[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                            DECEMBER 3, 2013


                           Serial No. 113-55


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
GEORGE HOLDING, North Carolina
JASON T. SMITH, Missouri

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel

                            C O N T E N T S


                            DECEMBER 3, 2013


                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3


Jonathan Turley, Shapiro Professor of Public Interest Law, George 
  Washington University
  Oral Testimony.................................................    11
  Prepared Statement.............................................    13
Nicholas Quinn Rosenkranz, Professor of Law, Georgetown 
  University Law Center and Senior Fellow in Constitutional 
  Studies, Cato Institute
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Simon Lazarus, Senior Counsel, The Constitutional Accountability 
  Oral Testimony.................................................    32
  Prepared Statement.............................................    34
Michael F. Cannon, Director of Health Policy Studies, Cato 
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43


Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................     6
Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    56
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Member, Committee on the Judiciary.............................    65
Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................    84

               Material Submitted for the Hearing Record

Supplemental Material submitted by Michael F. Cannon, Director of 
  Health Policy Studies, Cato Institute..........................   109
Material submitted by the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Member, Committee on the Judiciary.............................   152



                       TUESDAY, DECEMBER 3, 2013

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10:21 a.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Smith of Texas, Chabot, 
Bachus, Issa, King, Franks, Gohmert, Jordan, Poe, Marino, 
Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, 
Conyers, Nadler, Scott, Lofgren, Jackson Lee, Cohen, Gutierrez, 
Garcia, and Jeffries.
    Staff present: Shelley Husband, Chief of Staff & General 
Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Zachary Somers, Counsel; Kelsey Deterding, Clerk; (Minority) 
Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, 
Parliamentarian; Heather Sawyer, Counsel; and Tom Jawetz, 
    Mr. Goodlatte. The Judiciary Committee will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    The Chair welcomes the members of the audience who are 
here, but any member who disrupts this meeting will be removed. 
And presently we do not have order in the hearing room. Members 
of the audience must behave in an orderly fashion or else they 
will be removed from the hearing room. Rule 11 of the House 
rules provides that the Chairman of the Committee may punish 
breaches of order and decorum by censure and exclusion from the 
hearing. So if there are members here who wish to remain, they 
should sit down immediately or leave the room immediately, or 
they will be escorted from the room.
    Today's hearing is about the President's role in our 
constitutional system. Our system of Government is a tripartite 
one, with each branch having certain defined functions 
delegated to it by the Constitution. The President is charged 
with executing the laws; the Congress with writing the laws; 
and the Judiciary with interpreting them.
    The Obama administration, however, has ignored the 
Constitution's carefully balanced separation of powers and 
unilaterally granted itself the extra-constitutional authority 
to amend the laws and to waive or suspend their enforcement. 
This raw assertion of authority goes well beyond the 
``executive power'' granted to the President and specifically 
violates the Constitution's command that the President is to 
``take care that the laws be faithfully executed.''
    The President's encroachment into Congress' sphere of power 
is not a transgression that should be taken lightly. As English 
historian Edward Gibbon famously observed regarding the fall of 
the Roman Empire, ``the principles of a free constitution are 
irrevocably lost when the legislative power is dominated by the 
    Although the President's actions may not yet amount to the 
executive powers overtaking the legislative power, they are 
certainly undermining the rule of law that is at the center of 
our constitutional design. From Obamacare to immigration, the 
current Administration is picking and choosing which laws to 
enforce. But the Constitution does not confer upon the 
President the ``executive authority'' to disregard the 
separation of powers by unilaterally waiving, suspending, or 
revising the laws. It is a bedrock principle of constitutional 
law that the President must ``faithfully execute'' Acts of 
Congress. The President cannot refuse to enforce a law simply 
because he dislikes it.
    Certainly presidents have from time to time made broad 
claims of executive power. However, assertions of executive 
authority have traditionally been limited to the area in which 
presidential powers are at their strongest--Foreign affairs. 
The Obama administration, though, has been equally assertive in 
the realm of domestic policy, routinely making end runs around 
Congress through broad claims of prosecutorial discretion and 
regulatory actions that push executive power beyond all limits. 
Indeed, President Obama is the first President since Richard 
Nixon to ignore a duly enacted law simply because he disagrees 
with it. In place of the checks and balances established by the 
Constitution, President Obama has proclaimed that, ``I refuse 
to take no for an answer,'' and that ``where Congress won't 
act, I will.''
    Throughout the Obama presidency we have seen a pattern: 
President Obama circumvents Congress when he does not get his 
    For instance, while Congress is currently debating how to 
reform our immigration laws, the President effectively enacted 
the DREAM Act himself by ordering immigration officials to stop 
enforcing immigration laws against certain unlawful immigrants.
    When he could not get his preferred changes to the No Child 
Left Behind education law, he unilaterally waived its testing 
accountability provisions.
    When he objected to the work requirements in the bipartisan 
welfare reform law, he granted waivers that are specifically 
forbidden by the statutory text.
    Instead of working with Congress to amend Federal drug 
enforcement policy, he has instructed prosecutors to stop 
enforcing certain drug laws in certain States and mandatory 
minimum sentences for certain offenses.
    And most notably, the President has--without statutory 
authorization--waived, suspended, and amended several major 
provisions of his health care law. These unlawful modifications 
to Obamacare include: delaying for 1 year Obamacare's employer 
mandate; instructing States that they are free to ignore the 
law's clear language regarding which existing health care plans 
may be grandfathered; and promulgating an IRS rule that allows 
for the distribution of billions of dollars in Obamacare 
subsidies that Congress never authorized.
    The House has acted to validate retroactively some of the 
President's illegal Obamacare modifications. However, rather 
than embrace these legislative fixes, the President's response 
has been to threaten to veto the House-passed measures. The 
President's far-reaching claims of executive power, if left 
unchecked, will vest the President with broad domestic policy 
authority that the Constitution does not grant him.
    Those in the President's political party have been largely 
silent in the face of this dangerous expansion of executive 
power. But what would they say if a President effectively 
repealed the environmental laws by refusing to sue polluters or 
the labor laws by refusing to find violators? What if a 
President wanted tax cuts that Congress would not enact? Could 
he instruct the IRS to decline to enforce the income tax laws? 
President George H. W. Bush proposed, unsuccessfully, a 
reduction in the capital gains rate. Should he have, instead, 
simply instructed the IRS not to tax capital gains at a rate 
greater than 10 percent?
    The point is not what you think of any of President Obama's 
individual policy decisions. The point is the President may 
not--consistent with the command that he faithfully execute the 
laws--unilaterally amend, waive, or suspend the law. We must 
resist the President's deliberate pattern of circumventing the 
legislative branch in favor of administrative decision-making. 
We cannot allow the separation of powers enshrined in our 
Constitution to be abandoned in favor of an undue concentration 
of power in the executive branch.
    As James Madison warned centuries ago in Federalist No. 47, 
``the accumulation of all powers, legislative, executive, and 
judiciary, in the same hands . . . may justly be pronounced the 
very definition of tyranny.''
    It is now my pleasure to recognize the Ranking Member of 
the Judiciary Committee, the gentleman from Michigan, Mr. 
Conyers, for his opening statement.
    Mr. Conyers. Thank you. And good morning, top of the 
morning to the witnesses and to my colleagues on the House 
Judiciary Committee.
    The President's constitutional duty to faithfully execute 
the laws would be an important issue worthy of a hearing by 
this Committee if there was any evidence that the President 
has, indeed, failed to fulfill his duty. But, unfortunately, it 
appears that some here view policy disagreements as 
constitutional crises and proof of possible wrongdoing. The 
fact is that disagreements or even allegations that a program 
is not being carried out the way Congress intended should not 
raise constitutional concerns.
    If some of my friends want to disagree with the 
Administration, it is, of course, certainly their right. But we 
should keep some perspective here and consider the following 
    To begin with, some of the Administration's actions 
criticized by the majority are not really that much out of the 
ordinary. Allowing flexibility in the implementation of a new 
program, even where the statute mandates a specific deadline, 
is neither unusual nor a constitutional violation. It is, 
rather, the reality of administering sometimes complex 
    This has been especially true in the case of health care 
legislation. The Affordable Care Act is not the first time 
implementation of a new law has not gone according to schedule. 
President George W. Bush, for example, failed to meet some of 
the deadlines in Medicare Part D even though it was legislation 
he strongly supported. And it is especially interesting that 
some Members who strenuously opposed the Affordable Care Act 
and who worked diligently to obstruct its implementation now 
complain that the President is unconstitutionally impeding the 
implementation of his signature legislative accomplishment. How 
    Taking steps to deal with the realities of implementation 
of a complex program hardly constitutes a failure to take care 
that the laws are faithfully executed. It is, rather, part and 
parcel of doing just that.
    There have been Administrations in the past that have 
obstructed the implementation of laws they opposed, but no one 
is seriously contending that President Obama opposes the 
Affordable Care Act, ``Obamacare,'' or that his 
Administration's actions constitute intentional obstruction of 
the law. And when in the past there have been legitimate 
concerns about delays in a law's implementation, parties have 
turned to the Administrative Procedure Act. That act allows the 
courts to determine whether a delay is unreasonable and order 
appropriate relief. Notably, no one has alleged that such 
action is necessary here. Instead, critics of President Obama 
and his signature legislation allege a constitutional crisis, 
but no court has ever found delay in implementation of a 
complex law to constitute a violation of the Take Care Clause.
    Now, some of my colleagues seem to think that the exercise 
of prosecutorial discretion, a traditional power of the 
executive, is a constitutional violation. The decision, for 
example, to defer deportation of individuals who were brought 
to the United States as children who have not committed 
felonies or misdemeanors and do not pose a threat to public 
safety--so-called ``DREAMers''--is a classic exercise of such 
discretion. The Administration cannot legalize these 
individuals' status without a basis in law, but the 
Administration's decision to defer action against particular 
individuals is neither unusual nor unconstitutional.
    The Supreme Court has consistently held that the exercise 
of such discretion is a function of the President's powers 
under the Take Care Clause. For example, in Heckler v. Chaney, 
the Court held that an agency's refusal to institute 
proceedings shares to some extent the characteristics of a 
decision of a prosecutor in the executive branch not to indict, 
a decision which has long been regarded as the special province 
of the executive branch, inasmuch as it is the executive who is 
charged by the Constitution to ``take Care that Laws be 
faithfully executed.''
    Finally, I hope we can distinguish between failing to 
execute the laws and following the explicit dictates of the 
law. Some here contend that the President's decision not to 
defend the Defense of Marriage Act violated the Take Care 
Clause. In fact, the President made a judgment, subsequently 
vindicated by the United States Supreme Court, that the act was 
unconstitutional, but while the case was pending, he continued 
to comply with the law.
    The President's decision not to defend the law was not 
novel. Indeed, Congress itself recognized this possibility. 
Congress understood that sometimes the Administration's duty to 
take care that the laws be faithfully executed might include 
recognizing that a particular statute is unconstitutional. The 
Constitution is, as we are told in Article 6 of the 
Constitution, the supreme law of the land. Presidents are 
required to follow it.
    So past Administrations have exercised their discretion not 
to defend a law that they have deemed unconstitutional. For 
example, the acting Solicitor General at the time, John 
Roberts, now the Chief Justice of the United States, refused to 
defend a law that he believed to be unconstitutional in the 
1990 case of Metro Broadcasting v. the FCC. Chief Justice 
Roberts argued that a statute providing for minority 
preferences in broadcast licensing was unconstitutional. 
Despite Supreme Court precedent applying a more permissive 
standard of review, he argued that strict scrutiny applied. 
Senate legal counsel appeared as amicus curiae to defend the 
law and prevailed.
    Clearly, there were reasonable arguments that Chief Justice 
Roberts could have made in defense of the law. Yet, no one 
suggested that he violated the Constitution by arguing for the 
Court to strike that law down. His view was not vindicated in 
that case but may ultimately have resulted in a shift in the 
law, which makes it additionally clear that the 
Administration's decision not to defend DOMA was neither 
unprecedented nor inappropriate.
    And so I join with all of the Committee in welcoming our 
witnesses, look forward to their testimony, and I yield back 
the balance of my time, Mr. Chairman.
    Mr. Goodlatte. Thank you, Mr. Conyers.
    Without objection, all other Members' opening statements 
will be made a part of the record.
    [The prepared statement of Ms. Jackson Lee follows:]


    Mr. Goodlatte. We welcome our panel of witnesses today, and 
if you would all please rise, we will begin by swearing you in.
    [Witnesses sworn.]
    Mr. Goodlatte. Let the record reflect that all of the 
witnesses responded in the affirmative. Thank you.
    And I will now begin by introducing our witnesses.
    Our first witnesses is Jonathan Turley, the Shapiro 
Professor of Public Interest Law at George Washington 
University Law School. Professor Turley is a nationally 
recognized legal scholar who has written extensively in areas 
ranging from constitutional law to legal theory to tort law. He 
has published over 3 dozen academic articles and over 750 
articles in newspapers, including The New York Times, USA 
Today, and The Wall Street Journal. Professor Turley has been 
recognized as the second most cited law professor in the 
    Our second witness is Nicholas Rosenkranz, a professor of 
law at Georgetown University Law Center. Professor Rosenkranz 
has served and advised the Federal Government in a variety of 
capacities, including as a law clerk to Supreme Court Justice 
Anthony Kennedy, and as an attorney advisor to the Justice 
Department's Office of Legal Counsel. He has published numerous 
scholarly articles, including the ``Subjects of the 
Constitution,'' which is the single most downloaded article 
about constitutional interpretation in the history of the 
social science research network.
    Our third witness is Simon Lazarus, a senior counsel with 
the Constitutional Accountability Center. He is a member of the 
Administrative Conference of the United States and during his 
career has served as the public policy counsel for the National 
Senior Citizens Law Center as a partner at Powell Goldstein and 
as Associate Director of President Carter's White House 
domestic policy staff. Mr. Lazarus has written articles that 
have appeared in law journals, as well as publications such as 
The Atlantic, The Washington Post, and The New Republic.
    Our final witness is Michael Cannon, the Cato Institute's 
Director of Health Policy Studies. He has been recognized as an 
influential expert on the Affordable Care Act. Mr. Cannon has 
appeared on ABC, CBS, CNN, and Fox News and has written 
articles that have been featured in numerous newspapers, 
including The Wall Street Journal, USA Today, and the Los 
Angeles Times. He is also the co-editor of a book on replacing 
the Affordable Care Act and the co-author of a book on health 
care reform.
    I would like to thank all of the witnesses for their 
appearance today. Each of your written statements will be 
entered into the record in its entirety. I ask that each 
witness summarize his or her testimony in 5 minutes or less. To 
help stay within the time frame, there is a timing light on 
your table. When the light switches from green to yellow, you 
will have 1 minute to conclude your testimony. When the light 
turns red, it signals that the witness' 5 minutes have expired. 
And we will turn first to Professor Turley. Welcome.


    Mr. Turley. Thank you, Mr. Chairman, Ranking Member 
Conyers, Members of the Judiciary Committee. It is a great 
honor to be invited to speak with you today about the meaning 
of the Take Care Clause. You will have to forgive my voice. I 
am getting over a cold, but I hope to make it through this 
without having a coughing fit.
    This is obviously a difficult area of constitutional 
interpretation. As the Ranking Member pointed out, this is not 
the first time that we have dealt with this question.
    It is also difficult for some of us who happen to agree 
with the President's policies, which I do. In fact, I voted for 
him previously.
    However, in a Madisonian system, it is often more important 
how you do something than what you do. And the reason this is 
such an important hearing is that the bedrock of our 
Constitution remains the separation of powers. It is often 
misunderstood as some type of conflict between the branches. It 
is really a protection of liberty. It allows for issues that 
divide us to be cycled through a system in which factional 
interests can be transformed. Even though all branches are 
equal in the Madisonian system, the Congress is the thumping 
heart of that system. It is where issues that are divisive are 
transformed into majoritarian decisions. It is the very reason 
that our system has survived so well. It brings stability to 
the system.
    Benjamin Franklin used to say or liked to say that God 
helps those that help themselves. In our system, the Madisonian 
system, the Constitution helps those branches that help 
themselves. It is designed to give each branch the ability of 
self-protection, of self-defense, and a great deal rides on the 
use of that power.
    In my view, some of the questions we are going to talk 
about today are close questions, things like Internet gambling, 
drug enforcement. I think you can have credible arguments on 
the Administration side, but some of them I believe are not 
close questions. I believe the President has exceeded his 
    The President is required to faithfully execute the laws. 
He is not required to enforce all laws equally or commit the 
same resources to them. But I believe the President has crossed 
the constitutional line in some of these areas, which I address 
in my testimony.
    What I want to start in my opening statement is to 
emphasize that this is not a turf fight between politicians. 
Rather, this goes to the very heart of what is the Madisonian 
system. If a President can unilaterally change the meaning of 
laws in substantial ways or refuse to enforce them, it takes 
off line that very thing that stabilizes our system. I believe 
that Members will loathe the day that they allowed that to 
happen. This will not be our last President. There will be more 
Presidents who will claim the same authority.
    When I teach constitutional law, I often ask my students 
what is the limiting principle of your argument. When that 
question is presented to this White House, too often it is 
answered in the first person, that the President is the 
limiting principle, or at least the limiting person. We cannot 
rely on that type of assurance in our system.
    So the greatest danger of nonenforcement orders is not what 
it introduces to a tripartite system but what it takes away. 
What it does is it allows for these issues that divide us to be 
resolved unilaterally. We do not have a dialogue anymore if 
someone can step in and make the legislative process simply an 
option as opposed to a binding stage or requirement. It is here 
in Congress that factional interests coalesce and convert. This 
is the transformative branch. It is different from the other 
branches. And that is what makes this so dangerous.
    What Madison did is he created a type of Newtonian orbit of 
branches. In fact, he was very interested in Newton's physics 
when he wrote much of the early writings. There is a belief 
that these are three branches that exist in orbit. They are 
held together by their gravitational pull. It is a delicate 
balance, but it is one that protects individual liberty.
    Federalist No. 51 is one of the most cited sources for 
Madison's views. It is in that writing that he encouraged 
branches to be on guard for the encroachment of their powers. 
For decades, this Congress has allowed its core authority to 
drain away. I have written a lot about the rise of what is 
called the ``fourth branch,'' this expanding number of Federal 
agencies that are acting increasingly independently, even 
defining their own jurisdiction. If that trend is to continue 
and the President's power is to continue to expand, Congress 
will be left like a marginal line on the constitutional 
landscape, a sad relic of what was once a tripartite system of 
equal branches.
    There are times like this one of bitter, intractable 
divisions, but the Members of this body are tied by a covenant 
of faith, an article of faith. And it is found in Article 1 
that says that all legislative powers herein granted shall be 
vested in the Congress of the United States. It is upon that 
covenant that we should not divide by parties and we should 
stand firmly for the separation of powers.
    [The prepared statement of Mr. Turley follows:]
      Prepared Statement of Jonathan Turley, Shapiro Professor of 
      Public Interest Law, George Washington University Law Center
    Chairman Goodlatte, Ranking Member Conyers, and members of the 
Judiciary Committee, my name is Jonathan Turley and I am a law 
professor at George Washington University where I hold the J.B. and 
Maurice C. Shapiro Chair of Public Interest Law. It is an honor to 
appear before you today to discuss the constitutional concerns raised 
by recent nonenforcement polices and the President's duty to faithfully 
execute the law of the United States.
    The issue before the Committee is clearly a difficult one. It is 
often difficult to separate the merits of the underlying policies from 
the means used to achieve them. It so happens that I agree with many of 
the goals of the Administration in the various areas where the 
President has circumvented Congress. However, in the Madisonian system, 
it is often more important how you do things than what you do. We have 
long benefited from a system designed to channel and transform 
factional interests in the political system. When any branch encroaches 
upon the authority of another, it not only introduces instability into 
the system but leaves political issues raw and unresolved. However, to 
paraphrase one of Benjamin Franklin's favorite sayings, the 
Constitution helps those branches that help themselves. Each branch is 
given the tools to defend itself and the Framers assumed that they 
would have the ambition and institutional self-interest to use them. 
That assumption is now being put to the test as many members remain 
silent in the face of open executive encroachment by the Executive 
    While I believe that the White House has clearly ``exceeded its 
brief'' in these areas, this question of presidential nonenforcement 
has arisen periodically in our history. In the current controversy, the 
White House has suggested an array of arguments, citing the 
interpretation of statutory text, agency discretion, or other 
rationales to mask what is clearly a circumvention of Congress. It also 
appears to be relying on the expectation that no one will be able to 
secure standing to challenge such decisions in court. Finally, there is 
no question that the President as Chief Executive is allowed to set 
priorities of the administration and to determine the best way to 
enforce the law. People of good faith can clearly disagree on where the 
line is drawn over the failure to fully enforce federal laws. There is 
ample room given to a president in setting priorities in the 
enforcement of laws. A president is not required to enforce all laws 
equally or dedicate the same resources to every federal program. Even 
with this ample allowance, however, I believe that President Barack 
Obama has crossed the constitutional line between discretionary 
enforcement and defiance of federal law. Congress is given the defining 
function of creating and amending federal law. This is more than a turf 
fight between politicians. The division of governmental powers is 
designed to protect liberty by preventing the abusive concentration of 
power. All citizens -Democratic or Republican or Independent--should 
consider the inherent danger presented by a President who can 
unilaterally suspend laws as a matter of presidential license.
    In recent years, I have testified and written about the shift of 
power within our tripartite government toward a more Imperial 
Presidential model. Indeed, I last testified before this Committee on 
the assertion of President Obama that he could use the recess 
appointment power to circumvent the Senate during a brief intrasession 
recess.\1\ While I viewed those appointments to be facially 
unconstitutional under the language of Article I and II (a view later 
shared by two federal circuits), I was equally concerned about the 
overall expansion of unchecked presidential authority and the relative 
decline of legislative power in the modern American system. The recent 
nonenforcement policies add a particularly menacing element to this 
pattern. They effectively reduce the legislative process to a series of 
options for presidential selection ranging from negation to full 
enforcement. The Framers warned us of such a system and we accept it--
either by acclaim or acquiescence--at our peril.
    \1\ I testified before Congress last year on the controversy 
surrounding these recess appointments. See Executive Overreach: The 
President's Unprecedented ``Recess'' Appointments Before the H. Comm. 
on the Judiciary, 112th Cong. 35-57 (2012) (statement of Jonathan 
Turley, Professor, The George Washington University Law School) 
[hereinafter Executive Overreach]. I also address the controversy at 
length in two forthcoming law review articles. See Jonathan Turley, 
Recess Appointments in the Age of Regulation, 93 B.U. L. Rev. 1523 
(2013); Jonathan Turley, Constitutional Adverse Possession: Recess 
Appointments and the Role of Historical Practice in Constitutional 
Interpretation, 2013 Wis. L. Rev. (forthcoming fall 2013); see also 
Jonathan Turley, Op-Ed., Recess Appointments: President as Ruler, USA 
Today, Feb. 15, 2012, at 7A.
    The current claims of executive power will outlast this president 
and members must consider the implications of the precedent that they 
are now creating through inaction and silence. What if a future 
president decided that he or she did not like some environmental laws 
or anti-discrimination laws? Indeed, as discussed below, the 
nonenforcement policy is rarely analyzed to its natural conclusion, 
which leads to a fundamental shift in constitutional principles going 
back to Marbury v. Madison.\2\ The separation of powers is the very 
foundation for our system; the original covenant reached by the 
Founding Generation and passed on to successive generations. It is that 
system that produces laws that can be truly said to represent the 
wishes of the majority of Americans. It is also the very thing that 
gives a president the authority to govern in the name of all Americans. 
Despite the fact that I once voted for President Obama, personal 
admiration is no substitute for the constitutional principles at stake 
in this controversy. When a president claims the inherent power of both 
legislation and enforcement, he becomes a virtual government unto 
himself. He is not simply posing a danger to the constitutional system; 
he becomes the very danger that the Constitution was designed to avoid.
    \2\ 5 U.S. (1 Cranch) 137, 177 (1803).
        i. the separation of powers within the tripartite system
A. Factions and the Legislative Process.
    One of the greatest dangers of nonenforcement orders is not what it 
introduces to the tripartite system but what it takes away. The Framers 
created three ``equal'' branches but the legislative branch is the 
thumping heart of the Madisonian system. It is the bicameral system of 
Congress that serves to convert disparate factional interests into 
majoritarian compromises. In this sense, Congress is meant to be a 
transformative institution where raw, often competing interests are 
converted by compromise and consensus. One of the most striking aspects 
of the recent controversies involving presidential nonenforcement is 
that they involved matters that were either previously before Congress 
or actually under consideration when President Obama acted 
    The role of the legislative process in stabilizing the political 
system is key to the success of the American system. Madison saw the 
vulnerability of past governmental systems in the failure to address 
the corrosive effects of factions within a population. The factional 
pressures in a pluralistic nation like the United States would be 
unparalleled and Madison understood that these factions were the 
expression of important political, and social, and economic interests. 
As Madison explained, ``liberty is to faction what air is to fire, an 
ailment without which it instantly expires. But it could not be a less 
folly to abolish liberty, which is essential to political life, because 
it nourishes faction than it would be to wish the annihilation of air, 
which is essential to animal life, because it imparts to fire its 
destructive agency.'' \3\ Congress is where these factional interests 
coalesce and convert in an open and deliberative process.
    \3\ THE FEDERALIST NO. 10, 78 (James Madison) (Clinton Rossiter 
ed., 1961).
    The point of this background discussion is that the loss caused by 
the circumvention of the legislative branch is not simply one branch 
usurping another. Rather, it is the loss of the most important function 
of the tripartite system in channeling factional interests and reaching 
resolutions on matters of great public importance.
    The importance of this central function of Congress is magnified 
when the country faces questions upon which there is great division. 
Ironically, these are the same areas where presidents are most likely 
to issue nonenforcement orders due to opposition to the underlying 
legislation. Consider illegal immigration. There are few issues that 
are more divisive today. The immigration laws are the product of 
prolonged debates and deliberations over provisions ranging from public 
services to driver's licenses to ICE proceedings to deportations. Many 
of these issues are considered in combination in comprehensive statutes 
where the final legislation is a multivariable compromise by 
legislators. Severity in one area can at times be a trade-off for 
leniency in another area. Regardless of such trade-offs, the end result 
is by definition a majoritarian compromise that is either signed into 
law by a president or enacted through a veto override. The use of 
executive orders to circumvent federal legislation increases the shift 
toward the concentration of executive power in our system and the 
diminishment of the role of the legislative process itself. It is 
precisely what the Framers sought to avoid in establishing the 
tripartite system.
B. The Royal Prerogative and the Faithful Execution of Federal Law.
    Juxtaposed against this legislative power is the Chief Executive. 
The Framers created a Chief Executive with a relatively short term of 
four years and clearly defined powers to fit within this system of 
shared government. Despite the recent emergence of an uber-presidency 
of increasingly unchecked powers, the Framers were clear that they saw 
such concentration of power to be a danger to liberty. Indeed, the 
separation of powers is first and foremost a protection of liberty from 
the dangers inherent in the aggregation or aggrandizement of power.\4\ 
The Constitutional Convention and subsequent ratification conventions 
are replete with statements on the need to carefully confine the Chief 
Executive to enumerated powers and to specifically safeguard the powers 
of the legislative branch in the control of the purse and the creation 
of new laws.
    \4\ See generally, Turley, Age of Regulation, supra.
    At issue in today's hearing is in many ways the first issue that 
arose in the creation of the office of a president. The Framers were 
intimately familiar with English history and law. The suggestion of a 
president immediately produced objections over the dangers of abuse and 
unilateral action. This debate occurred against the backdrop of over 
150 years of tension with the English monarchy that can be traced to 
the confrontation of Sir Edward Coke and James I. That confrontation 
had some interesting parallels to the current debate. At issue was not 
the circumvention of the legislative but the judicial branch. James 
claimed the right to remove cases from the court for his own judgment. 
When various people objected, James noted ``I thought law was founded 
upon reason, and I and others have reason as well as the judges.'' \5\ 
Modern presidents in nonenforcement policies claim that same basis in 
reason--adjusting legal authority to a more equitable or more efficient 
reality. However, in the case of James I, Coke objected that ``natural 
reason'' does not make for good laws or legal analysis. Rather, law is 
a form of ``artificial reason and judgment'' or ``an art which required 
long study and experience before that a man can attain to the 
cognizance of it.'' \6\ Even in the face of a treason charge, Coke 
maintained that, ``the king ought not to be under any man, but he is 
under God and the law.'' \7\
    \5\ 7 Sir Edward Coke, Reports 65, quoted in Roscoe Pound, The 
Spirit of the Common Law 5 (1921) at 61.
    \6\ Id.
    \7\ Id.
    The principle articulated by Coke drew the distinction between the 
King and the law--the latter which is made separate from the King and 
governs the King. It was the rejection of what has been called the 
``royal prerogative.'' \8\ This rejection was first seen in the state 
constitutions in crafting the powers of Governors and later manifested 
in the drafting of the new federal Constitution. For example, Thomas 
Jefferson wrote in 1783 with regard to the Virginia Constitution that 
``By Executive powers, we mean no reference to the powers exercised 
under our former government by the Crown as of its prerogative . . . We 
give them these powers only, which are necessary to execute the laws 
(and administer the government).'' \9\ Jefferson's statement reflects 
the same Cokean distinction--now a mantra for American framers in 
defining the new concept of executive power.
    \8\ See Julius Goebel, Jr., Ex Parte Clio, 54 Colum. L. Rev. 450, 
474 (1954); David Gray Adler, The Steel Seizure Case And Inherent 
Presidential Power, 19 Const. Commentary 155, 164 (2002).
    \9\ This quote is from Jefferson's Draft of a Fundamental 
Constitution for Virginia. Adler, supra, at 164 (citing Charles Warren, 
The Making of the Constitution 177 (Harvard U. Press, 1947)).
    The earliest references to executive power or the presidency in the 
Constitutional Convention refer to the execution of federal law--
affirming the idea that the executive must enforce the law established 
by the legislative process. Indeed, it was the introduction of the 
Virginia Plan that most clearly cast this executive model.\10\ Roger 
Sherman stated this most clearly in describing ``the Executive 
magistracy as nothing more than an institution for carrying the will of 
the Legislature into effect.'' \11\ Likewise, James Wilson defended the 
model of an American president by assuring his colleagues that ``did 
not consider the Prerogatives of the British Monarch as a proper guide 
in defining the Executive powers. Some of these prerogatives were of a 
Legislative nature.'' \12\
    \10\ Max Farrand, 1 The Records of the Federal Convention of 1787 
at 62-63 (Yale U. Press, 1911) (Edmund Randolph describing a ``national 
executive . . . with power to carry into execution the national laws . 
. . [and] to appoint to offices in cases not otherwise provided 
for.''); see also Adler, supra, at 164.
    \11\ Farrand, supra, at 65; Adler, supra, at 164-65.
    \12\ Farrand, 1 Records at 62-70; Adler, supra, at 165.
    Reflecting these views, and the view of Framers like Madison that 
the chief executive must only be given power that is ``confined and 
defined,'' \13\ the first draft of the Take Care Clause read ``it shall 
be his duty to provide for the due and faithful execution of the 
Laws.'' \14\ That language then became, with the report of the 
Committee of Detail, ``he shall take care that the laws of the United 
States be duly and faithfully executed.'' The final language of the 
Committee of Style was refined further into ``The executive power shall 
be vested in a president of the United States of America . . . He shall 
take care that the laws be faithfully executed.'' What is most striking 
about this process is how little the language actually changed--
reflecting a general consensus on limiting the office to the execution- 
as opposed to the creation- of laws.
    \13\ Id. at 70.
    \14\ Id. at 171; Adler, supra, at 165.
    While the line between legislation and enforcement can become 
blurred, this view is generally reflective of the functions defined in 
Article I and Article II. The Take Care Clause is one of the most 
direct articulations of this division. The Clause states ``[The 
President] shall take Care that the Laws be faithfully executed . . . 
'' U.S. Const. art. II, Sec. 3, cl. 4. It is one of the clearest and 
most important mandates in the Constitution. The Framers not only draw 
the distinction between making and enforcing laws, but, with the 
enforcement of the law, the Framers stressed that the execution of the 
laws created by Congress must be faithfully administered. The language 
combines a mandate of the execution of laws with the qualifying 
obligation of their faithful execution.
    The constitutional obligation contained in the Take Care Clause is 
amplified by the oath that a president takes as a pre-condition for 
assuming power as Chief Executive under Section 1 of Article II. 
Indeed, the order of these references is interesting. In order to 
assume office, a president must ``solemnly swear (or affirm) that [he] 
will faithfully execute the office of President of the United States, 
and will to the best of my ability, preserve, protect and defend the 
Constitution of the United States.'' U.S. CONST. art. II, Sec. 1, cl. 
7. The Take Care Clause appears later in Section 3. This section 
happens to refer to the legislative function of Congress in stating 
that ``from time to time give to the Congress information of the state 
of the union, and recommend to their consideration such measures as he 
shall judge necessary and expedient.'' Id. Notably, the section affirms 
the right of a President to ask Congress for legislative action that he 
deems to be necessary. The clause then affirms the obligation of the 
President to faithfully execute those laws created by Congress. It is 
equally significant that the clause following the obligation to 
faithfully execute the laws is the clause allowing for the impeachment 
and removal of presidents.
    The import of these clauses is that the President can seek 
legislative changes and even call Congress into session, but it remains 
the prerogative of Congress to decide what laws will be enacted 
(subject to presidential signature or veto override).
    The most obvious meaning of faithful execution is that the 
President must apply the laws equally and without favoritism. 
Favoritism is clearly shown in the failure to enforce the laws against 
friends or political cronies. However, it can also apply more widely to 
favored groups or political allies. Merriam-Webster defines 
``faithful'' as ``having or showing true and constant support or 
loyalty.'' In this controversy, this true and constant support is to 
the laws themselves. It is worth noting that this is not loyalty tied 
to the ``law'' in general--possibly inviting a more nuanced 
interpretive response to what specific laws serve or disserve the law 
in general. The use of the plural form encompasses the laws referenced 
in Article I as the product of Congress. It is those laws that the 
President is bound to execute faithfully under Article II.
C. Nonenforcement Orders and the Rise of the Fourth Branch.
    The current controversy over the nonenforcement of federal law 
transcends the insular issues of particular statutes or regulations. 
The American governmental system is being fundamentally transformed 
into something vastly different from the intentions of the Framers or, 
for that matter, the assumptions underlying the constitutional 
structure. As I recently discussed in print,\15\ we are shifting from a 
tripartite to a quadripartite system in this age of regulation. The 
Administrative State that is credited with so many advances in public 
welfare has also served to shift the center of gravity in our system to 
a fourth branch of federal agencies. As a result, our carefully 
constructed system of checks and balances is being negated by the rise 
of the sprawling departments and agencies that govern with increasing 
autonomy and decreasing transparency. At the same time, we have seen a 
rapid growth of executive power, particularly since 9-11, where the 
President is asserting largely unchecked authority in many areas.
    \15\ Jonathan Turley, Op-Ed., The Rise of the Fourth Branch of 
Government, Wash. Post (May 24, 2013), at C1; see also Turley, supra, 
Age of Regulation, at 1542-61.
    When the Framers created the tripartite system, our federal 
government was quite small. In 1790, it had just 1,000 nonmilitary 
workers. In 1962, there were 2,515,000 federal employees. Today, we 
have 2,840,000 federal workers in 15 departments, 69 agencies and 383 
nonmilitary sub-agencies.\16\ Indeed, these numbers can be themselves 
misleading since much federal work is now done by contractors as part 
of ``downsizing'', but the work of the agencies has continued to 
expand. Moreover, technological advances have increased the reach of 
this workforce. With the expansion of the government has come a shift 
in the source of governing rules for society. Today, the vast majority 
of ``laws'' governing the United States are not passed by Congress but 
are issued as regulations, crafted largely by thousands of unnamed, 
unreachable bureaucrats. To give one comparative measure, one study 
found that in 2007, Congress enacted 138 public laws, while federal 
agencies finalized 2,926 rules, including 61 major regulations.\17\ 
Adding to this dominance are judicial rulings giving agencies heavy 
deference in their interpretations of laws under cases like Chevron. In 
the last term, this Supreme Court added to this insulation and 
authority with a ruling that agencies can determine their own 
jurisdictions -- a power that was previously believed to rest with 
Congress. In his dissent in Arlington v. FCC, Chief Justice John 
Roberts warned: ``It would be a bit much to describe the result as `the 
very definition of tyranny,' but the danger posed by the growing power 
of the administrative state cannot be dismissed.''
    \16\ Turley, supra, Age of Regulation, at 1533; Walter E. Volkomer, 
American Government 231 (11th ed. 2006) (citing Bruce D. Porter, 
Parkinson's Law Revisited: War and the Growth of American Government, 
60 Pub. Int. 50, 50 (1980)). In 1816, the federal system employed 4837 
employees. Deanna Malatesta, Evolution of the Federal Bureaucracy, in 1 
A History of the U.S. Political System: Ideas, Interests, and 
Institutions 373, 380 tbl.1 (Richard A. Harris & Daniel J. Tichenor 
eds., 2010).
    \17\ Anne Joseph O'Connell, Vacant Offices: Delays in Staffing Top 
Agency Positions, 82 S. Cal. L. Rev. 913, 936 (2009).
    With agencies increasingly performing traditionally legislative and 
judicial functions,\18\ the nonenforcement of federal law exacerbates 
the shift away from the original calibration of the tripartite system. 
Federal agencies are becoming practically independent in their 
operations in assuming new forms of regulatory law and adjudications. 
The refusal to execute those laws enacted by Congress would serve to 
marginalize the legislative branch further and make the federal 
government even less dependent on or responsive to that branch.
    \18\ As the number of federal regulations has increased, Congress 
has shifted the adjudication of many disputes between citizens and 
their government to administrative courts tied to individual agencies. 
The result is that a citizen is 10 times more likely to be tried by an 
agency than by an actual court. In a given year, federal judges conduct 
roughly 95,000 adjudicatory proceedings, including trials, while 
federal agencies complete more than 939,000. Turley, supra, Age of 
Regulation, at 1533; Anne Joseph O'Connell, Vacant Offices: Delays in 
Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 936 (2009).
     ii. nondefense orders, presidential prioritization policies, 
                         and signing statements
    It is important to distinguish between the various ways that 
presidents can oppose laws, which can blur the line between 
nonenforcement and inadequate enforcement. While a president does not 
have authority to negate or amend laws, there is overlap between the 
branches in different functions. Clearly, for example, the President is 
allowed to set goals in the execution of laws that place certain public 
programs above others in priority. No area of the law has one-hundred 
percent enforcement. There are discretionary actions that can include 
staffing and resource allocations with impacts on the level of 
enforcement in a given area. Before delving further into the 
constitutionality of nonenforcement, three types of executive decisions 
are important to distinguish.
A. Nondefense Orders.
    The nondefense orders arise when presidents decide that their 
administrations will not defend a challenged law in court. These 
decisions are relatively rare and highly controversial. Even defenders 
acknowledge that such a decision should only be considered in 
circumstances where a president feels that enforcement of a law would 
conflict with his duty to uphold the Constitution. Indeed, one study 
showed that between 1974 and 1996, presidents objected to the 
constitutionality of roughly 250 laws but did not refuse to defend 
them.\19\ Despite these reservations, Presidents Ford, Carter, Reagan, 
George H.W. Bush, and Clinton did not refuse to defend such laws.\20\
    \19\ Christopher N. May, Presidential Defiance of 
``Unconstitutional'' Laws xiv (1998).
    \20\ In many cases, presidents used signing statements to interpret 
the laws compatible with their view of constitutional limits.
    While the duty to defend would seem to be naturally subsumed under 
the duty to enforce, the Obama Administration draws a distinction 
between the two duties. Thus, it stated an intent to enforce the law 
while refusing to defend it. It was a curious distinction for many 
since continued enforcement would require that the law be defended in 
challenges.\21\ The Justice Department previously adopted a narrow 
exception to the rule that the ``courts, and not the Executive, finally 
to decide whether a law is constitutional'' and that the nondefense of 
a law would impermissibly create a barrier to judicial review.\22\ 
Unless the law impedes executive power, the Justice Department stated 
that it would defend laws so long as are not ``clearly 
unconstitutional.'' That would seem to demand more than simple 
disagreement with lower courts or adherence to a new or unestablished 
interpretation of the Constitution.
    \21\ Indeed, some have argued that the Administration got it wrong 
and that there is no duty to enforce or to defend. See Neal Devins and 
Saikrishna Prakash, The Indefensible Duty To Defend, 112 Colum. L. Rev. 
507, 508-509 (2012) (``Given President Obama's belief that the DOMA is 
unconstitutional, he should neither enforce nor defend it.'').
    \22\ Recommendation that Dep't of Justice Not Defend 
Constitutionality of Certain Provisions of Bankr. Amendments and Fed. 
Judgeship Act of 1984, 8 Op. O.L.C. 183, 194 (1984).
    In light of the foregoing, the Administration's decision that it 
would not defend the Defense of Marriage Act (DOMA) was a classic 
example of a nondefense policy. The timing of the decision, however, 
was curious given the Administration's defense of the law for years and 
the President's own public ambivalence over same-sex marriage. Thus, 
this was not a statute that was treated as facially invalid by this 
president, and it was supported (and signed into law) by another 
Democrat, Bill Clinton. Nevertheless, while belated, the Obama 
Administration announced that it could no longer in good faith support 
a law that it deemed unconstitutional. It notably took this position 
after previously enforcing the law, leading many to question a decision 
to abandon the law ``mid-stream'' without any clear advocate with 
standing to argue the law's merits.\23\
    \23\ Indeed, advocates of this presidential power insist that 
courts cannot be deemed as supreme in the interpretation of laws since 
``[f]ederal courts only have jurisdiction over cases or controversies, 
meaning that they cannot issue Article III judgments or opinions when 
they are not deciding cases or controversies. Yet there will be many 
situations, many questions, where federal courts cannot opine because 
there will be no case or controversy.'' Devins & Prakash, supra, 112 
Colum. L. Rev. at 530. Indeed, it is true that the executive branch 
must engage in interpretations as part of its enforcement of laws and, 
particularly with the narrowing of standing in federal cases, many of 
these decisions go unchallenged. However, for those of us concerned 
about the rise of the Fourth Branch, this only increases the 
concentration of power in the Executive Branch and further undermines 
the balance in the tripartite system.
    The decision of the Administration was equally notable in basing 
its nondefense decision on a position that had never been embraced by 
the Supreme Court. The Administration stated that ``the President and 
[the Attorney General] have concluded that classifications based on 
sexual orientation warrant heightened scrutiny and that, as applied to 
same-sex couples legally married under state law then, from that 
perspective, there is no reasonable defense of DOMA.'' \24\ While the 
Administration acknowledged that a lower standard of review had been 
applied in prior cases, it insisted that ``neither of those decisions 
reached, let alone resolved, the level of scrutiny issue because in 
both the Court concluded that the laws could not even survive the more 
deferential rational basis standard.'' \25\
    \24\ http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.
    \25\ Id.
    While I take the same view as to gay rights, it is not a view that 
had ever secured a majority of the Supreme Court or even most lower 
courts. Thus, the Administration was refusing to defend a law based on 
an interpretation that had thus far remained unsupported by direct 
precedent. Indeed, the ultimate decision in Windsor was a close one 
with a 5-4 opinion, and the basis for the decision was more nuanced 
than the one indicated by the Administration. In adopting a nondefense 
position, the Obama Administration was establishing precedent that 
Presidents could refuse to defend laws based on unaccepted legal 
interpretations. This would lead to the question of whether a president 
could maintain a nondefense postures even with a legal position 
rejected by lower courts but never rejected by the Supreme Court.
    My strongest objection was the failure of the Administration to 
avoid the untenable position of leaving a federal law without an 
advocate. That produced a standing dilemma that should never have been 
allowed to arise. The fact is that there are strong arguments on both 
sides of this litigation. While I have long been a supporter of same-
sex marriage, I felt that the standing barriers created in the recent 
Hollingsworth \26\ and Windsor \27\ cases were grossly unfair to the 
critics of same-sex marriage and equally inimical to the legal 
system.\28\ It is particularly troubling when this law was signed by a 
prior president who clearly viewed it (as did Congress) to be a 
constitutional act. The Court clearly saw the Administration's actions 
as undermining both the Judicial and Legislative branches:
    \26\ Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
    \27\ United States v. Windsor, 133 S. Ct. 2675 (2013).
    \28\ I have repeatedly argued to Congress that the narrow rules 
concerning standing are increasingly preventing worthy constitutional 
challenges from being heard. I have the honor of representing both 
Democratic and Republican members of Congress who challenged President 
Obama's unilateral decision to attack Libya's capitol and armed forces. 
Jonathan Turley, Members of Congress Challenge Libyan War in Federal 
Court, Jonathan Turley (June 15, 2011), http://jonathanturley.org/2011/

