement 
action for past conduct. In this instance, the Administration has not 
merely concluded that prosecutions should be eschewed for existing 
offenses, but that no enforcement action will be taken for continuing 
and future ones. In other words, the beneficiaries of this 
determination (defined on a categorical rather than individual basis) 
are assured of immunity from legal consequences even though their 
violations continue. This is not simple prosecutorial discretion, but 
suspension of the law's operation with respect to this group.
    Second, a legitimate exercise of prosecutorial discretion is about 
priorities and resource allocation; it does not challenge and ignore 
the basic policy judgments Congress' made in enacting the law at issue. 
That, however, is precisely what the Administration did when it 
announced that young undocumented aliens should not be the subject of 
deportation proceedings. As Secretary Napolitano states unequivocally 
in her June 15, 2012, memorandum,

        Our Nation's immigration laws must be enforced in a strong and 
        sensible manner. They are not designed to be blindly enforced 
        without consideration given to individual circumstances of each 
        case. Nor are they designed to remove productive young people 
        to countries where they may not have lived or even speak the 
        language. Indeed, many of these young people have already 
        contributed to our country in significant ways. Prosecutorial 
        discretion, which is used in so many other areas, is especially 
        justified here.

In fact, rightly or wrongly, the immigration laws make no such 
distinctions. Indeed, it is because current law does not provide relief 
for youthful undocumented aliens that the Administration championed the 
Development, Relief, and Education for Alien Minors Act of 2011 or 
``Dream Act'' which would, if enacted, grant this relief 
``notwithstanding any other provision of law,'' i.e., the preexisting 
requirements of the Immigration and Nationality Act.
    The President must enforce the law as adopted by Congress, and he 
must respect the policy choices Congress has made. He cannot, true to 
his office and oath, work to undermine or nullify the law simply 
because he disagrees with those choices, and or seek to substitute his 
own policy preferences and goals through administrative means. Such 
changes must be sought and obtained from Congress. Granting assurances 
to categories of individuals that otherwise applicable law will not be 
applied to them is an ``entirely inadmissible'' act of suspension.\1\
    \1\ The Administration, it must be noted, has taken similarly 
impermissible actions with regard to other statutory schemes, including 
work/training requirements in the 1996 welfare-reform law and strict 
student testing and monitoring requirements in the 2001 ``No Child Left 
Behind'' law. Although certain aspects of the Personal Responsibility 
and Work Opportunity Act are subject to waiver, the federal work 
requirements are not among them. Similarly, the ``No Child Left 
Behind'' provides no authority for waivers from the relevant 
requirements--which, of course, were at the very heart of the law.
              2. ``recess'' appointments to federal office
    The Constitution's requirement that the President appoint high 
level federal officers ``by and with the Advice and Consent of the 
Senate'' is another fundamental check on executive power ignored by the 
Obama Administration when, at the beginning of this year, the President 
made ``recess'' appointments to the Consumer Financial Protection 
Bureau and National Labor Relations Board. The Framers adopted this 
critical requirement to ensure the quality of federal appointees and to 
defeat any drift towards presidential cronyism. As Alexander Hamilton 
wrote in The Federalist:

        It will be readily comprehended, that a man, who had himself 
        the sole disposition of offices, would be governed much more by 
        his private inclinations and interests, than when he was bound 
        to submit the propriety of his choice to the discussion and 
        determination of a different and independent body.

The Federalist No. 76 (A. Hamilton) 513 (Jacob E. Cooke ed., 1961). The 
right to consider and approve or reject presidential nominees to the 
very highest offices has, of course, traditionally been one of the 
Senate's most jealously guarded authorities.
    The Constitution does, of course, make one exception to this 
general rule. The Framers did not expect that Congress would remain in 
session for most of the year, and anticipated long periods of time 
(counted in weeks and months) when the Senate would be unavailable to 
play its advice and consent role in federal appointments. Their 
solution was to permit the President to make temporary, ``recess'' 
appointments: ``The President shall have Power to fill up all Vacancies 
that may happen during the Recess of the Senate, by granting 
Commissions which shall expire at the End of their next Session.'' U.S. 
Const. Art. II, Sec. 2, cl. 3.
    Successive presidents have made full use of this power, and such 
appointees have included agency heads, ambassadors, and even Supreme 
Court justices. Recess appointees may serve until the end of the 
Senate's next session and can, of course, serve longer if reappointed 
after the Senate has given its consent upon their nomination. Justice 
William Brennan, for example, was originally recess appointed by 
President Eisenhower in 1956, and was then reappointed after the Senate 
acted favorably on his nomination the next year. More recently, 
presidents have used the recess appointment power to install in office 
favored nominees even in the face of significant Senate opposition.
    The Constitution does not, of course, define ``recess'' for 
purposes of the President's recess appointment power, but the 
Department of Justice's Office of Legal Counsel has advised successive 
presidents that recess appointments are permissible in both 
intersessional and intrasessional adjournments, so long as these are of 
``substantial length.'' See Recess Appointments, 13 Op. O.L.C. 325 
(1989). In that case, the recess in question was 33 days, but recess 
appointments have been made during recesses of far shorter duration. 
Nevertheless, in view of the purpose of this exception to the general 
rule, a senatorial absence of more than a few days has been considered 
the minimum necessary requirement to a legitimate recess appointment. 
See e.g., 33 Op. Att'y Gen. at 25 (suggesting that a 5 or 10 day 
adjournment is insufficient for a recess); The Pocket Veto: Historical 
Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982) (advising 
President to avoid making recess appointments ``when the break in 
continuity of the Senate is very brief.'') See also Memorandum for 
Alberto R. Gonzales, Counsel to the President, from Jack L. Goldsmith 
III, Assistant Attorney General, Office of Legal Counsel, Re: Recess 
Appointments in the Current Recess of the Senate at 3 (Feb. 20, 2004) 
(cited in Lawfulness of Recess Appointments During a Recess of the 
Senate Notwithstanding Periodic Pro Forma Sessions at 9 n.13 (Jan. 6, 
2012) (noting argument that a minimum of 3 days is necessary in view of 
the requirements in Art. I, Sec. 5, cl. 4 that neither house can 
adjourn for more than three days without the other's consent)) 
[hereinafter Opinion of January 6, 2012]. And, of course, the Senate 
must actually be in recess.
    As the number of recess appointments has grown, so has the Senate's 
determination to check the practice. Beginning in 2007, that body has 
chosen often to remain ``in session'' on a pro forma basis during 
congressional recesses so as to prevent controversial nominees from 
being recess appointed. Whether such pro forma sessions are inherently 
sufficient to defeat a presidential recess appointment can be honestly 
debated. The practical test, as outlined in OLC's 1989 Recess 
Appointments opinion, is ``whether the adjournment of the Senate is of 
such duration that the Senate could `not receive communications from 
the President or participate as a body in making appointments.''' 13 
Op. O.L.C. 325.
    In justifying President Obama's January 4, 2012, recess 
appointments to the CFPB and NLRB, OLC argued that the Senate was not 
``available to receive and act on nominations'' during a pro forma 
session, and that such sessions could not therefore prevent recess 
appointments. Opinion of January 6, 2012, supra, at 1. Unfortunately, 
the office gave short shrift to the most fundamental objection to its 
conclusions: that it is the Senate, and not the President, which is 
constitutionally empowered to determine how it will operate and what 
business can or will be transacted during its sessions, however brief. 
See U.S. Const. Art. I, Sec. 5, cl. 2 (``Each House may determine the 
Rules of its Proceedings.'').\2\
    \2\ As other commentators have correctly noted, the precedents 
cited to the contrary in OLC's Opinion of January 6, 2012, supra, at 1, 
involved the question of individual rights and are inapposite. See Todd 
Gaziano, ``Whitewash on Illegal Appointments Won't Work'' (Jan. 12, 
2012), available at, http://blog.heritage.org/2012/01/12/whitewash-on-
    And, in fact, at the time the January 4 appointments were made, the 
Senate was capable of transacting business in accordance with its own 
rules and past practice, including acting on legislation.\3\ There is 
no doubt that the Senate's adoption of pro forma sessions as a means of 
preventing recess appointments is frustrating to the President, as it 
surely was to his predecessor. President Bush, however, accepted the 
ultimate authority of the Senate to govern its own proceedings, and did 
not purport to exercise his recess appointment power when the Senate 
was in pro forma session. President Obama's approach necessarily 
arrogates to himself the ultimate authority to determine the adequacy 
of the Senate's rules and how nominations are handled. The Constitution 
simply does not give the President such power.
    \3\ As OLC's Opinion of January 6, 2012, itself acknowledges, the 
Senate had in fact passed legislation (a politically important payroll 
tax cut extension) during a pro forma session. Opinion of January 6, 
2012, supra, at 21.
          3. frustration of legitimate congressional oversight
    Earlier this year the Administration's refusal to provide documents 
to the House Committee on Oversight and Government Reform led to an 
unprecedented contempt citation by the House of Representatives against 
Attorney General Eric Holder. The issue involved, of course, was 
Committee demands for documents relative to the astonishingly ill-
conceived ``Operation Fast and Furious,'' through which thousands of 
firearms were smuggled into Mexico at the behest of U.S. government 
agencies and officials as part of an anti-drug cartel initiative. Of 
perhaps 140,000 responsive documents, the Justice Department has 
produced about 7,600 pages, many with heavy redactions. Last June, the 
President asserted Executive Privilege with respect to those materials 
directly bearing on the Justice Department's handling of the fallout 
from Operation Fast and Furious, which the Committee believes may have 
involved deliberate misrepresentations to Congress.
    Executive privilege, of course, is not specifically provided for in 
the Constitution's text, but since Washington's administration has been 
inferred based upon the Executive Branch's status as a separate and co-
equal branch of government and the President's authority to supervise 
and direct the Executive Branch. It has been fully recognized by the 
courts. See e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
    That said, executive privilege is not absolute--as President Nixon 
found to his great cost. See United States v. Nixon, 418 U.S. 683 
(1974) (need for information for a criminal trial sufficient to 
overcome President's assertion of executive privilege with regard to 
White House tapes.) In the context of determining how powerful any 
particular assertion of privilege may be, the courts have distinguished 
between two components of executive privilege. The first and strongest 
type of executive privilege, grounded entirely in the Constitution's 
separation of powers, is the ``presidential communications privilege.'' 
This covers communications from and to the President and extends to his 
immediate advisors. See e.g., Judicial Watch v. Department of Justice, 
365 F.3d 1108, 1114-1116 (D.C. Cir. 2004). A very strong showing of 
need, as where documents may be necessary to a criminal trial (not 
simply an investigation) as in Nixon, must be made to overcome the 
presidential communications privilege. See In re Sealed Case, 121 F.3d 
at 744-45.
    In this instance, of course, ``the White House has steadfastly 
maintained that it has not had any role in advising the Department with 
respect to the congressional investigation.'' Letter from the Hon. 
Darrell Issa to the President, June 25, 2012, at pp. 1-2, available at, 
http://images.politico.com/global/2012/06/issaobamaltr.pdf. As a 
result, it would not be appropriate for the Administration to assert 
the strictly constitutionally-based presidential communications 
    The second type of executive privilege is the ``deliberative 
process privilege.'' This privilege is far broader than the 
presidential communications privilege, and generally protects materials 
reflecting federal agency deliberative or policymaking processes. 
According to the D.C. Circuit, the deliberative process privilege 
``originated as a common law privilege,'' and only certain ``aspects of 
[that] privilege, for example the protection accorded the mental 
processes of agency officials . . . have roots in the constitutional 
separation of powers.'' Id. at 737 & n. 4. See also Letter Opinion to 
the Counsel to the President, Assertion of Constitutionally Based 
Privilege Over Reagan Administration Records, 2004 OLC LEXIS 24, 28 Op. 
