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






ENFORCING THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE 
                                  LAWS

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 26, 2014

                               __________

                           Serial No. 113-63

                               __________

         Printed for the use of the Committee on the Judiciary





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      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

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






















                            C O N T E N T S

                              ----------                              

                           FEBRUARY 26, 2014

                                                                   Page

                           OPENING STATEMENTS

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

                               WITNESSES

The Honorable Jim Gerlach, a Representative in Congress from the 
  State of Pennsylvania
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
The Honorable H. Tom Rice, a Representative in Congress from the 
  State of South Carolina
  Oral Testimony.................................................    13
  Prepared Statement.............................................    15
The Honorable Diane Black, a Representative in Congress from the 
  State of Tennessee
  Oral Testimony.................................................    18
  Prepared Statement.............................................    20
The Honorable Ron DeSantis, a Representative in Congress from the 
  State of Florida
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Jonathan Turley, Shapiro Professor of Public Interest Law, George 
  Washington University Law School
  Oral Testimony.................................................    30
  Prepared Statement.............................................    32
Christopher H. Schroeder, Charles S. Murphy Professor of Law and 
  Professor of Public Policy Studies, and Co-Director of the 
  Program in Public Law, Duke University
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49
Elizabeth Price Foley, Professor of Law, Florida International 
  University, College of Law
  Oral Testimony.................................................    61
  Prepared Statement.............................................    63

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     5
Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    99
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................   104
Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Member, 
  Committee on the Judiciary.....................................   118
Material submitted by the Honorable Luis V. Gutierrez, a 
  Representative in Congress from the State of Illinois, and 
  Member, Committee on the Judiciary.............................   125

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................   150

 
ENFORCING THE PRESIDENT'S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE THE 
                                  LAWS