        ``if the Executive's agreement with a plaintiff that a law is 
        unconstitutional is enough to preclude judicial review, then 
        the Supreme Court's primary role in determining the 
        constitutionality of a law that has inflicted real injury on a 
        plaintiff who has brought a justiciable legal claim would 
        become only secondary to the President's. This would undermine 
        the clear dictate of the separation-of-powers principle that 
        ``when an Act of Congress is alleged to conflict with the 
        Constitution, `[i]t is emphatically the province and duty of 
        the judicial department to say what the law is.''' . . . 
        Similarly, with respect to the legislative power, when Congress 
        has passed a statute and a President has signed it, it poses 
        grave challenges to the separation of powers for the Executive 
        at a particular moment to be able to nullify Congress' 
        enactment solely on its own initiative and without any 
        determination from the Court.'' \29\
    \29\ Windsor, 133 S. Ct. at 2688.

While the Supreme Court resolved the standing problems in Windsor on 
prudential grounds, the untenable position created by the 
Administration should have been avoided by the selection of outside 
counsel to assume the burden of defending the law. While obviously this 
would have been an action taken in furtherance of the statute by the 
Administration, it would have allowed the Administration to convey its 
opposition to the statute while, in the interests of both Congress and 
the rule of law, ensuring that both sides were adequately represented.
    Putting aside the timing and status of the DOMA defense, there 
remains a principled reason why a President, as well as an Attorney 
General, may feel that the defense of a statute is fundamentally at 
odds with his duty toward the Constitution. For example, if Congress 
passed a new Sedition Act or a law establishing an official religion, a 
president could claim a good-faith basis for viewing the law as 
conflicting with his constitutional duties. While (as noted above) the 
law should be defended in the interests of all sides being presented 
for judicial review, a president can decline to directly defend the 
law. In such cases, the president is caught on the horns of a 
constitutional dilemma, and the appointment of outside counsel is 
appropriate to allow the presentation of arguments in favor of the law. 
After all, the Executive Branch has consistently opposed efforts of 
Congress to defend laws in court as a usurpation of Executive 
authority. It should not fight to both bar Congress from such arguments 
while declining to perform that role to the detriment of these laws.
B. Prioritization Policies.
    Every President has faced accusations of slow-walking or under-
enforcing laws that he has opposed. Ronald Reagan was accused of 
undermining a host of environmental laws through the appointment of 
officials like James Watt and Anne Gorsuch. Likewise, Syracuse 
University recently found a sharp reduction of prosecutions for 
financial institution fraud from over 3,000 in 1991 to just 1,365 in 
2011.\30\ That reduction in the Obama Administration is not deemed a 
constitutional violation since such cases are heavily imbued with 
prosecutorial discretion. Indeed, members of Congress often suggest 
that presidents should not ``waste time'' on enforcing some laws.\31\
    \30\ See Criminal Prosecutions for Financial Institution Fraud 
Continue to Fall, TRAC Reports, Syracuse University, available at 
    \31\ See, e.g., Andrew Cohen, Sen. Leahy: Fed Shouldn't 'Waste 
Time' on State Marijuana Laws, Atlantic, Sept. 3, 2013.
    Immigration is again an excellent example of such controversies. 
Modern presidents have long made deportation a lower priority for 
enforcement than prosecuting violent illegal immigrants and other 
provisions. The numbers of such deportations have varied dramatically 
with George W. Bush deporting a total of 2,012,539 or 251,567 per year, 
while Bill Clinton deported with an average annual rate of 108,705.\32\ 
During the same period of time, Obama (with 395,774 per year) has 
actually deported more individuals per year than his predecessor.\33\ 
The level of deportations, however, remains a discretionary decision of 
an Administration and courts tend to leave disagreements on the level 
of enforcement as a political question for the legislative and 
executive branches to resolve. As discussed below, this is in contrast 
to orders effectively suspending portions of federal immigration law as 
part of a policy change of the Administration.
    \32\ 2011 Yearbook of Immigration Statistics, published by the 
Office of Immigration Statistics under the Department of Homeland 
Security (table 39).
    \33\ Id.
C. Signing Statements.
    There has already been much discussion of signing statements, 
particularly during the Administration of George W. Bush.\34\ The 
majority of signing statements are uncontroversial in that they amplify 
policies or celebrate accomplishments or reaffirm objectives connected 
to the legislation. However, some signing statements have been used to 
inform agencies of an interpretation that seems at odds with the 
language and intent of Congress--often after an Administration has 
failed to get its way with the legislative branch. Signing statements 
may merge with nonenforcement orders when a president claims a 
provision is unconstitutional and unenforceable.
    \34\ See generally Presidential Signing Statements Under the Bush 
Administration: A Threat to Checks and Balances and the Rule of Law?: 
Hearing Before the H. Comm. on the Judiciary, 110th Cong. 7, 9 (2007).
    James Monroe is generally credited with the first signing 
statement.\35\ Like many controversial practices, it started in a 
rather routine and harmless fashion with Monroe stressing how the law 
was to be administered.\36\ Given his confrontational and at times 
imperial approach to the presidency, it is not surprising that the 
first defiant signing statement came with Andrew Jackson who did not 
want a road built from Detroit to Chicago. Jackson instructed his 
Administration to build the road but to stop before Chicago. Such 
statements were condemned at the time on the grounds that they violated 
the separation of powers and usurped the authority of the legislative 
branch. One of the most interesting early confrontations occurred 
between President John Tyler and Speaker of the House, John Quincy 
Adams. When Tyler wrote a signing statement rejecting certain 
provisions of a political apportionment bill, Adams rejected the 
signing statement as an ``extraneous document'' that constituted a 
``defacement of the public records and archives.'' \37\ Indeed, Adams 
was right. Such statements are extraneous and do not constitute 
``law.'' They, however, have such an effect when a president uses them 
to order the disregard or effective line veto of a duly enacted law.
    \35\ T.J. Halstead, Cong. Research Serv. Report for Cong., 
Presidential Signing Statements: Constitutional and Institutional 
Implications 2 (2007), http://www.fas.org/sgp/crs/natsec/RL33667.pdf.
    \36\ Christopher N. May, Presidential Defiance of 
``Unconstitutional'' Laws 73 (1998).
    \37\ Am. Bar Ass'n, Task Force on Presidential Signing Statements 
and the Separation of Powers Doctrine 7 (2006).
    The most significant transformation of these statements came with 
Ronald Reagan. Then Attorney General Ed Meese sought to make such 
statements integral rather than extraneous by ensuring the West 
Publishing Company would print such statements with these laws as if 
they were a binding amendment or interpretation of the laws. The 
Supreme Court was viewed as undermining the authority of Congress 
further in INS v. Chadha and later cases by referring to signing 
statements and casually noting that the president will use such 
statements to decline to enforce certain objectionable provisions in 
laws.\38\ Soon, presidents were adding hundreds of such statements to 
``Executive legislative history'' accounts as if they were an addendum 
to legislation.
    \38\ In striking down the legislative veto in Chadha, the Court 
    that ``11 Presidents, from Mr. Wilson through Mr. Reagan, who have 
been presented
    with this issue have gone on record at some point to challenge 
congressional vetoes as
    unconstitutional.'' 462 U.S. 919, 942 fn. 13 (1983).
    To the extent that signing statements order the nonenforcement of 
legislation, it raises serious constitutional questions. Some signing 
statements have led to later reversals as in Reagan's dispute over the 
Competition in Contracting Act of 1984 or congressional reversals as in 
the HIV-positive personnel provision of the National Defense 
Authorization Act for Fiscal Year 1996 in the Clinton Administration. 
To the extent that these disputes are not resolved through inter-branch 
compromise, they should be resolved through judicial review (though, 
again, the dysfunctionally narrow standing rules can inhibit such 
review). Where the signing statements establish nonenforcement orders, 
we are left with a fundamental challenge to legislative authority. 
These confrontations can be made worse by the perfect constitutional 
storm of a signing statement that imposes a nonenforcement order, which 
in turn results in a nondefense order in litigation.
    George Bush most dramatically diverted from his predecessors by 
issuing signing statements that ``interpreted'' statutes in ways that 
effectively amended or negated provisions. Ironically, one of the 
greatest critics of such statements was Barack Obama, who pledged to 
end the practice as unconstitutional. Yet, Obama would be criticized 
for not only continuing such statements but actually barring 
enforcement by agencies.
D. Nonenforcement Orders.
    The three branches are set in a tripartite system designed to hold 
each in a type of Newtonian orbit. Under this system, no branch ideally 
has enough power to govern alone--they are forced into cooperative 
agreements and coexistence. Nonenforcement orders challenge this 
arrangement by imposing a type of presidential veto extrinsic to the 
legislative process. The legitimacy of such orders has long been 
challenged as an extraconstitutional measure.
    Yet, since Thomas Jefferson, Presidents have asserted the 
discretion not to enforce laws that they deemed unconstitutional. 
Jefferson took a stand against the Sedition Act that was used for many 
blatant abuses against political enemies in the early Republic. 
Jefferson cited his oath to protect the Constitution compelling him to 
act to ``arrest [the] execution'' of the law at ``every stage.'' \39\ 
Jefferson's stand represented the strongest basis for nonenforcement in 
a law that was used against political opponents and free speech. 
However, many presidents object to the constitutionality of a law, 
often in defense of expansive views of executive power. Those 
presidential arguments have resulted in rejection before the Supreme 
Court--reaffirming objections that presidents are negating legislative 
authority in violation of the separation of powers.
    \39\ Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), 
in 1 THE ADAMS-JEFFERSON LETTERS 274, 275-76 (Lester J. Cappon ed., 
1959); see also Saikrishna Bangalore Prakash, The Executive's Duty To 
Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008).
    Other presidents would follow suit, particularly in resisting 
claimed intrusions on executive authority. President Wilson refused to 
comply with a law barring his removal of postmasters without Senate 
approval. While three justices (including Brandeis and Holmes) 
dissented, the Administration prevailed in Myers v. United States.\40\ 
However, presidents have also been wrong in such judgments. This was 
the case with Gerald Ford, who refused to enforce the 1974 amendment to 
the Federal Election Campaign Act of 1971, which placed legal limits on 
the campaign contributions. Ford vetoed the law on first amendment 
grounds, but Congress overrode the veto. Ford then refused to enforce 
those provisions \41\ and then Robert Bork argued against the FECA 
provisions before the Court. However, the Court rejected Ford's 
arguments on that part of the law.\42\
    \40\ 272 U.S. 52 (1926).
    \41\ Gerald Ford, Statement on the Federal Election Campaign Act 
Amendments of 1974 (Oct. 15, 1974), http://www.presidency.ucsb.edu/ws/
    \42\ Buckley v. Valeo, 424 U.S. 1 (1976).
    Likewise, Ronald Reagan refused to execute the Independent Counsel 
law on the grounds of separation of powers--an ironic position given 
his own refusal to respect a duly enacted law of Congress. The Supreme 
Court ruled 7-1 that Reagan was wrong in Morrison v. Olson.\43\ In the 
same fashion, George H. W. Bush opposed affirmative action policies of 
the FCC only to be rejected in Metro Broadcasting v. FCC.\44\ While 
this was in turn overruled in Adarand Constructors, Inc. v. Pena,\45\ 
it was clearly a close constitutional question. For presidents to block 
enforcement of a law creates uncertainty as to the legitimacy and 
finality of enactments.
    \43\ 487 U.S. 654 (1988).
    \44\ 497 U.S. 547 (1990).
    \45\ 515 U.S. 200 (1995).
    I cannot agree with Abner Mikva who claimed as White House Counsel 
for Clinton that it is ``uncontroversial'' that ``the President may 
appropriately decline to enforce a statute that he views as 
unconstitutional.'' \46\ Mikva cites virtually nothing in terms of the 
text or intent of the Framers. Rather, he cites first and foremost the 
silence of the Court in cases like Myers where ``the Court sustained 
the President's view that the statute at issue was unconstitutional 
without any member of the Court suggesting that the President had acted 
improperly in refusing to abide by the statute.'' \47\ This 
``implicit[] vindication'' is cited by Mikva as proof of the authority 
to block the enforcement of federal statutes.\48\
    \46\ Memorandum for the Honorable Abner J. Mikva, Counsel to the 
President, Nov. 2, 1994 (found at http://www.justice.gov/olc/
    \47\ Id.
    \48\ Not surprisingly, there has been a series of opinions out of 
the Executive Branch supporting a president's right to refuse to 
execute laws. For example, Attorney General Civiletti insisted that 
``Myers holds that the President's constitutional duty does not require 
him to execute unconstitutional statutes; nor does it require him to 
execute them provisionally, against the day that they are declared 
unconstitutional by the courts.'' The Attorney General's Duty to Defend 
and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 
55, 59 (1980).
    There has of course been obvious controversy over the right of a 
president to refuse to execute federal laws in light of express 
language requiring his faithful enforcement of such laws. Moreover, the 
allowance for nonenforcement orders undermines the express process of 
legislation detailed in Article I and Article II. Thus, a president 
like Clinton can sign the National Defense Authorization Act for Fiscal 
Year 1996, forego a constitutional veto, and then declare a 
constructive post-enactment veto in a signing statement. While I 
happened to agree with Clinton on his opposition of the mandatory 
discharge of HIV-positive service members, a conscious decision was 
made to sign the legislation under the expectation that he could 
achieve the same effect of a veto through a nonenforcement order. Of 
course, it did not have the same effect constitutionally. An actual 
veto would have resulted in additional congressional debate and a 
separate vote to override the veto. The nonenforcement order made the 
legislative process meaningless by negating the provisions in a post-
enactment order.
      iii. nonenforcement policies under the obama administration
    From Internet gambling to educational waivers to immigration 
deportations to health care decisions, the Obama Administration has 
been unilaterally ordering major changes in federal law with the 
notable exclusion of Congress. Many of these changes have been defended 
as discretionary acts or mere interpretations of existing law. However, 
they fit an undeniable pattern of circumventing Congress in the 
creation of new major standards, exceptions, or outright 
nullifications. What is most striking about these areas is that they 
are precisely the type of controversial questions designed for the open 
and deliberative legislative process. The unilateral imposition of new 
rules robs the system of its stabilizing characteristics in dealing 
with factional divisions. While Attorney General Eric Holder has 
recognized that the judicial branch is ``the final arbiter of . . . 
constitutional claims,'' \49\ he appears less committed to the concept 
of the legislative branch's inherent authority. The classic 
circumvention of the Faithful Executive Clause is to say that it 
necessarily is limited to only constitutional laws. However, this 
argument only begs the question of who determines the 
unconstitutionality of a law. If it is left to a President, any such 
law could be claimed as presumptively unconstitutional. Indeed, if a 
President views a law as unconstitutional, it is not clear why the 
President could not still refuse to enforce it. This inherent power is 
often reinforced by reference to the President's oath to ``preserve, 
protect, and defend'' the Constitution--making the enforcement of a law 
deemed unconstitutional a violation of his oath--the Jeffersonian 
position on the Sedition Act.
    \49\ Letter from Eric H. Holder, Jr., Att'y Gen. of the United 
States, to Hon. John H. Boehner, Speaker of the House (Feb. 23, 2011) 
at 5.
    Some academics posit that each branch has an interpretive function 
and that the President need not yield to the rivaling interpretation of 
Congress or even courts. As was recently argued in one law review, 
``the Constitution nowhere anoints any entity or branch as the final 
arbiter of the meaning of the laws or the Constitution.'' \50\ This 
view, however, challenges the stability achieved after Marbury v. 
Madison \51\ since it necessarily leads to a position that ``[t]he 
Constitution never marks the Supreme Court supreme in its exposition of 
the Constitution over Presidents, Congress, the states, or the 
people.'' \52\ This is a long-standing debate that is not without 
support given the absence of a clear statement in Article III making 
the Supreme Court the final arbiter in such disputes.\53\ However, 
regardless of the debate over Chief Justice Marshall's basis for his 
holding, Marbur established a key stabilizing element by bringing 
finality to interpretive debates, particularly over controversies over 
the separation of powers. While the Administration avoids acknowledging 
the implications of its policy, it does inevitably challenge this 
foundational principle of judicial authority. The result is a view that 
not only allows the circumvention of the legislative powers but the 
negation of judicial review. That leaves such disputes to a matter of 
political strength and reduces the tripartite system to something akin 
to a continual game of chicken between branches.
    \50\ Devins & Prakash, supra, 112 Colum. L. Rev. at 526.
    \51\ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
    \52\ Id. at 529.
    \53\ Id. (``In sum, to imagine that the Constitution marks the 
Supreme Court as supreme in its exposition of the Constitution and laws 
of the United States, one has to believe two implausible propositions. 
One has to presume that a Constitution that never grants the Supreme 
Court a general power to decide all legal questions nonetheless cedes 
the Court a power to definitively answer such questions in some 
instances. And one has to discover, buried deep within the 
Constitution's interstices, an interbranch supremacy on constitutional 
and legal interpretation even though the Constitution contains nary a 
word hinting at such dominance.'')
    While political divisions would normally be a reason to leave a 
matter to the legislative process to resolve, it is increasingly being 
cited as a rationale for circumventing Congress. Thus, citing gridlock 
and the failure to correct the law, President Obama has granted 
widespread waivers to states under the No Child Left Behind Act, 
effectively nullifying the law in the view of critics.\54\ This has 
been denounced as a circumvention of Congress with the creation of new 
criteria or conditions by the Administration for schools to receive the 
waivers. This new system is entirely the product of an intrabranch 
process in circumvention of Congress. Likewise, the Administration 
effectively flipped the interpretation of the Wire Act, 18 U.S.C. 
Sec. 1084, from years of prohibiting Internet gambling to a limited bar 
just on sports betting.\55\ The interpretation effectively flipped the 
long-standing meaning of the federal law--an interpretation favored by 
many states and lobbyists in the industry. After years of maintaining a 
consistent interpretation, the 180 degree change transformed the Act 
into a vastly different law that potentially allowed billions of 
dollars' worth of gambling operations on the Internet. While defendable 
as an interpretative function, it was a radical change made without 
congressional hearings or debate.
    \54\ Motoko Rich, ``No Child'' Law Whittled Down By The White 
House, New York Times, July 6, 2012.
    \55\ Nathan Vardi, Department of Justice Flip-Flops On Internet 
Gambling, Forbes, Dec. 12, 2011.
    A different rationale was used for delaying enforcement of the 
employer mandate set by Congress in the Affordable Care Act. Once 
again, this remains one of the most important and divisive questions 
facing the political system. Yet, the Administration cited deference to 
agencies in implementing regulations and establishing standards for tax 
and other provisions. Despite having four years to implement the law 
and the statutorily-set deadline, the Administration insisted that 
Congress cannot hold agencies to such schedules. The law itself 
unambiguously sets January 1, 2014 as the critical date \56\--a matter 
of considerable debate within Congress during deliberations. There is 
no express power given to change that date. Yet, Mark J. Mazur, the 
Assistant Secretary for Tax Policy at the U.S. Department of the 
Treasury, insisted that such mandatory dates can be ignored by the 
Administration, which will unilaterally decide such questions.\57\ It 
is another example of the new independence of the ``Fourth Branch'' and 
how specific mandates can now be disregarded in the haze of agency 
deference. The Congress could not have been more clear as to the 
activation date for the law, but the position of the Administration 
would make such provisions merely advisory and subject to the agreement 
of the President.
    \56\ This date applies to the Employer Mandate (26 U.S.C. 
Sec. 4980H) and the
    Individual Mandate (id. Sec. 5000A). Pub. L. No. 111-148, 124 Stat. 
    \57\ Mark J. Mazur, Continuing to Implement the ACA in a Careful, 
Thoughtful Manner, U.S. Department of the Treasury, July 2, 2013 
(available at http://www.treasury.gov/connect/blog/Pages/Continuing-to-
    The Administration's basis for negating statutory provisions lost 
even the pretense of reasoned authority in the immigration area.\58\ 
There has long been a general consensus that a president cannot refuse 
to enforce a law that is considered constitutionally sound. Thus, in 
his general support for nonenforcement orders, former Attorney General 
Benjamin Civiletti acknowledged that ``[t]he President has no 
`dispensing power,''' meaning that the President and his subordinates 
``may not lawfully defy an Act of Congress if the Act is constitutional 
. . . . In those rare instances in which the Executive may lawfully act 
in contravention of a statute, it is the Constitution that dispenses 
with the operation of the statute. The Executive cannot.'' \59\ Yet, in 
June 2012, President Obama appeared to exercise precisely this type of 
``dispensing power'' in issuing an order to federal agencies that the 
Administration would no longer deport individuals who came to this 
country illegally as children despite the fact that federal law 
mandates such deportation. In disregarding the statutory language, the 
Administration rolled out a new alternative policy that individuals can 
qualify for ``deferred action'' if they had come to the country before 
the age of 16, have no criminal history, resided in the U.S. for at 
least five consecutive years, and are either a student or have already 
graduated from high school, or earned an equivalent GED, or served in 
the military. Yet, this new, detailed system is the product not of 
Congress but the internal deliberations of a federal agency. While 
claimed to simply be an act of prosecutorial discretion,\60\ it 
constitutes a new and alternative immigration process for these 
    \58\ There was also an immigration component of the controversy 
over DOMA. Peter Baker, For Obama, Tricky Balancing Act in Enforcing 
Defense of Marriage Act, New York Times (Mar. 28, 2013). Before the 
ruling of the Supreme Court striking down DOMA, the Department of 
Homeland Security announced that it would no longer enforce DOMA in its 
immigration decision. In August 2011, Obama's DHS announced it would no 
longer deport the noncitizen spouses of gay Americans in conflict with 
    \59\ The Attorney General's Duty to Defend and Enforce 
Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980) 
(opinion of Attorney General Civiletti.
    \60\ Memorandum of Janet Napolitano, Secretary of Homeland 
Security, June 15, 2012, (available at http://www.dhs.gov/xlibrary/
    The Administration again circumvented Congress in August of this 
year with the announcement that deportation would no longer occur for 
any primary provider for any minor child or the parent or guardian of a 
child who is a U.S. citizen or legal permanent resident. Once again, it 
is not clear what Congress could do to counter such claims of 
discretion any more than it could set the date for the implementation 
of the ACA. The federal law mandates deportation for individuals in the 
country illegally. While prosecutorial discretion has been cited in 
individual case decisions, the Administration was using it to nullify 
the application of federal law to hundreds of thousands, if not 
millions of individuals. Once again, one's personal view of the merits 
of such an exception should not be the focus, or even a part, of the 
analysis. In ordering this blanket exception, President Obama was 
nullifying part of a law that he simply disagreed with. There is no 
claim of unconstitutionality. It is a raw example of the use of a 
``dispensing power'' over federal law. It is difficult to discern any 
definition of the faithful execution of the laws that would include the 
blanket suspension or nullification of key provisions. What the 
immigration order reflects is a policy disagreement with Congress. 
However, the time and place for such disagreements is found in the 
legislative process before enactment. If a president can claim sweeping 
discretion to suspend key federal laws, the entire legislative process 
becomes little more than a pretense. What is most striking is the 
willingness of some to accept this transparent effort to rewrite the 
immigration law after the failure to pass the DREAM Act containing some 
of the same reforms.
    A few weeks ago, President Obama again invoked his inherent power 
in declaring that individuals with pre-existing policies could retain 
those policies for a year despite the fact that they do not conform 
with the requirements of the ACA.\61\ The ACA expressly sets the date 
for compliance that penalizes non-exempt individuals who do not 
maintain ``minimum essential'' health insurance coverage.\62\ Those 
non-compliant individuals are subject to a ``[s]hared responsibility 
payment.'' \63\ By saying that states can allow individuals to remain 
non-compliant after the statutory deadline, President Obama inserted a 
constructive exemption that would have been the subject of intense 
political debate at the time of the deliberations.
    \61\ Juliet Eilperin, Amy Goldstein and Lena H. Sun, Obama 
Announces Change To Address Health Insurance Cancellations, Wash. Post, 
Nov. 14, 2013.
    \62\ 26 U.S.C. Sec. 5000A.
    \63\ 26 U.S.C. Sec. 5000A(b).
    Notably, the unilateral change occurred when legislation addressing 
this issue was being debated in Congress. Moreover, this change was 
made after an outcry over what many viewed as the central selling point 
of the President's during the debate over the ACA: suggesting that, if 
people liked their current policies, they would be allowed to keep 
them. After securing passage of the ACA, however, on a thin vote 
margin, many accused the President of a bait-and-switch when millions 
lost their policies. I will leave others to work through the merits of 
that controversy. For my purposes, I am only interested in the fact 
that a key issue discussed during the debate over the legislation was 
unilaterally altered after passage. This is an obviously important part 
of the debate. The law does not expressly give the President the 
authority to waive the application of the provisions for selected 
groups. To the extent that the President was claiming that he had the 
authority to amend the law in this way, I fail again to see the legal 
basis for such authority.
    Notably, the unilateral changes made to laws like the ACA are not 
done (as with Jefferson's refusal to enforce the Sedition Act) in 
defiance of an act viewed as unconstitutional and abusive. Rather, 
President Obama has invoked a far broader authority to tailor laws 
based on his judgment and discretion. This may be done ostensibly to 
``improve'' the law as with the one-year waiver for individual policies 
or to mitigate the hardship of a law as with the immigration law. These 
happen to be areas of great political division in the country as well 
as substantial opposition to the President's policies in Congress. Many 
applauded the President's transcending politics by ordering such 
unilateral action without considering the implications of such inherent 
authority for the system as a whole.
    Once again, it is important to divorce the subject of such 
legislation or the identity of the president from the constitutional 
analysis. The circumvention of the legislative process not only 
undermines the authority of this branch but destabilizes the tripartite 
system as a whole. If President Obama can achieve the same result of 
legislation by executive fiat, future presidents could do the same in 
negating environmental or discrimination or consumer protection laws. 
Such practices further invest the Administrative State with a degree of 
insularity and independence that poses an obvious danger to liberty 
interests protected by divided government. This danger is made all the 
more menacing by the clear assumption by the Executive Branch that 
artificially narrow standing rules will insulate the orders from 
judicial scrutiny and relief. With Congress so marginalized and courts 
so passive, the Fourth Branch threatens to become a government unto 
itself for all practical purposes.
                             iv. conclusion
    In Federalist No. 51, James Madison explained the essence of the 
separation of powers--and the expected defense of each branch of its 
constitutional prerogatives and privileges:

        ``But the great security against a gradual concentration of the 
        several powers in the same department, consists in giving to 
        those who administer each department the necessary 
        constitutional means and personal motives to resist 
        encroachments of the others. The provision for defense must in 
        this, as in all other cases, be made commensurate to the danger 
        of attack. Ambition must be made to counteract ambition.''

    A provision was once made for the defense of this branch against 
the type of ``encroachments'' discussed in this hearing. It was found 
in the power of Congress to establish federal law and the obligation of 
the Executive Branch to faithfully execute those laws. For decades, 
however, Congress has allowed its core authority to drain into a fourth 
branch of federal agencies with increasing insularity and independence. 
It has left Congress intact but inconsequential in some disputes. If 
this trend continues unabated, Congress will be left like some Maginot 
Line on the constitutional landscape--a sad relic of a once tripartite 
system of equal branches.
    There remain legitimate questions over when a President can refuse 
to defend or enforce a statute and whether the former duty is a subset 
of the latter duty. As an academic deeply concerned over the 
concentration of power under the modern presidency, I tend to minimize 
such authority in favor of a more formalist division of powers.\64\ 
Functionalists take a clearly more fluid approach to such powers. 
However, I do not view the recent controversies as ``close questions.'' 
The actions of the Obama Administration challenge core principles of 
the separation of powers and lack meaningful limiting principles for 
future executive orders.
    \64\ See generally Turley, Age of Regulation, supra.
    Clearly, these are times of bitter and intractable divisions 
between the parties. It is not the first time such divisions have 
emerged in Congress. However, Madison and others believed that petty 
partisanship would ultimately yield to common institutional interests 
when faced with the ``danger of attack.'' After all, members have a 
common article of faith. It is Article I of the Constitution and the 
words ``All legislative powers herein granted shall be vested in a 
Congress of the United States.''

    Mr. Goodlatte. Mr. Rosenkranz, welcome.


    Mr. Rosenkranz. Thank you, Mr. Chairman, Representative 
Conyers, Members of the Committee. I thank you for the 
opportunity to express my views about the President's 
constitutional duty to take care that the laws be faithfully 
    So to speak about the Take Care Clause, I want to associate 
myself with Professor Turley's opening statements. I quite 
agree with all of his remarks.
    I would like to just draw the Committee's attention to the 
text of the clause. It is always best to begin by parsing the 
actual words.
    So, first, notice that this clause is not a grant of power 
actually but the imposition of a duty. ``The President shall 
take Care.'' This is not optional. It is mandatory.
    Second, note that the duty is personal. The execution of 
the laws may be delegated to other officers, but the duty to 
take care that the laws be faithfully executed--that is 
personal. That is the President's duty alone.
    Third, notice that the President is not required to take 
care that the laws be completely executed. That would be 
impossible given finite resources. The President does have 
power to make enforcement choices. However, he must make them 
    Finally, it is important to remember the historical context 
of the clause. English kings had claimed the power to suspend 
laws unilaterally, but the Framers expressly rejected that 
practice. Here, the executive would be obliged to take care 
that the laws be faithfully executed.
    So with these principles in mind, it is possible to view 
some recent controversies through this precise proper 
constitutional lens. For this purpose, I am going to focus on 
three examples: the President's unilateral decision to suspend 
certain provisions of the Affordable Care Act; the President's 
unilateral abridgement of the Immigration and Nationality Act; 
and on the IRS's targeting of the President's political 
    So, first, the Obamacare suspension. On July 2nd, 2013, 
just before the long weekend, the Obama administration 
announced via blog post that the President would unilaterally 
suspend the employer mandate of Obamacare, notwithstanding the 
unambiguous command of the law. The statute is perfectly clear. 
It provides that these provisions become effective on January 
1st, 2014. The blog post makes no mention of the statutory 
    This raises the question of what it means to take care that 
the laws be faithfully executed. Certainly the adverb 
``faithfully'' gives the President broad discretion about how 
to best deploy his executive resources, and the scope of that 
discretion can be the subject of legitimate debate. But this 
was not a mere calibration of executive resources. This is 
wholesale suspension of law in the teeth of a clear statutory 
command to the contrary. Whatever it may mean to take care that 
the laws be faithfully executed, it simply cannot mean 
declining to execute a law at all.
    Now, the President's remarks on this issue were quite 
striking. A few months ago, he said he would actually prefer to 
simply call up the Speaker of the House to request a change in 
this law that would have achieved the desired delay, but the 
truth is he would not have needed to pick up the phone. The 
House actually had already passed the Authority for Mandate 
Delay Act, but the President, far from welcoming this 
legislative change, actually threatened to veto it. So this 
seems almost like a willful violation of the Take Care Clause.
    The second example, the Immigration and Nationality Act 
suspension, which the Chairman mentioned. I will just mention 
briefly what is striking about this is the President's decision 
to enforce the immigration laws as though the DREAM Act had 
been enacted when in fact it has not. So in this case, it is 
almost a mirror of the other case. Rather than declining to 
comply with a duly enacted statute, the President is complying 
meticulously but with a bill that never became a law. Congress 
has repeatedly considered a statute called the DREAM Act. The 
President favors this act. Congress repeatedly declined to pass 
it. So the President has simply announced that he would enforce 
the Immigration and Nationality Act as though the DREAM Act had 
been enacted.
    To put the point another way, the President's duty is to 
``take Care that the Laws be faithfully executed,'' ``Laws,'' 
capital L, not those bills which fail to become law like the 
    Finally, I will just briefly mention the IRS targeting. If 
the adverb ``faithfully'' means anything, I would say that it 
means nondiscriminatorily. That is, the President cannot 
enforce the laws in a discriminatory manner. And the story of 
the IRS targeting is actually the application of the tax laws 
to the President's political enemies in a discriminatory way. 
This is perhaps the single most troubling type of enforcement 
discrimination, and so in a way perhaps the most troubling 
violation of the President's obligation to take care that the 
laws be faithfully executed.
    Thank you.
    [The prepared statement of Mr. Rosenkranz follows:]
  Prepared Statement of Nicholas Quinn Rosenkranz, Professor of Law, 
 Georgetown University Law Center, and Senior Fellow in Constitutional 
              Studies, The Cato Institute, Washington, DC
    Mr. Chairman, Representative Conyers, Members of the Committee: I 
thank you for the opportunity to express my views about the President's 
constitutional duty to ``take Care that the Laws be faithfully 
executed.'' \1\
    \1\ U.S. Const. art. II, Sec. 3.
    This is a timely and important hearing, because many of the legal 
controversies of the day implicate this Presidential duty. In areas as 
important and diverse as healthcare, immigration, nuclear waste 
storage, tax enforcement, military action, and foreign aid, there has 
been an inchoate sense that the Administration has overstepped its 
authority. But the criticism has generally been issue-specific, and it 
has often conflated policy objections with constitutional objections. 
There has been very little systematic analysis of this behavior as a 
pattern. And more to the point, there has been very little analysis of 
the particular constitutional clause at issue.
    The relevant clause of the Constitution, which should be the 
lodestar of this discussion, is the Take Care Clause: ``The President . 
. . shall take Care that the Laws be faithfully executed.'' \2\ To put 
these recent controversies in constitutional context, it is essential 
to understand the meaning and purpose of this Clause. As always, it is 
best to begin by parsing the constitutional text.
    \2\ Id. (emphasis added).
    First, notice that this Clause does not grant power but rather 
imposes a duty: ``The President . . . shall take Care . . . '' \3\ This 
is not optional; it is mandatory. Second, note that the duty is 
personal. Execution of the laws may be delegated, but the duty to 
``take Care that the Laws be faithfully executed'' \4\ is the 
President's alone. Third, notice that the President is not required to 
take care that the laws be ``completely'' executed; that would be 
impossible given finite resources. The President does have power to 
make enforcement choices--however, he must make them ``faithfully.'' 
Finally, it is important to remember the historical context of the 
clause: English kings had claimed the power to suspend laws 
unilaterally,\5\ but the Framers expressly rejected that practice. 
Here, the executive would be obliged to ``take Care that the Laws be 
faithfully executed.'' \6\
    \3\ Id. (emphasis added).
    \4\ Id. (emphasis added).
    \5\ F.W. Maitland, The Constitutional History of England: A Course 
of Lectures Delivered, 302-03 (1st ed. 1908 & reprint 1919).
    \6\ U.S. Const. art. II, Sec. 3. See also Michael W. McConnell, Op-
Ed: Obama Suspends the Law, Wall St. J. (July 8, 2013), http://
    With these principles in mind, it is possible to view recent 
controversies through the proper constitutional lens. For this purpose, 
I shall focus on three recent examples--though, sadly, there are many 
others that one could choose. I shall focus on the President's 
unilateral decision to suspend certain provisions of the Affordable 
Care Act, on the President's unilateral abridgement of the Immigration 
and Nationality Act, and on the IRS's targeting of the President's 
political adversaries.
                        i. obamacare suspension
    On July 2, 2013, just before the long weekend, the Obama 
Administration announced via blog post that the President would 
unilaterally suspend the employer mandate of ObamaCare \7\--
notwithstanding the unambiguous command of the law. The statute is 
perfectly clear: It provides that these provisions become effective on 
January 1, 2014.\8\ The blog post--written under the breezy Orwellian 
title ``Continuing to Implement the ACA in a Careful, Thoughtful 
Manner''--makes no mention of the statutory deadline.\9\
    \7\ Mark J. Mazur, Continuing to Implement the ACA in a Careful, 
Thoughtful Manner, U.S. Dep't of the Treasury (July 2, 2013), http://
a-Careful-Thoughtful-Manner-.aspx. The Obama Administration suspended 
implementation of 26 U.S.C. Sec. 6055, 26 U.S.C. Sec. 6056, and 26 
U.S.C. Sec. 4980H.
    \8\ The Patient Protection and Affordable Care Act, Pub.L. 111-148, 
Sec. 1502(e), 124 Stat. 119, 252 (March 23, 2010) (``The amendments 
made by this section shall apply to calendar years beginning after 
2013.''); id. Sec. 1513(d), 124 Stat. at 256 (``The amendments made by 
this section shall apply to months beginning after December 31, 
    \9\ See Mazur, supra note 7.
    This blog post raises the question of what it means to ``take Care 
that the Laws be faithfully executed.'' Certainly, the adverb 
``faithfully'' gives the President broad discretion about how best to 
deploy executive resources and how best to execute the laws. And the 
precise scope of this discretion may be the subject of legitimate 
debate. But this breathtaking blog post was not a mere exercise of 
prosecutorial discretion or a necessary calibration of executive 
resources. This was a wholesale suspension of law, in the teeth of a 
clear statutory command to the contrary. Whatever it may mean to ``Take 
Care that the Laws be faithfully executed,'' it simply cannot mean 
declining to execute a law at all.
    As if the suspension weren't enough, President Obama's comments 
about it on August 9, 2013--claiming that ``the normal thing [he] would 
prefer to do'' is seek a ``change to the law'' \10\--added insult to 
constitutional injury. Indeed, the President seemed annoyed when The 
New York Times dared to ask him the constitutional question.\11\ As for 
Republican congressmen who questioned his authority, Mr. Obama said 
only: ``I'm not concerned about their opinions--very few of them, by 
the way, are lawyers, much less constitutional lawyers.'' \12\ Mr. 
Obama made no mention of, for example, Iowa Sen. Tom Harkin--a 
Democrat, a lawyer and one of the authors of ObamaCare--who asked 
exactly the right question: ``This was the law. How can they change the 
law?'' \13\ Senator Harkin's point, of course, is that a change like 
this is inherently legislative; it requires an amendment to the statute 
    \10\ President Barack Obama, Remarks by the President in a Press 
Conference, (Aug. 9, 2013), http://www.whitehouse.gov/the-press-office/
    \11\ See Jackie Calmes & Michael D. Shear, Interview with President 
Obama, N.Y. Times (July 27, 2013), http://www.nytimes.com/2013/07/28/
    \12\ Id.
    \13\ Jonathan Weisman & Robert Pear, Seeing Opening, House G.O.P. 
Pushes Delay on Individual Mandate in Health Law, N.Y. Times (July 9, 
2013), http://www.nytimes.com/2013/07/10/us/politics/house-gop-pushes-
    But the President has been distinctly ambivalent about any such 
amendment. A few months ago, he said that he would like to ``simply 
call up the Speaker'' of the House to request a ``change to the law'' 
that would achieve his desired delay.\14\ But the truth, as the 
President knows, is that he wouldn't even need to pick up the phone: On 
July 17, 2013, the House of Representatives passed the Authority for 
Mandate Delay Act (with 229 Republicans and 35 Democrats voting in 
favor).\15\ This would have authorized President Obama's desired 
suspension of the law.\16\
    \14\ President Barack Obama, Remarks by the President in a Press 
Conference, (Aug. 9, 2013), http://www.whitehouse.gov/the-press-office/
    \15\ See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. 
(2013). For final vote results for H.R. 2667, see http://
    \16\ See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. 
    But President Obama did not actually welcome this congressional 
ratification. To the contrary, this bill--which stood to fix the 
constitutional problem that he himself had created--the President 
deemed ``unnecessary''.\17\ Indeed, he actually threatened to veto 
it.\18\ In this case, it appeared that the President would actually 
prefer to flout the law as written, rather than support a statutory 
change that would achieve his desired result. This seems an almost 
willful violation of the Take Care Clause.
    \17\ Office of Mgmt. & Budget, Exec. Office of the President, 
Statement of Administration Policy, (July 16, 2013), http://
    \18\ Id.

             ii. immigration and nationality act suspension
    The second example, immigration, is almost an exact mirror of the 
first. In the ObamaCare context, the President suspended an Act of 
Congress--a statute that was duly passed by both Houses of Congress, 
and which he himself had signed into law. In the immigration context, 
the situation is the opposite. Rather than declining to comply with a 
duly enacted statute, the President is complying meticulously--with a 
bill that never became a law.
    Congress has repeatedly considered a statute called the DREAM Act, 
which would exempt a broad category of aliens from the Immigration and 
Nationality Act (INA).\19\ The President favored this Act, but Congress 
repeatedly declined to pass it.\20\ So, on June 15, 2012, the President 
announced that he would simply not enforce the INA against the precise 
category of aliens described in the DREAM Act.\21\ He announced, in 
effect, that he would behave as though the DREAM Act had been enacted 
into law, though it had not.\22\
    \19\ See Elisha Barron, The Development, Relief, and Education for 
Alien Minors (Dream) Act, 48 Harv. J. on Legis. 623, 633 (2011); Robert 
J. Delahunty & John C. Yoo, Dream On: The Obama Administration's 
Nonenforcement of Immigration Laws, the Dream Act, and the Take Care 
Clause, 91 Tex. L. Rev. 781, 783-784, 789 (2013).
    \20\ The Dream Act of 2011 did not move past the committee stage in 
either the House or the Senate. See Development, Relief, and Education 
for Alien Minors Act of 2011, H.R. 1842, 112th Congress (2011); 
Development, Relief, and Education for Alien Minors Act of 2011, S. 
952, 112th Congress (2011).
    \21\ President Barack Obama, Remarks by the President on 
Immigration (June 15, 2012), http://www.whitehouse.gov/the-press-
    \22\ See id.; Memorandum from Janet Napolitano, Sec'y, U.S. Dep't 
of Homeland Sec., to David V. Aguilar, Acting Comm'r, U.S. Customs & 
Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration 
Servs. & John Morton, Dir., Exercising Prosecutorial Discretion with 
Respect to Individuals Who Came to the United States as Children, U.S. 
Immigration & Customs Enforcement (June 15, 2012), http://www.dhs.gov/
    Once again, the President does have broad prosecutorial discretion 
and broad discretion to husband executive resources. But in this case, 
it is quite clear that the President is not merely trying to conserve 
resources. After all, his Solicitor General recently went to the 
Supreme Court to forbid Arizona from helping to enforce the INA.\23\ 
And exempting as many as 1.76 million people from the immigration laws 
goes far beyond any traditional conception of prosecutorial 
discretion.\24\ More to the point, this exemption has a distinctly 
legislative character. It is not a decision, in a particular case, that 
enforcement is not worth the resources; rather it is a blanket policy 
which exactly mirrors a statute that Congress declined to pass.\25\ To 
put the point another way, the President shall ``take Care that the 
Laws''--capital ``L''--``be faithfully executed''--not those bills 
which fail to become law. Here, in effect, the President is faithfully 
executing the DREAM Act, which is not law at all, rather than the 
Immigration and Nationality Act, which is supreme law of the land. The 
President cannot enact the DREAM Act unilaterally, and he cannot evade 
Article I, section 7,\26\ by pretending that it passed when it did not.
    \23\ See Brief for Respondent United States at 26, Arizona v. 
United States, 132 S. Ct. 2492 (2012) (No. 11-182). The Solicitor 
General argued that ``Arizona's attempt to punish violations of federal 
law intrudes on exclusive federal authority.''
    \24\ Jeanne Batalova & Michelle Mittelstadt, Migration Policy 
Inst., Relief from 
Deportation: Demographic Profile of the DREAMers Potentially Eligible 
Under the Deferred Action Policy 1 (2012), available at http://
    \25\ See Memorandum from Janet Napolitano, supra note 22. See also 
In re Aiken Cnty., 725 F.3d 255 (D.C. Cir. 2013) (Kavanaugh, J.) 
(``[T]he President may not decline to follow a statutory mandate or 
prohibition simply because of policy objections. Of course, if Congress 
appropriates no money for a statutorily mandated program, the Executive 
obviously cannot move forward. But absent a lack of funds or a claim of 
unconstitutionality that has not been rejected by final Court order, 
the Executive must abide by statutory mandates and prohibitions.'').
    \26\ U.S. Const. art. I, Sec. 7 (requiring bicameralism and 
presentment for a bill to become a law).
    Indeed, the President himself made this exact point, eloquently, 
only 20 months ago:

        America is a nation of laws, which means I, as the President, 
        am obligated to enforce the law. . . . With respect to the 
        notion that I can just suspend deportations through executive 
        order, that's just not the case, because there are laws on the 
        books that Congress has passed . . . There are enough laws on 
        the books by Congress that are very clear in terms of how we 
        have to enforce our immigration system that for me to simply 
        through executive order ignore those congressional mandates 
        would not conform with my appropriate role as President.\27\
    \27\ President Barack Obama, Remarks by the President at Univision 
Town Hall (Mar. 28, 2011), http://www.whitehouse.gov/the-press-office/

And just last week, in response to a heckler, the President expressly 
denied that he has ``a power to stop deportation for all undocumented 
immigrants in this country.'' \28\ He reiterated:
    \28\ President Barack Obama, Remarks by the President on 
Immigration Reform--San Francisco, CA (Nov. 25, 2013), http://

        [W]e're also a nation of laws. That's part of our tradition. 
        And so the easy way out is to try to yell and pretend like I 
        can do something by violating our laws. And what I'm proposing 
        is the harder path, which is to use our democratic processes to 
        achieve the same goal that you want to achieve.\29\
    \29\ Id.
What the President did not explain is how his current immigration 
policy is consistent with that principle.
                           iii. irs targeting
    The third example is troubling in a different way. As is now well 
known, the IRS subjected Tea Party organizations to Kafkaesque scrutiny 
and delay, particularly in the run-up to the last election. A few 
months ago, a House Oversight Committee hearing revealed that the IRS 
Chief Counsel's Office had played a key role.\30\ The Committee rightly 
zeroed in on this fact, because the Chief Counsel is one of only two 
political appointees at the IRS,\31\ appointed by President Obama \32\ 
and confirmed by the Senate.\33\ But what was missing from the 
hearing--and what has been missing from the commentary throughout--is 
the constitutional context of this scandal.
    \30\ Written Testimony of Carter Hull, Before the House Oversight 
and Gov't Reform Comm. (July 18, 2013), http://oversight.house.gov/wp-
    \31\ See 26 U.S.C. Sec. 7803(b)(1).
    \32\ Press Release, The White House: Office of the Press Sec'y, 
President Obama Announces More Key Treasury Appointments (Apr. 17, 
2009), http://www.whitehouse.gov/the-press-office/president-obama-
    \33\ Press Release, U.S. Dep't of the Treasury, William J. Wilkins 
Confirmed as Chief Counsel for the Internal Revenue Service, Assistant 
General Counsel for Treasury (July 28, 2009), http://www.treasury.gov/
    The President has, of course, been at pains to distance himself 
from this scandal. But, again, recall that the duty to ``take Care'' is 
personal. Execution of the laws may be delegated; indeed, the Clause 
clearly contemplates that other officers--like the IRS Chief Counsel--
will do the actual executing. But the duty to ``take Care that the Laws 
be faithfully executed'' is the President's alone. For this reason, 
what the President knew and when he knew it is, in a certain sense, 
beside the point; the right question is what he should have known. It 
will not do for the President to say (erroneously) that the IRS is an 
``independent agency'' or to say (implausibly) that he learned about 
IRS targeting ``from the same news reports'' as the rest of us.\34\ Not 
knowing what an executive agency is up to--let alone not knowing that 
the IRS is, in fact, a bureau of an executive agency that answers to 
the President--is not taking care that the laws be faithfully executed. 
If the President was negligent in his supervision of the IRS (or 
somehow unaware that it was subject to his supervision), then he failed 
in his duty to take care.
    \34\ See President Barack Obama, Remarks by President Obama and 
Prime Minister Cameron of the United Kingdom in Joint Press Conference, 
(May 13, 2013), http://www.whitehouse.gov/the-press-office/2013/05/13/
joint-. The IRS is part of the Department of Treasury, not an 
independent agency. See 26 USC Sec. 7803 (placing the IRS Commissioner 
in the Department of the Treasury, and making him removable at the will 
of the President).
    Now, again, it is true that the President is not required to take 
care that the laws be ``completely'' executed; that would be impossible 
given finite resources. The President does have power to make 
enforcement choices--however, he must make them ``faithfully.'' If the 
President lacks the resources to prosecute all bank robbers, he may 
choose to prosecute only the violent bank robbers; but he cannot choose 
to prosecute only the Catholic bank robbers.\35\ Invidious 
discrimination is not faithful execution.
    \35\ See Smith v. Meese, 821 F.2d 1484, 1492 (11th Cir. 1987).
    Discriminatory enforcement on the basis of religion would have 
horrified the Framers of the Constitution. But there is one kind of 
discrimination that would have worried them even more--the one kind 
that could undermine the entire constitutional structure: political 
discrimination. The single most corrosive thing that can happen in a 
democracy is for incumbents to use the levers of power to stifle their 
critics and entrench themselves.\36\ This is devastating to a 
democracy, because it casts doubt on the legitimacy of all that 
follows. Ensuring that this does not happen is perhaps the single most 
important imperative of the President's duty to take care that the laws 
be faithfully executed. If he gives only one instruction to his 
political appointees, it should be this: do not discriminate on the 
basis of politics in your execution of the laws.
    \36\ See John Hart Ely, Gerrymanders: The Good, the Bad, and the 
Ugly, 50 Stan. L. Rev. 607, 621 (1998).
    This, sadly, is the gravamen of the IRS scandal. Congress enacted a 
neutral provision of the tax code, but an executive agency enforced it 
non-neutrally, discriminating on invidious grounds. It discriminated 
against the Tea Party,\37\ the most potent political force that the 
President's party faced in the mid-term elections. It discriminated 
against those who ``criticize how the country is being run.'' \38\ For 
good measure, it reportedly discriminated against those ``involved in . 
. . educating on the Constitution and the Bill of Rights.'' \39\ And it 
did all this while an embattled incumbent President was running for re-
    \37\ Treasury Inspector Gen. for Tax Admin., Inappropriate Criteria 
Were Used to Identify Tax-Exempt Applications for Review 5 (May 14, 
2013), https://docs.google.com/viewer?url=http://
    \38\ Id. at 6, 35.
    \39\ Id. at 30, 38.
    \40\ See id. at 6-10.
    The President may, alas, urge his supporters to ``punish our 
enemies'' \41\; but he cannot stand oblivious while the IRS does just 
that. He may, alas, berate the Supreme Court for protecting political 
speech \42\; but he cannot turn a blind eye while the IRS muzzles his 
critics with red tape. He may, alas, call right-leaning groups a 
``threat to our democracy'' \43\--but the real, cardinal threat is 
unfaithful execution of the laws.
    \41\ Eddie Sotelo, Interview with the President of the United 
States Barack Obama, Univision Radio (Oct. 25, 2010), transcript 
available at http://latimesblogs.latimes.com/washington/2010/10/
    \42\ President Barack Obama, Remarks by the President in State of 
the Union Address (Jan. 27, 2010), http://www.whitehouse.gov/the-press-
    \43\ President Barack Obama, Remarks by the President and the Vice 
President at a DNC `Moving America Forward' Rally in Philadelphia, 
Pennsylvania (Oct. 10, 2010), http://www.whitehouse.gov/the-press-
    The President has a personal obligation to ``take Care that the 
Laws be faithfully executed.'' \44\ The word ``faithfully'' is, 
perhaps, a broad grant of discretion, but it is also a real and 
important constraint. The President cannot suspend laws altogether. He 
cannot favor unenacted bills over duly enacted laws. And he cannot 
discriminate on the basis of politics in his execution of the laws. The 
President has crossed all three of these lines.
    \44\ U.S. Const. art. II, Sec. 3.