O.L.C. 1 (Jan. 12, 2004) (referencing ``government-wide deliberative 
process component of the President's constitutionally based 
privileged.''). It is ``[t]he most frequent form of executive privilege 
raised in the judicial arena.'' In re Sealed Case, 121 F.3d at 737.\4\
    \4\ This is because Congress has itself recognized the 
``deliberative process privilege'' in section 5 of the Freedom of 
Information Act. See 5 U.S.C. Sec. 552(b)(5).
    Although reaching a much broader range of materials, the 
deliberative process privilege also is far weaker than the presidential 
communications privilege. This is because the relevant communications 
do not involve the President directly, and often are very far removed 
indeed from his own deliberative and decision making processes. The 
separation-of-powers concerns are, therefore, far less evident. As a 
result, of course, the showing of need necessary to overcome this 
species of executive privilege is much less demanding and, as noted by 
the United States Court of Appeals for the District of Columbia Circuit 
in a leading case, ``the privilege disappears altogether when there is 
any reason to believe government misconduct occurred.'' In re Sealed 
Case, 121 F.3d at 746.
    This, of course, is the case with regard to Operation Fast and 
Furious and the Justice Department's initial statements to Congress 
about that embarrassing and tragic fiasco. Moreover, when the need for 
executive branch secrecy regarding the formulation, execution, and 
closure of this program is weighed against Congress' legitimate 
oversight needs, the balance to be struck is clearly in Congress' 
favor. As a result, the Administration's assertion of the privilege 
here cannot be legally justified and again reveals a determination to 
ignore or evade the lawful limits on executive authority.
    Overall, the Obama Administration has disregarded some of the most 
basic constitutional limitations on presidential power, ignoring those 
limits in order to achieve its desired policy outcomes, or to avoid 
scrutiny of its programs and operations. Whether this grows out of a 
determined effort to undercut the role of Congress in our 
constitutional system, or from a simple impatience with political 
opposition and legal constraints, the result is the same--a direct and 
sustained assault on the balance of powers so carefully constructed by 
the Constitution's Framers.
    Thank you, and I would be pleased to answer the Committee's 

    Mr. Smith. Senator Lee, thank you for staying for 
questions. I very much appreciate your testimony and let me 
direct my first question to you.
    What is fundamentally wrong with the President himself 
alone deciding when the Senate is out of session?
    Senator Lee. First and foremost, the Constitution itself 
gives each House of Congress the prerogative of determining its 
own schedule, subject to certain general parameters outlined in 
the Constitution, and just as importantly giving each body the 
power to establish its own rules. And so its own rules often 
determine its own schedule and determine when it is and is not 
in session.
    So when you take that, and you take the fact that the 
Constitution requires Senate confirmation of executive branch 
nominees and judicial nominees, you can destroy that power or 
at least seriously undermine it if you allow the President to 
conclude based on his own judgment that the Senate while it 
considers itself not to be in recess in fact is in recess 
perhaps because the President doesn't think enough is 
happening. At that point as soon as the President has that 
power the President can in many, many circumstances just 
circumvent the confirmation prerogative of the Senate, the 
advice and consent function of the Senate. That is dangerous.
    Mr. Smith. Thank you, Senator Lee.
    Mr. Casey, when the Administration unilaterally decides to 
either ignore immigration, welfare or education laws what is 
the impact of that on our democracy?
    Mr. Casey. Well, Mr. Chairman, I think among all of the 
issues we are talking about that one is the most critical 
because refusing, failing to carry out the law as Congress has 
passed it undercuts Congress' role in our constitutional 
system. It seizes for the executive a kind of legislative power 
which our framers would have been astonished and appalled to 
see any President attempt to exercise.
    Mr. Smith. Thank you, Mr. Casey.
    And Ms. Windham, what impact does the contraceptives and 
abortion inducing drugs mandate that is in the new health care 
bill have on religious and Catholic employers?
    Ms. Windham. It has a tremendous impact on religious 
employers, Catholic employers and employers of other 
denominations and faiths as well. If you refuse, if an employer 
cannot in good conscience provide these drugs and services they 
are facing fines of $1,000 per employee per year and also $100 
per employee per day. These can easily run into the hundreds of 
thousands and even millions of dollars. So for an organization 
like Colorado Christian University, which is an evangelical 
university in Colorado, they are looking at $500,000 a year. If 
they choose to have policies that follow their faith they are 
looking at hundreds of thousands of dollars, a crushing amount, 
for simply asking for the right to practice what they preach.
    Mr. Smith. Thank you, Ms. Windham.
    That concludes my questions, and the gentleman from 
Michigan Mr. Conyers is recognized for his questions.
    Mr. Conyers. Thank you, Chairman Smith. Let me turn to 
Professor Michael Gerhardt and track the last question that was 
raised by our distinguished Chairman.
    Does the Health and Human Services rule violate the 
exercise of free speech when 28 States for years have already 
required that contraceptives be covered similar to prescription 
drugs? Could you pick up on that discussion between the 
previous witness and yourself?
    Mr. Gerhardt. Yes, sir. Obviously I don't perceive there to 
be a constitutional or legal violation here. But let me if I 
might just go back to a focus on process. I don't think on that 
issue or any of the other issues we have been talking about the 
President of the United States or his Administration are 
standing alone. It is not as if they are out there unsupported 
and unjustified in taking positions on any of the issues we 
just talked about. On the one you have just mentioned there are 
other Members of Congress, there are other scholars, others 
that view that the Administration, for that matter the State 
policies you just pointed out, take a position of neutrality on 
the issue of contraceptives as one of the things to provide as 
part of medical services. And the Administration's position on 
this I think has been evolving, which suggests that in fact 
they are trying to reach some sort of accommodation that may or 
may not make everybody happy. But that seems to me to be part 
of the process. And I think at the same time a lot of what is 
going on here is the result of institutions having taken 
Federal money, and Federal money comes with conditions 
attached, and that is one of the consequences of taking the 
    Mr. Conyers. Well, you have done what I was going to next 
ask, which is to try to review any of the assertions made by 
your fellow witnesses that we want to kind of get in the record 
and get cleared up. I think that as a constitutional scholar 
who has been before the Judiciary Committee not many times but 
at least some times that you could be very helpful to all of us 
in that regard.
    Mr. Gerhardt. Well, thank you. I just might add though that 
it is not my point to suggest that I think there is an obvious 
single correct answer here. I think this is largely about 
whether or not we have confidence in the process, confidence in 
whether or not these issues are being approached in good faith 
and handled competently and credibly and that there is credible 
constitutional support and legal support for the positions of 
the Administration. That is my point. My point isn't to suggest 
that any of the issues being raised here are being raised 
inappropriately or in bad faith, but simply that I think the 
Administration's approach does not constitute any abuse of 
    Mr. Conyers. Now, in your testimony you distinguished 
between political choices and constitutional choices. Now, to 
your knowledge has anyone determined as a matter of law that 
the Obama administration has acted unconstitutionally on any of 
the matters that we have discussed today, invoking executive 
privilege in Fast and Furious, making recess appointments, 
exercising prosecutorial discretion and enforcing immigration 
    Mr. Gerhardt. I think the answer is no. And I think this is 
a function of what I sometimes describe as the constitution 
outside the courts. When you are operating outside the courts, 
as what is occurring here, you will get some conflict, you will 
get some tension, but at the same time the President at least 
for his part and his Administration for its part has put 
forward the support for its positions and is trying to in a 
sense explain what it has done. Obviously this institution will 
push back to some extent. But that is the nature of the 
process. But I don't think there is any--to answer your 
question succinctly, there is no finding of any legal violation 
the President or his Administration has committed. There is 
disagreement but disagreement doesn't constitute violation.
    Mr. Conyers. Thank you, Professor Gerhardt. Thank you, Mr. 
    Mr. Smith. Thank you, Mr. Conyers. The gentleman from 
California, Mr. Gallegly, is recognized.
    Mr. Gallegly. Thank you very much, Mr. Chairman, and thank 
you for calling this hearing. While I want to have an 
opportunity to have a couple of questions for our witnesses I 
would just like to respond to my good friend from Michigan's 
opening statement. And he truly is my good friend and has been 
a good friend for a long time and will continue to be a good 
friend. But I have to respectfully disagree with one of the 
statements he had regarding voter ID. With all due respect, I 
believe the greatest threat that we have to our democracy or to 
any democracy is fraud in the electoral process. And if we 
don't have control over the legitimacy of an election, that 
compromises the democracy more than anything. And so we may 
have a little disagreement on how we get there, but I think at 
the end of the day we want the same thing.
    Mr. Conyers. Would the gentleman yield for just a moment?
    Mr. Gallegly. I will yield.
    Mr. Conyers. Thank you very much. I appreciate it. Could 
you just document somewhere in the course of our judiciary 
hearings all the fraud in the electoral process that you have 
ever come across?
    Mr. Gallegly. Well, I think common sense will predicate 
that if people do not have to show that they have a legal right 
to vote, and of course one of the things if we go back 
historically on the issue of absentee voting that has changed 
dramatically. And we don't have a check and balance. If you go 
to K-Mart or any other place and you give them a check for $3 
they are going to want to know you are who you say you are. And 
so I think that that in and of itself invites significant 
    And I would like to have an opportunity now to talk to some 
of our witnesses. And Senator Lee, thank you very much for 
being here this morning. Senator, despite the fact that 
Congress has repeatedly failed to pass the DREAM Act the 
President recently unilaterally granted a de facto amnesty to 
many illegal immigrants.
    How do you see that if any way impacting the ability for 
millions and millions of Americans that are out of work finding 
a job?
    Senator Lee. Obviously any decision that involves either 
loosening or tightening our immigration laws might have an 
effect, will inevitably have an effect on the job market by 
either contracting or expanding the supply of labor. So this is 
one of many factors that ought to apply in any public policy 
decision made within the Federal Government with regard to 
immigration laws, especially with regard to those laws that 
govern one's ability to work in this country as an immigrant.
    So absolutely it will have an effect. It is difficult to 
quantify exactly what that effect might look like, in part 
because we don't know exactly how many people this might apply 
to. But the point is that these are legitimate policy concerns. 
There are legitimate policy arguments to be made on both sides 
of the DREAM Act issue. But the Constitution in its opening 
line, right after the Preamble in Article I, Section 1 says 
that all legislative powers herein granted shall be vested in 
the Congress which shall consist of a Senate and a House of 
Representatives. Now, the legislative powers encompass the 
power to legislate. To legislate is to make rules, rules 
carrying the force of generally applicable law. The coercive 
force of government will enforce those rules. Here with this 
Executive order we have what is in effect a piece of 
legislation. It didn't go through Congress. So whether you are 
a Republican or a Democrat, whether you are a liberal or a 
conservative, whether you are pro-immigration reform or anti-
immigration reform, especially if you are a Member of Congress, 
and in any event if you favor the rule of law you should want 
that policy decision to be made by Congress.
    Mr. Gallegly. Thank you, Senator Lee.
    Mr. Casey, do you think that the de facto amnesty in any 
way will act as a magnet or send a signal to others that have 
not arrived here illegally to come to this country illegally as 
though it is a de facto invitation?
    Mr. Casey. Sure. Well, I think any time that the executive 
publicly makes plain that a particular law or part of a law 
will not be enforced it acts as an incentive to others to break 
that law since there very possibly or very likely will be no 
consequence. So yes, I think so.
    Mr. Gallegly. Thank you, Mr. Casey. Maybe Senator Lee might 
like to jump in on this one as well. Do you think that, or are 
you concerned about future Presidents, Democrat, Republican, 
whatever the situation, would use this precedent of granting de 
facto amnesty unilaterally to other groups of immigrants and, 
if so, give me an example?
    Mr. Casey. Well, yes, a precedent--we live by precedent in 
our law and once this line is crossed it is very likely that a 
future President will cross it again. And you can think of an 
entire range of potential areas where there may be good policy 
arguments for nonenforcement, be it in the immigration area or 
even some of our criminal laws, that will if a future President 
decides that it is against his policy preferences to enforce he 
will not enforce and cite this example.