                              ----------                              


                      WEDNESDAY, FEBRUARY 26, 2014

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10:17 a.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Coble, Smith of Texas, 
Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, Jordan, 
Poe, Marino, Gowdy, Labrador, Farenthold, Holding, Collins, 
DeSantis, Smith of Missouri, Conyers, Lofgren, Jackson Lee, 
Gutierrez, Garcia, and Cicilline.
    Staff present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Majority Parliamentarian & General 
Counsel; Zachary Somers, Counsel; Kelsey Deterding, Clerk; 
(Minority) Perry Apelbaum, Staff Director & Chief Counsel; 
Danielle Brown, Parliamentarian; and James Park, Counsel.
    Mr. Goodlatte. Good morning.
    [Disturbance in the hearing room.]
    Mr. Goodlatte. Presently we do not have order in the 
hearing room. Members of the audience must behave in an orderly 
fashion or else they will be removed from the hearing room. 
Rule 11 of the House Rules provides that the Chairman of the 
Committee may punish breaches in order and decorum by censure 
and exclusion from the hearing. The Capitol police will remove 
the disruptive members of the audience immediately. The Capitol 
police will remove the members who are causing a disturbance.
    Mr. Conyers. Mr. Chairman, can I urge--thank you for 
yielding, Mr. Chairman. Could I say to our friends here that an 
unruly presence in the hearing room does not aid your cause in 
any way, my friends. I want to share that.
    Mr. Goodlatte. We welcome everyone remaining in this 
morning's hearing on enforcing the President's constitutional 
duty to faithfully execute the laws. And I will shortly begin 
by recognizing myself for an opening statement, but I do want 
to remind the other members of the audience that you are 
welcome to attend this hearing, but you must behave in an 
orderly fashion, or else we will have to remove you from the 
hearing room as well. And we thank you for your cooperation in 
that regard.
    I will now recognize myself for an opening statement. Since 
taking office, President Obama has increasingly pushed the 
boundaries on executive power beyond their constitutional 
limits. He has repeatedly declared that rather than faithfully 
executing the laws passed by the legislative branch, he will 
refuse to take no for answer, and that where Congress will not 
act, I will.
    These have not been empty proclamations. From Obamacare, to 
welfare and education reform, to our Nation's drug enforcement 
and immigration laws, President Obama has been picking and 
choosing which laws to enforce. But the Constitution does not 
confer upon the President the executive authority to disregard 
the separation of powers and write or rewrite acts of Congress. 
It is a bedrock principle of constitutional law that the 
President must faithfully execute the laws. The President has 
no authority to bypass Congress and unilaterally waive, 
suspend, or amend the laws based on his policy preferences. 
President Obama's actions have pushed executive power beyond 
all limits and created what has been characterized as an uber-
presidency.
    The question that arises from the President's end runs 
around the legislative branch is what can Congress do to check 
these broad assertions of power and restore balance to our 
system of separated powers? Traditionally, to check 
presidential excesses, Congress has passed legislation to 
defund programs the executive branch administers and withhold 
confirmation for executive branch nominees. However, when the 
President ignores or rewrites the very legislation that places 
limits on his authority and circumvents the Senate confirmation 
process, the traditional methods of counteracting presidential 
ambition will not work to preserve the separation of powers. So 
what can be done?
    The Members of Congress on our first witness panel have all 
introduced legislation to attempt to check presidential 
failures to faithfully execute the law. These proposals include 
requiring the executive branch to report to Congress any time 
it adopts a policy to refrain from enforcing Federal law, and 
requiring the Administration to eliminate a position within the 
Immigration and Customs Enforcement Agency that Congress has 
already defunded. Two of the most widely discussed proposals 
involve authorizing one house of Congress to seek judicial 
review of the President's failures to faithfully execute the 
laws.
    [Disturbance in the hearing room.]
    Mr. Goodlatte. Again, we do not have order in the hearing 
room. Members of the audience must behave in an orderly 
fashion, or else they will be removed from the hearing room. 
The Capitol police will remove the disruptive members of the 
audience immediately.
    Mr. Conyers. Mr. Chairman?
    Mr. Goodlatte. The gentleman from Michigan.
    Mr. Conyers. I would like to tell the friends here that are 
about to be removed that this is counterproductive to the 
hearing and your views on what is taking place or going to take 
place in the hearing. So I would strenuously urge anybody else 
in the room that wants to display signs to only get evicted, 
that it is not helping your views on it. There are other ways 
that you can communicate with the Members of this Committee, 
including the Chairman and myself, and I urge that you use that 
instead.
    Mr. Goodlatte. I thank the gentleman, and the Capitol 
police will remove the members of the audience who are acting 
in a disruptive fashion immediately.
    Two of the most widely discussed proposals involve 
authorizing one house of Congress to seek judicial review of 
the President's failures to faithfully execute the laws. Asking 
the judiciary, a co-equal branch of our government, to step in 