    Mr. Goodlatte. Thank you.
    Mr. Lazarus, welcome.


    Mr. Lazarus. Thank you very much, Mr. Chairman, and thank 
you, Mr. Ranking Member Conyers and all of the Members of the 
Committee who are here.
    I am afraid I am going to have to disagree with my 
colleagues on the panel who have spoken so far. Brandishing the 
Take Care Clause has become a favorite talking point for 
opponents of an array of Obama administration policies and 
    All of these efforts, or at least the ones with which I am 
familiar, are in reality--all these efforts to import the 
Constitution into what are in reality political and policy 
attacks are really rhetorical make-weights. They mock the text 
and original meaning of the Take Care Clause. They flout long-
established Supreme Court precedent, and they contradict the 
consistent practice of all modern presidencies, Republican and 
Democratic, to implement complex and consequential regulatory 
programs as Congressman Conyers pointed out.
    These critics fault the Obama administration for many 
things, but essentially two kinds of things: one, making 
necessary adjustments in timing of implementation of laws and 
particularly the Affordable Care Act; and secondly, in matching 
immigration enforcement priorities with available resources and 
practical, humanitarian, and other exigencies.
    But exercising presidential judgment for such reasons is 
precisely what the Constitution requires. It is precisely what 
the Framers expected when they established a separate executive 
branch under the direction of a nationnally elected President 
and charged him to take care that the laws be faithfully 
    So let's first take a quick look at one of the targets of 
these charges and that is the phasing in of the ACA employer 
mandate, which has been called a blatant illegality and many 
other things. But in fact it is a routine, temporary course 
    What exactly did the Administration do? On July 2nd, it 
announced the decision to postpone for 1 year the January 1, 
2014 effective date for the ACA requirement that large 
employers provide their workers with health insurance or pay a 
tax. This and other subsequently announced delays related to 
the ACA do not constitute refusals to enforce the ACA at all. 
On the contrary, they are merely phasing in adjustments 
designed to ensure effective implementation of the overall 
statute in accord with Congress' purposes. The Treasury 
Department's announcement makes that clear and the proposed 
regulations that it has followed through on on September 5th 
make that clearer, as does Treasury's statement that it intends 
to continue fine tuning those regulations and working with the 
people affected by them until they become finally effective.
    And I should emphasize that just after the Administration 
took this action, President George W. Bush's HHS Secretary, 
Michael Leavitt, concurred that ``the Obama administration's 
decision to delay the employer mandate was wise.'' That was 
based on his experience in phasing in the Medicare Part D 
prescription drug benefit.
    So I have to say that hyperventilating about how 
extraordinary and unprecedented and unconstitutional these 
delays are is just that. It is hyperventilation and it is 
contrary to obvious historical fact.
    Nor is the 1-year delay of the employer mandate an affront 
to the Constitution. The Framers could have prescribed simply 
that the President execute the laws. So why did they add 
``faithfully'' and ``take care''? I have to disagree 
respectfully with Professor Rosenkranz and Professor Turley 
about their explanation of the history and original meaning of 
the clause. Obviously, they were taking pains to clarify that 
the President's duty is to implement laws in good faith, hence 
the word ``faithfully,'' and to exercise reasonable care, hence 
the words ``take care,'' in doing so. The fact is that scholars 
on both the left and the right concur that this broadly worded 
phrasing means that the President is to exercise judgment and 
to handle his enforcement duties with fidelity to all laws, 
including indeed the Constitution.
    As a legal and practical matter, the President's phase in 
of the employer mandate and other ACA provisions is well within 
his job description. So is the DACA program, the Deferred 
Action on Childhood Arrivals. I am not going to go into that 
now, but Congressman Conyers explained why that is true, and in 
my written statement, we do so also.
    I have to say one quick word about what I know that my good 
friend and frequent debating partner, Michael Cannon, is going 
to focus on and that is his theory--and he gets a lot of credit 
for thinking it up and marketing it--his theory that Affordable 
Care Act premium assistance tax credits and subsidies must be 
available to all--his theory that they are only available to 
Americans who happen to live in States that have set up their 
own exchanges. I cannot go into detail about this 
unfortunately. Perhaps in the questioning, I will be able to do 
    But his theory is that a few phrases in this enormous 
statute have to be construed in a way that would stiff millions 
of people who were the intended beneficiaries of the act.
    Am I over? I am over.
    The fact is that that is not the correct construction of 
the act, and perhaps we will be able to talk about that 
    [The prepared statement of Mr. Lazarus follows:]
         Prepared Statement of Simon Lazarus, Senior Counsel, 
                The Constiutional Accountability Center
    My thanks to the Chair and members of the House Judiciary Committee 
for inviting me to testify in this inquiry into the provision of 
Article II, Section 3 of the Constitution, which provides that the 
President ``take care that the laws be faithfully executed.''
    I am Senior Counsel to the Constitutional Accountability Center, a 
public interest law firm, think tank, and action center dedicated to 
the progressive promise of the Constitution's text and history.
    Recently, opponents of the Affordable Care Act (ACA), have charged 
that President Obama broke the law and abused his constitutional 
authority, when,
    on July 2, his administration announced a one-year postponement of 
the January 1, 2014 effective date for the ACA requirement that large 
employers provide their workers with health insurance or pay a tax.\1\ 
Specifically, opponents claim that this decision ran afoul of the 
``Take Care'' clause quoted above. Indeed, brandishing the ``Take 
Care'' clause appears to have become a favored talking point for 
opponents of an array of Obama administration policies and actions. I 
presume that this hearing will address several of these instances.
    \1\ White House Statement, ``We're Listening to Businesses about 
the Health Care Law'' (July 2, 2013), available at http://
    All of these efforts to import the Constitution into what are in 
reality political and policy debates are rhetorical make-weights. They 
mock the text and original meaning of the Take Care clause. They flout 
long-established Supreme Court precedent applying the relevant 
constitutional provisions. And they contradict the consistent practice 
of all modern presidencies, Republican and Democratic, to responsibly 
implement complex and consequential regulatory programs. These critics 
fault the Obama Administration for making necessary adjustments in 
timing and matching enforcement priorities with resources and 
practical, humanitarian, and other exigencies. But exercising 
presidential judgment in carrying laws into execution is precisely what 
the Constitution requires. It is precisely what the framers expected, 
when they established a separate Executive Branch under the direction 
of a nationally elected President, and charged him to Take Care that 
the Laws be Faithfully Executed.\2\ Certainly, in the policy areas with 
which I am familiar, that is precisely what the President Obama and the 
members of his administration are doing--whatever one may think of 
their actions from a policy or political perspective.
    \2\ Akhil Reed Amar, America's Constitution: A Biography 195 
(2006): The sweeping provisions of Article II, including the Take Care 
clause ``envisioned the president as a generalist focused on the big 
picture. While Congress would enact statutes and courts would decide 
cases one at a time, the president would oversee the enforcement of all 
the laws at once--a sweeping mandate that invited him to ponder legal 
patterns in the largest sense and inevitably conferred some discretion 
on him in defining his enforcement philosophy and priorities.''
    In this written statement, I will focus on the ACA employer mandate 
issue, and address three other issues as to which ACA opponents have 
woven a Take Care clause claim into their policy and political attacks. 
I will also address one other Obama administration action that has come 
under similar constitutional challenge, the June 2012 decision of the 
Department of Homeland Security to defer action for certain 
undocumented young people who came to the U.S. as children and have 
pursued education or military service here.
    An article I wrote on the ACA employer mandate issue appeared in 
The Atlantic on July 17 of this year. Another article, on the 
availability of ACA premium assistance tax credits and subsidies on 
federally facilitated as well as state-managed health insurance 
exchange market-places, appeared in The New Republic for May 2, 2013. 
In addition, I testified on the latter subject before the Subcommittee 
on Energy Policy, Health Care, & Entitlements of the House Committee on 
Government Oversight & Reform on July 31, 2013. This statement draws 
upon these writings. I ask that the Committee include my July 31 
written testimony in the record of this hearing.
                 phasing in the aca employer mandate: 
     ``blatant illegality'' or routine temporary course-correction?
    Critics have labeled the employer mandate postponement a 
``blatantly illegal move'' that ``raises grave concerns about 
[President Obama's] understanding'' that, unlike medieval British 
monarchs, American presidents have, under Article II, Section 3 of our 
Constitution, a ``duty, not a discretionary power'' to ``take Care that 
the Laws be faithfully executed.'' \3\
    \3\ Michael W. McConnell, ``Obama Suspends the Law,'' The Wall 
Street Journal (July 8, 2013), available at: http://online.wsj.com/
    These portentous indictments ignore what the Administration 
actually decided and how it has delimited the scope and purpose of its 
decision. The Treasury Department's announcement provides for one year 
of ``transition relief,'' to continue working with ``employers, 
insurers, and other reporting entities'' through 2014 to revise and 
engage in ``real-world testing'' of the implementation of ACA reporting 
requirements, simplify forms used for this reporting, coordinate 
requisite public and private sector information technology 
arrangements, and engineer a ``smoother transition to full 
implementation in 2015.'' \4\ The announcement described the postponed 
requirements as ``ACA mandatory''--i.e., not discretionary or subject 
to indefinite waiver. On July 9, Assistant Treasury Secretary Mark 
Mazur added, in a letter to House Energy and Commerce Committee Chair 
Fred Upton, that the Department expects to publish proposed rules 
implementing the relevant provisions ``this summer, after a dialogue 
with stakeholders.'' \5\
    \4\ Mark J. Mazur, United States Department of the Treasury, 
``Continuing to Implement the ACA in a Careful, Thoughtful Manner'' 
(July 2, 2013), available at http://www.treasury.gov/connect/blog/
    \5\ Letter from Mark J. Mazur, United States Department of the 
Treasury to the Honorable Fred Upton, Chairman, Committee on Energy and 
Commerce, Washington, D.C., 9 July 2013, available at http://
    A month ago, on September 5, the Treasury Department issued those 
proposed rules. They detail proposed information reporting requirements 
for insurers and large employers, reflecting, the Department stated, 
``an ongoing dialogue with representatives of employers, insurers, and 
individual taxpayers.'' It appears from the Department's release that 
it intends, through comments that will be received on the proposed 
rules, to continue fine-tuning ways ``to simplify the new information 
reporting process and bring about a smooth implementation of those new 
rules.'' \6\
    \6\ United States Department of the Treasury Press Release, 
``Treasury Issues Proposed Rules for Information Reporting by Employers 
and Insurers Under the Affordable Care Act'' (September 5, 2013), 
available at http://www.treasury.gov/press-center/press-releases/Pages/
    In effect, the Administration explains the delay as a sensible 
adjustment to phase-in enforcement, not a refusal to enforce. And its 
actions validate that characterization--as any court that had occasion 
to consider the matter would surely agree.
    Indeed, shortly after the initial July 2 announcement, Michael O. 
Leavitt, who served as Health and Human Services Secretary under 
President George W. Bush, concurred that ``The [Obama] Administration's 
decision to delay the employer mandate was wise.'' \7\ Secretary 
Leavitt made this observation based on his own experience with the Bush 
Administration's initially bumpy but ultimately successful phase-in of 
the prescription drug benefit to Medicare, which was passed in 2003 and 
implemented in 2006.
    \7\ Michael O. Leavitt, ``To implement Obamacare, look to Bush's 
Medicare reform,'' Washington Post (July 12, 2013), available at http:/
    Experience so far strongly bears out Secretary Leavitt's 
expectation that delaying the employer mandate reporting requirements 
to simplify and improve them would facilitate smooth implementation of 
those provisions, without undermining the rest of the ACA, or Congress' 
broad goals in enacting it. The vast majority of the nation's six 
million employers--96%--employ fewer than 50 workers, and are therefore 
not covered by the employer mandate. Of those 200,000 that are covered, 
at least 94% already offer health insurance; so, during 2014--the one-
year period during which those employers will not be penalized for 
failing to insure their employees--a relatively small number of workers 
will remain uninsured because of the delayed implementation of the 
employer mandate. And even those workers will, during 2014, be eligible 
for policies marketed on ACA exchanges and also for premium assistance 
    \8\ Ezekiel J. Emanuel, ``Obama's Insurance Delay Won't Affect 
Many,'' New York Times (July 3, 2013), available at http://
    Though ``wise,'' is the current postponement ``illegal?'' On the 
contrary,Treasury's Mazur wrote to Chair Upton, such temporary 
postponements of tax reporting and payment requirements are routine, 
citing numerous examples of such postponements by Republican and 
Democratic administrations when statutory deadlines proved unworkable.
    Across federal agencies, failure to meet statutory deadlines for 
promulgating regulations or taking other regulatory actions is, 
inevitably, a routine feature of implementing complex regulatory laws 
like the ACA. To take one particularly well-known example, the 
Environmental Protection Agency, under Republican and Democratic 
administrations, has often found it necessary to phase-in 
implementation of requirements beyond statutory deadlines, to avoid 
premature actions that were poorly grounded or conflicted with other 
mandates applicable to EPA or other agencies. These, of course, are 
precisely the types of practical considerations that the Treasury 
Department has cited for postponing implementation of the reporting 
requirements pertinent to the employer mandate, and the mandate itself. 
Last year, as one of many examples, EPA delayed promulgation of 
Secondary National Ambient Air Quality Standards for Oxides of Nitrogen 
and Sulfur, over the objection of some environmental groups, on the 
pragmatic ground that there is too much scientific uncertainty to 
enable the Agency to promulgate new standards with the requisite 
scientific basis.\9\
    \9\ To be sure, some administrative ``delays'' have in fact 
constituted de facto decisions not to enforce or implement laws, 
indefinitely and for policy reasons. For example, during the 
administration of President George W. Bush, EPA was frequently 
criticized in such terms for shelving a broad spectrum of regulations 
and other initiatives. In at least one highly visible instance, 
involving the agency's mandate to determine whether greenhouse gases 
are pollutants requiring regulation under the Clean Air Act, the 
Supreme Court ordered EPA to institute formal proceedings to make such 
a determination. Massachusetts v. EPA, 549 U.S. 497 (2007)
    Applicable judicial precedent places such timing adjustments well 
within the Executive Branch's lawful discretion. To be sure, the 
federal Administrative Procedure Act authorizes federal courts to 
compel agencies to initiate statutorily required actions that have been 
``unreasonably delayed.'' \10\ But courts have found delays to be 
unreasonable only in rare cases where, unlike this one, inaction had 
lasted for several years, and the recalcitrant agency could offer 
neither a persuasive excuse nor a credible end to its dithering. In 
deciding whether a given agency delay is reasonable, current law 
admonishes courts to consider whether expedited action could adversely 
affect ``higher or competing'' agency priorities, and whether other 
interests could be ``prejudiced by the delay.'' \11\ Even in cases 
where an agency outright refuses to enforce a policy in specified types 
of cases--not the case here--the Supreme Court has declined to 
intervene. As former Chief Justice William Rehnquist noted in a leading 
case,\12\ courts must respect an agency's presumptively superior grasp 
of ``the many variables involved in the proper ordering of its 
priorities.'' Chief Justice Rehnquist suggested that courts should 
defer to Executive Branch judgment unless an ``agency has consciously 
and expressly adopted a general policy that is so extreme as to amount 
to an abdication of its statutory responsibilities.'' \13\ The Obama 
Administration has not and is not about to abdicate its responsibility 
to implement the statute on whose success his historical legacy will 
most centrally depend.
    \10\ The Administrative Procedure Act, 5 U.S.C. Sec. 706.
    \11\ Telecommunications Research and Action Center, et al. v. FCC, 
750 F.2d 70, 80 (1984).
    \12\ Heckler v. Chaney, 470 U.S. 821, 831-32 (1985).
    \13\ 470 U.S. at 833 n.4.
    Nor is the one-year delay of the employer mandate an affront to the 
Constitution. In the relevant constitutional text, note the term, 
``faithfully,'' and the even more striking phrase, ``take care'' 
(which, by the way, is not included in the title of this hearing). The 
framers could have prescribed simply that the President ``execute the 
laws.'' Why did they add ``faithfully'' and ``take care?'' \14\ 
Defining the President's duty in this fashion necessarily 
incorporated--or reaffirmed the previously implicit incorporation--of 
the concept that the President's duty is to implement laws in good 
faith, and to exercise reasonable care in doing so. Scholars on both 
left and right concur that this broadly-worded phrasing indicates that 
the President is to exercise judgment, and handle his enforcement 
duties with fidelity to all laws, including, indeed, the 
Constitution.\15\ Both Republican and Democratic Justice Departments 
have consistently opined that the clause authorizes a president even to 
decline enforcement of a statute altogether, if in good faith he 
determines it to be violative of the Constitution. To be sure, as one 
critic has noted, a president cannot ``refuse to enforce a statute he 
opposes for policy reasons.'' \16\ But, while surely correct, that 
contention is beside the point here.
    \14\ Initial drafts of what became what is now known as the ``Take 
Care'' clause provided simply that the President was to ``carry into 
execution the national laws.'' In July 1787, in the Committee of 
Detail, charged with drafting language for the full convention to 
consider, there was debate over the phrase ``the power to carry into 
execution,'' and when the Committee returned, that phrase had been 
removed, the new ``take care language'' emerged in place of the former 
phrase. As Farrand notes, some of the phrases under debate included 
(Max Farrand, The Records of the Federal Convention of 1787, Volume II 
171): (He shall take care to the best of his ability that the laws) (It 
shall be his duty to provide for the due & faithful exec--of the Laws) 
of the United States (be faithfully executed) (to the best of his 
ability). Ultimately, the Committee on Style adopted the phrase ``take 
care that the laws be faithfully executed'' into constitutional text in 
September 1787.
    \15\ See Stephen G. Calabresi & Saikrishna B. Prakash, ``The 
President's Power to Execute the Laws,'' 104 Yale L. J. 541 (1994); see 
also Lawrence Lessig & Cass R. Sunstein, ``The President and the 
Administration,'' 94 Colum. L. Rev. 1 (1994).
    \16\ McConnell, ``Obama Suspends the Law.''
    The Administration has not postponed the employer mandate out of 
policy opposition to the ACA, nor to any specific provision of it. It 
is ludicrous to suggest otherwise, and at best misleading to 
characterize the action as a ``refusal to enforce'' at all. Rather, the 
President has authorized a minor temporary course correction regarding 
individual ACA provisions, necessary in his Administration's judgment 
to faithfully execute the overall statute, other related laws, and the 
purposes of the ACA's framers. As a legal as well as a practical 
matter, that's well within his job description.
    In effect, ACA opponents' constitutional argument to the contrary 
amounts to asserting that the Administrative Procedure Act itself 
ratifies unconstitutional behavior. As noted above, the APA recognizes 
that delayed implementation of rules, beyond statutory deadlines, can 
come within the Executive Branch's lawful discretion, as long as such 
delays are ``reasonable.'' Opponents' claim is that the ``take care'' 
clause must be interpreted to condemn any deviation from a statutory 
deadline for implementing a regulation, no matter how reasonable. This 
implausible interpretation flouts, not only Congress' understanding as 
expressed through the text of the APA, but administrative and judicial 
precedent as well.
 is the administration's postponement, in specified instances, for one 
  year enforcement of aca insurance market reforms an ``unreasonable 
  delay'' under the apa, or a violation of the constitution's ``take 
                             care'' clause?
    On November 14, HHS' Director of the Center for Consumer 
Information and Insurance oversight, Gary Cohen, sent a letter to all 
state insurance commissioners, in which he announced a ``transitional 
policy'' of permitting health insurers to ``choose to continue 
coverage'' for one additional year, for policies commencing between 
January 1, 2014, and October 1, 2014, that would otherwise be 
terminated or cancelled,'' because such policies are out of compliance 
with several of the ACA's insurance market reform protections.\17\ The 
letter stated that ``State agencies responsible for enforcing the 
specified market reforms are encouraged to adopt the same transitional 
policy with respect to this coverage.'' As this language indicates, the 
Administration was thereby not changing the law, or giving employers a 
waiver from a statutory requirement, but instead merely announcing a 
``transitional'' enforcement policy for the federal government--one 
that state regulators are free to emulate or not, as they see fit. As 
of last week, many state insurance regulatory authorities, in states 
including Alaska, Arkansas, California, Colorado, Connecticut, Indiana, 
Maryland, Massachusetts, Minnesota, Nebraska, New York, Oklahoma, 
Oregon, Rhode Island, Vermont, Virginia, Washington, and West Virginia, 
as well as Washington, D.C., have declined to adopt the transitional 
policy, and, hence, will bar issuance of policies inconsistent with the 
ACA market reform requirements, as of January 1, 2014, as prescribed in 
the statute.\18\ As with the one-year delay of finalization of the 
employer mandate reporting requirements and enforcement of the mandate, 
this ``encouragement'' of state regulators to permit a one-year 
transitional renewal of non-compliant individual insurance policies 
would clearly not be an unreasonable delay under the Administrative 
Procedure Act, and would not violate the constitutional Take Care 
    \17\ http://www.cms.gov/CCIIO/Resources/Letters/Downloads/
    \18\ The Commonwealth Fund Blog posted on November 27 a review of 
states which have, have not, and are still deciding how they wish to 
respond to the Administration's ``encouragement,'' together with 
explanations of the consequences of alternative state resolutions. 
    does the deferred action for childhood arrivals (daca) program 
  ``breach'' the president's duty under the ``take care'' clause--or 
   appropriately prioritize enforcement priorities, while faithfully 
                   implementing the immigration laws?
    Critics have also alleged that the Administration's ``Deferred 
Action for Childhood Arrivals (DACA) program constitutes a ``breach'' 
of the President's duty to take care that the laws be faithfully 
executed. On June 15, 2012, President Obama signed a memorandum calling 
on the Department of Homeland Security to defer action for certain 
undocumented young people who came to the U.S. as children and have 
pursued education or military service here.\19\ On August 15, 2012, the 
Department began accepting applications for deferred action status 
under the program. Contrary to the critics, this action violates 
neither the Constitution nor the immigration laws, and is, indeed 
similar to the prosecutorial discretion actions taken by other 
presidents, of both parties, that have been part and parcel of 
immigration enforcement policy for decades.
    \19\ Department of Homeland Security Press Release, ``Secretary 
Napolitano Announces Deferred Action Process for Young People Who Are 
Low Enforcement Priorities'' (June 15, 2012).
    To begin with, it is specious to suggest that the Obama 
administration is systematically failing in its obligation to enforce 
the immigration laws. On the contrary, the administration has detained 
and deported noncitizens at record levels--approximately 400,000 
annually, compared to 150,542 in 2002. The 400,000 figure is not an 
accident. Congress has provided funding to cover 400,000 removals per 
year. This is less than 4% of the total estimated population of 
unauthorized residents of the country--11.5 million. Setting 
enforcement priorities is, obviously, essential, given this huge 
shortfall of available resources.\20\ The criteria prescribed in the 
DACA program are entirely sensible, and in keeping with prioritization 
criteria long characteristic of immigration enforcement.
    \20\ See Shoba Sivaprasad Wadhia, In Defense of DACA, Deferred 
Action, and the DREAM Act, 91 Tex. L. Rev. 59 (2013).
    As 128 academic immigration law experts explained in a letter to 
the President outlining his authority to institute a program like DACA:

        Deferred action is a long-standing form of administrative 
        relief. . . . It is one of many forms of prosecutorial 
        discretion available to the Executive Branch. A grant of 
        deferred action can have any of several effects. . . . it can 
        prevent an individual from being placed in removal proceedings, 
        suspend any proceedings that have commenced, or stay the 
        enforcement of any existing removal order. It also makes the 
        recipient eligible to apply for employment authorization. . . . 
        [T]he U.S. Supreme Court has made clear that decisions to 
        initiate or terminate enforcement proceedings fall squarely 
        within the authority of the Executive [citing Heckler v. 
        Chaney, 460 U.S. 821, 831 (1985)]. In the immigration context, 
        the Executive Branch has exercised its general enforcement 
        authority to grant deferred action since at least 1971. Federal 
        courts have acknowledged the existence of this executive power 
        at least as far as back as the mid-1970s.\21\
    \21\ Letter from 128 academic immigration law experts to President 
Obama, Washington, D.C., 28 May 2012, available at http://

Moreover, the Obama administration's decision to use deferred action in 
the systematic manner it has with DACA is not at all exceptional. In 
2005, for example, the George W. Bush administration announced deferred 
action for the approximately 5,500 foreign academic students caught in 
the aftermath of Hurricane Katrina--quite appropriately. In 2009, then-
DHS Secretary Napolitano announced deferred action for the widows of 
U.S. citizens for two years, to ``allow these individuals and their 
children an opportunity to stay in the country that has become their 
home while their legal status is resolved.'' Secretary Napolitano also 
used defer action to keep immigrants who are the spouses, parents, and 
children of military personnel together with their families. Agency 
memoranda providing guidance for deferred action programs frequently 
stated that such exercises of ``prosecutorial discretion . . . are 
designed to ensure that agency resources are focused on our enforcement 
priorities, including individuals who pose a threat to public safety, 
are recent border crossers, or repeatedly violate our immigration 
laws.'' \22\ The DACA program implements similar criteria and is well 
within the immigration enforcement approaches of this and past 
    \22\ Wadhia at 68.
    Just a year and a half ago, a 5-3 majority of the Supreme Court 
opined that ``A principal feature of the removal system is the broad 
discretion exercised by immigration officials. . . . Federal officials, 
as an initial matter, must decide whether it makes sense to pursue 
removal at all. . . .'' The Court--in an opinion by Justice Anthony 
Kennedy, joined by Chief Justice Roberts, and Associate Justices 
Ginsburg, Breyer, and Sotomayor--went on to specify that ``Discretion 
in the enforcement of immigration law embraces immediate human 
concerns. Unauthorized workers trying to support their families, for 
example, likely pose less danger than alien smugglers or aliens who 
commit a serious crime.'' \23\ That very recent analysis by a broad-
based Supreme Court majority is completely at odds with the critics' 
cramped interpretation of the President's immigration enforcement 
discretionary authority, let alone their equally cramped interpretation 
of the Constitution's Take Care clause.
    \23\ Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
    Indeed, these critics' reliance upon the Take Care clause seems 
particularly out of place, for it is precisely that provision which, 
construed as it has always been by the courts, is the source of the 
President's broad authority to exercise prosecutorial discretion. As 
the Supreme Court held in the leading case, Heckler v. Chaney, cited 
above, decisions not to indict or to institute civil proceedings have 
``long been regarded as the special province of the Executive Branch, 
inasmuch as it is the Executive who is charged by the Constitution to 
`take Care that the Laws be faithfully executed.''' Obviously, faithful 
execution does not empower the President to disregard statutory 
requirements, but it requires applying specific requirements in a 
manner that is faithful to effective implementation of the overall 
statutory scheme, to the other affected laws, and to the Constitution. 
That is precisely what the Obama Administration is attempting to do as 
it phases in an exceptionally complex and consequential new law.
  the obama administration has correctly determined that aca premium 
assistance tax credits and subsidies must be available to all eligible 
    americas, whether they reside in states that operate their own 
      exchanges or in states with federally facilitated exchanges
    Affordable Care Act opponents have taken the Treasury Department to 
task--and to court--for adopting a regulation in May 2012 \24\ that 
affirms that ACA premium assistance tax credits and subsidies are 
available to all eligible Americans nationwide, whether they reside in 
states that have elected to operate their own insurance exchange 
market-places or in states that have elected to have the Federal 
government operate the exchange covering their residents. These 
critics, of whom my co-panelist Michael Cannon was among the first and 
most energetic, assert that Treasury's interpretive regulation 
``rewrites the law.'' In fact, however, it is Mr. Cannon and his allies 
who would rewrite the ACA. And from their standpoint as die-hard ACA 
opponents, for a good reason. Their invitation to the courts to impose 
their interpretation is, in their own terms, a play ``for all the 
marbles.'' In the 33 or so states now utilizing federally facilitated 
exchanges, their proposed reinterpretation would, they gloat, ``sink'' 
the ACA ``drive a stake through the heart of Obamacare,'' and 
``threat[en]'' its ``survival.'' \25\
    \24\ 77 Fed. Reg. 30,377, 30,378, 30,387 (May 23, 2012)
    \25\ See, e.g., Michael Cannon, ``No Obamacare Exchanges,'' 
National Review Online (April 12, 2012), http://www.nationalreview.com/
articles/295773/no-obamacare-exchanges-michael-f-cannon; Dan Diamond, 
``Could Halbig et al. v. Sebelius Sink Obamacare, The Health Care Blog, 
(June 11, 2013) (quoting Michael Greve: ``This is for all the 
marbles.''), http://thehealthcareblog.com/blog/2013/06/11/could-halbig-
    When the law was enacted in March 2010, no one, on either side of 
the aisle, had ever heard of, let alone embraced, the Cannon 
interpretation. The ACA's fiercest critics agreed with its most fervent 
supporters about one thing: that it had, and has, a clear and simply 
stated goal--``to achieve near-universal health insurance coverage,'' 
and they understood that the premium assistance necessary to achieve 
that goal would be available in all states. To my knowledge, not until 
late in 2011 did Mr. Cannon surface his claim to the contrary. He said 
at the time that he ``was first made aware of this aspect of the ACA'' 
in December 2010, nine months after enactment. To ACA opponents probing 
for any opportunity, no matter how far-fetched, to impede the law's 
implementation, the discovery of this apparent ``glitch'' must have 
been invigorating.
    But In fact, everyone was right at the beginning. The ACA's text 
does not sabotage its universally acknowledged purpose of ensuring 
access to health insurance for millions of Americans who cannot now 
afford it. To make their implausible case to the contrary, the 
opponents snatch a few isolated phrases out of context, and ignore the 
rest of the 2700 page statute. Numerous provisions of the law confirm 
that eligible residents of all states shall receive the premium 
assistance they need.
    In a nutshell, the text of the ACA provides that if state decides 
not to set up an Exchange, the federal government is to step in and set 
one up in its place. The same rules apply to all Exchanges, whether 
it's the states or the federal government that operates them. Under the 
opponents' tortured reading, all sorts of individual provisions in the 
statute do not work, and, indeed, the exchange marketplaces themselves 
will not work. That result, of course, is precisely what these die-hard 
opponents intend. But it's the opposite of what the Congress that 
enacted the ACA intended.
    In order to justify their implausible reading of the ACA's text, 
opponents have concocted an even more head-scratching claim--that the 
sponsors of the law ``purposefully'' designed it to achieve this self-
immolation. Their theory is that, by threatening to deprive residents 
of states of premium tax credits, Congress sought to ``coerce'' states 
to set up Exchanges. If true, what the Act really means, and what its 
sponsors really intended, is a result that would not only cancel the 
core benefit the law sought to confer, for the core constituency it 
aimed to benefit. More remarkably, under the opponents' misread, the 
ACA's sponsors would have intentionally handed over to ACA opponents in 
state capitols the power to subvert the law in their states. In effect, 
they would have given Mr. Cannon's political allies that ``stake'' and 
invited them to drive it through the heart of the ACA. Is that 
    Unsurprisingly, there is not a single piece of evidence in the 
legislative record to support the notion that Congress was threatening 
states into setting up Exchanges. There is no mention of this idea 
anywhere in the voluminous pages of the debate over the Affordable Care 
Act. No one, supporter or opponent of the law, brought it up.
    And certainly no one ever communicated to any state official that 
they risked depriving their residents of affordable health care if they 
refused to set up their own Exchanges. There is no such thing as a 
stealth threat. A threat must be communicated. Here, none ever was. In 
and of itself, this is fatal to the upside-down interpretation 
opponents are asking the courts to embrace.
    How likely is it that a majority of the Supreme Court, or any 
court, will endorse the perverse premise of these ACA opponents, and 
bar access to affordable quality health care for millions of people 
whom Congress specifically intended to benefit? Such a decision, 
especially if rendered by an ideologically divided court, will likely 
appear to the public as a radical ratcheting up of the regrettable 
tradition of Bush v. Gore--though less principled and more 
transparently political. I doubt that the judiciary will take the bait 
these lawsuits tender, and venture out on that limb.
    And, self-evidently, it is frivolous to suggest that the Obama 
Administration is violating the Constitution's mandate to take care 
that the laws be faithfully executed by implementing the ACA's exchange 
provisions in a manner that is faithful to the ACA's text, to the 
purpose of the Congress that enacted it, and to the needs of millions 
of hard-working Americans for access to affordable health insurance.
    In sum, the various critiques being vetted here, of the Affordable 
Care Act and other Obama Administrative initiatives, reflect political 
and policy-driven criticisms routine in a democratic polity, especially 
one as polarized as we are today. But attempts to wrap those arguments 
in the Constitution just thicken the political fog. They deserve no 
attention from people who are seriously interested in evaluating 
competing policy and political claims, or in facilitating, rather than 
obstructing, resolution of those differences.