    Mr. Gallegly. Thank you very much, Mr. Chairman. I see my 
time has expired. I would like to make a unanimous consent 
request that a recent article in Maryland Politics regarding 
Maryland Democrat Quits Congressional Race Amid Voter Fraud 
    Mr. Smith. Without objection.
    [The information referred to follows:]


    Mr. Smith. Mr. Nadler is recognized.
    Mr. Nadler. Ms. Windham, you said in your testimony 
regarding what you regard as the mandate, that is, the 
regulations on contraceptives in the Affordable Care Act that 
government--that there should never be--force anybody to make a 
choice between religious conscience and obeying the law; is 
that correct?
    Ms. Windham. Yes.
    Mr. Nadler. Thank you. Now you seem to advocate for the 
right of any employer then, even for example someone who owns a 
McDonald's, to object on religious grounds to insurance that 
covers contraception, is that correct?
    Ms. Windham. What we believe----
    Mr. Nadler. Is it correct, yes or no, please, because I 
have a lot of questions.
    Ms. Windham. We believe that religious conscience should be 
respected. So if a religious business owner has----
    Mr. Nadler. So the answer is yes, please.
    Ms. Windham. When that is protected by our First Amendment 
or RFRA, then yes.
    Mr. Nadler. So please just answer yes, then. So in other 
words, that would apply also to someone who said, my religion 
tells me that no one may come into my McDonald's store who is 
Black or a woman because that violates my religious freedom, 
the government has to right to say no to that, correct yes or 
    Ms. Windham. I am not aware of any case where RFRA----
    Mr. Nadler. That is not the question. Do you believe that 
government has the right or not to violate, to tell a person to 
violate his religious conscience by serving Black people?
    Ms. Windham. I believe that the government has a right as 
is said under RFRA and as is said under our First Amendment to 
restrict religious conscience only when there is a compelling--
    Mr. Nadler. Okay, only when there is a compelling State 
interest. Now, now the Supreme Court--now Justice Scalia said 
that to make an individual's obligation to obey such a law, 
that is a law of general applicability such as any of the laws 
we were just talking about, including the contraceptive 
mandate, to make an individual's obligation to obey such a law 
contingent upon the law's coincidence with his religious 
beliefs contradicts both constitutional, traditional, and 
common sense and would make every individual a law unto 
    Now we thought that went a little too far and we enacted, 
and I was one of the sponsors of the Religious Freedom 
Restoration Act, we said that in order to enforce a law of 
general applicability against religious conscience one should 
have to show compelling--that there was A, an undue burden 
placed--a substantial burden, not undue, a substantial burden 
placed on the religious exercise of a freedom and that undue, 
that substantial burden was justified by the States showing 
that it was necessary to place that substantial burden on the 
exercise of religious conscience in order to vindicate a 
compelling state interest and that that was the least 
restrictive means of doing so, the so called strict scrutiny 
    With any number of--and yet and you seem to be arguing that 
the mandate simply by saying that an institution like a 
hospital must purchase insurance that allows people to get 
contraception is--do you believe that is a substantial burden 
on religious belief?
    Ms. Windham. If that is contrary to their sincere religious 
beliefs, then yes.
    Mr. Nadler. So any law that contradicts sincere religious 
belief is a substantial burden.
    Ms. Windham. Not any law. It has to be a substantial burden 
on their religious exercise, such as when it forces them or 
threatens them with a fine to violate their faith. The Supreme 
Court said it was a substantial burden when Amish families were 
fined $5 because they refused to send their children to public 
    Mr. Nadler. But the Supreme Court rejected the claim that 
an individual's payment of taxes for registration fees, where 
that money might be used to fund health care to which the payer 
objects on religious grounds, imposes a substantial burden on 
religion. They have rejected the claim that registering for the 
draft imposes a substantial burden on religion. They have 
rejected the claim that paying taxes that go for defense 
against someone's religious principles are a substantial 
burden. And they have rejected the Amish claim that paying 
Social Security taxes is a substantial burden.
    Mr. Gerhardt, would you comment on the absolutist claims of 
Ms. Windham and the people who say that the contraception 
mandate is a violation of religion in light of the Supreme 
Court decisions, in light of the Religious Freedom Restoration 
Act, and in light of the finding that women's cost for health 
care can be in many cases 68 percent higher than men's because 
of the necessity to pay for contraception and for other 
gynecological problems that men don't have and that this in 
fact is an exercise of the State's right to exercise its right 
to vindicate a compelling State interest?
    Mr. Gerhardt. I can try, but Mr. Chairman, I see my time is 
    Okay. Well, thank you, Mr. Nadler. Thank you, Mr. Chairman.
    I think Ms. Windham makes perfectly reasonable arguments. I 
think that one of the things we need to think about is what is 
the legal doctrine or legal framework within which all this 
takes place. And for example, Mr. Nadler, you had referred to 
the Supreme Court's test, for example, in Smith v. Employment 
Division which relates to how do we determine the 
constitutionality of a generally neutral applicable law. Well, 
the answer there is that we use the rational basis test. That 
is an opinion by Justice Scalia. We don't use any heightened 
scrutiny in a circumstance like that. But I think one reason we 
are in this discussion is because we are in a very difficult, 
tricky area of constitutional law and it is the intersection 
between free exercise and establishment. When you are in that 
intersection you are within under the thorniest areas of 
constitutional law. And all I can tell you there is what one of 
my former law professors said and I will try to say this in the 
14 seconds I have left. I was a research assistant to Philip 
Kurland, who was a great constitutional law professor, formerly 
clerk to Justice Frankfurter, conservative law professor, 
University of Chicago for many years. And he said the only way 
I can think my way out of this thicket is to expect neutrality 
from government. That is to say government takes a neutral 
position. If you create an exception in a law that benefits 
only religious organizations, then you could attack it for 
being an establishment. So either way you are going to face 
some dilemma.
    Mr. Nadler. So a neutral application of the general law for 
contraception coverage would be regarded how by Professor 
    Mr. Gerhardt. Well, I would think he would think that is 
plainly constitutional. When you start creating exceptions in 
the law that favor religion then one issue you have got to 
confront is whether that confronts----
    Mr. Nadler. So this mandate is not an unprecedented attack 
on religious liberty?
    Mr. Gerhardt. No.
    Mr. Smith. The gentleman's time has expired, thank you. 
Thank you, Mr. Nadler. The gentleman from North Carolina, Mr. 
Coble, is recognized.
    Mr. Coble. Thank you, Mr. Chairman. I apologize I have had 
a simultaneous hearing in Transportation so I have been back 
and forth. Good you to have you all with us, particularly my 
fellow Carolinian from Chapel Hill.
    Mr. Gerhardt. I am having a little trouble hearing.
    Mr. Coble. I just said it is good to have all of you with 
us but in particular my fellow Carolinian from Chapel Hill.
    Mr. Gerhardt. Thank you, sir. It is great to be from there.
    Mr. Coble. It is good to have all of you. Senator Lee, you 
have had boots on the ground on the other side of the Hill now 
for a good while. Share with us if you have any concerns about 
the decisions that the President may have made as Commander in 
Chief. I realize that is a general question.
    Senator Lee. With regard to the President's Commander in 
Chief powers I was personally somewhat concerned when we got 
involved in military action in Libya without any prior 
consultation of Congress, without a declaration of war, without 
an authorization for use of military force.
    Now I will be the first to concede that there is some gray 
area, there is some uncertain middle ground between where the 
President's Commander in Chief powers on the one hand and where 
Congress' power to declare war begins.
    Congress has sought through the War Powers Resolution to 
clarify some of that gray area and to at least establish some 
standards. But even within those standards the President in my 
opinion did not take adequate care to consult or obtain 
permission from Congress before going there. That is the most 
glaring example I can think of with regard to his Commander in 
Chief powers.
    Mr. Coble. I thank you, Senator.
    Ms. Windham, much has been said about the mandate. In your 
opinion does the mandated health care coverage have a chilling 
effect on religious organizations that serve their respective 
local communities through various charitable works?
    Ms. Windham. Yes, sir, we believe it does have a chilling 
affect. What is so troubling about the way this mandate has 
been written is that it specifically hits religious 
organizations who choose to open their doors and serve anyone 
who is in need. And so you are not eligible for the mandate's 
very narrow religious exemption if you decide to serve people 
who are not of your own faith. I think it is very troubling to 
set a precedent that religious organizations forfeit some of 
their constitutional rights when they choose to serve their 
country and serve the public.
    Mr. Coble. I thank you both. Mr. Chairman, I have got to go 
back to my other hearing, so I am going to withdraw if I may 
and yield back.
    Mr. Smith. Thank you, Mr. Coble. Gentleman from Virginia, 
Mr. Scott, is recognized.
    Mr. Scott. Thank you, Mr. Chairman. I am going to follow up 
on that same line of questioning and point out that in the 
1960's when we passed Medicare all of the hospitals in the 
South were racially segregated as a matter of religious belief 
and the segregation was preached from the pulpit. President 
Johnson by Executive order mandated the idea that if you 
accepted Medicare you could not be--run a segregated facility.
    Ms. Windham, in your judgment did President exceed his 
presidential authority?
    Ms. Windham. I am not familiar with what law was being 
discussed there or what was being relied upon. I am not here to 
argue and I am not aware of any cases arguing that religious 
hospitals can discriminate according to race because of RFRA or 
the First Amendment. All we are here to ask for is that our 
clients and religious organizations and religious individuals 
have the same rights today that they had on July 31st, 2011, 
the day before the mandate went into effect. If we were not----
    Mr. Scott. Well, did President Johnson's Executive order 
prohibiting hospitals that accepted Medicare from running 
segregated facilities, racially segregated facilities, did that 
violate--did he exceed his powers?
    Ms. Windham. Again I am not familiar with what he did there 
in the Executive order. Again I am not here to argue with 
    Mr. Scott. Let me ask Mr. Gerhardt a question. Mr. 
Gerhardt, Professor, I want to point out to my friend from 
North Carolina that you were a Virginian before you were a 
North Carolinian.
    Mr. Gerhardt. Covered all my bases.
    Mr. Scott. Is there a difference in application of rules 
between a volunteer free clinic run by a religious organization 
and a public hospital that accepts Medicaid, Medicare and is 
open to the public in terms of their responsibility to follow 
generally applicable law?
    Mr. Gerhardt. Well, I think the answer to that would have 
to be yes. If you are the latter, then as you just pointed out, 
you are subject to all the conditions that would apply to any 
other institution or entity that operates in the same field.
    Mr. Scott. And if you are a public accommodation, what is 
wrong--you kind of alluded to it, what is wrong with an 
exception for individual conscience?
    Mr. Gerhardt. Well, we obviously try and provide that and 
the law tries to provide that in all sorts of ways. But I was 
just trying to point out that this is a very tricky area and 
one of the difficulties you have got is once you move away from 
a generally mutual applicable neutral law and start making 
exceptions only, for example, religious organizations then that 
raises a possible establishment problem. And so government when 
it sets out making regulations has got to sort of maneuver 
through that thicket. And I think that that is what the 
Administration is plainly trying to do in this area.
    Mr. Scott. If people have individual religious problems 
with one regulation or another, is that just too bad?
    Mr. Gerhardt. Well, it shouldn't just be too bad. Obviously 
people have sincere religious beliefs that are being burdened, 
that does raise some serious concerns.
    Mr. Scott. When I was growing up one religious belief was 
that the races should be separated and that was preached every 
Sunday from the pulpit. If you have a public accommodation, are 
you going to allow any individualized conscience as an 
    Mr. Gerhardt. Well, as you know, when you move away from 
the pulpit into civil institutions, they are going to be 
subject to the law and one of those laws is legal protection 
clause or in the case of a Federal----
    Mr. Scott. And so the difference--if you are running a 
public operation that just happens to have certain religious 
beliefs, that is different from running a religious mission, a 
volunteer free clinic as opposed to a public hospital, is that 
    Mr. Gerhardt. I would say that is correct, yes.