and check one or the other branch's failures to stay within its 
constitutional limits would seem to be an obvious solution.
    Unfortunately, the courts have been reluctant to exercise 
their constitutionally conferred power to say what the laws are 
when doing so would require them to determine whether either of 
the political branches has exceeded its authority. Instead, 
when presented with cases and controversies involving disputes 
between the President and Congress, the Federal courts have 
used judge-made doctrines to avoid judicial review of these 
inter-branch conflicts.
    But this hostility toward deciding separation of powers 
disputes is not the role the Constitution's framers envisioned 
for the judiciary. The framers did not expect the judiciary to 
sit on the sidelines and watch as one branch aggrandized its 
own powers and exceeded the authority granted to it by the 
Constitution. Rather, the Constitution grants the Federal 
courts very broad jurisdiction to hear all cases arising under 
this Constitution and the laws of the United States.
    However, over time the Federal courts have read their own 
powers much more narrowly, refusing to exercise a vital check 
over unconstitutional action by the executive branch. When the 
courts refuse to step in and umpire these disputes, they cede 
the field to this and future presidents. They effectively make 
the constitutional requirement that the President take care 
that the laws be faithfully executed an unenforceable and 
meaningless check on executive power.
    It is up to the Congress and the courts to check the 
President's overreach and restore balance to our system of 
government. Preventing the President from overstepping the 
boundaries of his constitutional authority is not about 
partisan politics. It is about preserving the fundamental 
premise of our constitutional design, that a limited 
government, divided into 3 separate branches, exercising 
enumerated powers, is necessary to protect individual liberty 
and the rule of law.
    As James Madison warned centuries ago in Federalist 47, 
``The accumulation of all powers--legislative, executive, and 
judicial--in the same hands may be justly pronounced the very 
definition of tyranny.''
    I look forward to hearing from all our witnesses today, but 
first we will hear from the Ranking Member of the Committee, 
the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Goodlatte. I welcome the 
first panel of Members as witnesses, and begin this discussion 
from a different perspective about enforcing the President's 
constitutional duty to faithfully execute laws, which would be 
a fruitful undertaking if there was any evidence that the 
President has, in fact, failed to fulfill his duty.
    Yet today's hearing, which is very similar to the one we 
held in Judiciary on this same topic 3 months ago, is being 
held in the absence of any evidence of such failure. And 
although I explained much of this before, I will again 
highlight the reason why there is no problem.
    To begin with, let us acknowledge that today's hearing is 
really about yet another attempt by the majority to prevent the 
President's implementation of duly enacted legislative 
initiatives that they oppose, such as the Affordable Care Act 
and the Dodd-Frank Protection Act. Allowing flexibility in the 
implementation of a new program, even where the statute 
mandates a specific deadline, is neither unusual nor a 
constitutional violation. Rather, it is the reality of 
administering sometimes complex programs, and is part and 
parcel of the President's duty to take care that he faithfully 
execute laws.
    This has been especially true with respect to the 
Affordable Care Act. The President's decision to extend certain 
compliance dates to help phase in the Act is not novel. For 
example, President George W. Bush, for instance, failed to meet 
some of the deadlines in implementing Medicare Part D, even 
though it was legislation that he strongly supported. Taking 
steps to deal with the realities of the implementation of a 
complex program hardly constitutes a failure to take care that 
the laws are faithfully executed. It is rather a necessary part 
of meeting the obligation. And even though not a single court 
has ever concluded that the reasonable delay in implementing a 
complex law constitutes a violation of the take care clause in 
the Constitution, some of the majority insists that there is a 
constitutional crisis. Surely there are more issues more worthy 
of the full Committee's consideration than this.
    Another fact that the majority appears to ignore is that 
the exercise of enforcement discretion is a traditional power 
of the executive. For example, the decision to defer 
deportation of young adults who were brought to the United 
States as children, who have not committed felonies or serious 
misdemeanors, and who do not pose a public safety--the 
Dreamers--is a classic exercise of such discretion. The 
Administration cannot legalize these individuals' status 
without a legal basis. But the Administration's decision to 
defer action against particular individuals is neither unusual 
nor unconstitutional.
    Again, there is a precedent where the exercise for such 
discretion. In 2005, President George W. Bush's Administration 
announced deferred action for approximately 5,500 foreign 
students affected by Hurricane Katrina. And it is no surprise 
that the Supreme Court has consistently held that the exercise 
of such discretion is a function of the President's powers 
under the take care clause.
    As the Court held in Heckler v. Chaney, ``An agency's 
refusal to institute proceedings shares to some extent the 
characteristics of a decision of a prosecutor in the executive 