    Mr. Goodlatte. Thank you, Mr. Lazarus.
    Mr. Cannon, welcome.


    Mr. Cannon. Thank you, Mr. Goodlatte and Mr. Conyers and 
Members of the Committee.
    I want to start off by saying that the concerns that I am 
going to be sharing with you today are not born of 
partisanship. It is no secret that I have worked for 
Republicans. I myself am not a Republican. I am acutely aware 
of the last Republican President's failure to execute the laws 
faithfully. In 2008, though I supported neither major party 
presidential candidate, I actually preferred Barack Obama to 
his opponent in part because he promised to curb such abuses by 
the executive, and I praise President Obama for doing more than 
even many Libertarians to celebrate the gains in equality and 
freedom our Nation has secured for women, for African 
Americans, for gays, and for lesbians.
    Article II, section 3 of the Constitution, to which every 
President swears an oath, commands that the President shall 
take care that the laws be faithfully executed. Fealty to this 
duty is essential for maintaining our system of Government and 
public order.
    The law is a reciprocal pact between the Government and the 
governed. Public order requires Government to remain faithful 
to the laws as much as it requires the citizenry to do so 
because if the actions of Government officials lead citizens to 
conclude that those officials are no longer meaningfully bound 
by the law, then citizens will rightly conclude that neither 
are they.
    Since he signed the Patient Protection and Affordable Care 
Act into law, President Obama has failed to execute that law 
    The President has unilaterally taken taxpayer dollars made 
available by the PPACA and diverted them from their 
congressionally authorized purposes toward purposes for which 
no Congress has ever appropriated funds.
    He has unilaterally and repeatedly rewritten the statute to 
dispense taxpayer dollars that no Federal law authorizes him to 
spend and that the PPACA expressly forbids him to spend.
    He has unilaterally issued blanket waivers to requirements 
that the PPACA does not authorize him to waive.
    At the same time, he has declined to collect taxes that the 
PPACA orders him to collect, he has unilaterally rewritten the 
statute to impose billions of dollars in taxes that the PPACA 
expressly forbids him to impose and to incur billions of 
dollars in debt that the statute expressly forbids him to 
    He has unilaterally rewritten the PPACA to allow health 
insurance products that the statute expressly forbids, and he 
has encouraged consumers, insurers, and State officials to 
violate a law that he himself enacted.
    And he has taken these steps for the purpose of 
forestalling democratic action by the people's elected 
representatives in Congress.
    President Obama's unfaithfulness to the PPACA is so wanton 
that it is no longer accurate to say that that statute is the 
law of the land. Today, with respect to health care at least, 
the law of the land is whatever one man says it is or whatever 
this divided Congress will let him get away with saying. What 
this one man says may flatly contradict Federal statute. It may 
suddenly confer benefits on favored groups or tax disfavored 
groups without representation. It may undermine the careful and 
costly planning done by millions of individuals and businesses. 
It may change from day to day. This method of lawmaking has 
more in common with monarchy than with democracy or a 
constitutional republic.
    This President's failure or any President's failure to 
honor his constitutional duty to execute the laws faithfully is 
not a partisan issue. The fact that Presidents from both 
parties violate this duty is cause not for solace. It is cause 
for even greater alarm because it guarantees that Presidents 
from both parties will replicate and even surpass the abuses of 
their predecessors as payback for past injustices. The result 
is that democracy and freedom will suffer no matter who 
occupies the Oval Office.
    I thank you and I look forward to your questions.
    [The prepared statement of Mr. Cannon follows:]


*See Appendix for supplemental material submitted by this witness.


    Mr. Goodlatte. Thank you, Mr. Cannon.
    I will begin the questioning under the 5-minute rule.
    Professor Rosenkranz, oftentimes the legislative process is 
about negotiation, about give and take between competing 
interests and compromise. How does the President's creating, 
amending, suspending, and ignoring acts of Congress at will 
affect the legislative process?
    Mr. Rosenkranz. That is a great question, Mr. Chairman.
    The short-term effect is an aggrandizement of the 
President, but a predictable long-term effect is legislative 
gridlock. There is every reason to believe that Congress will 
not be able to reach these compromises if they know that these 
compromises can be unilaterally rewritten in the White House. 
There is every reason to believe that Congress will grind to a 
halt under the threat that President Obama will rewrite its 
    Mr. Goodlatte. In fact, couldn't you argue that that is, 
indeed, happening right now, that as you try to work out 
differences between various perspectives on a piece of 
legislation, those who may be asked to give something that they 
think the President agrees with them on might say, well, why 
should I give on that because I can get that changed or done 
unilaterally by the executive branch, or the party that wants 
to achieve that says, well, why should I agree to it because 
they are not going to enforce that anyway?
    Mr. Rosenkranz. You could imagine such a negotiation about 
the effective date of Obamacare, but after the statute is 
passed, President Obama decides what the effective date is 
quite regardless of what Congress wants. So gridlock is quite a 
predictable result.
    Mr. Goodlatte. Professor Turley, the Constitution's system 
of separated powers is not simply about stopping one branch of 
Government from usurping another. It is about protecting the 
liberty of Americans from the dangers of concentrated 
Government power. How does the President's unilateral 
modification of acts of Congress affect both the balance of 
power between the political branches and the liberty interests 
of the American people?
    Mr. Turley. Thank you, Mr. Chairman.
    The danger is quite severe. The problem with what the 
President is doing is that he is not simply posing a danger to 
the constitutional system, he is becoming the very danger the 
Constitution was designed to avoid, that is, the concentration 
of power in any single branch. This Newtonian orbit that the 
three branches exist in is a delicate one, but it is designed 
to prevent this type of concentration.
    There are two trends going on which should be of equal 
concern to all Members of Congress. One is we have had the 
radical expansion of presidential powers under both President 
Bush and President Obama. We have what many once called an 
imperial presidency model of largely unchecked authority. And 
with that trend, we also have the continued rise of this fourth 
branch. We have agencies that are now quite large that issue 
regulations. The Supreme Court said recently that agencies can 
actually define their own or interpret their own jurisdiction.
    Mr. Goodlatte. I am going to cut you off there because I 
have got a couple more questions I want to ask and only 2 
minutes left.
    But, Mr. Cannon, you have argued that the President is 
going to spend billions of dollars Congress did not authorize 
to provide premium assistance tax credits and subsidies on 
federally run health care exchanges. Could you please quickly 
walk me through why the President's plan to provide premium 
assistance on federally run exchanges is indeed illegal?
    Mr. Cannon. Well, we called those premium assistance tax 
credits because that is what the statute calls them, but in 
effect they are Government subsidies. They are Government 
spending. And the statute is quite clear. It is clear. It is 
consistent. It is unambiguous. It was intentional and 
purposeful when it said that those premium assistance tax 
credits would be available only to people who purchase health 
insurance through an exchange ``established by the State under 
section 1311.'' That is not just one mention of that phrase. 
The phrase is mentioned several times explicitly and through 
cross references. The statute is very tightly worded, and it 
makes clear that those tax credits are available only if a 
State establishes an exchange itself under section 1311. If the 
Federal Government establishes a Federal fallback exchange, 
those tax credits are not available because that exchange is 
established by the Federal Government under section 1321 as the 
Obama administration has acknowledged in regulation.
    Mr. Goodlatte. Thank you. I agree.
    Professor Rosenkranz, some defenders of the President's 
unilateral actions have asserted that his actions were merely 
an exercise of prosecutorial discretion. Are these assertions 
correct or is there a fundamental difference between 
prosecutorial discretion and many of the President's unilateral 
    Mr. Rosenkranz. So there are many cases that are close 
cases. I agree with Professor Turley. But some of these cases 
are not close. So prosecutorial discretion is one thing, but 
wholesale suspension of law is quite something else and that is 
what has happened under Obamacare.
    Likewise in the immigration context, kind of case-by-case 
prosecutorial discretion is one thing, but a blanket policy 
that the Immigration Act will not apply to 1.8 million people, 
that is quite something different. This is a scale of decision-
making that is not within the traditional conception of 
prosecutorial discretion.
    Mr. Goodlatte. In fact, the President has taken it a step 
further and has actually given legal documents to the people in 
that circumstance, well beyond simply deciding to leave them 
there and not prosecute them but to actually enable their 
violation of the law by giving them documents to help them 
evade the problems that ensue from living in a country that 
they are not lawfully present.
    Mr. Rosenkranz. Quite right.
    [Disturbance in the hearing room.]
    Mr. Goodlatte. Presently we do not have order in the 
hearing room. Members of the audience must behave in an orderly 
fashion or else they will be removed from the hearing room. 
Rule 11 of the House rules provides that the Chairman of the 
Committee may punish breaches of order and decorum by censure--
    Mr. Gohmert. Mr. Speaker, could we get security to help?
    Mr. Goodlatte [continuing]. And exclusion from the hearing. 
The Capitol Police will remove the disruptive members from the 
audience immediately.
    Ms. Jackson Lee. Would the Chairman yield? Are you allowing 
some to be able to sit down and therefore comply rather than 
removing them from the hearing room?
    Mr. Goodlatte. I have conferred with the Ranking Member and 
since we afforded them that opportunity earlier in the hearing, 
now they are going to be required to leave.
    Ms. Jackson Lee. Well, my passion is with those who are 
leaving. Thank you for being here, and I hope that we will come 
to an understanding----
    Mr. Goodlatte. The gentlewoman is out of order.
    My time has expired, and the Chair now recognizes the 
Ranking Member, Mr. Conyers, for his questions.
    Mr. Conyers. Thank you.
    I am interested in the presentation of Professor Lazarus 
who was explaining some of his differences with the witness to 
his left, and I would like to ask if he could pick up that line 
of discussion. We are pleased that you are here because there 
has been so much excitement or excited rhetoric about where the 
President and his Administration are going. I have never heard 
this level of hypothesizing as to where this is all going to 
take us. And I think it is considerably over the top. I am so 
glad you are here today, and I would ask you to respond, 
    Mr. Lazarus. Thank you very much, Mr. Conyers.
    The theory that the Affordable Care Act actually intended 
to cut off the very benefits that the law was passed to create 
to the very core constituency of needy people that was the 
target of the law that my friend, Mr. Cannon, came up with is 
something that no one on either side of the aisle had any idea 
about when the law was passed. He and some other clever 
colleagues came up with this theory at least 9 months, I think, 
after the law was passed, and they are very happy that they did 
so. They have gloated that their theory, if adopted by the 
courts, would drive a stake through the heart of Obamacare. 
That is their words, that it would sink the ACA and threaten 
its survival.
    In fact, however, the law's text does not sabotage the 
universally acknowledged purpose of ensuring access to health 
insurance for all the millions of Americans who cannot now 
afford it. To make their implausible case to the contrary, Mr. 
Cannon and his colleagues snatch a few isolated words out of 
context and ignore the rest of this huge statute. But if you 
look at the entire statute, you quickly have to conclude that 
the whole text, not just these isolated phrases, harmonize the 
purpose of the statute with its text, meaning that all 
Americans who are eligible for the benefits to enable them to 
afford insurance will be able to have them whether or not they 
reside in Federal exchange States or State exchange States.
    I might add just one quick thing, and that is, so Mr. 
Cannon and his friends soon realized that their reading of the 
text did not make sense and hang together. So they came up with 
an even more head-scratching claim, and that is that the 
sponsors of the law ``intentionally and purposefully designed 
it to achieve this self-immolation.'' And Mr. Cannon just 
referred to that argument.
    So what this means, it means that the ACA sponsors actually 
intended not only to stiff the very people that they wanted to 
benefit. It actually means that they intentionally handed over 
to Mr. Cannon's allies in State capitals the stake that he 
talks about and invited them, if they chose to do so, to drive 
it through the heart of the ACA. I mean, we have to imagine 
really--in order for your theory to make sense, one has to 
imagine Senator Baucus, Senator Murray, Senator Reed, that 
well-known soft touch, Senator Schumer getting together in a 
room off the Senate floor and saying I know what we are going 
to do. We are going to enable all the Republican Governors and 
State legislators just to decide that the ACA will not work in 
their States. Unsurprisingly, there is not a single piece of 
evidence in the legislative record to support this notion, and 
what is really going on, I am afraid is that having lost 
politically, having lost in the Supreme Court, the ACA 
opponents who are clinging to this theory are hoping that the 
courts will bail them out once again. That is an awfully big 
political lift. I do not think that the courts are going to do 
    Mr. Conyers. Thank you so much.
    Mr. Chairman, I would ask unanimous consent to put in the 
record this report by the ``New Republic'' of November of this 
year entitled ``Obamacare's Single Most Relentless 
Antagonist,'' who is our distinguished witness here today.
    Mr. Issa. Reserving. Can I just ask one quick question, Mr. 
Chairman? Is the ``New Republic'' doing reports or articles?
    Mr. Conyers. Reports or articles? I cannot tell you. You 
mean on the one that I am introducing?
    Mr. Issa. Yes, Mr. Ranking Member. I only ask because I am 
fine to have newspapers and op-eds and so on put in the record. 
I just want to have them characterized not as a report as 
though they have some substantive, factual backing.
    Mr. Conyers. Well, I have never been asked this question 
    Mr. Issa. Only because I am often called the President's 
antagonist, and I am not sure that a report that left me out 
would be justified as factual. [Laughter.]
    Mr. Goodlatte. Without objection, the ``New Republic'' 
article entitled ``Obamacare's Single Most Relentless 
Antagonist''--and I am sure both the author of the theory with 
regard to the Federal use of those funds and the gentleman from 
California would both be proud to have the article in the 
record, and therefore we will, without objection, make it a 
part of the record.
    [The information referred to follows:]


    Mr. Conyers. And I am sorry to disappoint my friend. Your 
name is not even mentioned in this article.
    Mr. Issa. It is an oversight.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Texas, Mr. Smith, for 5 minutes.
    Mr. Smith of Texas. Thank you, Mr. Chairman.
    Mr. Chairman, in my judgment, the President has ignored 
laws, failed to enforce laws, undermined laws, and changed 
laws, all contrary to the Constitution. It seems to me that the 
President is trying to make laws by executive decree at news 
    But in a 2012 interview, the President said that he could 
not ``wave away the laws that Congress put in place,'' and that 
``the President does not have the authority to simply ignore 
Congress and say we are not going to enforce the laws that you 
passed.'' Yet, it seems to me that is exactly what he has done.
    I would like to address my first question to Professor 
Turley, Professor Rosenkranz, and Director Cannon. I think I 
know their answer, but the question is, do you think in fact 
the President has acted contrary to the Constitution?
    Professor Turley, you mentioned that you supported the 
President's policies and even voted for him. Yet, you say he 
has crossed the constitutional line. The legislative process is 
not an option, and what the President has done is dangerous. So 
I assume your answer is, yes, the President has acted contrary 
to the Constitution. Is that right?
    Mr. Turley. It is. And I would also just add, Congressman, 
that this was an issue that the Framers considered. You know, 
150 years before they drafted this provision, which did not 
change much in the Committee, this was a fight with James I. 
The Framers were very familiar with it, and I think that is 
what gave life to this very clause.
    Mr. Smith of Texas. Thank you.
    And, Professor Rosenkranz, do you think the President has 
acted contrary to the Constitution?
    Mr. Rosenkranz. Representative, I would say that some of 
these cases are close cases but some are not. So the wholesale 
suspension of law, for example, is I would say the paradigm 
case of a Take Care Clause violation, yes.
    Mr. Smith of Texas. Okay, thank you.
    And Director Cannon?
    Mr. Cannon. Yes.
    Mr. Smith of Texas. That was quick and easy. Thank you.
    My next question is a little bit tougher, and that is what 
can Congress or the American people do about it. How can we 
restrain the President from acting in a way contrary to the 
Constitution? Professor Turley?
    Mr. Turley. That is, I think, the most difficult question 
that we face. I have had the honor of representing Members of 
both parties of Congress and going to the courts. And the 
courts are quite hostile toward a Member's standing, for 
example, when they believe a violation of the Constitution has 
occurred. It is in fact Member standing that would solve many 
of our problems; that is, if Members could go to the courts and 
raise violations of the constitution, it would make much of 
these difficulties go away.
    You will note that the Administration has made reference to 
the fact--and I think they have some support for this--that 
they doubt people would have standing to challenge many of 
these acts. So we have something that the Framers would never 
have accepted, that you can have violations of the Constitution 
and literally no one can raise the issue successfully with the 
courts for review.
    Mr. Smith of Texas. Professor Rosenkranz?
    Mr. Rosenkranz. I am actually not sure I agree with 
Professor Turley on the standing question. It is quite true 
that some of these violations may not be amenable to judicial 
review. Ultimately, though, the check on this sort of 
constitutional violation is elections. So this is exactly the 
sort of hearing we ought to be having, exactly the sort of 
hearing that the electorate ought to be paying attention to for 
our next round of elections.
    Mr. Smith of Texas. Okay, thank you.
    And Director Cannon.
    Mr. Cannon. I think there is little that Congress can do if 
it is divided over the President's abuse of his authority, but 
fortunately--and as far as judicial remedies go, it is very 
difficult to challenge an action of the President when he 
relaxes an obligation on a certain party. It is much easier to 
find a plaintiff who has standing to challenge an action that 
imposes new obligations that the legislature never approved.
    That is what has happened in the case of the President 
issuing premium assistance tax credits through Federal 
exchanges because those tax credits will trigger taxes, 
penalties, on employers and individuals in those 34 States that 
have refused to establish an exchange. And a number of those 
employers and individuals, including two State attorneys 
general, 15 Indiana school districts, and a dozen or more 
private employers and private citizens have filed suit, four 
different lawsuits. In fact, one of them will have oral 
arguments this afternoon here in Washington, D.C. So there is a 
judicial remedy for some of these abuses.
    Mr. Smith of Texas. Okay, good. Thank you, Director Cannon.
    Thank you, Mr. Chairman. I yield back.
    Mr. Goodlatte. The Chair now recognizes the gentleman from 
New York, Mr. Nadler, for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Lazarus, Professor Rosenkranz has written in a Wall 
Street Journal op-ed piece that Abraham Lincoln would not 
approve of the delay in the employer mandate and contrasts this 
decision with Lincoln's decision on habeas corpus. Could you 
comment on the claim that Lincoln would disapprove, and what 
about the contrast with the suspension of habeas corpus by 
    Mr. Lazarus. Yes, I read that article with some amusement, 
I have to say, Professor Rosenkranz. I think that President 
Lincoln would chuckle somewhat contemptuously at the notion 
that there is an equation between suspending the writ of habeas 
corpus, perhaps the most fundamental guarantee of freedom in 
our whole system, with a temporary delay in the implementation 
of a provision that is part of a very complex, new law, which 
is something that happens under all Administrations, has to 
happen sometimes for practical reasons. Why we are making a big 
fuss about this as a constitutional matter--well, it is not 
beyond me. I understand why it is being done. If it sounds like 
politics, that is what it is. But to make that kind of a 
comparison, Professor Rosenkranz, does not do justice, I think, 
to your position at Georgetown.
    Mr. Rosenkranz. May I----
    Mr. Nadler. Thank you. No, no. I have too little time for 
too many questions.
    Let me start by saying that I generally in many respects 
agree with Professor Turley about the growth of the imperial 
presidency over the last half century or more. I am 
particularly concerned about the abuse of the war powers by 
many Presidents, the use of the state secrets doctrine to 
prevent enforcement of constitutional rights, the dragnet 
surveillance that we have seen under Bush and Obama beyond the 
contemplation of the Patriot Act, warrantless surveillance in 
the Bush administration, and things like that.
    I must say that everything we are talking about today is 
laughable in my opinion in the context of these problems. I am 
particularly struck by the overwhelming hypocrisy of the claim 
that the President, in interpreting the law, in refusing to 
interpret the law in a way that would drive a stake through the 
law, is not enforcing the law. In demanding that he enforce the 
law on the dates in a way that the person making that demand 
says we destroy the law is not taking care that the laws be 
faithfully executed. I would say it is the other way around, 
that it is the duty of the President to interpret the law 
within the boundaries that he has in a way that makes practical 
the implementation of the law to effectuate the will of 
Congress. And the fact that people who want to sabotage the law 
and want the law not to work and make no bones about it say, 
hey, he is not obeying this particular sentence in order to 
make the law work--talk about hypocrisy.
    Let me ask a question, having made my statement. I want to 
ask Mr. Lazarus the following question. The District of 
Columbia Circuit recently in a decision by Judge Kavanaugh 
recently wrote the following. ``The executive's broad 
prosecutorial discretion and pardon powers illustrate a key 
point of the Constitution's separation of powers. One of the 
greatest unilateral powers a President possesses under the 
Constitution, at least in the domestic sphere, is the power to 
protect individual liberty by essentially under-enforcing 
federal statutes regulating private behavior--more precisely, 
the power either not to seek charges against violators of a 
federal law or to pardon violators of a federal law.''
    Now, this would seem to support broad discretion in the 
executive branch to set enforcement and therefore 
nonenforcement priorities of drug, immigration, and other laws. 
Does it not? And how does that relate to the alleged violation 
of the Constitution by the President in setting immigration 
enforcement priorities as was outlined earlier?
    Mr. Lazarus. Well, thank you very much, Congressman Nadler. 
And of course, what Judge Kavanaugh, who is one of the most 
respected and most conservative judges on the Federal bench--
what he said here is absolutely correct. And the principles 
that he is enunciating are precisely why a court, if faced with 
the issue, would undoubtedly uphold as perfectly compatible 
with the President's discretion in the immigration area, in 
particular the DACA program that my co-panelists here are 
claiming is a gross violation of his duty to see that the laws 
are faithfully executed.
    I would like to, if I can, just quote one other authority, 
and that is the Supreme Court in an important decision about a 
year and a half ago, a 5 to 3 majority, including Justice 
Kennedy who wrote the opinion and Chief Justice Roberts opined 
that, quote, a principal feature of the removal system in the 
immigration area is the broad discretion exercised by 
immigration officials. Federal officials, he said, as an 
initial matter must decide whether it makes sense to pursue 
removal at all. And they went on to say that discretion in the 
enforcement of immigration law embraces immediate human 
concerns. Unauthorized workers trying to support their 
families, for example, likely pose less danger than alien 
smugglers or aliens who commit a serious crime. And that very 
recent broad-based decision, like Judge Kavanaugh's remarks, is 
completely at odds with the critics' cramped interpretation of 
the President's immigration enforcement and his constitutional 
    Mr. Nadler. Well, I wanted to ask Mr. Rosenkranz if he 
agreed with Judge Kavanaugh and the Supreme Court. I will ask 
unanimous consent for an additional minute so Mr. Rosenkranz 
can answer that, Mr. Chairman.
    Mr. Goodlatte. Without objection, the gentleman will have 
an additional 1 minute. Mr. Rosenkranz?
    Mr. Rosenkranz. I am glad you asked because Judge Kavanaugh 
also said quite recently in 2013, quote, the President may not 
decline to follow a statutory mandate or prohibition simply 
because of policy objections. Of course, if Congress 
appropriates no money for a statutorily mandated program, the 
executive obviously cannot move forward, but absent a lack of 
funds or a claim of unconstitutionality that has not been 
rejected by final court order, the executive must abide by 
statutory mandates and prohibitions. I think Judge Kavanaugh is 
exactly right.
    Mr. Nadler. Of course, that is not the question. The 
question was delay here. Thank you.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Ohio, Mr. Chabot, for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    Mr. Rosenkranz and Mr. Cannon, Mr. Lazarus had commented 
upon previous writings of yours, but you were not afforded the 
opportunity to respond. Did you want to take a moment to do 
that? I will go with you first, Mr. Rosenkranz.
    Mr. Rosenkranz. Thank you so much.0
    So there was a comment about an op-ed that I wrote in The 
Wall Street Journal comparing Lincoln's suspension of habeas 
with President Obama's suspension of Obamacare. Of course, I 
agree with Mr. Lazarus that these things are not the same. 
Habeas and Obamacare are not the same. But what is striking 
about the comparison is that President Lincoln welcomed the 
involvement of Congress, welcomed Congress to ratify what he 
had done, to pass a statute justifying what he had done. He was 
concerned that perhaps he had overstepped his constitutional 
authority. He welcomed Congress' ratification of his action. 
President Obama, by contrast, actually threatened to veto a 
statute that would have ratified his action. That I think is 
the startling contrast that I was trying to bring out in that 
    Mr. Chabot. Thank you.
    Mr. Cannon?
    Mr. Cannon. Mr. Lazarus and, whenever this issue comes up 
of whether premium assistance tax credits are authorized in the 
34 States and Federal exchanges, supporters of the 
Administration, of the IRS's decision to offer them in States 
with Federal exchanges talk a lot about what Congress must have 
been thinking or could possibly have been thinking or would 
they have done this. And there is a reason they do that. It is 
because the statute is clear and it contradicts what the Obama 
administration is trying to do.
    And unfortunately for the Administration, the legislative 
history also is completely consistent with the clear language 
of the statute. Despite 2 years of people like me raising this 
issue that what the IRS is trying to do is illegal, they have 
yet to offer one shred of--one statutory provision or one shred 
of evidence from the legislative history that supports their 
claim that this statute authorizes tax credits through 
exchanges established by the Federal Government under section 
1321 or that it was Congress' intent for this statute to 
authorize tax credits through those exchanges.
    So there is a lot more to be said about all of this.
    If I may, I would like to respond to something that Mr. 
    Mr. Chabot. No. Let me cut you off at this point. I have 
only got a limited amount of time.
    Mr. Turley, let me ask you this. You had mentioned 
something along the lines of you were concerned that President 
Obama is becoming the very danger that the separation of powers 
was meant to prevent. And Mr. Lazarus mentioned earlier that--I 
do not know who exactly he is referring to but some are 
hyperventilating about this whole topic. Would you want to 
comment on both of those things, either in relation to each 
other or not?
    Mr. Turley. Sure. Mr. Lazarus may be responding to my 
labored breathing with the flu, but it is not my testimony.
    The reason I think that we have this disconnect in our view 
of this clause is that we obviously read the history 
differently. I view the Constitutional Convention as quite 
clear. The Framers were students of history, particularly James 
Madison, 150 years before they took a pen and wrote out this 
clause, there was a fight with James I about what was called 
the ``royal prerogative.'' It is very similar to what President 
Obama is claiming, the right of the king to essentially stand 
above the law to reform the law to the king's views. Now, I am 
not saying that President Obama is a monarch. But that was the 
issue that gave the impetus to this clause in my view. The 
language of the clause did not change very much.
    Later, people like Benjamin Civiletti dealt with this under 
a different term, the ``dispensing power'' of the President. 
And Civiletti wrote a very good paper about when the President 
could refuse to enforce laws, and he basically said that it 
could only be done where there is an intrusion upon executive 
power--and by the way, that is what was involved in the Miers 
case that we talked about and referred to earlier--or if it was 
clearly unconstitutional. And that second issue--he established 
it had to be very, very clear so the President does not 
exercise dispensing authority.
    So this is how I would respond. We do not have to 
hyperventilate to look at a problem of this kind and say that 
this is not about who the President is today or what he is 
trying to achieve. What is lacking from the other side is any 
notion of what the world will look like in a tripartite system 
if the President can literally ignore any deadline in a major 
piece of legislation, exclude whole classes of people from 
enforcement. The question is what is left in that Newtonian 
orbit that Madison described. And I would suggest what is left 
is a very dangerous and unstable system.
    Mr. Chabot. Thank you very much.
    My time has expired. I yield back.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Virginia, Mr. Scott, for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Lazarus, first of all, on the ACA, it seems to me 
absurd that the Federal exchanges that are there for all 
intents and purposes to serve as the State exchange or State 
marketplace--it would be absurd to interpret that they are 
there for all intents and purposes except for the purpose of 
the bill, which is the subsidies. Is that right?
    Mr. Lazarus. It is obviously absurd, Congressman Scott. And 
therefore, to say that the President is violating his duty to 
see that the law is faithfully enforced because he interprets 
the law in a way that is consistent with its purpose and 
consistent with the known objectives of the Congress that 
enacted it is also, it seems to me, quite absurd.
    Mr. Scott. Thank you.
    The Congressional Research Service provided several 
examples in prior Administrations where the IRS delayed 
enforcement despite a congressionally mandated effective date. 
Can you say a word about the President's power to delay 
implementations of provisions particularly when compliance is 
logistically impossible?
    Mr. Lazarus. Yes. And I think actually despite the sparks 
that are flying around this room about the President's actions 
with respect to the Affordable Care Act, really these 
principles are really quite simple. Several people have noted 
that the President cannot refuse to enforce a law for policy 
reasons. It is obviously correct, certainly correct, and it is 
also obviously not what the President is doing. Does the 
President have policy objections to the Affordable Care Act? I 
do not think so. Phasing in the enforcement of major statutes 
like the Affordable Care Act or the Clean Air Act or other 
laws, certainly laws that the EPA administers miss statutory 
deadlines very, very frequently because it is simply 
logistically impossible to prudently implement them in accord 
with those deadlines. This is just a tempest in a teapot.
    Mr. Scott. Thank you.
    Mr. Lazarus. And if I can say one further thing about your 
first question, Congressman Scott. We should understand what 
the consequences of Mr. Cannon's interpretation of the ACA 
would be and why it would drive a stake through the heart of 
the ACA in every Federal exchange state. It is not just that it 
would keep maybe 80 percent of the people who were expected to 
enroll for insurance on exchanges from being able to afford 
that insurance. 80 percent. So it would really wreck that part 
of the program. But actually it would probably just cause the 
entire individual insurance market, even for people who could 
afford insurance, to implode because it would so screw up the 
actuarial calculations. So it really would drive a stake 
through the heart of the law in those States. And to say that 
Congress intended--intended--to do that is--I do not know. It 
is just pretty hard to stomach.
    Mr. Scott. Thank you.
    In November 1999, 28 bipartisan Members of the House wrote 
the Attorney General a letter and expressed concern that INS 
was pursuing removal in some cases, ``when so many other more 
serious cases existed.''
    How do you set priorities? If the President cannot set 
priorities in enforcement when there is obviously not enough 
money to enforce each and every provision to the letter of the 
law, how do you set priorities if he cannot enforce each and 
every provision?
    Mr. Lazarus. The answer is it is the essence of the 
executive responsibility to do just that. And I might note that 
I think that President Obama has increased the number of 
deportations, to the consternation of some of his own 
supporters, a very great deal, as everyone here I am sure is 
well aware, and my understanding is he has increased it to 
400,000 people a year which is nearly four times as many as the 
number was around 2000. The reason for that is that is all the 
funds that Congress has appropriated for that.
    Mr. Scott. My time is about to expire. I wanted to get in 
one other question. Can you talk about the obligation of the 
President to defend the Defense of Marriage Act when he 
believes it to be unconstitutional?
    Mr. Lazarus. Yes. I agree that the President should only 
very, very rarely and with extremely good reason decline to 
defend a law in court, and I have written about that. And I 
think it is hard to fault what the President did in the case of 
DOMA. He concluded with very good reason that there was simply 
no argument that could justify DOMA. He notified the Congress 
of this decision. He continued to enforce it. He invited 
Congress to intervene in litigation to present that point of 
view, and ultimately the Supreme Court vindicated his judgment. 
So it seems to me it is very difficult to claim everyone on all 
sides of these debates in both parties agrees that the Take 
Care Clause contemplates that the President may decline to 
enforce a law which he concludes in a responsible way is 
    Mr. Chabot [Presiding]. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman, I ask unanimous consent to 
introduce into the record the letter I referred to.
    Mr. Chabot. Without objection, so ordered.
    [The information referred to follows:]