    Mr. Scott. Can you talk a bit about what the precedence is 
on recess appointments and when it is a recess and when it 
    Mr. Gerhardt. Well, one of issues that arises in that area 
as Senator Lee was alluding to was the question of when the 
recess occurs. And one of the disagreements we have here is how 
do we go about determining that. I think the complication for 
the President of the United States in this instance was that 
the pro forma sessions in the Senate were something he thought 
were designed to obstruct his recess appointing power, and then 
the question becomes how is he able to defend his prerogative. 
And I think that is precisely what he was trying to do. The pro 
forma session exists for a number of reasons, one of which I 
think frankly is to impede that presidential authority. And I 
think the President has got the ability and authority to in a 
sense push back, to say you can't make a unilateral decision 
about when there is a recess, when I think in fact it is being 
done solely for the purpose of frustrating one of my powers.
    Mr. Scott. And who decides ultimately?
    Mr. Gerhardt. I am sorry?
    Mr. Scott. Who ultimately decides that question?
    Mr. Gerhardt. Well, it depends on how it plays out. I know 
it may be pending in the courts, the courts may or may not want 
to get to the merits of the issue. If the courts don't get to 
the merits of the issue, then it gets played out between this 
institution and the President. And that is how a lot of 
suppression of powers issues get played out, they get played 
out over time and how these institutions work together and 
reach some accommodation.
    Mr. Smith. Thank you, Mr. Scott. The gentleman from Ohio, 
Mr. Chabot, is recognized.
    Mr. Chabot. Thank you. Before I get into my questions, 
Senator, did you have a comment that you wanted to follow up on 
    Senator Lee. Thank you very much, Congressman, I appreciate 
that. I wanted to respond very briefly a couple of these 
religious liberty points just to make sure there is no 
ambiguity. Making sure there is a religious exemption here 
would not in my opinion cause either of the two problems that 
have been suggested. Number one, it would not lead to a risk of 
racial discrimination on the basis of a purported religious 
belief. There is precedent from the Supreme Court in the 1983 
decision of Bob Jones University v. United States in which the 
Supreme Court of the United States upheld Federal tax law 
revoking the tax exempt status of Bob Jones University which 
claimed the right to discriminate in its admission decisions on 
the basis of race. Predicating that practice on religious 
belief, that was soundly and roundly rejected by the Supreme 
Court in an 8 to 1 decision in 1983. This is in fact a 
compelling State interest that the Federal Government has and 
it does thwart any kind of religious belief there with regard 
to or desire to racially discrimination.
    Secondly, I want to respond to any suggestion that may have 
been made that granting a religious exemption to the 
abortifacient and contraceptive mandate would somehow amount to 
a violation of the establishment clause of the First Amendment. 
This kind of assertion was soundly and roundly rejected by the 
Supreme Court of the United States in the 1987 decision of 
Corporation of the Presiding Bishop v. Amos. Congress is free, 
the Federal Government is free to grant religious exceptions 
and doing so does not amount to an establishment clause 
    Thank you.
    Mr. Chabot. Thank you very much, Senator.
    Mr. Casey, I wanted to direct my first question to you. You 
had talked during your testimony about the Obama administration 
breaking with traditional separation of powers originally 
adopted by the framers in the Constitution. And I would like to 
focus on one of the particular abuses of power that I see.
    In early July the Obama administration unilaterally 
announced that it would disregard current law and allow states 
to apply for waivers of the work requirements that have been 
critical to the success of welfare reform. We passed welfare 
reform back in 1996, and it was TANF of course. I was here, I 
had been just elected in 1994 and I had some experience at the 
local level with the need to reform welfare. I was on city 
council in Cincinnati and I was the county commissioner, and we 
had lots of folks that were growing up in homes where they had 
never seen an adult in the home go to work. What was supposed 
to be temporary help for the truly needy had far too often 
become a permanent way of life. And we came together with 
mostly Republicans but had quite a few Democrats support it, 
and President Clinton vetoed it twice but finally signed it the 
third time. I want to be very clear about this, there was no 
question about the waiver requirement. We wanted to make sure 
that people actually had to work. There are all kinds of--
people had unfortunately gamed things like this in the past 
where you had people go from training program to training 
program, never actually go to work and that was a lot of the 
battle that went on. So we made it very clear that was very 
important and now the Administration has claimed authority 
basically to change those welfare-work provisions. And it 
really does in my opinion circumvent Congress' power and step 
all over separation of powers.
    And last week even the GAO, the Government Accountability 
Office, agreed that the Administration exceeded its authority 
in granting the waivers. In a letter to Members of Congress 
GAO's General Counsel, Lynn H. Gibson observed that the waiver 
policy was beyond the discretion granted to the executive 
branch by the Constitution.
    So what threats are there when a President does clearly 
circumvent the separation of powers here and trample upon 
really what is very clearly the law. Could you comment on that? 

    Mr. Casey. Sure. I would say obviously the President has no 
inherent power to waive the requirement of any law. You have to 
look at each statute to see if Congress has included a waiver 
provision. In many statutes it does. And in particular with 
complicated statutes like the welfare reform statute. You also 
need to look to see whether the waivers Congress may have 
included, and there are some, apply to the provisions that the 
President wants to waive. As I understand it here they do not. 
As a result you get a similar effective suspension of the 
application of the law by the executive without congressional 
permission, involvement.
    Mr. Chabot. Thank you very much.
    Mr. Smith. Thank you, Mr. Chabot. The gentleman from North 
Carolina, Mr. Watt, is recognized.
    Mr. Watt. Thank you, Mr. Chairman. Let me apologize to 
Senator Lee and Ms. Windham I was in a markup in another 
Committee and missed your testimony. Mr. Gerhardt, welcome Mr. 
Casey, welcome, whether you are from Virginia or North 
Carolina. I like both of those States and I especially like 
folks from the University of North Carolina Law School, so I 
appreciate your being here.
    It seems to me that while this is an important hearing, 
academic hearing, which deserves some review there is precedent 
for virtually everything all over the board here I think 
about--so if there has been an abuse of power it seems to me 
that it has been a bipartisan abuse of power by Presidents 
throughout the history of the country. I mean if this President 
has abused it then other Presidents have abused it in a number 
of respects. I think of signing statements that all Presidents 
have signed saying they are going to apply a particular law 
that we passed one way or another. That seems to me even when 
the signing statements are clearly in conflict with the 
legislative intent, the plain language of the statute that we 
pass. I think of recess appointments that both Presidents, 
Republican and Democratic Presidents, have engaged in over 
    I think of war powers that several of you have mentioned. 
There has always been a difference of opinion about who--what 
authority the Commander in Chief has versus the seemingly clear 
language that the President should not declare war without the 
approval of Congress. So whatever is going on seems to me to be 
fairly standard stuff, whether we agree or disagree.
    I kind of like Professor Gerhardt's analysis. There is a 
lot of things that happen both by Republican Presidents since I 
have been here and Democratic Presidents since I have been here 
that I didn't necessarily agree with. I am not sure that I 
thought they were an abuse of power, I just happened to 
disagree with them. And I think it is incumbent on all of to us 
try to apply the same standards to a Republican President or a 
Democratic President.
    I leaned over to my good friend Bobby Scott from Virginia, 
there must be something in the water in North Carolina and 
Virginia when Professor Gerhardt said something about applying 
the same standard to Republicans and Democrats. And I remember 
sitting here during the impeachment hearings in this Committee 
and Bobby Scott and I in the midst of all of what was going on 
discussing with each other whether we would apply the exact 
same standards, constitutional standards in an impeachment to a 
Republican President as we were applying in the Clinton 
administration, to the Clinton impeachment. We had that 
discussion and either rightly or wrongly felt that we were 
applying the same principles without a partisan bent on it. So 
I think that is a wonderful standard that Professor Gerhardt 
has outlined for us and I am troubled more by people applying 
one standard to this President and a different standard when a 
Republican President is in power. At least apply the same 
standard if we are going to do this. So if nothing else comes 
from this hearing, Mr. Chairman, I hope that we will maybe kick 
out the stool under this hearing that is labeled partisanship 
and at least all try to apply the same standard whether we are 
talking about abuse of power by a Democratic President or abuse 
of power by a Republican President because from my view all of 
them have been either on the edge or over the edge so--
depending on how you look at it.
    So with that I don't have any questions. I think the panel 
has been--I am glad you at least put one witness on that is 
from North Carolina and from Virginia that makes it sound at 
least balanced in the approach. I yield back.
    Mr. Smith. Thank you, Mr. Watt. The gentleman from Iowa, 
Mr. King, is recognized.
    Mr. King. Thank you, Mr. Chairman. And I thank the 
witnesses for your testimony here this morning. I picked up 
some of it and like others I have been a little bit busy with 
some other duties too. But I am looking at this list of 
subjects that I think are encompassed by this hearing and I 
just go down through some of them, the contraceptive, 
sterilization, abortifacient manufacture policy by the 
President of United States, the DREAM Act light so to speak, 
the amnesty piece which manufactures immigration law out of 
thin air, the No Child Left Behind component, the welfare to 
work being struck, and its title languages could be written 
that prohibits any kind of an executive interference within 
requirement to welfare to work on TANF, that blown out of the 
water by their President of the United States. The recess 
appointments which are certainly the subject of this discussion 
as well.
    I go down through some others that the courts have looked 
at some I might not necessarily agree with their opinion but 
the effort on the part of the President to implement cap-and-
trade by EPA rules is another one. I am looking at this 
Congress and thinking this, and I pose my first question to 
Senator Lee because your written testimony alludes to it to 
some degree. And that is this, in the understanding of the 
framers that set up the three separate branches of government 
and that balance of powers it is my belief that they believed 
that each branch of government would jealously protect the 
power and authority granted to it within the Constitution and 
that that natural tension in that struggle to maintain the 
power and authority that is constitutional there would be a 
protection from the overreach on the part of any branch of 
government, and they saw the judicial branch as the weakest of 
the three, and they saw the LEGISLATIVE BRANCH as being able to 
control the executive. And I would ask Senator Lee if you agree 
with that? And what are the remedies that might fit within the 
vision of the framers?
    Senator Lee. Thank you, Congressman King. This question 
actually relates closely to what Congressman Watt said quite 
well a few moments ago. These things are not new--Executive 
powers are not new, they are as old as the republic itself. And 
they are in fact much older than that and that is why we have 
the Constitution doing what it did. So I think the solution 
lies in acknowledging that this tendency exists. It exists 
    Mr. Smith. Let me see if we can get the acoustics working. 
    Senator Lee. Is that better? Okay, so, these----
    Mr. King. It is my microphone here. I will move down one.
    Senator Lee. These things happen not because we have had 
bad men as Presidents. We haven't, we have had good men, that 
includes our current President. These things happen because 
Presidents are human beings, humans are themselves, self 
interested and they are also fallible. Those two things when 
coupled with power lead to abuses of power. And again I don't 
mean the word abuse of power to refer to anything criminal 
necessarily, it can lead to that, but it doesn't necessarily 
involve that. It just means excesses of power based on what is 
granted in the Constitution.
    So with regard to the question dealing with how we deal 
with it, we deal with it in precisely the manner described by 
the Constitution. We exercise our own power because we are also 
human and we are also self interested. And when we see someone 
stepping over what we perceive to be our boundary line, 
stepping onto our property so to speak, we hold hearings, 
perhaps we pass legislation but there are other remedies at our 
disposal. But most importantly, we cannot ignore abuses of 
power because if we ignore them then they become part of the 
established practice and tradition within the constitutional 
system and that is dangerous.
    Mr. King. I would add, Senator, down the line of the list, 
one is the advice and consent of the Senate that you reference, 
that is a leverage point. But if the President can declare the 
Senate not to be in session when they are in session, then he 
is essentially mooted the effort of the Senate all together.