    Mr. Chabot. The gentleman from California, Mr. Issa, is 
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Lazarus, I hear you on the President deeply believing 
in his policy, his signature legislation, the Affordable Care 
Act, but he deeply believes, I am sure, in every item that he 
wants appropriated from Congress. But 2 years later, it 
expires. Right? And 2 years later, he cannot just spend money 
unless he comes back to Congress for more money. Is that not 
true? That is implicit in the Constitution.
    Mr. Lazarus. I apologize, but I do not really understand 
the question, Congressman Issa.
    Mr. Issa. When the President's authority has run out, he 
must come back to the Congress for new authority. In the case 
of the Affordable Care Act, things which were not in the law 
have gone wrong. This act, this 2,400 pages that had to be 
passed and then read, has flaws in it, and these are fatal 
flaws if not corrected. Isn't that so? Including the absence of 
an answer to how do you subsidize if in fact a State chooses 
not to do it.
    Mr. Rosenkranz, if the law does not give the President 
authority and something goes wrong, I am presuming that the 
Framers always intended that you would come back to the 
Congress to resolve that need for additional authority. It has 
happened. It was earlier mentioned Abraham Lincoln came back to 
have his suspension of habeas--attempt to have it ratified 
because he knew, even if he did it by executive order, he had 
limited jurisdiction. He wanted to have it codified.
    I think a good example would be McArthur's promise in war. 
They came back with the Rescission Act in order to undo some of 
the promises that were made in war to the Filipino people and 
so on.
    Is there anything in the Affordable Care Act that is 
different than any other time that something that is not in the 
law occurs that is outside the law that you come to Congress 
and say I need authority to do X? Please.
    Mr. Rosenkranz. I quite agree, Congressman. It is really 
quite startling that this Congress--this House offered to 
ratify exactly what the President wanted to do, actually passed 
a bill which would have delayed the employer mandate exactly as 
the President wanted, and far from welcoming this, the 
President actually threatened to veto it. To me that is quite 
    Mr. Issa. I want to go through a couple things I think we 
can all agree on and get to something Mr. Turley said. Would 
you all agree, without further pontificating, that when Andy 
Jackson heard from the U.S. Supreme Court that he had no right 
to move Native Americans out of their homes to Oklahoma and he 
then did it anyway, saying essentially to the Supreme Court you 
have no army, therefore I am doing it, that he was outside his 
constitutional authority? You would all agree to that. Let the 
record show I had all----
    Mr. Lazarus. I certainly would agree to that.
    Mr. Issa. Okay. I had all shaking heads.
    When Richard Nixon tried to withhold his tapes, which were 
essentially evidence of his complicity in the Watergate and the 
cover-up and the court ordered those tapes, even after he had 
fired a number of people and so on, you would all agree that 
the court's action was appropriate that there was a crime, it 
went to the White House, and ultimately led to Richard Nixon 
resigning? You would all agree that it was appropriate, I 
assume, for the court to intervene in this constitutional 
dilemma of a President that did not want to turn over evidence 
related to his crime. Would you all agree?
    Mr. Lazarus. I would.
    Mr. Issa. Good.
    And would you all agree--maybe, maybe not--that when 
President Bush asserted in the Harriet Miers case--and this was 
referred to earlier--that when Judge Bates essentially said 
Congress has a need to get people in front of it, whether that 
person speaks or not, ultimately--and this is Mr. Conyers' 
case--that in fact the court intervened and said, yes, I have a 
right to decide and you must produce witnesses. You would all 
agree that that was a good balance of power decision by Judge 
Bates. Is that correct in George W.'s case? Okay.
    Then on what basis does President Obama say he is above the 
law when in Fast and Furious he asserted that the court had no 
right to even decide whether or not a lawfully delivered 
subpoena should, in fact, be complied with? And in this case, 
Judge Amy Berman Jackson has ruled that, yes, she has the right 
to decide it. The question for all of you is if we cannot go to 
the courts as Congress with our standing after a contempt vote, 
if we cannot go and get the court to decide the differences 
between the two branches, then in fact as some of my Democratic 
friends have asserted, the imperial presidency is complete? 
Isn't that the most essential item that if in fact we do not 
have standing, if in fact the court does not have a right to 
decide, then executive power is essentially unlimited?
    Mr. Turley, you have written on this.
    Mr. Turley. May I answer?
    Mr. Issa. I would ask for 1 minute for full answering.
    Mr. Goodlatte [presiding]. Without objection, the gentleman 
is granted 1 additional minute.
    Mr. Turley. I certainly agree that that is part of the 
problem here, that we have created a system by which Presidents 
can assert powers that others view as unconstitutional. I think 
the President is asserting clearly unconstitutional power in 
this case. And then the Department of Justice proceeds to try 
to block any effort of judicial review. This Administration has 
been very successful largely on standing grounds. So there is 
no ability to challenge these things even if they are viewed as 
flagrantly in violation of the Constitution.
    I will also add with reference to your earlier point one of 
the things that the courts say when those of us who represent 
Members go to the court and say the President is acting 
unconstitutionally--we hear this mantra from the judges saying, 
well, you have the power of the purse. But in this case, it is 
the power of purse that is being violated, and we have hundreds 
of millions of dollars that are being essentially shifted in a 
way that Congress never approved. And so we have in many ways a 
perfect storm. Even the power of the purse that is often cited 
by the courts really does not mean much if the President can 
just shift funds unilaterally without any type of review.
    Mr. Issa. Anyone else?
    Mr. Lazarus. I guess the only thing I would say--and I do 
not claim to be an expert on standing, as I think some of my 
    Mr. Issa. I am more interested in the standing of the 
court, which was the question. Does the Federal court have the 
right and obligation to make those final decisions on 
essentially balance of power, and if not, aren't we doomed?
    Mr. Lazarus. Well, I would just say two quick things. I 
mean, first of all, the courts do not have authority--they have 
authority under the Constitution to hear cases and 
controversies, and the courts do not have constitutional 
authority to decide matters that are not cases or 
controversies. And that is why we have standing rules.
    The second thing I would just say, Congressman----
    Mr. Issa. So refusal to comply with a subpoena would not be 
a problem. Therefore, Nixon should never have resigned because 
his tapes never would have been discovered in your example.
    Mr. Lazarus. I do not think that that follows.
    Mr. Issa. He did not turn them over without being ordered 
    Mr. Lazarus. Yes, he might have.
    Mr. Issa. Mr. Rosenkranz, final.
    Mr. Rosenkranz. I guess I would just say some of the 
standing questions may well be tricky, but again the ultimate 
check on presidential lawlessness is elections and in extreme 
cases impeachment, but elections primarily should be the check.
    Mr. Issa. So when the IRS prevents the word from getting 
out by conservative groups, they in fact thwart the election. 
Therefore, elections are no longer the final answer. Are they?
    Mr. Rosenkranz. To the extent that the IRS targeting is an 
example of discriminatory enforcement, you are quite right. It 
is actually the most corrosive form of a Take Care Clause 
violation because it does cast doubt on everything that 
follows, casts doubt on the elections that follow. So you are 
quite right.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Goodlatte. The gentleman from Georgia, Mr. Johnson, is 
recognized for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this very 
important and significant hearing today.
    This hearing is pure political theater. It is a farce plain 
and simple. It is a comedy but the audience has seen it so many 
times now that it is no longer funny. In fact, this hearing is 
an egregious waste of this Committee's time especially when one 
considers all of the legislation that remains unaddressed by 
the House like immigration reform. The Senate has passed 
comprehensive immigration reform, but the Speaker of the House 
continues to refuse to bring the issue to the House floor.
    Yesterday, as House Members walked down the Capitol steps 
on their way home from an exhausting 1-hour workday, I watched 
as most Members had their heads down. They wanted to avoid eye 
contact with the 50 or so young people standing at the foot of 
the steps in the cold wind. They had their hands clapped 
together--the young people--in prayer. Their prayer was on 
behalf of those families of immigrants that are being destroyed 
as a result of this Nation's failure to pass comprehensive 
immigration reform. Their prayer was a simple one, that Speaker 
Boehner allow the House to vote on comprehensive immigration 
reform before the end of this session of Congress. The 
spectacle of those kids shivering in prayer in the cold last 
night could not be avoided by the Members of Congress. So most 
kept their heads down probably in shame as they hastily escaped 
to the safety of their cars.
    I suggest that this Committee hold a hearing on the 
question of why, despite immigration reform being supported by 
a majority of Americans, having been passed by the Senate and 
the President having said that he will sign it if it ever gets 
to his desk--why is it that we cannot bring that measure to the 
House floor for a vote?
    Mr. Chairman, this do-nothing House has only 7 legislative 
days left before it adjourns for its well-earned year-end 
holiday. The same Republican Party that has voted 46 times to 
repeal the Affordable Care Act is today ironically complaining 
that the President is not implementing the law quickly enough. 
But at its essence, this hearing sadly is simply a continuation 
of the majority's overwhelmingly obsessive and insatiable 
desire to kill the Affordable Care Act which will enable 30 
million Americans to have health care--32 million Americans. 46 
times they have tried and failed to kill it. The result of this 
hearing will not change the fact that Obamacare is the law of 
the land.
    And since today we are hearing testimony on the use of 
executive authority, let's not forget that the key authority 
for Congress to check the power of the executive is its Article 
I authority over appropriations. And by the way, this Congress 
has not yet passed a budget. Congress continues to shirk its 
constitutional duties under Article I. funding the Government 
through short-term resolutions is not leadership and the 
American people deserve better.
    So after holding yet another hearing to obstruct this 
Administration, perhaps this Committee can also take up the 
question of Congress' duties under Article I in a hearing 
entitled ``The Congress' Constitutional Duty to Appropriate 
    Now, as far as the Affordable Care Act is concerned, the 
individual mandate is constitutional. It will reduce costs, 
prohibit discrimination against patients with preexisting 
conditions, and extend coverage to the uninsured. It will 
extend coverage to 32 million Americans. The individual mandate 
is the key to this legislation being successful. It will ensure 
that millions of Americans will not have to worry about being 
denied health care because of a current medical condition or a 
fear that their coverage will be capped if they get sick.
    To the Members who have served longer than I on this 
Committee, I invite you to look back to 2003 when a Republican-
led Congress enacted the law creating the Medicare prescription 
drug program. Most Democrats voted against the bill in 2003. 
The program was also very unpopular with most Americans, but 
Democratic Members worked hard when the program was implemented 
in 2006 and 2007 to make sure that their constituents received 
the full benefits of the program. It is unfortunate that the 
Republicans today are not doing the same thing.
    Mr. Lazarus, this is not the first Administration to 
temporarily postpone the application of new legislation. How 
have prior Republican and Democratic administrations treated 
the implementation of statutes when statutory deadlines become 
    Mr. Goodlatte. Without objection, the gentleman will have 1 
additional minute to allow Mr. Lazarus the opportunity to 
    Mr. Lazarus. I will try not to take the whole minute. The 
answer is that prior Administrations have done just what this 
Administration is doing because they have to. I quoted 
President Bush's Secretary of Health and Human Services, 
Michael Leavitt, in saying that the President's current 
decision to delay the employer mandate was wise, and he said 
that and then cited his own experience in phasing in Medicare 
Part D, the prescription drug benefit program.
    The Environmental Protection Agency under all 
Administrations faces statutory deadlines that cannot be met. 
We all know that. The Bush administration was often chastised 
by environmental groups for missing statutory deadlines and the 
environmental community charged and charged in court, in fact, 
that the Bush administration was using delays as a cover for 
simply suspending the law as a de facto matter. I do not know 
what the basis for that was or was not.
    Of course, again if a President refuses to enforce a law 
for policy reasons, that is a violation of his ``take care'' 
duties, but that is not what is going on here.
    Mr. Johnson. Thank you.
    I yield back.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Iowa, Mr. King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman.
    I thank the witnesses for your testimony. This has been one 
of the most interesting that I have been seated here more than 
a decade on this Committee.
    As I listened, I listened to Mr. Lazarus and often your 
dialogue goes to the policy effect of this rather than being 
tied to the constitutional language or the statutory language, 
although you have referenced both. I am curious as to what you 
think the limited powers of the President might be given you 
grant him such latitude to amend Obamacare, extend the 
statutory deadline because it conforms with the broader intent 
of the law and your reference to the intent of Congress that 
they really intended to allow for the application of taxes and 
the distribution of refundable tax credits even though Mr. 
Cannon testifies that that is not in the section that applies.
    So from a broader perspective, could you tell me how you 
think the President's powers are limited? And I would maybe 
just ask, does he have the power to lay and collect taxes?
    Mr. Lazarus. Well, first of all, I think that the 
President's powers are limited by what the statute provides, 
and I think I have said several times I agree entirely that the 
President cannot simply refuse to apply or enforce a law for 
policy reasons.
    Mr. King. But can he regulate commerce, for example?
    Mr. Lazarus. The President is obligated to phase in a new 
    Mr. King. I am sorry, Mr. Lazarus. I hear that. But I am 
trying to get to the constitutional limitations that you think 
the President has.
    Let me just bypass the enumerated powers with the exception 
of what would happen--and I am concerned about Mr. Turley's 
statement that we get into a pretty dangerous area here if we 
do not have constitutional limitations. What if we just leap to 
the end of this thing? What if the President declared war? What 
if he assumed that authority? What is the recourse then? What 
would your counsel be to this Congress if we objected to such a 
thing or even if we objected to it on purely constitutional 
grounds and we thought it was a good policy decision and vetoed 
our resolution to declare war? That should get us to the bottom 
of this discussion.
    Mr. Lazarus. Well, the President does not have the 
authority under the Constitution to declare war.
    Mr. King. Correct.
    Mr. Lazarus. The Congress does. The Congress has not been 
enormously eager to exercise that authority in my lifetime. But 
that is a very complicated subject and it is the subject of----
    Mr. King. Thank you, Mr. Lazarus.
    Mr. Lazarus [continuing]. Interplay between Congress and 
the executive branch. There is a War Powers Act. There are 
disputes about----
    Mr. King. Let me then pick it up from there. I am 
illustrating this point that if there is an incremental march 
down through, is the President overreaching his constitutional 
authority in my opinion and I think the opinion of many people 
on this Committee in this room. He could assume among that any 
of the enumerated powers, and the recourse that Congress would 
have--all the way down to the declaration of war--and the 
recourse that Congress would have would be pass a resolution of 
disapproval or we could shut off the funding through the power 
of the purse. And the President has already assumed the power 
of the purse. So the next recourse is go to the courts, and if 
we find out that the courts do not grant standing for Members 
of Congress, then the next recourse is, I think as Mr. 
Rosenkranz said, the word that we do not like to say in this 
Committee and I am not about to utter here in this particular 
    The balance I want to come to is ask Mr. Cannon this 
question. The frustration of this balance of power is because 
of the disrespect for the various branches, the competing 
branches, of Government that come. And I will argue that the 
Founding Fathers envisioned that each branch of Government 
would jealously protect its constitutional power and authority, 
and that static balance that would be there would be the 
definition of a brighter line between the three articles of the 
    But what then finally resolves this? I know we said 
elections. If the elections are affected by decisions of the 
executive branch, what do the people do who are the final 
arbiters of this definition of the Constitution if they are 
even frustrated by the election?
    Mr. Lazarus. Is this to me or----
    Mr. King. I am asking Mr. Cannon, please.
    Mr. Cannon. I think it was to me. And you are asking if 
there is no judicial remedy and there is no electoral remedy, 
what do the people do? To what particular sort of abuses are 
    Mr. King. Any one of the list of the enumerated powers, for 
example, ending with the declaration of war because that is the 
starkest of all.
    Mr. Cannon. There is a procedure in the Constitution that 
allows the people to amend the Constitution without going 
through Congress. That is another method where the people can 
try to restrain the executive.
    Mr. King. May I suggest then if that should happen, why 
would an executive with such disrespect for the Constitution 
today honor an amended Constitution from a constitutional 
    Mr. Cannon. That is an excellent question.
    Mr. King. I would like to turn to Mr. Turley and ask him if 
he has had a chance to reflect upon that earlier statement of 
the situation that we are in and where this goes. We need to 
look into this future. I would ask unanimous consent for that 
additional minute. I ask each of the witnesses to tell us what 
does America look like in the next 25 years if we have 
executive upon executive that builds upon this continual 
stretching or disregard of the constitutional restraints and 
the disrespect for Article I. I would start with Mr. Turley.
    Mr. Gowdy [presiding]. You may answer the question as 
quickly as you can.
    Mr. Turley. I really have great trepidation over where we 
are heading because we are creating a new system here, 
something that is not what was designed. We have this rising 
fourth branch in a system that is tripartite. The center of 
gravity is shifting, and that makes it unstable. And within 
that system, you have the rise of an uber-presidency. There 
could be no greater danger for individual liberty. And I really 
think that the Framers would be horrified by that shift because 
everything they have dedicated themselves to was creating this 
orbital balance, and we have lost it.
    Mr. Rosenkranz. As I have said before, I think the ultimate 
check is elections. But I do not think you should be hesitant 
to speak the word in this room. A check on executive 
lawlessness is impeachment, and if you find that the President 
is willfully and repeatedly violating the Constitution, if on 
your hypothetical he were to declare war, I would think that 
would be a clear case for impeachment.
    Mr. Lazarus. Well, I guess this is the first time I have 
heard anyone complain about the possibility that this President 
is going to unilaterally declare war and be over-aggressive 
about that. I do not really think that is much of a description 
of his foreign policy.
    But the Congress has lots of power if it chooses to use it. 
The power of the purse is an enormous power. And I think that 
if I were you, I would find ways to influence policy using the 
Congress' powers, which you are not doing. I mean, for example, 
we are hearing complaints about the President's actions to not 
enforce deportation against certain classes of immigrants. You 
know, instead of complaining about that, this Committee could 
hold a markup and report out a comprehensive immigration reform 
bill, send it to the floor.
    Mr. Gowdy. Mr. Lazarus, you are--not you but the questioner 
is 2 and a half minutes over. So if you can dispense with 
giving us advice on what our legislative agenda should look 
like and answer the question, I would be grateful to you.
    Mr. Lazarus. Well, but that is an answer. I think the 
Congress has a lot of power and it can use it.
    Mr. Gowdy. Okay. And I assume that the failure to exercise 
is also an exercise of power, the failure to act.
    Mr. Cannon, would you like to briefly answer?
    Mr. Cannon. Maybe Mr. Lazarus knows better than I do how 
many bombs the President has to drop without congressional 
authorization before that becomes war. I do not know the actual 
    But I think what Mr. King was getting at is there is one 
last thing to which the people can resort if the Government 
does not respect the restraints that the Constitution places on 
the Government. Abraham Lincoln talked about our right to alter 
our Government or our revolutionary right to overthrow it, and 
that is certainly something that no one wants to contemplate.
    But as I mentioned in my written and my delivered 
testimony, if the people come to believe that the Government is 
no longer constrained by the laws, then they will conclude that 
neither are they. That is why this is a very, very dangerous 
sort of thing for the President to do, to wantonly ignore the 
laws, to try to impose obligations on people that the 
legislature did not approve.
    Mr. King. An excellent conclusion.
    Thank you, Mr. Chairman. I yield back.
    Mr. Gowdy. The Chair would now recognize the gentleman from 
Pennsylvania, former United States Attorney, Mr. Marino.
    Mr. Marino. Thank you, Chairman.
    Professor Lazarus, you made a statement about--at least I 
inferred, about this being political. I want to assure you that 
I left a lucrative law practice to come to Congress in 2011 
because I continually see the eroding of the Constitution. I am 
a constitutionalist. It is what protects us. So I am not here 
for the pomp and circumstance, for the notoriety or to promote 
my career. I am here because I am concerned about the future of 
my children and the Constitution. So I want to make that 
perfectly clear.
    Number two, you made a comment, and again I inferred that 
the intent was not an issue or was an issue in part of the 
Affordable Care Act. And I do not want to get into the details 
of that, but I find that interesting that you made intent the 
issue when the Speaker of the House at that time, Nancy Pelosi, 
said we have to pass it before we know what is in it. Okay? So 
let's get real about this.
    Now we are finding what is in it or what is not in it, and 
I am hearing consistently from my constituents, small 
businesses, how this is destroying them. Let me be the first to 
say that I think everyone needs health care, and those that 
cannot afford it--we that can afford it have to help those 
individuals. I firmly and truly believe that.
    So with that, I would like to read you something. I am not 
a constitutional expert, but I loved constitutional law. I 
follow constitutional law ad nauseam. Just ask my wife. I am 
always talking about constitutional law.
    But in Federalist No. 51, it said, what is government 
itself but the greatest of all reflections on human nature? And 
it referred to--but the great security against a gradual 
concentration of the several powers in the same department 
consists in giving to those who administer each department the 
necessary constitutional means and personal motives to resist 
encroachment of the others. And the Government was set up to 
specifically prevent that.
    And the problem is I am seeing here not only in this 
Administration but in the previous Administration and several 
Administrations the executive branch is taking for granted that 
they have exclusive power over issues that they do not. And I 
am concerned about that and what do we do to prevent that. But 
where does it stop?
    Here is my question. We have seen the President and past 
Presidents concerning the Wars Powers Act, which I think 
violated the Constitution. But this Administration stopped 
enforcement of detaining illegal immigrants, stopped 
enforcement of drug laws. I know that because I am a 
prosecutor. I saw it. Stopped enforcement of mandatory 
sentencings, stopped parts of Obamacare, the Benghazi issue, 
the AG being held in contempt, the IRS issue. How many more 
things do you think have to occur?
    And I am thinking like a prosecutor. One of those in and of 
itself is not enough evidence. Two of those in and of itself is 
not enough evidence. But the violations that I see here that I 
just listed--and there are many more--I think is enough 
evidence to start asking questions. Where do you see the line 
drawn in what I have recited here as enough evidence to start 
asking questions about Presidents exceeding their power?
    Mr. Lazarus. Well, first of all, Congressman, I cannot 
address all of the----
    Mr. Marino. And I do not expect you to.
    Mr. Lazarus [continuing]. Things that you have raised. But 
many of those things--I mean, let's be honest about it--are 
honest disagreements about policy or about how to interpret the 
    Mr. Marino. So your interpretation of the law--you are 
saying you do not agree with the way perhaps I am interpreting 
the law. So you say I am wrong.
    Mr. Lazarus. No. Just to finish the sentence, raising the 
specter of some kind of grotesque presidential assertion of 
unwarranted authority here is just not based on fact. Mr. 
Cannon, for example, strongly believes that his interpretation 
of the law, which would sink Obamacare in his view, is correct, 
or I guess he does. The President disagrees with that. The 
President has very good reason to disagree with that. So to say 
that he is not taking care that the----
    Mr. Marino. Let me reclaim my time here.
    But when laws are enacted, they should be followed to the 
letter, and it is not being done here. I have heard you raise 
the issue of, well, prior Administrations have done it. To me 
that is no excuse not to pursue this from a congressional 
standpoint because whether it is Obamacare, whether it is the 
War Powers Act, whether it is going into Iraq, these are all 
issues that I am deeply concerned about.
    So you criticized and you have made some, I think, remarks. 
I do not think you take some of this seriously of what your 
colleagues have to say up there. So give me an answer as to 
what you think we need to do to curtail the executive power the 
way I think it has been abused over the years.
    Mr. Gowdy. You may answer the question quickly.
    Mr. Lazarus. Well, I think you can pass legislation to 
overturn an executive action you disapprove of. You can 
withhold funds for it.
    Mr. Marino. Well, let me ask you--show something right 
there that you are not reciting either. 94 percent of Obamacare 
is mandatory spending, and the Democrats passed that 
unanimously without any votes from the Republicans. So it is 
mandatory spending. Nothing can be done about that at this 
point. It is the law.
    And I yield back my time. Thank you.
    Mr. Gowdy. I thank the gentleman from Pennsylvania.
    The Chair will now recognize the gentleman from New York, 
my friend, Mr. Jeffries.
    Mr. Jeffries. I thank the distinguished Chair, as well as 
the distinguished Ranking Member for his leadership, and the 
panelists for their participation this morning.
    If I could just start with Professor Rosenkranz. And I want 
to explore this issue of prosecutorial executive branch 
discretion particularly in the context of the enforcement of 
our Nation's immigration laws. But if I can just start with 
some foundational questions.
    The Department of Justice, for example, is an executive 
branch agency. Correct?
    Mr. Rosenkranz. Yes.
    Mr. Jeffries. And Federal prosecutors within the Department 
of Justice are exercising executive branch action in the 
context of their participation in the criminal justice system. 
    Mr. Rosenkranz. Are exercising executive authority, yes.
    Mr. Jeffries. Executive authority.
    Now, when prosecutors make a decision, after initially 
charging someone with a serious offense and then agree to a 
plea bargain to a lesser included offense, short of what they 
may have concluded the evidence provides that particular 
defendant was guilty of, is that an appropriate exercise of 
prosecutorial discretion within the four corners of the 
    Mr. Rosenkranz. Well, I guess it depends on the 
circumstances of your hypothetical. It would not be appropriate 
if it were, for example, motivated by race or something, but on 
the facts you have described, if the prosecutor thought he did 
not have the resources to prosecute a particular crime or 
perhaps was not sure that he had the evidence for a particular 
element of the crime, then yes, that is an appropriate exercise 
of discretion.
    Mr. Jeffries. And the executive branch in the prosecutorial 
context, for instance, the Department of Justice or in the 
immigration context within Homeland Security--they have an 
ability to prioritize the nature of the offenses that they 
enforce. Is that correct? As an appropriate exercise of their 
constitutional authority.
    Mr. Rosenkranz. The executive branch has authority to 
husband its resources in the most efficient way that it sees 
fit. So the President does not have the money or resources to 
completely execute every law, and so he does have to, by 
necessity, make decisions about enforcement priorities, yes.
    Mr. Jeffries. Now, so you have concluded, I believe, that 
the presidential exercise of authority in the DACA context with 
respect to deferred action, a certain class of individuals--do 
you believe that that is an unconstitutional exercise of his 
    Mr. Rosenkranz. Sorry. In the immigration context?
    Mr. Jeffries. In the immigration context.
    Mr. Rosenkranz. Yes, I do.
    Mr. Jeffries. And you believe that is the case because of 
the fact that you contend it was a wide-ranging exercise that 
was not made on a case-by-case basis? What is the foundation of 
your belief that it is unconstitutional?
    Mr. Rosenkranz. I think there are two basic reasons. One is 
that it goes dramatically further than the hypotheticals we 
were discussing before. This is not a prosecutor deciding on a 
case. This is a President deciding on 1.8 million cases.
    And the second striking thing about it is the President 
deciding on exactly the set of cases that Congress considered 
exempting and decided not to exempt. That is what is 
particularly shocking about it.
    Mr. Jeffries. Reclaiming my time, you are familiar with the 
criteria that has been set forth for the determinations that 
are made, I believe, on a case-by-case basis as it relates to 
who qualifies for this deferred action. Are you not?
    Mr. Rosenkranz. Yes.
    Mr. Jeffries. So, for instance, one of the criteria, you 
must have entered the United States before their 16th birthday 
and be younger than 31 as of June 15, 2012. That is one 
particular criteria.
    Another is cannot have convictions of any felony offense, 
significant misdemeanor, or have committed any three 
misdemeanor offenses.
    Those are pretty specific enumerated categories.
    But another category which helps to determine whether 
discretion is appropriate is you cannot pose a threat to public 
safety or national security. Isn't that a pretty broad category 
within which discretion can be exercised on a case-by-case 
basis as to whether in fact you pose a threat to public safety 
or national security, that that is not a specifically 
constrained factor that people either automatically fall within 
or automatically fall without?
    Mr. Rosenkranz. Well, I think it is quite a dramatic shift 
in the status quo. So 1.8 million will presumptively be allowed 
to stay. I cannot imagine that but a tiny fraction of them will 
be found to fall within that exception.
    Mr. Jeffries. Okay. And I would just note that of these 
individuals, more than 450,000 have been granted deferred 
action, but in excess of 100,000 have been denied access or 
have not received that grant of discretion.
    And I yield back.
    Mr. Gowdy. I thank the gentleman from New York.
    The Chair will now recognize himself for 5 minutes of 
    It strikes me that the law can require action or forbid 
action. The law can forbid the possession of child pornography. 
The law can, in some instances, require you to file an income 
tax return.
    Mr. Lazarus, is the chief executive constitutionally 
capable of ignoring both categories of law?
    Mr. Lazarus. Well, as I said several times, Congressman 
Gowdy, the President cannot refuse to apply or enforce a law 
for policy reasons.
    Mr. Gowdy. Well, let's analyze that for a second. The 
Congress decided in its collective wisdom that if you possess X 
amount of a controlled substance, you are going to get X amount 
of time in prison. You may like mandatory minimums; you may not 
like them. This Administration summarily dispensed with that 
    So my question to you again is, can the chief executive 
fail to enforce categories of law that are both permissive and 
    Mr. Lazarus. It is well established that the executive 
branch has prosecutorial discretion to decline----
    Mr. Gowdy. And what are the limits of that prosecutorial 
    Mr. Lazarus. You know, very frankly I am not an expert on 
    Mr. Gowdy. Well, let me ask you this. Let's assume that a 
statute required you to show two pieces of identification to 
purchase a firearm. Can the chief executive knock that down to 
    Mr. Lazarus. I guess I'd have to know a little bit more, 
but I would----
    Mr. Gowdy. It is a very simple fact pattern. You have to 
show two forms of ID to possess or purchase a firearm--to 
purchase a firearm. Can the chief executive under his pardon 
authority or his prosecutorial discretion authority knock that 
down to just one form of identification?
    Mr. Lazarus. Well, I am not aware of limits on the 
President's pardon authority.
    Mr. Gowdy. So you would say he could.
    Mr. Lazarus. Under the pardon authority, the President can 
pardon just about anyone, not that he should----
    Mr. Gowdy. Even before the act is committed?
    Mr. Lazarus. That is the reason for----
    Mr. Gowdy. Can he do it before the act is committed? That 
is my question.
    Mr. Lazarus. I am sorry?
    Mr. Gowdy. Can he do it before the act is committed?
    Mr. Lazarus. Again, that is above my pay grade. I do not 
really know that.
    Mr. Gowdy. If the President can fail to enforce immigration 
laws, can the President likewise fail to enforce election laws?
    Mr. Lazarus. Did you ask whether the President can pardon 
someone before a prosecution is initiated or before an act----
    Mr. Gowdy. Well, I think I know the answer to that 
question. My question was before the act was committed. He 
certainly can before prosecution.
    My question is this. If you can dispense with immigration 
laws or marijuana laws or mandatory minimums, can you also 
dispense with election laws?
    Mr. Lazarus. Again, I think we have gone over this ground 
many times.
    Mr. Gowdy. Well, just humor me. Let's do it one more time. 
Can the President suspend election laws?
    Mr. Lazarus. No.
    Mr. Gowdy. Why not? If he can suspend mandatory minimum and 
immigration laws, why not election laws?
    Mr. Lazarus. Because we live in a Government of laws, and 
the President is bound to obey them and apply them.
    Mr. Gowdy. Well, he is not applying the ACA, and he is not 
applying immigration laws, and he is not applying marijuana 
laws, and he is not applying mandatory minimums. What is the 
difference with election laws?
    Mr. Lazarus. We have a disagreement as to whether, in fact, 
he is applying those laws. My view is that he is applying those 
    Mr. Gowdy. Did Eric Holder instruct his prosecutors to no 
longer follow the mandatory minimums with respect to charging 
    Mr. Lazarus. This is an area where I really do not know 
nearly as much as you do, Congressman.
    Mr. Gowdy. I would find that shocking that anybody would 
not know more than I do on any topic.
    Do you want me to ask Professor Turley?
    Mr. Lazarus. I would say that my impression is that he is 
not exactly doing what you have just said.
    Mr. Gowdy. Well, tell me how I am wrong because Eric Holder 
sent out a memo that we are no longer going to put in the 
indictment the drug amounts.
    Do you agree with me that Congress can pass mandatory 
    Mr. Lazarus. Constitutionally? Yes.
    Mr. Gowdy. Do you agree that Congress can pass statutory 
    Mr. Lazarus. Pardon me?
    Mr. Gowdy. Can Congress also pass statutory maximums? In 
other words, you cannot get more than 30 years for a crime.
    Mr. Lazarus. Of course.
    Mr. Gowdy. Can a President exceed a statutory maximum?
    Mr. Lazarus. Can he extinguish did you say?
    Mr. Gowdy. No. Can he exceed it?
    Mr. Lazarus. Can he exceed it? Well, how would he do that? 
You mean keep someone in prison beyond his prison term.
    Mr. Gowdy. Well, if you can put him in prison for less time 
than Congress says is the law, can you also do it for more time 
than Congress says is the law?
    Mr. Lazarus. You know, this is kind of fruitless because it 
is an area that I really do not know----
    Mr. Gowdy. Professor Turley, what are the limits of 
prosecutorial discretion? And if the President can suspend 
immigration laws, marijuana laws, why not election laws?
    Mr. Turley. Well, I think that some of these areas, I 
cannot imagine, can be justified through prosecutorial 
discretion. It is not prosecutorial discretion to go into a law 
and say an entire category of people will no longer be subject 
to the law. That is a legislative decision. Prosecutorial 
discretion is a case-by-case decision that is made by the 
Department of Justice. When the Department of Justice starts to 
say we are going to extend that to whole sections of laws, then 
they are engaging in a legislative act, not an act of 
prosecutorial discretion. Wherever the line is drawn, it has 
got to be drawn somewhere from here. It cannot include 
categorical rejections of the application of the law to 
millions of people.
    Mr. Gowdy. Well, my time is up, but I would just tell you 
that I always thought prosecutorial discretion was an 
individual prosecutor determining whether she or he has enough 
facts to substantially result in a conviction on a case-by-case 
basis. If a President is ignoring entire categories of the law, 
whether it be immigration, marijuana, mandatory minimum, the 
ACA, what is the remedy for the legislative branch?
    Mr. Turley. Well, first of all, the first part of the 
question is--as you may know, I do criminal defense work. I 
would never go to a prosecutor and say I want your 
prosecutorial discretion to say that the entire class of which 
my client belongs cannot be subject to this law because 
prosecutors would look at me and say are you insane. I am not 
Congress. So I would not even raise the question.
    Now, in terms of where we go from here, I am not too sure 
because the great concern I have for this body is that it is 
not only being circumvented but it is also being denied the 
ability to enforce its inherent powers. Many of these questions 
are not close in my view. The President is outside the line. 
But it has to go in front of a court, and that court has to 
grant review. And that is where we have the most serious 
constitutional crisis I view in my lifetime, and that is, this 
body is becoming less and less relevant.
    Mr. Gowdy. With that, we will recognize the gentlelady from 
Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Let me thank the majority and the 
minority, Mr. Conyers, for holding this hearing.
    Let me thank the witnesses. Whenever witnesses come before 
our body, it is of course valuable and we trust your judgment, 
although we may disagree with you vigorously.
    Let me say that the wasteland that Mr. Lazarus spoke of--
and, Mr. Lazarus, please let me cite you and indicate that I 
will be using this across the land, the vast lands of this 
Nation, which is a rhetorical make-waste that this hearing 
equates, but also to suggest that the reason why this body that 
Professor Turley has suggested may be on the verge of some 
basis of irrelevancy, which I take issue with, is because under 
the present House leadership, we have passed no legislation for 
the President to be able to implement in the first place. We 
have not passed immigration reform. We have not dealt with the 
question of mandatory minimums. We have not dealt with a budget 
process. We have not dealt with sequester. If we would simply 
do our job, the relevance to the American people would exceed 
our expectation.
    I just came from the Fast for Families. Just a few hours 
ago, we had in this room DREAMers. As far as I am concerned, 
the duty of the President is to be the ultimate giver of relief 
within the context of the Constitution and the necessary relief 
of the people who are begging for relief. If you read the lines 
that we are so intellectually gifted to interpret, along with 
precedents, it says that he shall take care that the laws be 
faithfully executed and shall commission all of the officers of 
the United States. Well, I could be a believer, and therefore, 
my faith says that the President is taking, within the context 
of the laws, the ability to implement to help the most 
vulnerable. And what we are doing here is a rhetorical 
wasteland of ignoring the pain of our Nation.
    And let me give you an example. First of all, my good 
friend from South Carolina knows full well as a Federal 
prosecutor that each day prosecutors are making distinctive 
decisions about who to prosecute and how within the context of 
the law.
    And to answer the question for you, Mr. Lazarus, the issue 
is that in election laws you follow the law, but you have the 
right in a prosecutorial posture to determine whether you are 
prosecuting or not. That is what happened with mandatory 
minimums. That is what is happening with the issue of drugs. 
That is what the Attorney General is speaking of. He is not 
throwing laws to the wasteland. We are in this hearing, for it 
has no sense to it.
    And then it is interesting that we have not understood the 
question of the Secretary of Homeland Security. She issued a 
memo to her staff. She has an inherent authority to deal with 
policy. Each of the deferred adjudications or the deferments 
for DREAMers is individually assessed. What is the 
constitutional gobbledygook talking about? They do not 
understand the difference between policy and the ability to do 
    And so I have had DREAMers come to my office. I could not 
waive a magic wand. They had to go through the process. The 
memo indicates that it went to CBP, ICE, immigration 
enforcement, and others.
    And so I am taken aback that this issue does not come with 
humanitarianism, and that if there should be a hearing, it 
should be a hearing of the failure of this Congress to act on 
its constitutional responsibilities.
    Let me ask on the Affordable Care Act, which is now just 
another way, if I might say so, of having the 50th and the 52nd 
and the 53rd challenge on the Affordable Care Act. Mr. Lazarus, 
to go back to a comment about these exchanges, another 
wasteland, that if your State does not have an exchange, just 
on practical English, it means that you in the State cannot 
comply, meaning you, the citizen, are left in a wasteland of 
noncompliance, what do you get on? And so we have established 
the national exchanges. Would we have preferred to have State 
exchanges and to have a list of State insurers? Yes. Would we 
prefer for Republicans not to encourage young people not to do 
what is best for them by getting covered? Yes.
    But my question is if the directive is to run such 
exchanges, that means the same characteristic, Federal 
exchange, including the tax credit that allows poor people to 
have insurance, obviously, these are allowed. I am sort of 
coming in the middle of my question, Mr. Lazarus. This is for 
you. In essence, in States that have refused exchanges, the 
Federal Government stands in the shoes of the States. Does that 
not further illustrate why you, not Mr. Cannon, are correct 
based on the pure text of the law and that the President is 
carefully, faithfully implementing the law? Would you go over 
that for us again so that it can be in the record?
    Mr. Lazarus. Well, that interpretation is what I support, 
what the President, and the Administration supports, and what I 
think will certainly prevail in court, and that is that what 
the law provides is that if a State declines to set up an 
exchange, then the Federal Government shall establish such 
exchange. It says such exchange in the law. And as you just 
stated in common sense terms, the Federal Government then will 
stand in the shoes of the State in operating that exchange and 
the exchange will be exactly the same, have all the same 
powers, authorities, and responsibilities that an exchange that 
is being managed by a State government would have. Any other 
interpretation, the one that my friend, Mr. Cannon, here is 
promoting so vigorously, makes no sense and would actually 
cause the whole exchange part of the ACA to fail in every one 
of these States. So it makes no sense whatsoever I think.
    Ms. Jackson Lee. May I just have an additional 30 seconds? 
He did not answer. Does this not exceed----
    Mr. Lazarus. I am sorry.
    Ms. Jackson Lee. Does this not exceed the authority of the 
    Mr. Gowdy. We are already 2 minutes over. So if you could 
give us a very pithy response, it would be great.
    Ms. Jackson Lee. You are very kind, Mr. Chairman. Thank 
you, Mr. Chairman.
    Mr. Lazarus?
    Mr. Lazarus. I think the President is not violating his 
``take care'' responsibilities by acting on the interpretation.
    Ms. Jackson Lee. And do you associate with my 
interpretation of the statements I made previously?
    May I ask for a submission into the record? I am finished.
    Mr. Gowdy. You can submit all your questions for the 
    Ms. Jackson Lee. No, no. May I just submit a document of an 
    Mr. Gowdy. Without objection.
    Ms. Jackson Lee [continuing]. Dated August 15, 2007 by 
myself on signing statements? I ask unanimous consent.
    Mr. Gowdy. Without objection.
    [The information referred to follows:]