    We have the ability, especially in the House, to withhold 
funding for implement or enforce the overreach of the executive 
branch of government, but if the President ignores that and 
does say intradepartmental transfers, if the President does 
interdepartmental transfers, what is our remedy? I think the 
remedy we get to is the subject matter that Mr. Watt brought up 
if you follow this down to its logical extension. I would add 
also that in my view the public has to be behind this. However 
you shake this thing down, whichever branch of government it is 
it is going to come through and prevail it will be because the 
public stands behind them, but I am looking at this memorandum 
that is issued by the President June 15th of this year and it 
is the one that establishes, I will call it, executive amnesty. 
It is pretty interesting when you read through this he declares 
prosecutorial discretion. And he has seven references to 
prosecutorial discretion in this little memo that is two and a 
half pages long and he has 22 references to individuals, 
dealing with individuals. That in truth it creates four classes 
of people and it manufactures new immigration law work permit 
out of thin air that they just began releasing yesterday. And I 
want to quickly ask Mr. Casey what is our remedy in this case 
in particular?
    Mr. Casey. Well--Mr. Chairman, may I?
    Mr. Smith. Please respond.
    Mr. Casey. You raise a very good question. In taking up 
something Professor Gerhardt mentioned, one of the real 
problems is that these, many of these issues are of the type 
that don't get to court either because of standing issues or 
because the courts choose to exercise political question 
doctrines. And that especially with the immigration memo you 
are referring to is going to be a real problem, it is going to 
be very difficult to get that issue before the courts. As a 
result it is going to be between Congress and the President, 
and frankly Congress needs to pursue this, needs to assert its 
legitimate authority and prerogatives because, of all the 
things I think we have discussed, the suspension of the laws is 
the most dangerous. It reduces this body to a debating society.
    Mr. King. Thank you and thank you, Mr. Chairman. I yield 
    Mr. Smith. Thank you, Mr. King. The gentlewoman from Texas, 
Ms. Jackson Lee, is recognized.
    Ms. Jackson Lee. Mr. Chairman, thank you very much. I could 
not start this hearing without expressing my public expression 
of sympathy for the loss of Ambassador Stevens and three other 
Americans in Libya. All of us offer to their families our 
extreme and deepest sympathy and concern for Americans who 
serve us both in the military and as civilians overseas.
    I do want to say that I think that every President that 
comes to office and takes the oath of office comes with the 
respect of the Constitution and the belief in the values of 
this Nation and the respect for the three branches of 
government. I just can't imagine no matter what party 
affiliation they have. So I would like to operate from that 
perspective and just quickly make some comments and pose some 
    First of all, I do want to say in general that I don't 
think there is a Member here that is not a believer in the 
freedom of religion. It is exhibited in the Judiciary Committee 
over and over again in trying to separate church and state and 
to recognize the sanctity of that special right that religion 
    With respect to contraceptives, it is important to note 
that your organization, the Becket organization, had a lot of 
opportunity post-August 2011 to comment on what was an 
administrative action by Health and Human Services. And the 
good news was a final rule came out on February 15, 2012 that 
separated out religious employer, synagogues, mosques, Catholic 
churches, and Protestant churches and others and indicated that 
they would look to a safe harbor for additional employers, 
nonprofits, Catholic Charities and other. I happen to represent 
Catholic Charities in my Congressional district and welcome 
that. I understand now that they are taking additional comment 
which the Becket organization will have the ability to comment 
on and they started that on March 21, 2012. I say that to say 
that that had nothing to do with the presidential power. I do 
know as I recall in the news that the President was concerned 
and wanted to make sure that the Affordable Care Act recognized 
religious freedom and that HHS administratively handled that, 
and so I wanted to put that on the record as I proceed.
    Senator Lee--Senator Casey--Senator Lee, that is what it 
looks like it is. Is it correct here? Yes. Let me proceed. It 
seems that I recollect meeting or hearing your Governor speak--
I am not sure if this Governor is still in office who spoke 
about a very reasoned immigration policy in the State of Utah 
dealing with individuals who needed access to legalization. But 
what I want to pose a question to you very quickly is that you 
in your testimony recognize that prosecutorial discretion is 
well established and extends to the establishment of 
enforcement priority, but you argue that the Secretary of 
Homeland Security exceeded that authority and you use her memo 
indicating that she said that immigration laws are not designed 
to be blindly enforced without consideration given to 
individual circumstance of each case. You did not read further 
into her memo where she specifically said the requests for 
release pursuant to this memorandum are to be decided on the 
case-by-case basis. And of course this has to do with 
persecutory discretion with respect to individuals who came to 
the United States as children. How do you equate that to 
presidential abuse of power?
    Senator Lee. I don't think that what you are quoting from 
was from my testimony. But more broadly, let me just say what 
we are talking about here with regard to the immigration issue 
is that when the executive branch adopts a policy that will be 
reflected in the implementation of Federal law and that 
    Ms. Jackson Lee. Let me correct it, that was Lee Casey's 
comments but you can go ahead and answer, go ahead.
    Senator Lee. But when the executive branch contravenes, 
contradicts that policy as established in Federal statute, that 
we have the wrong body in effect legislating, the executive 
branch rather than the legislative branch.
    Ms. Jackson Lee. Well, you know that this was a decision 
made under the authority of Homeland Security and prosecutorial 
authority which has nothing to do with the presidential 
authority per se. It is part of the Administration.
    Senator Lee. I understand that and I understand that 
prosecutorial discretion is real. As a former prosecutor myself 
I am very familiar with that. Prosecutorial discretion refers 
to the fact that the resources of the government are 
necessarily limited, in terms of human resources to implement 
and to enforce the law. And so case by case judgment calls have 
to be made regarding where to deploy your prosecutorial 
resources. You have----
    Ms. Jackson Lee. But that does not, if I might because I 
need a question to Professor Gerhardt, that does not impact on 
a presidential decision if it is an administrative decision or 
prosecutorial decision made by a department that has nothing to 
do--it doesn't link itself to a constitutional question of 
presidential abuse.
    May I just ask Professor Gerhardt a question?
    Mr. Smith. The gentlewoman's time has expired. The 
gentlewoman is yielded an additional minute.
    Ms. Jackson Lee. I thank the distinguished gentleman and I 
think the Senator. Let me just proceed to the professor and 
thank you so very much. As I note there is constitutional 
permission on recess appointment that is well stated filling 
the vacancies and I think the premises for the government's 
continuity to give the President that opportunity in order for 
there to be--the work of the government to continue. We note 
for the record that President Clinton had 139, President Bush 
171 and this President at the end of his term 32. What is the 
premise of argument that that is an abuse of discretion? It is 
allowed during a framework of when the Senate is in session. 
And I know there was some discussion as to pro forma and 
whether they had stepped out of pro forma. What argument could 
they make legitimately?
    And Mr. Chairman, when the professor concludes I have a 
memo that I would like to submit into the record, but yes, 
professor, and thank you for the time.
    Mr. Gerhardt. Well, I think as stated here, and I am sure I 
can be corrected as necessary, but as stated here I think the 
argument is that the Senate and for that matter Congress but in 
particular the Senate was not in recess at the time the 
President made these appointments. It was in the midst of a pro 
forma session and that is not the same thing as a recess and to 
amplify that argument, it would also suggest that the House has 
the authority to adjourn, it didn't undertake that authority 
here and therefore the President acted at a time that was 
illegitimate. That is the construction of some Members of 
Congress, a perfectly reasonable construction. The President I 
don't think feels that he is bound by it. Oftentimes Presidents 
will not feel bound by constitutional judgments made by other 
authorities with which they disagree. You can find the history 
of constitutional law replete with that. In this case I think 
the President felt among other things pro forma sessions were 
undertaken for the primary purpose of frustrating and impeding 
its recess authority. At the same time he felt supported by the 
Senate Judiciary Committee's construction of what recesses are. 
They said that if there is a break in which they are unable to 
act on an appointment or nomination, that is a recess. He 
agreed with that. The OLC memorandum agreed with that. So he 
got support for this position and didn't use it widely. He used 
it with regard to these specific vacancies and thus I think 
takes a very credible position.
    Mr. Smith. Thank you.
    Ms. Jackson Lee. Mr. Chairman, I submit this into the 
record, please.
    Mr. Smith. Without objection.
    [The information referred to follows:]


    Mr. Smith. Mr. Goodlatte is recognized.
    Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for 
holding this hearing. The Constitution is a sacred contract 
between the Federal Government and the people in which the 
American people chose to bind themselves to a set of rules in 
order to protect their God given freedom from abusive leaders 
and governments. When politicians are allowed to confuse and 
blur the very clear limits that the U.S. Constitution places on 
presidential authority, our liberties are threatened.
    Today we are looking at how President Obama has abused and 
inappropriately expanded the finite authority the Constitution 
grants him and how that affects Americans' liberties. So let me 
direct this question to Senator Lee and thank him for 
participating today.
    From the recent amnesty for hundreds of thousands of 
illegal aliens to Executive orders that create new laws, 
President Obama has repeatedly exceeded his constitutional 
executive authority, ignored the legislative branch and 
positioned himself as both lawmaker and enforcer. I believe our 
framers would have seen this as a very dangerous development 
and a violation of the separation of powers they enshrined in 
the Constitution. Do you agree and why is this type of 
consolidated power so dangerous to our system of government?
    Senator Lee. Thank you, Congressman Goodlatte. It is a 
pleasure to answer that question because it strikes to the 
heart of why we have a Constitution. Political philosophers for 
centuries have believed that centralization of power brings 
about an unacceptable risk of tyranny. And so it has long been 
understood that there are three basic types of government 
power, Executive power, legislative power and judicial power. 
Our Founding Fathers sought to separate those so that no one 
person or no one group of persons could aggregate unto himself 
or herself all such power, thus becoming a tyrant at least not 
too easily, at least not without regular routine input from the 
    One reason why the aggregation of Executive power can be so 
dangerous is because you have all the power of the executive 
branch of the Federal Government essentially more or less 
consolidated into one human being. And that really can create a 
high risk, and that is why we have a lot of checks and balances 
on presidential power. That is why, for example, we have a 
requirement that the President's appointees be confirmed by the 
Senate. That is why the President has the power to sign and 
veto legislation, but Congress has the power to override that 
veto and so on and so forth.
    So this is about human nature and what power does to human 
nature. It is not about any President being a bad person.
    Mr. Goodlatte. Thank you.
    Let me direct this question to Ms. Windham. Americans' 
religious freedoms come from God as protected by our 
Constitution, not from President Obama. However, President 
Obama's actions are muting these God given rights.
    Ms. Windham, when President Obama signed his mandate that 
requires businesses to cover--against their religious beliefs--
sterilization, abortion inducing drugs, and other birth control 
measures, it was a direct blow to religious freedom. However, 
do you also believe that if this mandate is allowed to stand it 
will have more subtle but long lasting influence over 
Americans' expectations of what their religious freedoms are? 
Isn't there a danger that this action could gradually lead to a 
new norm where citizens have a smaller view of their religious 
freedoms and begin to believe that these rights come from 
    Ms. Windham. Certainly it does. As I said earlier, I am 
very disturbed that the Administration thinks that when an 
institution steps out and starts to serve the public and opens 
its arms to other, as many religions teach, that somehow they 
are forfeiting their constitutional rights. And so it is a very 
disturbing trend that people might believe when you start to 
serve the public and you start to do good in your country you 
are then giving up some of your constitutional rights and your 
    Mr. Goodlatte. Thank you. Professor Gerhardt, a former 
University of Chicago constitutional law lecturer by the name 
of Barack Obama was quoted as saying, ``With respect to the 
core of executive privilege, the Supreme Court has not resolved 
this question, and reasonable people have debated it. My view 
is that executive privilege generally depends upon the 
involvement of the President and the White House.''
    According to this interpretation, there must be a direct 
link to the President or his senior advisors in order for a 
claim of executive privilege to be appropriate; is that 
    Mr. Gerhardt. Well, that is one construction, sir. As 
Senator Lee alluded to earlier, I think one of the issues here 
is whether or not executive privilege applies to what is called 
deliberative process, and that is claiming what the President 
is arguing and the Attorney General is arguing here.
    Mr. Goodlatte. If this interpretation that he states in his 
statement and my interpretation of what you say is one 
interpretation; if that interpretation is accepted, does the 
claim of executive privilege with respect to the documents 
being sought in the Fast and Furious investigation seem to 
implicate top White House officials?
    Mr. Gerhardt. I have no idea, no knowledge of any of the 
underlying facts of what went on within the Justice Department 
in response to hearings and other requests. So I don't know any 
of the facts there. I don't know that we could draw that 
    Mr. Goodlatte. But if he is held to his own standard that 
he set forth as a University of Chicago law lecturer, wouldn't 
one be able to draw that conclusion, that if now the protection 
of executive privilege is being exercised it would implicate 
the involvement of the President and the White House, wouldn't 
it, in order to exercise executive privilege? If it is only in 
the Justice Department, it would not be exercised both under 
the standard that President Obama articulated as a 
constitutional law professor, and if it doesn't then it would 
seem to indicate the President and the White House----
    Mr. Gerhardt. I can't answer that because it depends on 
facts and supposition about facts that I can't make.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Smith. Thank you, Mr. Goodlatte. Gentlewoman from 
California, Ms. Waters, is recognized.
    Ms. Waters. Thank you very much, Mr. Chairman. I would like 
to direct my question and discussion to Professor Gerhardt. 
Relative to recess appointments, recess appointments have been 
utilized by numerous Presidents. Today the Obama Administration 
has signed 28 recess commissions comparable to George W. Bush 
171, Bill Clinton 139, George H.W. Bush 73 and Ronald Reagan's 
240 where the recess appointment clause authorized the 
President to act. I am wondering if the criticism that I am is 
hearing is appropriate. I am intrigued by the description of 
pro forma session as opposed to recess. And I want to know 
where in law or our Constitution is this distinction made?
    Mr. Gerhardt. Well, it is a very good question. I think 
that the dispute between the President and some Members of 
Congress is not just about how we determine recess. I think it 
is also a dispute about methodology. One way we could construe 
the Constitution is sort of a formalistic way, that is to say 
recess has got to serve strict definition and that only the 
House or the Senate may determine whether or not there is a 
    An alternative method, which I think is the one the 
President adopted, is what we will call functionalism, where he 
looks at the practicalities involved. And so I think the answer 
to your question is I think he is taking a practical functional 
approach in saying this pro forma session has a function of 
being like a recess.
    Ms. Waters. However, this hearing is about abuse of power. 
It is not about functionality as such, it is not about nuancing 
and some loose interpretation of law or Constitution. This is 
about basically an accusation that the President has abused his 
power as it relates to recess appointments. And I think you are 
correct and I am correct that nowhere in law or Constitution 
can you point to what the President has done as having violated 
the law or disregarded or violated the Constitution. So I think 
we should get that out of the way and I think you have done 
that and I think you have done a good job of explaining that, 
that it is about kind of determining how he operates rather 
than being able to absolutely point to some abuse of power.
    Now I have a second part to the question that has to do 
with once we make law, it has gone through the entire process, 
signed by the President of the United States, such as Dodd-
Frank, with the Consumer Financial Protection Bureau. In this 
case the Consumer Financial Protection Bureau, charged with the 
authority to regulate consumer financial products and services 
and enforce consumer protection laws.
    The reason I point to this is because serving on the 
Financial Services Committee what we discovered and I think 
what the entire country discovered was our regulatory agencies 
had not done a very good job for the consumers. They were 
charged with the responsibility of making sure that safety and 
soundness and all of that in our financial institutions as well 
as protection of the consumers and they had just kind of 
forgotten about the consumers and what they do. And so this 
bureau emerges as very important and significant and what the 
Congress of the United States, what the Members said was, we 
want to create something that will give real consumer 
protection and we have discovered that they have not been taken 
care of. And so it was important to many of us who work on 
Financial Services and who served on the conference committee 
working out all of the terrific complications of Dodd-Frank 
that we get this bureau up and going and give the consumers and 
the citizens some confidence in our legislative ability to 
address their problems and concerns.
    Do you not believe in the way that the President did this 
recess appointment that he was looking out for, not only the 
consumers but the work of this Congress in saying we want this 
done and getting it done, is that not appropriate?
    Mr. Gerhardt. Well, I would say it is appropriate. When I 
testified on this matter in the House Oversight Committee that 
is one of the grounds that I mentioned. I also supported the 
President's actions here. There is a law that has been created, 
put into effect, as you just mentioned, a whole legal regime in 
fact, and an office that been created by Congress. And both 
that legal regime and that office in a sense remained inactive. 
And he is trying to put those things into effect through the 
use of the power he has been given explicitly under the 
Constitution to make recess appointments.
    Mr. Smith. Thank you, Ms. Waters. The gentleman from 
Pennsylvania, Mr. Marino, is recognized.
    Mr. Marino. Thank you, Mr. Chairman. Let me apologize for 
not being here to hear opening statements. As an officer of the 
court I had to give my CLE courses in for Pennsylvania, so I am 
sure you understand that. I will be one of the first 
individuals to stand up and say, particularly as an officer of 
the court but also as a freshman Congressman, that whatever our 
standard is pursuant to law we need to apply it consistently, 
it doesn't matter who is in the White House, it doesn't matter 
who is in Congress or what segment of government we are talking 
about. So I don't think anyone has at least on this Committee 
and throughout Congress, I don't think anyone says we should be 
applying different standards. It just doesn't make any sense.
    Senator Lee, thank you so much because you zeroed in on an 
issue concerning the First Amendment to the Constitution, the 
establishment clause and religion. So you answered my question 
long before I had an opportunity to ask it, but you did a very, 
very concise job on those cases and I am familiar with one of 
those cases as well.
    But I want to get to an issue that I would like each of you 
to answer briefly. I have a limited amount of time. Professor 
Gerhardt, you made an interesting statement that we should have 
confidence in the process and the process in and of itself. So 
just for example purposes I would like to zero in on an issue--
nothing pursuant to the facts of Fast and Furious but the fact 
that the Attorney General raising through the President the 
executive privilege not to turn over documents or to testify 
pursuant to those documents. And I know that some of your 
statements are going to be well, we handled it through the 
courts or we handled it through the electoral or legislative 
branch but it doesn't seem to be effective. So number one, are 
we in a little bit of quandary here? Who does the Attorney 
General work for? The people of the United States or 
specifically is he or she general counsel for the President? 
And when we get into a situation whereby executive privilege is 
exercised where it has been on numerous occasions on both sides 
of the aisle at the White House and there is a refusal to turn 
over documents and the Justice Department is responsible then 
when one is held in contempt for taking that investigation and 
pursuing it, refuses to do that. What is the answer to this 
    It just doesn't seem to be working when we say through the 
legislative process or through the legal process. Because, as 
you clearly expounded on, the courts, before we even get to it, 
we are talking about 2 years later. So I would like to hear 
your insights, as brief as you possibly can make it, concerning 
what is the remedy for this, if there is one, and what dilemmas 
would be raised by it. So, Professor, please.
    Mr. Gerhardt. I will be as brief as possible. It is 
actually a terrific question.
    And my brief answer is that it takes us into the realm of--
well, first of all, the Attorney General, of course, is the 
head of the Justice Department, the executive department, and 
therefore works in the executive department. He serves at the 
pleasure of the President. But, of course, he is also appointed 
by--with the confirmation of the Senate, and he is subject to 
the laws, and he is held accountable to those laws. And he has 
duties, as every Attorney General I think recognizes, not just 
to his department but to the Constitution and, ultimately, as 
you say, to the people of the United States.
    Secondly, in terms of how to deal with the enforcement of a 
contempt citation, that is a very difficult question. And I 
can't give you a--I won't give you an exhaustive answer, but 
one of the avenues that is left to Congress is whether or not 
to sue the Attorney General, and I know that is one that is 
being considered.
    Other than that, you have obviously tried to sort of look 
through the U.S. Attorney as well as go to the Department of 
Justice. But I think what you may be left with at the end of 
the day is what has happened a lot in American history. These 
things don't get resolved in the courts, and they don't get 
resolved in any short period of time, but in a longer view 
there is a settled understanding and accommodation.
    Mr. Marino. Mr. Casey, please.
    Mr. Casey. I actually agree with much of that. The thing, 
obviously, as practicing lawyers, you always have to explain to 
your client you can sue, but it is going to be 2 years or 3 
years or 4 years before this gets resolved.
    Mr. Marino. You are disappointing me so far. I wanted the 
answer that, okay, we will change this tomorrow.
    Ms. Windham.
    Ms. Windham. I don't know that I can really speak to that 
issue or have expertise on that issue.
    I just do want to emphasize that when the Administration--
    Mr. Smith. Ms. Windham, could you pull the mike a little 
bit closer?
    Ms. Windham. Yes, sir.
    I don't really have any expertise on that particular issue, 
but I----
    Mr. Marino. I saw your background. You are very qualified.
    Ms. Windham. Well, thank you.
    I just want to emphasize that when the Administration 
starts to overstep its bounds and uses administrative agencies 
in a way that restricts on fundamental First Amendment freedoms 
you are seeing a serious problem and you are seeing a serious 
overreach of Executive power.
    Mr. Marino. And Senator.
    Senator Lee. I agree with what Professor Gerhardt said on 
this. His assessment of who the client is was absolutely 
    This is one of the reasons why we place enormous trust in 
our chief executive and one of the reasons why it is important 
when the political branches--when the other political branch of 
government sees an abuse of Executive power that the two bodies 
that comprise Congress air and discuss the overreach. Because 
if it is not discussed there is a good chance nothing will ever 
be done about it. Because by the time the courts have a chance 
to address it, it might be too late.
    Mr. Marino. Thank you, lady and gentlemen. And I yield 
    Mr. Smith. Thank you, Mr. Marino.
    The gentleman from Georgia, Mr. Johnson, is recognized.
    Mr. Johnson. Thank you, Mr. Chairman.
    I believe that the title of this hearing, ``The Obama 
Administration's Abuse of Power,'' is indeed indicative of the 
politicization of this hearing. It is overly political. It is 
happening during an election time, less than 60 days before the 
next election. And I think of what the Founders, the Framers of 
the Constitution, I think of what they might be thinking as 
they look down on this spectacle to see Republicans reducing 
the Constitution to a mere political tool to be used against a 
sitting President.
    And, quite frankly, Senator Lee, I am really wondering 
whether or not your appearance here today in this setting is 
actually an unprecedented act by a sitting United States 
congressman. I have never heard that this would happen, that a 
United States Senator--and I grant you, you are duly elected by 
the citizens of the State of Utah. You were sworn in January 3, 
2011, so you are new here. But I think that we owe our 
Founders, our Framers the dignity in the office, the offices 
that we hold, to act in accordance with their lofty aspirations 
for this country and for its government.
    And so I am concerned about just the precedent of your 
appearance here today on an obviously political mission 
coordinated to besmirch this President. When in fact we had 
other situations where Democrats have been in control, the Bush 
administration fires eight attorneys general in what is known 
as the Saint--not Saint Valentine's Day massacre, it was the 
Pearl Harbor Day massacre back in December of 2006, firing U.S. 
attorneys en masse because they did not heed the desire of the 
White House to initiate what they considered to be unfounded 
prosecutions against Democrats. And we held numerous--we held a 
series of hearings on that, but never did we frame the 
discussion in terms of a hearing on the President's abuse of 
    This appears to be an attempt to talk to the extremist Tea 
Party Republican element of the electorate. It seems that this 
is an attempt to agitate them and to fire them up, to 
exaggerate and make them think that the President has embarked 
upon an unprecedented abusive Presidential power. And I believe 
that that is reckless, and I don't think that the Framers of 
our Constitution would be looking very favorably upon this.