    Mr. Gowdy. Before I recognize the gentleman----
    Ms. Jackson Lee. I thank the Chairman and I thank the 
witnesses. I yield back.
    Mr. Gowdy. Before I recognize the gentleman from Idaho, for 
those of our panelists who may not be able to avail themselves 
of the history of this Committee from 2008 to 2010, the other 
side controlled this Committee, and not one single solitary 
piece of immigration reform was produced. Now, let's be fair. I 
have got colleagues like the gentleman from Illinois who are 
equally desirous of immigration reform no matter who the 
President is. But let's do not rewrite history. From 2008 to 
2010, the Democrats controlled this Committee and nothing with 
respect to immigration reform. So do not talk to me now about 
what a huge priority it is.
    I recognize the gentleman from Idaho.
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Labrador. Mr. Chairman, thank you for the time. 
Panelists, thank you for being here.
    Mr. Lazarus, I have been listening to you for 2 and a half 
hours now, and I have not heard a single time where you have 
told me where in the law the Federal exchanges are given the 
authority to grant these subsidies. You talk about policy. You 
talk about what you think the President wants. You take about 
what you think the Democrats want. Tell me in the statute just 
one time where it says that the Federal exchanges are supposed 
to give this subsidy.
    Mr. Lazarus. Yes. I did not go into detail and I do not 
think that my friend, Mr. Cannon, did either.
    Mr. Labrador. I think he did. He mentioned the numerous 
times where it gives this solely to the State exchanges.
    Mr. Lazarus. Let me answer the question.
    First of all, I ask that the Committee include written 
testimony that I gave to a Subcommittee of Congressman Issa's 
oversight Committee that goes into detail about what the----
    Mr. Labrador. Just name one. I just want one section of the 
law. I do not have that much time. Name one section of the law.
    Mr. Lazarus. And secondly, I also----
    Mr. Labrador. You do not know.
    Mr. Lazarus. No, no. I did not say I do not know.
    Mr. Labrador. You name one section of the law.
    Mr. Lazarus. I want to say that I had----
    Mr. Labrador. One section of the law, Mr. Lazarus, where it 
says that.
    Mr. Lazarus. I would cite two sections.
    Mr. Labrador. Okay, thank you. That is all I am asking.
    Mr. Lazarus. The first section is one that Congresswoman 
Lee referred to and that is where the law says that in the 
event that a State does not set up its own exchange, then the 
Secretary of Health and Human Services shall establish such 
exchange. Our interpretation and the Administration's 
interpretation is that the words ``such exchange'' should be 
interpreted to mean that the exchanges will operate on the same 
terms and have the same authority. Michael does not agree with 
that, but that is the interpretation.
    Secondly--and I think this is really quite important--when 
the statute defines exchange with a capital E--it puts a 
capital E in there--it says the exchange shall be an exchanged 
established by the State under the relevant section. And then--
    Mr. Labrador. I reclaim my time. I just asked you a simple 
    Mr. Lazarus. So the----
    Mr. Labrador. Mr. Turley and Mr. Cannon, I think both of 
you, coming from different political points of view, had some 
of the same concerns that I had about the prior Administration, 
about the Bush administration. In fact, I read some of your 
writings, Mr. Turley, before I was a Member of Congress.
    Mr. Turley. Bless you. [Laughter.]
    Mr. Labrador. And I was very concerned about the imperial 
presidency. I was very concerned about having a Republican with 
Republicans in Congress who were not willing to be a check and 
a balance on a Republican President. And in fact, like Mr. 
Cannon stated in his testimony--I think it was you. I cannot 
remember which one of you it was who stated that maybe the one 
thing that you liked about Obama--you seem to agree with his 
policies. You seem to kind of like the fact that he was going 
to be a check on what previous Presidents had done.
    So I am actually really disappointed that we are here at 
this hearing today, and I am surprised that my friends on the 
other side do not think that this is an important hearing 
because they seem to bitch and whine for 8 years about what the 
Bush administration did. And all of a sudden, they do not seem 
to have one single concern about what this President is doing 
with this authority.
    What do you have to say about that, Mr. Turley?
    Mr. Turley. Well, I believe that this institution is facing 
a critical crossroads in terms of its continued relevance in 
this process. What this body cannot become is a debating 
society where it can issue rules and laws that are either 
complied with or not complied with by the President. I think 
that is where we are.
    And where Mr. Lazarus and I disagree, Mr. Lazarus keeps on 
saying, look, a President cannot ignore an express statement on 
policy grounds. I am not too sure what is involved here. If you 
look at the individual mandate, the policy issue there was that 
a great number of people were upset. They felt that there was a 
bait and switch. That is not the same thing that we see with 
like the environmental statutes that Mr. Lazarus points out. 
That is a political issue, a policy issue where the President 
said I do not want this to happen now and a lot of people are 
upset with it. That would seem to me if that is not a policy 
question, I do not what is. And by Mr. Lazarus' own definition, 
that would seem to be outside the authority of the President.
    But in terms of the institutional issue that you are 
raising, look around you. Is this truly the body that existed 
when it was formed? Does it have the same gravitational pull 
and authority that was given to it by its Framers? You are the 
keepers of this authority. You took an oath to uphold it. And 
the Framers assumed that you would have the institutional 
wherewithal and, frankly, ambition to defend the turf that is 
the legislative branch.
    Mr. Labrador. Mr. Cannon, it seems to me that Mr. Lazarus 
is arguing that the President can do anything that we refuse to 
act on. And I think that goes beyond what the constitutional 
powers that were given to the President by our Founding 
Fathers. In fact, if you follow his logic, it seems to me that 
if he next decides that he wants to make sure that nobody who 
came here illegally, who came here just to work in agriculture, 
for example, can be deported because there would be some 
humanitarian concerns about deporting these people that he has 
the express authority to actually do that.
    I am actually a proponent of immigration reform. I want 
immigration reform to be done. And I think the actions of the 
President have made it less likely that this body is going to 
act because we are not sure what he is going to enforce and 
what he is not going to enforce.
    What are your comments on that?
    Mr. Cannon. I think that there is no bright line, as far as 
I know, to be drawn between enforcement discretion and 
legislating. I think that the President's actions with regard 
to the Patient Protection and Affordable Care Act--wherever you 
draw that line, he is on the wrong side of it.
    But I think the best way to curtail the abuse of 
prosecutorial discretion is to have fewer crimes. We have a lot 
of crimes in our immigration laws that I just do not think 
should be here. I think our drug war creates a lot of 
criminals, and there are a lot of crimes on our books as a 
result of the drug war that should not be there. And that is 
why prosecutors across this country are stretched so thin, why 
prisons are overcrowded. And when you have a situation like 
that where you have got a surplus of crimes and not enough 
resources to prosecute all of them, then you put a lot more 
power in the hands of individual prosecutors, as well as the 
executive branch generally, to decide how these laws are going 
to be enforced or not enforced. I think on a macro level that 
is how you try to attack this problem.
    Mr. Labrador. Thank you.
    I yield back my time.
    Mr. Gowdy. The gentleman yields.
    The Chair would now recognize the gentleman from Illinois, 
my friend, Mr. Gutierrez.
    Mr. Gutierrez. Thank you very much, Mr. Chairman.
    Well, once again we are not legislating in this Committee. 
We could be using this time to find common ground and even have 
a strenuous and substantive debate on important public policy 
matters, but instead I think what we are doing is offering 
empty assurances and shaping political messages for next fall. 
Rather than worrying about whether the President we know--and 
you ``distrusts'' is enforcing our laws the way you would like 
him to, we could be making meaningful progress toward crafting 
and passing laws for the betterment of the American people.
    The President is not a Member of this Committee. He does 
not sit on this Committee. He does not have a vote in the House 
of Representatives. We should craft legislation and get it 
done. And then we should make sure that that legislation is 
    Now, I know that some people say, well, he is not enforcing 
the legislation. Let me just suggest to everybody when he got 
sworn in as President of the United States, Secure Communities 
was nothing in this country. There are hundreds and hundreds of 
agreements with county, State, and local--how do you think the 
apparatus was created to deport 2 million people in the last 5 
years? By accident? That apparatus did not exist under George 
Bush. It was created under his Administration and implemented 
by this President. And that is something that I am happy about, 
287(g) agreements that have been made with one locality after 
    We are going to sit here and actually that Congresswoman 
Sinema, our colleague, who hired one of the DREAMers after she 
applied for DACA and successfully got her work permit and is 
now her district--her mom is under a current order of 
deportation. She quit her job today as a congressional aid to 
go and fight for her mom. And we are saying that he is not 
enforcing the law? I assure you that if you are fighting this 
Administration, as I and many others are fighting this 
Administration each and every day, you will find this President 
is, indeed, enforcing the law. Unfortunately, he should not be 
limiting his prosecutorial discretion. He should be expanding 
his prosecutorial discretion.
    Now, on the substantive issue of DACA, the fact is we 
passed the DREAM Act in the House of Representatives in the 
fall of 2010, 216 to 208. But then we went to the Senate, Mr. 
Turley, and over there they said you need 60 votes now to get 
something done. We always talk about the Framers. I do not 
remember any Framers saying you need more than one vote in the 
majority in the Senate. But now you need 60. So they only got 
55. So clearly the established will of the majority of the 
Senators and the House of Representatives was to do what? To 
protect the DREAMers. That is what the President did. He took 
the express will of the House and the Senate, if not for this 
new rule that they invented that they have had, I think, now 
for 35 years that you need the super majority of 60 votes. If 
we needed that here, even my colleagues on the Republican side 
would have a difficult time getting legislation passed.
    So all I am trying to say is when we move the ball forward, 
the President looked at it. And I just want to say that I do 
not know about the other, but it seems like Bo Cooper, former 
INS General Counsel; Paul Virtue, former INS General Counsel--
these are general counsels of the INS. Each of them established 
that the President of the United States does have prosecutorial 
discretion when he gets to decide who to prosecute and who not 
to. And that is what he did. He set children aside and said I 
am no longer going to prosecute them because they do not 
present an imminent threat.
    And guess what, Mr. Chairman. A year and a half later, 
500,000 of them are walking around, and I assure you because I 
know the way this place works if you can find one and bring 
them up here that shows how he has caused some danger or some 
harm, that person would have already have come. But the fact is 
that they are not. They are working in congressional--three of 
them are working in my congressional office filling out more. 
Look, they are American citizens in everything but a piece of 
    And all I want to do--and I want to establish because the 
Chairman is absolutely correct. I am going to say this. When we 
were in charge in 2007 and 2008, we were worried about losing 
our majority because your side was beating the crap out of us. 
I am sorry. Maybe that word should not be used here. But that 
is what you were doing. So if a Democrat voted for immigration 
reform, your side went boom, boom, boom, boom and knocked them 
out. Right? And then we were in the majority in 2009 and 2010, 
and we did nothing. I agree with you we did nothing.
    But let's not repeat history. Let's not say you did not do 
anything, so we are not going to do anything. No. Let's do 
    I want to end with this. Here is what I would like to do. I 
want to step outside of my Democratic Party because I know 
there are men and women on your side of the aisle that want to 
step outside of their Republican Party and join an American 
party on the issue of immigration because I know there is 
common ground that we can reach. And then the President will 
not have to be taking these actions because more and more what 
you are going to find is people are going to say Congresswoman 
Sinema's staffer--we should not deport her mom. Mr. President, 
stop the deportation of that mom.
    So all we are going to do is--look, they are here. There 
are 11 million of them. Let's figure out a way how we legalize 
their status, and let's figure out--if you want triggers, let's 
put the triggers in. But in the end, we are going to have to 
come back here, and when they become American citizens, they 
are all going to become American citizens. We should get over 
that because you know what is going to happen, Mr. Chairman? If 
we pass legislation and they all do not go to citizenship, the 
next day somebody is going to show up and say that Congressman 
Gutierrez did not do a good enough job. That is the positive 
thing. Somebody comes and says we did not do a good enough job.
    Thank you. You have been so kind and so generous. I know 
one thing. Eventually we are going to have a hearing here. We 
are going to call you all back and you are going to let us know 
how we are going to get this done. I pray that that happens. It 
is the right thing for America. Thank you very much.
    Mr. Gowdy. I thank the gentleman from Illinois.
    The Chair will now recognize the gentleman from Arizona, 
Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, the subject of today's meeting is pretty 
profound related to the rule of law, and there are so many 
examples that some of us point to, and it is hard to name them 
all. So I am just going to point to a few that this 
Administration seems to have stepped outside the boundaries of 
``the rule of law.''
    Taxing political contributions. Again, not in the law. 
Political speech disclosures for Federal contractors. The deep 
water drilling ban. Mr. Holder's attempt to reform criminal 
justice by selectively enforcing our laws. Mr. Obama's 
unilaterally ignoring immigration laws in many cases. 
Unconstitutional recess appointments. Fast and Furious, 
unconstitutional efforts there to walk guns. Unconstitutional 
wiretaps of the AP. The IRS scandal, one of the more egregious 
ones, as the gentleman mentioned that it subverts the entire 
political process. And of course, Obamacare, which I will touch 
on in a moment.
    But all of these are examples where this President, in the 
words of my friends on the left, has exercised prosecutorial 
discretion--that is the word--presidential pardon powers. But I 
think they are more along the lines that Professor Turley said. 
These could be considered royal prerogatives, which if my 
history is right, that is what we had that little 
unpleasantness with Great Britain about. So the subject here is 
of profound significance.
    And I would suggest, Mr. Chairman, that not only in the 
application of the law has this Administration held themselves 
unconstrained by the Constitution or even the truth in many 
cases, but even in the process of getting the law.
    On Obamacare, this was passed in a unique situation. You 
know, I see in Mr. Cannon's testimony especially--it is 
probably the perfect citation. I see in your testimony that you 
write, ``President Obama's unfaithfulness to the PPACA is so 
wanton it is no longer accurate to say that the Patient 
Protection and Affordable Care Act is `the law of the land.' '' 
You know, it is kind of ironic because some of my colleagues, 
about 53 of us, have signed on to the House resolution stating 
that we believe that Obamacare has yet to be the law of the 
land because it violated the Origination Clause of the U.S. 
Constitution when it was passed. And we do not talk about that 
a great deal, but it is significant because the Origination 
Clause, which was vital to the Constitution ever coming in to 
existence in the first place--it was the critical negotiation 
that took place to allow the Constitution to exist--requires 
that all bills for raising revenue originate in the House.
    And incidentally, Mr. Cannon, your colleague Ilya Shapiro 
at Cato has written an excellent piece laying out this 
argument, and I am going to ask that this be placed in the 
record here in a moment and also would like to ask you to 
address it if you have a perspective of it.
    But the bottom line that is at issue here is that if the 
U.S. Senate can take a totally unrelated piece of legislation 
and strike everything but the number and take legislation that 
they called the Senate health care bill and place it in its 
entirety, which raises taxes to an enormous degree--if they can 
take any bill in the House and do that, then I would suggest to 
you, especially after the Supreme Court has labeled Obamacare a 
tax--they have officially called it a tax. And if indeed it can 
be done this way, then I would suggest to you that the 
Origination Clause is a dead letter. There is no more purpose 
for it being in the Constitution. And it is something that I 
hope that we will look at more carefully.
    So if it is all right, Mr. Cannon, I am going to address my 
question to you. Do you have anything that would help 
illuminate this in ways that the rest of us can understand?
    Mr. Cannon. Well, this is a provision of the Constitution 
that has not really been used or employed by the Supreme Court 
to knock down any revenue measures that were alleged to have 
originated in the Senate instead of in the House as required by 
the Constitution.
    I think that what happened with the PPACA is a more extreme 
example of the abuse of--or a more extreme violation of the 
Origination Clause than what we have seen in the past. As you 
say, a bill came up with a totally unrelated revenue measure, 
came over from the House. The Senate stripped out everything 
within that bill, kept only the bill number, H.R. 3590, I 
believe, and inserted into that the Patient Protection and 
Affordable Care Act, which had all sorts of revenue measures, 
including the individual mandate, which we did not know then 
was a tax, but now we know it is a tax until the Administration 
changes its mind again, which it continues to do.
    There is nothing in the bill number that is a revenue 
measure. All the revenue measures had been stripped out of that 
bill. So if the Origination Clause means anything, then it 
means that that revenue measure that the Senate passed and then 
the House passed and that we now call the Patient Protection 
and Affordable Care Act originated in the Senate and the Senate 
did not have the power to originate a bill--a revenue measure 
like that.
    But the difficulty is will the courts enforce that part of 
the Constitution. There is a difficult line to be drawn between 
when are you amending a revenue measure that came from the 
House and when are you originating a new bill. I think that 
reasonable people can disagree about where that line will be 
drawn. I do not think that reasonable people can disagree about 
whether the Senate's gutting of H.R. 3590 and inserting into 
that a totally new revenue measure--I do not think anyone can 
disagree that that is on the wrong side of that line. It 
remains to be seen whether the courts will uphold that part of 
the Constitution. If they do, then probably they would have to 
strike down the entire PPACA.
    Fortunately, there is a lawsuit that is making its way 
through Federal courts--it has been filed by the Pacific Legal 
Foundation--that challenges the individual mandate under the 
Origination Clause.
    Mr. Franks. Mr. Chairman, thank you. I guess if this 
Administration does not succeed in stacking the D.C. Circuit, 
we should find out whether the Origination Clause still means 
anything at all with the case that the gentleman mentions.
    Mr. Gowdy. I thank the gentleman from Arizona.
    The Chair would now recognize the gentleman from North 
Carolina, the former U.S. Attorney, Mr. Holding.
    Mr. Holding. Thank you, Mr. Chairman.
    Professor Turley, throughout your testimony, you have 
alluded several times that there are incidents that you believe 
that the President has stepped over the line, and we have 
talked about a number of them. But I would just ask for you to 
recap and maybe give us your top five instances where you think 
that he has overstepped the line and breached the Constitution.
    Mr. Turley. Thank you very much, Congressman.
    First of all, I do think that there is a number of 
provisions in the ACA where he did overstep the line. The 
decision on individual mandates strikes me as a rather obvious 
policy determination from the President that he did not want to 
see it enforced, given the amount of public opposition that 
occurred and accusations of a bait and switch. Those are all 
political issues. This was not Clean Air Act regulation that 
was stuck in the mire of regulatory disagreements as to a 
command and control statute.
    I also believe that the employer mandate, which was also 
extended, constitutes a significant change in the legislation.
    I also believe that the immigration issue is well across 
the line. I actually agree with the President on the decision 
that was made, but that does not matter because it was not made 
in a way that is allowed under our Constitution.
    One of the things that I would point your attention to, 
Congressman Holding, is that if you look at each of these 
questions, a couple of things jump out at you. One is they 
happen to occur in areas of tremendous political division, if 
not deadlock. That is precisely the type of issue that the 
Framers wanted to go through the legislative process because 
our process, unlike other systems that would explode into the 
streets of Paris and other cities, we have a type of 
constitutional implosion. We direct those pressures to the 
center of Congress, and from that, we take disparate factional 
interests and turn them into a majoritarian compromise.
    Mr. Holding. If I could get you to keep going down the list 
of instances where you think that he has overstepped.
    Mr. Turley. The other two that really come out to me is 
really the issue of the $454 million in the prevention fund 
issue for the Federal health care insurance exchange and also 
the $700 billion for the State exchanges and then finally 
essentially the subsidies for congressional employees, which is 
less significant than those other ones. And what bothers me 
about those last examples is that it goes directly to the power 
of the purse. And we have seen over and over again courts 
saying do not worry, you have the power of the purse. And this 
Administration is now directly challenging that and saying we 
can take money that was dedicated for one purpose and give it 
to an unspecified disallowed purpose, and that challenges the 
very rock foundation of the Congress.
    Mr. Holding. Mr. Rosenkranz, do you want to add any to this 
list of--I have got four.
    Mr. Rosenkranz. Well, I agree with all the items on that 
    You know, a recent D.C. Circuit opinion spoke of the 
Nuclear Regulatory Commission refusing to make a decision about 
Yucca Mountain. That is quite a striking example. That is the 
example where Judge Kavanaugh--the Judge Kavanaugh quote came 
    And the other example that I really want to keep returning 
to is the IRS-targeted enforcement. So to my mind, taking care 
that the laws be faithfully executed--the core of that 
requirement is nondiscriminatory enforcement.
    Mr. Holding. Mr. Lazarus, do you want to add any to this? 
Perhaps not.
    Mr. Cannon, would you like to add any to this?
    Mr. Lazarus. I would like to ask isn't the Nuclear 
Regulatory Commission----
    Mr. Holding. I am going to reclaim my time, Mr. Lazarus.
    Before I go to you, Mr. Cannon, I want to use my last 
minute with Mr. Rosenkranz. Mr. Rosenkranz, you said that in 
extreme instances, impeachment would be appropriate to address 
one of these transgressions. We used the example of declaring 
war without congressional authorization. Say, on a scale of 1 
to 10, that being a 10 as necessitating impeachment 
proceedings, we have reeled off six instances where the 
President has exceeded his constitutional authority. I would 
add a seventh in there with what he is doing with our drug laws 
and the mandatory minimums and the insistence that our 
prosecutors not charge all of the relevant facts.
    Out of any of these seven, which ones rise to being the 
most egregious and would any of them trigger what you would 
think impeachment to be appropriate?
    Mr. Rosenkranz. Well, I would not want to opine on quite 
what the impeachment line ought to be, but I think this body 
should think about a pattern, if they see a pattern and 
particularly if they see willful conduct. That is really the 
most egregious thing a President can do is willfully violate 
the Take Care Clause or display a pattern of disregard for a 
constitutional prohibition. So that is what I think the 
Committee should keep their eye on.
    Mr. Holding. Mr. Chairman, I yield back.
    Mr. Gowdy. I thank the gentleman from North Carolina.
    The Chair would now recognize the gentleman from Georgia, 
Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman.
    I have sat here and I have listened and I have listened in 
the back. I listened to both sides. The thing that just 
disturbs me more about this hearing probably--Congressman King 
said it was one of the most interesting hearings that we have 
done and one of the relevant hearings. I am not going to 
disagree with that.
    But I think for me it actually brings out one of the most 
disturbing hearings that we are having to have. And I think it 
is a progression issue here. And I am not going to be 
Republican or Democrat. It has happened more in the last 15 to 
20 years. I think this is a progression of executives that both 
Republicans and Democrats have used really in some ways, pushed 
that boundary, stretched that boundary, and I think in the case 
of this, the President now has outright stepped over those 
    And we can have legal discussions up here all the time. But 
the problem is from where I come from up in northeast Georgia 
people do not get it. They look at a government. They look at 
an executive. They look at what is going on right now, and they 
just basically say this is not the way it is supposed to work. 
You can go back to schoolhouse rock. You can go to civics 
class. You can do whatever, and you can be graduated law 
professors. But at the same point, if you cannot communicate it 
to the people who have to live under the situation, then there 
are mass problems. And I believe there is a right to have a 
mass problem right now.
    We have talked about the power of the purse. I have talked 
all session ever since I got up here about I believe truly that 
this institution has got to matter again. It is Article I. We 
have talked about Article III a lot. We talked about Article II 
a lot, but it is Article I. Congress has to matter again, and 
that means that we have to take seriously our role of 
budgeting. We have to take seriously our role of legislating, 
but also holding accountable when we are being bypassed. And 
that is a concern.
    And we talked about using the power of the purse. I think 
that has been an issue that has been well trodden today. We 
have talked about elections, and I think that is an issue that 
has been discussed.
    But the other issue for me that is bothersome and you try 
to explain is what can you do. I am often asked this. You got 
to go up there and you just impeach him. Or you go up there. 
You just impeach the President. Or you go up there and you just 
cut funds off. You shut everything down. And it just becomes a 
    And now we have Mr. Lazarus--and I respect your right to a 
differing opinion than mine on most things here--to say that I 
believe he has stepped over and you believe he has not. That is 
where we differ.
    And, Mr. Turley, we will agree on some things and probably 
not agree on others. But you made a statement that said, agree 
or not, it was not in the bounds of the Constitution. And I 
think that is interesting for us to talk about for just a 
moment because it comes back to what do we do besides getting 
our ``act together,'' if you would, as Congress. What can we 
do? Because standing is an issue that we are having.
    So I want to ask you just this question. Where do we go to 
begin that process of reclaiming our Article I, our 
constitutional role so that it is a three-legged stool and not 
right now a one and a half.
    Mr. Turley. Well, it is an excellent question. Despite my 
deepest concerns, I remain optimistic. I am a Cubs and Bears 
fan. So I have spent most of my life with unrequited desires.
    But it is as serious as you suggest, and there is a good 
reason why people cannot understand what is going on because we 
are acting outside the system. We have essentially taken the 
Madisonian system offline, and we are in this ad hoc 
improvisational world of constitutional law that is very, very 
    Where I disagree with my friend, Mr. Rosenkranz, is I am 
always leery about people who say the solution is elections. 
The Framers did not intend for elections to be the solutions to 
constitutional problems. They created a system of checks and 
balances to allow the system to correct itself because there 
are plenty of abuses. You can have majoritarian terror that 
would be just promulgated and continued through elections.
    Also, impeachment is not a good device for regulation. It 
is a very difficult thing. I testified at the Clinton 
impeachment hearings. It is a very difficult standard and is 
certainly not there as a substitute.
    I think that a hearing that this body should seriously 
consider is to have a hearing on Member standing. I have been 
writing about this for years. I have represented Members. If we 
had Member standing, if Members could go to court and raise 
unconstitutional acts, much of these problems would go away 
because we have been guaranteed review. Much of what we have 
seen from the White House in my view is based on the 