    Now, Senator, you mentioned that the greatest abuse of 
executive authority by this President that you have seen thus 
far is the President's actions as commander in chief in the 
Libyan incident or the Libyan conflict that we as a Nation 
supported; and you indicated there was some gray area between 
the President's authority as commander in chief, which is not 
enumerated in terms of the specific powers thereunder, and the 
legislature's authority to declare war.
    We have only declared war five times in the United States--
in the history of the United States, but we have had numerous 
conflicts. Are you here to say that the President was abusive 
of his authority in the Libyan conflict? You are. You said 
that. I have to take issue with that. I take issue with that. 
And I know I have said a lot, but I sure would love to hear----
    Mr. Smith. Senator Lee, please feel free to respond. But 
before you do let me point out that your appearance here is not 
unprecedented. There have been many instances where sitting 
senators have testified before the House Judiciary Committee.
    But please respond.
    Mr. Johnson. Now, if the gentleman will yield, I am not 
certain that during an election year, less than 60 days before 
the election in a hyper-partisan atmosphere, I am not sure 
that, insofar as such an exaggerated type of hearing as we are 
having today with the incendiary allegations being made, that a 
Senator has ever sat before the House and testified in 
accordance with the spirit of the hearing.
    Mr. Smith. I think one of the great benefits of today's 
hearing is that it has not been hyper partisan. I think there 
has been a good discussion of the issues that have been 
factual, nonemotional, and I think very beneficial.
    But, Senator Lee, please feel free to respond.
    Senator Lee. Congressman Johnson, I certainly appreciate 
your concerns. I respect and I agree with your desire to ensure 
that we have civility marking all of our proceedings in 
Congress, and that is why I have gone out of my way today to 
point out that this is an issue that is neither Republican nor 
Democratic; it is neither liberal nor conservative.
    You and I, as Members of two different Houses of Congress, 
share much more in common here than we do things that divide us 
on this issue. Because, as Members of the Article 1 branch, of 
the legislative branch, it is our duty to see to it that the 
executive branch, regardless of the partisan affiliation of the 
person who holds that office, to see to it that the executive 
branch doesn't tread on our power. And so I have gone out of my 
way to make this not about a partisan issue.
    And I will make you a deal. In the future, whenever we have 
got another President, whether Republican or Democratic, if you 
have got an issue that you are concerned about about that chief 
executive overreaching, give me a call. I would love to talk to 
you about it. And it may well be that you and I will agree that 
that President, whether Democratic or Republican, has 
overreached his or her authority.
    But you referred specifically to the Libya situation. I 
didn't identify that as the greatest overreach, but I was asked 
a specific question with regard to the President's commander-
in-chief powers, whether there was anything this President had 
done that I disagreed with that I thought might fit into this 
category, so I identified the Libyan conflict as that. There is 
gray area between the President's commander-in-chief powers and 
Congress' power to declare war. Much of that has been at least 
arguably clarified in the war powers resolution, but the 
President didn't abide by that either.
    Mr. Johnson. Well, the legislation would not trump the 
Constitution, would it?
    Senator Lee. And it does not in this instance.
    Mr. Smith. Thank you, Mr. Johnson.
    The gentleman from Utah, Mr. Chaffetz, is recognized.
    Mr. Chaffetz. I thank the Chairman.
    And with full disclosure, being the representative from 
Utah asking a question of the Senator from Utah, it should be 
fully disclosed that I am frequently called upon to give rides 
to the Senator, and whenever he asked for such ride I duly 
comply and drive him from place to place.
    With that said, I will ask the hardball question here.
    If the Senator would--you know, recess appointments can be 
overused, abused. It doesn't matter if Republican or Democrat. 
I think we want to help change that system. Can you offer your 
perspective on that?
    Senator Lee. Certainly. And I want to make clear that there 
is reciprocity in the ride arrangement. I was once referred to 
as the chauffeur to the chief of staff to the Governor of Utah.
    Mr. Chaffetz. Then I lost rank, and now I am back driving 
my own car. But, nevertheless, we will dispute that later.
    Senator Lee. At the time, he had a broken foot. He had to 
ride in the back seat with his foot elevated. So I literally 
looked like a chauffeur. I wanted to buy a chauffeur's hat.
    Recess appointments. So what we have to consider with 
recess appointments is the fact that the President does have to 
get Senate confirmation for executive branch and judicial 
nominees. There is an exception for that, and several Members 
of the Committee have correctly pointed out President's of both 
parties have throughout time utilized the recess appointment of 
    But that is not really what we are talking about here. This 
is not a garden-variety exercise of the recess appointment of 
power. Because the recess appointment of power has to be 
exercised as outlined in Article 2, Section 2, Clause 3 of the 
Constitution when the Senate is in recess. So it begs the 
question, when is the Senate in recess?
    Well, Article 1, Section 5, Clause 2 gives each House of 
Congress the power to establish its own rules.
    It goes further in Article 1. In Article 1, Section 5, 
Clause 4 says that before either House of Congress may adjourn 
for a period of more than 3 days it has to get the permission 
of the other House of Congress.
    So, in this instance, January 4, 2012, the Senate had not, 
according to its own rules, been adjourned for more than 3 
days. Historically, that has been regarded as at least an 
important touchstone for deciding whether or not the Senate is 
in recess. The Senate has never been deemed for purposes of the 
recess appointment of power to be in recess during an 
adjournment of less than 3 days, and so we didn't have the 
House's permission to adjourn for more than 3 days. And by our 
rules we had been in session about 24 hours earlier. So that is 
why we have got a problem here. That is what makes this 
incident different from every other exercise of that power.
    Mr. Chaffetz. And then the second part that I want to talk 
about, it seems to me, Chairman, that executive privilege has 
not been articulated with specificity so that we know what it 
is, when it should be used, when it could be used, is it 
overused. I think this is a concern from the legislative branch 
in general. I find it, particularly in the case of Fast and 
Furious, to be overly used, such a blanket, well, we are just 
going to invoke executive privilege.
    Is that something that we should--and, Chairman, what I am 
interested in is perhaps pursuing legislation that would 
clarify and codify exactly what executive privilege is and what 
it is not, where it would apply and where it would not.
    Senator Lee and then other members of this panel, if you 
care to respond, that would be great.
    Senator Lee. I do have a response to that.
    As we discussed briefly earlier, there are two varieties, 
two flavors, if you will, of executive privilege here. We have 
got the deliberative process privilege. But the deliberative 
process privilege, according to the D.C. Circuit's own standard 
that is fairly well understood, does not apply here where we 
have reason to believe that government misconduct is involved.
    Here the government misconduct could be said to exist in 
the Administration's claim that--misleading Congress in a 
letter delivered on February 11, 2000--in February 2011, 
asserting that the Administration did not in fact allow gun 
walking. And so that privilege doesn't really apply here.
    So the other flavor of the privilege is the Presidential 
communications privilege. But in order to get into the realm of 
that privilege you have got to have someone involved in the 
decision-making process who had what we call operational 
proximity to the President, the President or the President's 
immediate advisors or some combination of the two.
    The claim that we had from the beginning, as I understood 
it, was that there was not a lot of involvement by the 
President and his closest advisors or any involvement. So one 
of two things has to be true then if the executive privilege 
can be properly invoked here. Either the President and/or his 
very close advisors were directly involved or this privilege 
may not be invoked.
    Mr. Chaffetz. Does anybody else care to comment on 
executive privilege and should we as a Congress be articulating 
and writing in legislation what it is and what it is not?
    Yes, sir.
    Mr. Gerhardt. I appreciate the chance just to make a couple 
of quick points.
    One is I just would respectfully perhaps disagree with 
Senator Lee in one regard. It may be a small one. And that is 
it is not settled whether or not deliberative process is 
something to which executive privilege may stand. But that is 
clearly the position of the Administration, that that is what 
is the basis for its assertion here.
    In terms of legislation, I would say that raises a really 
interesting question of constitutional law. You have given me 
my exam question for my Con Law I class, whether or not 
Congress could legislate the meaning of executive privilege. 
But I think it would be difficult for Congress to dictate to 
the President the scope and contours of that privilege.
    Mr. Chaffetz. I thank the Chairman. I yield back.
    Mr. Smith. Thank you, Mr. Chaffetz.
    The gentlewoman from California, Ms. Chu, is recognized.
    Ms. Chu. Thank you.
    Before I begin with the substantive questions I want to 
express my disappointment with today's hearing. We essentially 
have six legislative days before we go into long recess, and 
yet we are wasting time talking about the Administration's 
alleged abuse of power when we could be discussing other 
pressing issues. And in fact many of the issues that have been 
mentioned thus far have already been discussed in previous 
hearings throughout the year.
    As I see it, this hearing has nothing to do with the abuse 
of power. It is simply a hearing rehashing political 
    But let me ask this question about the rulemaking process 
for contraceptive coverage. And, Professor Gerhardt, I would 
like to ask you this question.
    The way I see it is that there was extensive procedures 
pertaining to this rulemaking process for contraceptive 
coverage. In August 2011, the Administration announced an 
interim rule regarding preventive care for women under the ACA 
after months of public comment at the Institute of Medicine. 
This interim rule was announced a full year before the 
regulations were to go into effect.
    HHS then opened a public comment period and received over 
200,000 comments. In response to the public suggestion, HHS 
ultimately amended their final rule to exempt religious 
organizations such as churches from having to provide 
contraception to their employees. But they went even further to 
address the public's concern about the potential impact on 
religious-affiliated entities.
    In March of 2012, the Administration announced in advance 
notice of proposed rulemaking and opened public comments on 
that rule, which closed in June. And although the final rule on 
religiously affiliated entities had not been published it is 
not atypical for regulations to take several months to finalize 
after the public comment has closed. Yet, in her testimony, Ms. 
Windham claimed that, quote, the Administration issued the 
mandate without first publishing a proposed regulation or 
accepting public comment as required by Congress under the 
Administrative Procedure Act.
    I think it is blatantly untrue myself. But, Mr. Gerhardt--
Professor Gerhardt, what procedures does the executive branch 
have to follow when promulgating regulations in order to comply 
with the rule and do you believe it is an abuse of power if the 
Administration provides an opportunity to comment on the 
interim final rule before it is finalized?
    Mr. Gerhardt. Well, of course, generally, as you know, the 
APA, Administrative Procedure Act, would apply.
    But I also just want to emphasize an agreement with what 
you just said. I had earlier suggested that the 
Administration's position on this was both evolving and 
attempting to create an accommodation. That is precisely why I 
think it is premature to talk about any abuse of power.
    It seems to me in this circumstance at most what we may 
have is a disagreement with how the Administration has 
approached this and maybe with where the Administration comes 
out. But I don't think that a disagreement constitutes an abuse 
of power. It is a disagreement. And we are likely to have many 
disagreements across a wide range of legal and constitutional 
issues between one branch and another. Those disagreements 
don't add up to abuses of power.
    Ms. Chu. Thank you for that.
    And I now would like to ask about the legal authority for 
the deferred action process with regard to the DREAM students.
    My colleagues on the other side of the aisle have 
criticized the Administration for the decision to use 
prosecutorial discretion in immigration cases, and they claim 
that there is no legal authority for that. And yet I see that 
there is legal authority for such an action, and in fact I 
would say that it is supported by, first, the Supreme Court 
precedent, including the Court's recent decision in Arizona v. 
United States explaining that immigration officials have broad 
discretion in the removal process, that includes whether it 
makes sense to pursue removal at all; as well as the former 
general counsel of the INS who wrote a memo in April of 2011 
that the Administration has authority to exercise prosecutorial 
discretion and offer deferred action on a case-by-case basis to 
individuals based on their membership in a discrete class; as 
well as the Congressional Research Service, which issued a 
July, 2012, memo analyzing legal authority for the Secretary's 
2012 memorandum on the exercise of prosecutorial discretion for 
DREAMers; as well as nearly 100 law professors who sent a 2012 
letter to the President addressing the executive's authority to 
grant administrative relief; as well as our own Judiciary 
Committee Chairman, Lamar Smith, Henry Hyde, and other 
Republicans who sent a 1999----
    Mr. Smith. Since you mentioned my name, let me respond not 
only on my own behalf but on behalf of a number of others. 
Because I think what you said was not true.
    Prosecutorial discretion is usually given on an individual 
basis, and I certainly support that. But here you have a 
President abusing that particular power and applying 
prosecutorial discretion to a wide class of individuals. That 
is not what I intended in anything that I have said, nor do I 
feel that it was intended by any of the other individuals that 
you have mentioned. A few minutes ago, Senator Lee made that 
distinction himself. So I think your statement in regard to 
prosecutorial discretion is not accurate.
    Ms. Chu. Well, let me continue then with the other sources 
of legal authority. For instance, former INS Commissioner Doris 
Meissner with a 2000 memorandum which lays out the strong 
authority for exercising prosecutory discretion in the 
immigration enforcement context and Congress which directed the 
Secretary in code to establish national immigration enforcement 
policies and priorities.
    And so, Professor Gerhardt, how would you respond to these 
    Mr. Gerhardt. Well, I think you have amply summarized all 
the different and wide range of support that exists for 
prosecutorial discretion in this instance. I think--and I would 
just point out or reemphasize that it includes the statement in 
Arizona v. United States by the majority suggesting there is 
broad discretion in the Administration within this realm.
    So it seems in this instance that is exactly what the 
Secretary exercised. And the support that you have laid out 
just demonstrates how the Administration I think in this 
instance has not acted sort of hastily, without deliberation, 
without consideration to support the memorandum that was issued 
by the Secretary of Homeland Security.
    Mr. Smith. The gentlewoman's time has expired. However, the 
gentlewoman did say that a statement made by Ms. Windham was 
false, and I would like to give her a chance to respond to that 
    Ms. Windham. Thank you, Mr. Chairman.
    If you want to know whether the statement I made is 
correct, you need to look no further than the text of the 
interim rule itself. The Administration said when they made 
this interim final rule that they had the authority to suspend 
the normal APA procedures and go straight to the interim final 
rule stage.
    The legally operative term there is final rule. They 
published this rather than publish a proposed rule and take 
notice and comment, because they said this was an issue of 
great public importance. We believe it is an issue of great 
public importance that the Administration has chosen to 
restrict religious freedom for millions of Americans while 
exempting, as they have estimated, 100 million Americans from 
this mandate for reasons of convenience and cost. And that is a 
violation of religious freedom and a violation of the 
Administrative Procedures Act.
    Mr. Smith. Thank you, Ms. Chu.
    The gentleman from South Carolina, Mr. Gowdy, is 
    Mr. Gowdy. Thank you, Mr. Chairman.
    Senator Lee, I want to say I am actually delighted to have 
you here; and to have a United States Senator with your 
constitutional acumen answering questions from House Members, 
some of whom lack that constitutional acumen, is really a 
testament to you. So I appreciate your being here. You have 
appeared before other Committees, and the fact that you would 
be willing to come and answer questions from us is a testament 
to your character.
    Mr. Chairman, when I saw the title of this hearing, I was 
vexed, because I didn't know where to start. Do we start with 
Solyndra and the abuses of favoring certain industries over 
others, certain applicants over others, helping certain 
applicants to draft their loan proposals, using private email 
to communicate so there would be no record? Do we start with 
this Administration's failure to execute laws with which it 
disagrees, regardless of one's opinion on the Defense of 
Marriage Act, Mr. Chairman? It was passed by both bodies and 
signed by the President, a rare feat indeed these days, Mr. 
    In fact, if memory serves me, the President who signed the 
Defense of Marriage Act into law was none other than the former 
convention speaker, President Bill Clinton. And that is fine. 
People change their mind. That is what happens in a 
representative democracy. You change your mind.
    Where I disagree with this Administration is you have to 
change the law. You don't just summarily decide that you are 
not going to enforce laws that have been duly passed and signed 
by the chief executive. And this Administration, Mr. Chairman, 
turned the doctrine of prosecutorial discretion on its head. It 
has summarily refused to prosecute certain laws.
    So, Mr. Chairman, what I would appreciate from my friends 
on the other side of the aisle is a list, a roster of which 
laws I need to tell my constituents they need to follow and 
which ones they don't need to follow. Prosecutorial discretion 
is not announcing in advance in an election year because you 
are trying to court a certain constituency that we are not 
going to enforce this law. If you don't like the law, change 
    Or should we, Mr. Chairman, talk about executive privilege, 
as Mr. Chaffetz did? Should we contrast Candidate Obama's 
position on the use of executive privilege with President 
Obama's invocation of the doctrine? That, Mr. Chairman, would 
be a fine exercise to me, to have a debate between Senator 
Obama and President Obama. I don't know who the folks at MSNBC 
would pull for in that debate, Mr. Chairman.
    Or should we talk about the transformation of energy 
secretary Steven Chu, who at one time advocated for European 
level gas prices $10 a gallon and then had an epiphany timed 
almost exactly with his confirmation hearing where he wanted 
lower gas prices?
    Or do we discuss recess appointments and again how Senator 
Obama had a different perspective from President Obama? And 
color me naive, Mr. Chairman, for thinking that the phrase 
``recess appointment'' would mean the exact same thing when a 
Republican was in power than when a Democrat was in power.
    Let the chronology be on the sequel, Mr. Chairman. With the 
NLRB, that vacancy existed for 6 months. In December, mid-
December, the President sent a name to the Senate, and then 10 
days later he makes a recess appointment. Under his version, a 
nap, a lunch break in the United States Senate, both of which 
happened from time to time, would constitute sufficient recess 
for him to make a recess appointment.
    Do we discuss Fast and Furious and this, the most 
transparent Administration since the Earth cooled, withholding 
documents and having to be sued and held in contempt of 
Congress to simply turn over documents?
    Do we focus on how a demonstrably false letter could be 
written on Department of Justice letterhead and then withdrawn 
10 months later?
    I have decided, Mr. Chairman, to focus on Secretary of 
Health and Human Services Kathleen Sebelius balancing my right 
to the free exercise of religion with her desire to require 
that health insurance include free--whatever that word means--
contraception. And I would invite anyone who is interested to 
go back----
    Secretary Sebelius appeared before the Education and 
Workforce Committee, and I asked her, Senator Lee, about the 
constitutional basis for this rule, and I was stunned at her 
reaction. She could tell you the political ramifications of the 
rule. She could tell you the electoral math ramifications of a 
rule. She never once consulted the Constitution. She couldn't 
tell me whether you have a compelling interest in free 
contraception. She couldn't tell me how this was the least 
restrictive means or the least restrictive way of accomplishing 
this goal, even if she met the first prong.
    Her response was that she is not a lawyer, as if you have 
to be one to read the Constitution and understand it. So I am 
going to give the award to her.
    And I know I am out of time. If I could have 30 more 
seconds, Mr. Chairman.
    Mr. Smith. Without objection, the gentleman is yielded an 
additional minute.
    Mr. Gowdy. Senator Lee, I would love for you, just on this 
recess appointment, once and for all, is my chronology wrong? I 
think you got the name in December, and then there was an 
appointment made a couple of weeks later. And with the CFPB 
this is a nascent entity. It has never existed before. But 
somehow or another having a director is of constitutional 
significance. Who controls the calendar in the Senate? I 
thought the Democrats were in control. I thought they could 
schedule a hearing on Mr. Cordray. I thought they could 
schedule a vote on it.
    So I will give the rest of my time to you.
    Senator Lee. The Senate does in fact have control over its 
own calendar. Article 1 makes that pretty clear. The Senate did 
convene in a session that was held on January 3, 2012, about 24 
hours before the recess appointments were made.
    Now to answer your question, one of these recess appointees 
had previously been considered by the Senate but had not been 
approved. Votes could have been scheduled at any time, of 
course. The votes, as it was understood by the party holding 
the majority, were not there to secure his confirmation, and so 
that one didn't happen.
    Now, with the other three, the other three recess 
appointees had not previously been reviewed by the Senate. We 
had not even had an opportunity to review them to that point.
    Mr. Gowdy. Thank you, Senator.
    I thank the other witnesses, and I yield back.
    Mr. Smith. Thank you, Mr. Gowdy.
    Let me also thank Senator Lee, Ms. Windham, Mr. Gerhardt, 
and Mr. Casey for their testimony today. I think we have had an 
excellent discussion. This was a high-level panel. I appreciate 
your time. Thank you again for your contributions.
    And we stand--not yet adjourned. Without objection, all 
Members will have 5 legislative days to submit additional 
written questions for the witnesses or additional materials for 
the record. And we stand adjourned.
    [Whereupon, at 12:40 p.m., the Committee was adjourned.]
                            A P P E N D I X


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
                       Committee on the Judiciary
    Mr. Chairman, this hearing on the ``Obama Administration's Abuse of 
Power'' should be called the ``Republican Congress' Abuse of Power.''
    There are many important and timely issues that this Congress has 
not yet addressed. But rather than confronting the serious challenges 
that face this Congress, this committee is intentionally wasting 
valuable time on divisive issues to influence a presidential election. 
Rather than exploring this issue in an honest and fair title, the 
majority has chosen a title that is wildly inappropriate, accusatory, 
and incendiary. What's worse, we have already addressed these issues in 
at least one committee or subcommittee hearing. It is terrible 
precedent to hold a hearing on stale issues for the sole purpose of 
racking muck over any president prior to an election.
    I am also saddened by the majority's short memory. Under the Bush 
Administration, executive authority experienced its largest expansion 
in decades.
    President Bush's use of signing statements--the official executive 
branch pronouncements a President makes when signing a bill into a 
law--is a prime example of abuse of power. In a report by the American 
Bar Association, a bipartisan group of legal scholars criticized the 
Bush Administration's use of signing statements, calling them a 
``radically expansive view of executive power'' and a ``serious assault 
on the constitutional system of checks and balances.'' President Bush 
often asserted his own interpretation laws passed by this body, even 
where his interpretation wasn't consistent with Congress' legislative 
    But the Bush Administration's signing statements didn't merely 
disregard legislative intent. These statements also avoided 
constitutional questions or created new sources of presidential power 
by loosely interpreting statutory language or construing large 
provisions as support for the Commander-in-Chief Clause or unitary 
executive theory. In another example, President Bush's signing 
statements consistently refused to honor Congressional attempts to 
impose affirmative action or diversity requirements on federal hiring. 
Senator Arlen Specter, a Republican and then-Chairman of the Senate 
Judiciary Committee, charged that congressional legislation ``doesn't 
amount to anything if the president can say, `My constitutional 
authority supersedes the statute.'''
    But the Bush Administration's abuse of power did not stop at 
signing statements. President Bush again abused his executive power 
through his expanded use of wartime powers, while abrogating 
international law without any historical support in the process. John 
Yoo's ``torture memo'' applied the executive's power to authorize 
water-boarding and other forms of torture. This position expressly 
conflicted with the official U.S. position on torture, which is that no 
American law permits or excuses torture.
    Lee Casey argues in his written testimony that the Obama 
Administration has gone ``beyond the normal cut and thrust of 
partisanship and politics.'' But what if an administration appointed 
like-minded officials who lack relevant experience to advance a 
partisan agenda? Both the Office of the Inspector General and the 
Office of the Professional Responsibility found that President Bush did 
precisely this. In a joint investigation within the Department of 
Justice under the Bush Administration, these offices found that the 
Bush Administration packed the Civil Rights Division with conservative 
lawyers without civil rights experience. The Government Accountability 
Office later reported that this politicized hiring might have altered 
the DOJ's enforcement of voting laws through a conservative strategy.
    Today's hearing confuses fundamental disagreements over policy with 
true abuses of executive authority. Healthy debate between parties and 
branches of government is vital to the livelihood of a vibrant 
democracy, and evidence of the Founder's aspirations for a government 
with three separate branches.
    This is just another example of a Do Nothing Congress focused more 
on defeating President Obama than addressing important issues.