assumption, not necessarily a bad one, that nobody will be able 
to call them to account.
    Mr. Collins. I believe you are right on that.
    You know, you said were an optimist. I am too if you have 
watched some of our sport teams lately in Atlanta. But I am an 
optimistic realist, and I do not get on the plane to come to 
Washington, D.C. I still look at this capital and I still 
believe it matters. I still believe that we are a shining light 
for the world. But I want to spend all of my time, as best I 
can, to bring us back to a balanced checks and balance system 
in which Congress' Article I authority is respected and honored 
and we also have the system that most people in this country 
grew up understanding. And I think that is what this hearing 
ultimately is about, is the respect of the people who sent us 
here, and we have got to continue that.
    Mr. Chairman, I yield back.
    Mr. Gowdy. I thank the gentleman from Georgia.
    The Chair would now recognize the gentleman from Florida, 
Mr. DeSantis.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Mr. Lazarus, if Congress passes a statute that applies to 
whatever parameters you want, can the President enlarge the 
parameters of the statutory text and apply it to areas outside 
that the statute contemplated?
    Mr. Lazarus. No.
    Mr. DeSantis. Okay, because it is interesting because in 
    Mr. Lazarus. Let me just qualify that. This is an abstract 
question and it really depends on how the statute is worded.
    Mr. DeSantis. I understand that and I will give you a 
chance to respond because you cite bureaucrats within the 
Administration to justify some of the President's conduct, but 
you actually do not cite any quotes from the President himself 
justifying his conduct. And I think it was interesting with 
this most, quote, legislative fix for grandfathered plans, here 
is what the President said. Already people who predate the ACA 
can keep those plans if they haven't changed. That was already 
in the law. That is what is called a grandfather clause that 
was included in the law. Today we are going to extend that 
principle both to people whose plans have changed since the law 
took effect and to people who bought plans since the law took 
effect. In other words, Obamacare has a grandfather clause. 
Anything after the enactment of Obamacare is illegal unless it 
meets the statutory requirements. So what the President is 
saying is he is extending a grandfather clause to cover plans 
beyond what the statute contemplates. So you think that that is 
    Mr. Lazarus. I think you are making a good point. I think 
that it is appropriate if it is temporary.
    Mr. DeSantis. And, oh, by the way, let me just say. We 
passed in the House a bill that would have grandfathered in the 
plans, and I think that we should do that.
    Mr. Lazarus. What I meant to say was I think it is 
appropriate as a temporary measure if it is necessary to----
    Mr. DeSantis. It is directly contrary to the statute. The 
whole point of Obamacare was that you needed to force people 
into these exchanges.
    What about this idea? If a political environment is tough, 
would that be a reason to delay a law or grant a waiver to a 
law if you cite the political environment as your 
    Mr. Lazarus. I think that would be----
    Mr. DeSantis. Congress is not doing what I want. I may 
suffer political damage. So I am going to do it anyway.
    Mr. Lazarus. Clearly that would not be appropriate.
    Mr. DeSantis. Well, because I think in your testimony--and 
you did make some good points. I will give you that. You did 
not cite the President's stated justification for delaying the 
employer mandate. He was asked about it at a press conference. 
He said, you know, in a normal political environment, I would 
pick up the phone, call the Speaker, say, hey, this is a tweak 
that does not go to the essence of the law, and we would delay 
it for a year. But there is not a normal political environment 
when it comes to ``Obamacare'' is what he said.
    Now, to me, I think that that is totally outlandish of an 
explanation. It is even more outlandish because Congress, by 
the time he made that statement, had already passed a bill to 
delay the employer mandate precisely for the reason that the 
President suggested.
    Let me ask you one more question. Professor Turley, I 
really appreciate your written testimony, and you cite a lot of 
examples of the Founding Fathers.
    And, Mr. Lazarus, you made the point that, hey, the Take 
Care Clause does not mean what the rest of these guys say. 
Original understanding--the Founders understood it. But you did 
not cite any actual Founding Fathers. So can you cite for me a 
Federalist Paper? Hamilton wrote a number on executive power. 
Can you cite a Constitutional Convention debate, a ratifying 
convention debate, early practice in the republic that would 
substantiate your assertion that that is consistent with the 
original understanding?
    Mr. Lazarus. Yes.
    Mr. DeSantis. Jefferson?
    Mr. Lazarus. There is very----
    Mr. DeSantis. Madison?
    Mr. Lazarus. No. There is very little discussion----
    Mr. DeSantis. Hamilton?
    Mr. Lazarus. There is very little discussion, but what 
there is----
    Mr. DeSantis. All right. So you are making an assertion 
that is not justified by the historical facts. I understand the 
theory that you are positing, but I think it is tough. You got 
to back it up. And I think Professor Turley backed up what he 
was trying to say. And so I am asking you who would you point 
    Mr. Lazarus. Can I finish?
    Mr. DeSantis. Well, I want you to answer the question.
    Mr. Lazarus. The answer to the question is that during the 
Constitutional Convention--this is what I said in my testimony 
and this is what the basis of the interpretation is, and I 
think it is widely accepted. Originally what became the Take 
Care Clause did not have ``faithfully'' and did not have ``take 
care'' in it. It just said that the President shall carry into 
execution the laws. As the debate went forward, that got 
changed and ``faithfully'' and ``take care'' were added.
    Mr. DeSantis. I understand that.
    Mr. Lazarus. What I said what that clearly shows--and I 
think what scholars on all sides have accepted--that shows that 
the President is to faithfully, in good faith----
    Mr. DeSantis. Let me reclaim my time because you have made 
that point. That was not my question. My question is about show 
me something I can go where Hamilton is saying this or not. You 
are talking about----
    Mr. Lazarus. This is even more powerful. It does----
    Mr. DeSantis. And I think Mr. Turley's point about the 
language is more correct.
    But let me just say one other thing.
    Mr. Lazarus. This is the actual legislative record, and it 
is more----
    Mr. DeSantis. So the text matters there but it does not 
matter with the ACA because you are saying the purpose is 
different from what the text actually says.
    But I do think, though, the idea of when you are talking 
about Mr. Cannon's argument, about, oh, nobody in Congress--
they did not intend for this subsidy to do--the idea that we 
know what Congress intended on a 2,600-page bill that many 
Members did not read, much less understand--there were Members 
here swearing you could keep your plan, you could keep your 
doctor. And now we have Members of Congress running around 
saying, oh, my gosh, I did not know you would not be able to 
keep your plan, your doc. So the idea you are going to rely on 
that over the text of the actual statute to me I do not think--
I am a textualist--I would do that anyway. But with this health 
care law I think of any law, surely you cannot point to what 
Congress intended and to these intricate provisions because 
many of them did not read or understand it.
    And my time is up and I will yield back.
    Mr. Lazarus. But it is Mr. Cannon who is claiming that it 
was the intention. It was intentional and purposeful of 
Congress to construe the law in the cramped way in which he 
    Mr. Gowdy. I thank the gentleman from Florida.
    The Chair would now recognize the gentleman from Texas, Mr. 
    Mr. Gohmert. Thank you, Mr. Chairman.
    And I thank all of our witnesses. It is good to see some of 
you back. I do not remember seeing all of you. Otherwise, it 
would be all of you.
    If you would suppose with me that you are in a town hall 
back in a congressional district and you had an elementary 
school child, student, stand up and ask this question, I would 
like to know how each of you would answer this child's 
question. What right does the House of Representatives have to 
pick and choose what part of Government gets funding? What is 
your response? We will start with Professor Turley.
    Mr. Turley. I am sorry. The last part of the question?
    Mr. Gohmert. What right does the House of Representatives 
have to pick and choose what part of Government gets funded?
    Mr. Turley. Well, I think the answer is clear. In this sort 
of orbital world, these three branches are placed by the 
Framers. The key power given to Congress and the House of 
Representatives was the power of the purse, to control the 
funds. What is alarming about the situation is that even that 
power is being challenged and being marginalized.
    Mr. Gohmert. Professor Rosenkranz?
    Mr. Rosenkranz. Article I, section 8 gives you the power to 
decide what you want to fund and what you do not want to fund.
    Mr. Gohmert. And, Professor Lazarus?
    Mr. Lazarus. Professor Rosenkranz took the words right out 
of my mouth.
    Mr. Gohmert. Article I, section 8? Okay.
    Mr. Cannon. Article I, section 8, along with the Senate.
    Mr. Gohmert. Mr. Chairman, I would ask that we provide a 
copy of the answer to this question to Senate Leader Reid since 
he asked that question.
    Now, with regard to Libya, the President said he did not 
need to come to Congress in order to get our authority to start 
bombing in Libya. And that was a concern to some of us. He had 
been asked by the Organization of the Islamic Conference, all 
50 or 57 states, whatever they got, 50, 57, and also by some of 
the NATO allies that use Libyan oil. So he did not need 
Congress' approval because he had those requests.
    He was initially prepared to help the Syrian rebels, which 
al Qaeda had become, not initially, but they have become the 
most profound part, and he was ready to start bombing the 
Syrian leader that Hillary Clinton had called a reformer. 
Initially he planned to do that without Congress' consent. He 
did not think he needed Congress' consent, but obviously once 
there was a lot of political pushback, he threw it to Congress 
and let them decide.
    But I am curious from each of you. What gives the President 
the authority to order bombing, even if he promises to limit 
the numbers of people that he will kill? What gives him 
authority to go start bombing a country? Obviously we would 
consider it an act of war if any country started dropping bombs 
over us. But what gives him that authority? I am curious, from 
each of you.
    Mr. Turley. Well, first of all, I think it is a great 
question because I was a little confused when Mr. Lazarus says 
no one has accused President Obama of being inclined to engage 
in war without a declaration. I was in court with Members of 
this Committee saying exactly that in the Libyan war conflict. 
And what disturbed us is that the White House came back and 
said the reason we do not need a declaration of war is because 
the President alone defines what a war is, and he is simply 
saying this is not a war.
    And when we talk about the dangers, this is a danger of a 
different kind. It is not only a danger of separation of 
powers, obviously, and a direct violation of the express 
language of the Constitution, but this Administration through 
these acts and through the large number of drone attacks is 
returning the world to a state of nature. We are taking down 
critical international legal principles that have governed this 
world, that have respected territorial limitations.
    I just spoke to the NATO parliamentarians, and I told them 
you will loathe the day that you endorsed the U.S. position 
that they can take unilateral action when somebody vaporizes 
someone in the middle of London.
    Mr. Gohmert. My time is about to run out. So let me morph 
that into this question to each of you and get your answer.
    Now, the President had ordered Anwar al-Awlaki killed by a 
drone strike in Yemen, an American citizen, without any due 
process as we have come to know it. I asked the question in 
this room at another hearing, how far does that order extend? I 
mean, if al-Awlaki came back to Capitol Hill and led prayers, 
as he had before, of congressional staffers, was that order 
still good? I wanted to know in case a drone strike was still 
    What authority do you think the President has to order 
American citizens killed in other countries in which we are not 
at war or in the U.S.? My time is up, but if I can get answers 
to that question from each of you.
    Mr. Gowdy. As quickly as you can, given the subject matter.
    Mr. Turley. I do not believe he has authority to do that. 
They have cited things like hot pursuit, which makes no sense. 
It is not an imminent threat. I believe the President's kill 
list policy is flagrantly and dangerously unconstitutional.
    Mr. Rosenkranz. I think it is quite a difficult question, 
but the Obama administration's Office of Legal Counsel memo on 
this is certainly quite strained. So they are reaching for 
analogies and analysis that is quite unconvincing I would say.
    Mr. Gohmert. Professor Lazarus?
    Mr. Lazarus. I am very, very far from an expert on these 
matters. But I would just offer one observation and that is I 
do not really see why the American citizenship issue in the 
case that the Congressman is referring to is all that 
significant. I think that if a Nazi general happened to have 
been an American citizen, it would not alter the way we could 
deal with him militarily. But there are weighty questions about 
the President's authority to implement the drone program. I do 
not really have an expert view on that.
    Mr. Gohmert. Briefly, Mr. Cannon.
    Mr. Lazarus. I think it has been very effective militarily, 
so that is a good thing.
    Mr. Cannon. I will just associate myself with Professor 
Turley's comments.
    Mr. Gohmert. Okay. Thank you very much. I appreciate you 
all's testimony.
    Mr. Gowdy. I thank the gentleman from Texas.
    The Chair would now recognize another gentleman from Texas, 
Mr. Farenthold.
    Mr. Farenthold. Thank you very much, Mr. Chairman, and I 
appreciate the opportunity to ask some questions here.
    I am going to ask for you all's help in answering what is 
probably the number one question I get at town hall meetings 
and people who are running up to me at the grocery store when I 
am back home in Texas. And it goes something like this. In 
light of--and you can insert whatever you want, Benghazi, Fast 
and Furious, the IRS targeting of advocacy groups, NSA 
overreach, if you like your health care, you can keep it, 
varying the terms and waivers of Obamacare. The number one 
question I get is what can you do about it. We sent you to 
Congress to do something about this.
    And I have listened today, and I have heard we could enact 
new laws. Well, that does not work if they cannot get through 
the Senate and the President himself will not sign it. We can 
use the power of the purse. Well, that is pretty much dead. We 
have heard testimony about that. And in the era of continuing 
resolutions, we do not have a lot of options here. Well, we 
could go to the court. We have heard about the standing issue. 
Also even when there is standing, a delay tactic leaves you--
probably the President will be termed out by the time any of 
these court decisions are held. We talked a little bit about 
elections. I think Chairman Issa brought up the issue with the 
IRS scandal interfering with elections, that is kind of off the 
table. And I will admit my party did not do as well as we 
probably should have in the other election, but we did do well 
in the 2010 election when in historic numbers Congress changed. 
And then we have also talked about the ``I'' word, impeachment, 
which again I do not think would get past the Senate in the 
current climate.
    Am I missing anything? Is there anything else we can do? 
Mr. Turley?
    Mr. Turley. Well, it does paint a dire picture. As we have 
said before, for years I have encouraged Members to consider 
Member standing as a standalone issue, of trying to find a way 
to establish, either constitutionally or through statute, to 
allow Members of Congress to have----
    Mr. Farenthold. Okay. So there is one fix to the court 
system. But you are still not going to get that through in any 
amount of time.
    Mr. Turley. Yes. To me the most troubling thing is--I just 
published a Law Review article on recess appointments, which I 
also testified on.
    Mr. Farenthold. We forgot that one in the list.
    Mr. Turley. What is fascinating about it is that because 
Congress has been stripped of more and more of its power, it 
has actually put more emphasis on appointments as a way of 
controlling the White House.
    Mr. Farenthold. Have we been stripped of it or have we 
inadvertently given it up?
    Mr. Turley. I am afraid it is either by acclaim or it has 
    Mr. Farenthold. I have to ask the rest of the panel. Mr. 
    Mr. Rosenkranz. Well, I have said it before. I am sorry to 
say that the ultimate remedy for this sort of thing is 
elections, and democracy is slow and messy. But at the end of 
the day, the right answer for this Committee is to hold 
hearings like this, to publicize what it takes to be violations 
of the Constitution and for that to become an election issue.
    Mr. Farenthold. Mr. Lazarus, I realize you do not think we 
have the problem with the President a lot of my constituents 
have. But have I missed anything on a remedies against any 
rogue--again, I use the term in broad, general--not pointing to 
anybody in particular--a rogue President?
    Mr. Lazarus. I think that is, with all due respect, a gross 
misrepresentation of this President.
    Mr. Farenthold. I was not pointing to this President. A 
hypothetical rogue President.
    Mr. Lazarus. Well, we know. We had a rogue President who 
was driven from office and who would have been impeached and 
convicted had that not happened. Actually that result was 
guaranteed in this very room when the ranking Republican Member 
of the Judiciary Committee voted to impeach Nixon. So, sure----
    Mr. Farenthold. Mr. Cannon?
    Mr. Cannon. Well, I think what Professors Turley and 
Rosenkranz said is accurate or would help Member standing. Yes, 
you have to win elections, but something that has not been 
mentioned is getting Democrats to care about this issue when 
there is a Democratic President and getting Republicans to care 
about these issues when there is a Republican President.
    Right now, I do not know if anyone who is watching this at 
home has noticed, but all the Democratic Members of the 
Committee have left room. I think they left about 20 minutes. 
We are 3 and a half hours into this hearing. They are obviously 
not as interested in this as----
    Mr. Farenthold. And finally, I think one of our problems 
here is we have a President right now who is not willing to 
work with Congress. We just had a Democrat walk in.
    Mr. Cannon. I retract my statement. My apologies.
    Mr. Farenthold. I have talked to a constituent who worked 
for the Bush White House whose job it was to lobby with 
Congress, and I have met with somebody from the Obama 
administration exactly twice in 3 years. And I do think it is 
the President's duty to engage. I had a question on that, but I 
am out of time. But I do think there is a disappointment with 
the President not being engaged.
    Mr. Cannon?
    Mr. Cannon. If I may. Republicans are very concerned about 
executive power when the executive is a Democrat. Democrats are 
very concerned about executive power abuses when the executive 
is a Republican. I think the Members of each party need to care 
about these issues a lot more when someone from their own party 
occupies the White House and not just when someone from the 
opposite party----
    Mr. Farenthold. Thank you. I see my time has expired, 
Chairman Gowdy. I will give it back to you.
    Mr. Gowdy. I thank the gentleman from Texas.
    The Chair would now recognize the gentleman from Tennessee, 
Mr. Cohen.
    Mr. Cohen. Thank you, sir.
    I have obviously missed some of this hearing, although I 
have caught some of it on the magic of video television. And I 
was interested the gentleman, Mr. Cannon, had mentioned the 
possibility of impeachment or some impeachable offenses. Is 
that accurate?
    Mr. Cannon. I cannot remember if I brought that up. I may 
    Mr. Cohen. And in what context would you have brought that 
    Mr. Cannon. I think in response to a question. I am not 
sure if I did or if someone else----
    Mr. Cohen. Can anybody on the panel refresh his memory?
    Mr. Cannon. I think what I brought up was a constitutional 
amendment convention. I do not think I brought up impeachment. 
I agree that it is certainly a tool that the Congress can use 
to restrain the executive.
    Mr. Cohen. Constitutional amendment. You suggested we 
should have a convention?
    Mr. Cannon. The question I was asked was--I was asked about 
ways the people can restrain the executive, and I offered that 
as one way.
    Mr. Cohen. That has never been done before. Has it?
    Mr. Cannon. Not that I am aware of, no.
    Mr. Cohen. Anybody else on the panel have any thoughts 
about impeachment?
    Mr. Rosenkranz. I mentioned impeachment earlier. We have 
been asked several times questions about possible remedies if 
we find that a President is behaving lawlessly. I have not said 
that this President has or that these examples rise to that 
level. But the ultimate constitutional check on a lawless 
President is impeachment and ultimately election.
    Mr. Cohen. Right. That is the check. But nobody has 
suggested that the President has certainly not committed any 
impeachable offenses, I presume. Nobody here thinks that. Is 
that right? Mr. Cannon?
    Mr. Cannon. Well, I do not know. As Professor Rosenkranz 
mentioned, I think an important element is that whatever crimes 
or misdemeanors he has committed were committed knowingly and 
whether there is a pattern of abuse of his office. And in my 
testimony, you will see that I actually lay out a pretty 
consistent pattern whereby President Obama has ignored and 
tried to rewrite portions of the Patient Protection and 
Affordable Care Act. And I think that the most egregious of 
these is the one where he is implementing the law in a way such 
that he is taxing and borrowing and spending, over the next 10 
years, $700 billion that this Congress never authorized.
    Now, you may disagree with my interpretation of the law. I 
know Mr. Lazarus does. But I think that you and I and Mr. 
Lazarus would all agree that if a President were trying to tax 
and borrow and spend $700 billion without congressional 
authorization, that might be an impeachable offense.
    Mr. Cohen. Does anybody here think any actions of the Bush 
administration and going into Iraq without actual knowledge of 
weapons of mass destruction or anything else would have been an 
impeachable offense? Mr. Lazarus, you seem to be nodding.
    Mr. Lazarus. No. Disregard the nod behind the curtain or in 
front of the curtain. I was very upset by that, but whether it 
is impeachable is a political decision that Congress would have 
to make.
    Mr. Cohen. Mr. Turley?
    Mr. Turley. Well, the war powers issue does come closest 
for me for both President Obama and President Bush. The reason 
I do not think it rises to that level is because court 
decisions have made this so much of a mess, first of all, by 
judicial passivity in not reviewing it and by the use of 
historical practice. So I think it is very hard to maintain an 
impeachable offense when you have that degree of ambiguity. I 
do not believe that ambiguity is found in the Constitution. I 
believe that President Obama violated the Constitution in 
Libya, for example. But because of that history and precedent, 
they can claim that were acting on a reasonable interpretation 
of the law.
    Mr. Cohen. Thank you.
    Mr. Gowdy, I congratulate you, I guess, on South Carolina's 
victory, and I yield back the balance of my time.
    Mr. Gowdy. Thank you, Mr. Cohen. I have got to be careful 
how I respond to that since they are both State schools. I 
thank the gentleman from Tennessee.
    I would now recognize another gentleman from Texas, former 
judge, Judge Poe.
    Mr. Poe. I thank the Chairman.
    I disagree with you, Mr. Cannon, on that Republicans are 
only concerned about executive abuses when Democrats are in 
control. I personally do not like any executive abuses no 
matter who the President is. And I think our executives have 
gotten out of control over the last several executives, not to 
mention the judicial branch which I served in for 22 years. I 
think it has exceeded its boundaries of the Constitution.
    But we are talking about the executive branch. In the 
Constitution, if I remember correctly, the executive branch is 
mentioned second. The first one mentioned in the Constitution 
is the legislative branch. That would be Congress. Third is the 
judicial branch. My understanding of the writers of the 
Constitution--they put the most important one first and least 
important last because we are elected and the guys on the other 
end are appointed forever. In the middle is the executive 
    The President said we are not a banana republic. There are 
a lot of definitions to banana republic, but my view of a 
banana republic is a lawless country. We are proud of the fact 
in the United States we are a country of laws not people. But 
yet, we are in a situation where the law means different things 
to different people and it is not enforced.
    And like many have said here, back home in Texas they just 
do not understand where the President gets the authority to do 
some of these things without congressional intervention. I 
agree with the people that I represent, and they are from both 
parties. They are not just Republicans. They are saying, well, 
how can he do that? If I hear that once, I hear it a hundred 
times when I go home on weekends. How can he do that and what 
are you going to do about it, Congressman Poe? I get asked that 
a lot.
    We have had some discussion about those things. We know 
subjects. There are a lot of subjects when people question 
where the President has authority. But let's spend one moment 
on one issue.
    Obamacare, according to the Supreme Court, is a tax. The 
President has used the law and has said that I am going to 
postpone that tax for this group first, big business. Then I am 
going to postpone the tax for 6 weeks for individuals, and then 
I am going to postpone the tax a year for small businesses. He 
is postponing taxes. Since I have no life, I have read 
Obamacare. I do not see that in there where the President--we 
gave him the authority to postpone a tax, but he does it.
    Now, if he has the legal authority to do that, which I 
doubt--but he used that authority--what is to prevent him from 
just going looking at the IRS Code, which is a mess. I do not 
know any American that thinks the IRS Code is a good bill, but 
rather than fix it, we just make it bigger every year. So the 
President goes to the IRS Code and says, well, this group of 
businesses--they are just having a bad year like green 
businesses, or we could use the energy companies on the other 
end, the oil and gas industry. I am just going to postpone them 
paying income tax for a year. Why? Because I said so. Or I will 
take this group and do something similar, tweak their tax. 
Rather than paying 38 percent, they are going to just pay 20 
percent for the next year.
    It seems to me if he has the legal authority to amend 
taxes, which the Affordable Care Act is a tax according to the 
Supreme Court, what is to prevent him from just amending any 
tax to his liking? Mr. Turley, weigh in on this, if you would, 
    Mr. Turley. Thank you, Congressman.
    I have to agree. First of all, on your first remark about 
Article I, as I have said before, it is true that they are all 
equal branches, but the Framers spent the most time on Congress 
because it is this thumping heart of the Madisonian system. It 
is where the magic happens, and that magic is to take those 
factional interests, those interests that destroyed countries, 
and turn them into a majoritarian compromise.
    And when we get to the issue of taxes, as you have raised, 
that is one of the most divisive issues facing the country. And 
so when someone comes before Congress and says I want my group 
to be excluded, it obviously produces a great deal of heat from 
people saying, well, how about my group. How long should this 
apply? It is perhaps the most divisive issue that is raised in 
Congress, and that is precisely why it was given to Congress so 
that those types of issues would be subject to this 
transformative process of legislation.
    Mr. Poe. So do you believe that that would be an unlawful 
constitutional act if the President started amending the tax 
code on his whim?
    Mr. Turley. Yes, I do.
    Mr. Poe. Let me ask you one other question, if I may, Mr. 
    You mentioned remedies. What about the remedy of a 
mandamus? Would a mandamus remedy lie in any situation where 
Congress thought the executive had not enforced the law?
    Mr. Turley. Mandamus can be very difficult in some of these 
if you are trying to use mandamus against the President, but 
you can challenge some of these decisions, for example, the HHS 
decisions as violating APA, for example. You can go with--if 
you have standing to do so. Those are obviously a long process.
    And this is one of the things where I tend to get off the 
train with at least one of my colleagues. This is not an APA 
issue. This is a constitutional issue. It is a President 
usurping the authority of Congress. And to say that this is 
just something that we leave to agencies I think radically 
misunderstands the severity of the situation.
    Mr. Poe. Thank you, Mr. Chairman. I yield back.
    Mr. Goodlatte [presiding]. I want to thank all of our 
witnesses for an excellent hearing, a great discussion on what 
I think is one of the most important issues facing our country 
    I want to also thank the Members for a very strong 
participation in today's hearing, and that means the witnesses 
had to stay maybe a little longer than they had originally 
thought they would, but that only means that you have had the 
opportunity to talk through and think through and debate this 
issue even more extensively. So I thank all of you for your 
    This concludes today's hearing.
    And without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    And this hearing is adjourned.
    [Whereupon, at 1:36 p.m., the Committee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

         Supplemental Material submitted by Michael F. Cannon, 
           Director of Health Policy Studies, Cato Institute


                              ATTACHMENT A


 Material submitted by the Honorable Trent Franks, a Representative in 
   Congress from the State of Arizona, and Member, Committee on the