branch not to indict,'' a decision which has long been regarded 
as the special province of the executive branch inasmuch as it 
is the executive who is charged by the Constitution to take 
care that the laws be faithfully executed. And for this reason, 
the Court concluded that an agency's decision not to prosecute 
or enforce, whether through civil or criminal process, is a 
decision generally committed to an agency's absolute 
discretion.
    I will insert the rest of my statement in the record, and 
yield back the balance of my time.
    Mr. Goodlatte. The Chair thanks the gentleman. Without 
objection, all other Members' opening statements will be made a 
part of the record.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    A discussion about enforcing the President's constitutional duty to 
faithfully execute the laws would be a fruitful undertaking if there 
was any evidence that the President has, in fact, failed to fulfill 
this duty.
    Yet today's hearing--like the hearing we held on this very same 
topic just 3 months ago--is being held in the absence of any evidence 
of such failure.
    Although I explained much of this before, I will again highlight 
the reasons why there is no problem.
    To begin with, let's acknowledge what today's hearing is really 
about: it is yet another attempt by the Majority to prevent the 
President's implementation of duly enacted legislative initiatives that 
they oppose, such as the Affordable Care Act and the Dodd-Frank Wall 
Street Reform and Consumer Protection Act.
    Allowing flexibility in the implementation of a new program, even 
where the statute mandates a specific deadline, is neither unusual nor 
a constitutional violation. Rather, it is the reality of administering 
sometimes complex programs and is part and parcel of the President's 
duty to ``take care'' that he ``faithfully'' execute laws.
    This has been especially true with respect to the Affordable Care 
Act. The President's decision to extend certain compliance dates to 
help phase-in the Act is not a novel tactic.
    President George W. Bush, for instance, failed to meet some of the 
deadlines in implementing Medicare Part D, even though it was 
legislation he strongly supported.
    Taking steps to deal with the realities of the implementation of a 
complex program hardly constitutes a failure to take care that the laws 
are faithfully executed. It is, rather, a necessary part of meeting 
that obligation.
    And, even though not a single court has ever concluded that 
reasonable delay in implementing a complex law to constitute a 
violation of the Take Care Clause, the Majority insists there is a 
constitutional crisis.
    Surely, there are issues more worthy of the full Committee's 
consideration than this.
    Another fact that the Majority appears to ignore is that the 
exercise of enforcement discretion is a traditional power of the 
executive.
    For example, the decision to defer deportation of young adults who 
were brought to the United States as children, who have not committed 
felonies or serious misdemeanors, and who do not pose a threat to 
public safety--the ``DREAMers''--is a classic exercise of such 
discretion. The Administration cannot legalize these individuals' 
status without a legal basis, but the Administration's decision to 
defer action against particular individuals is neither unusual nor 
unconstitutional.
    Again there is precedent for the exercise of such discretion. In 
2005, President George W. Bush's Administration announced deferred 
action for approximately 5,500 foreign students affected by Hurricane 
Katrina.
    And, it is no surprise that the Supreme Court has consistently held 
that the exercise of such discretion is a function of the President's 
powers under the Take Care Clause.
    As the Court held in Heckler v. Chaney, ``an agency's refusal to 
institute proceedings shares to some extent the characteristics of a 
decision of a prosecutor in the Executive Branch not to indict--a 
decision which has long been regarded as the special province of the 
Executive Branch, inasmuch as it is the Executive who is charged by the 
Constitution to `take Care that the Laws be faithfully executed.' ''
    For this reason, the Court concluded that ``an agency's decision 
not to prosecute or enforce, whether through civil or criminal process, 
is a decision generally committed to an agency's absolute discretion.''
    I am especially dismayed that 2 of the legislative proposals that 
will be considered today disrespect the aspirations of DREAMers and 
reinforce old prejudices and inflammatory views about DREAMers, 
including views expressed by some Majority members of the Committee.
    Indeed, the American people expect the Executive Branch, under 
President Obama's leadership, to work to address a whole host of issues 
that this House refuses to address, including enhancing protections for 
the environment, ensuring worker safety, and helping financially 
distressed homeowners, student-loan borrowers, and others who are 
struggling to achieve the American Dream.
    Rather than wasting precious time on a hearing like this, we should 
be working to address these and many other critical challenges facing 
our Nation.
    Not only are President Obama's actions constitutional, they are 
needed steps to helping the American people, and that should be the 
focus of our discussion today.
                               __________

    Mr. Goodlatte. We welcome our first panel today, and if you 
all will rise. As is the custom of this Committee, we will 
swear you in as witnesses. Please raise your right hand.
    [Witnesses sworn.]
    Mr. Goodlatte. Thank you very much. Let the record reflect 
that all the witnesses responded in the affirmative.
    Our first witness is Jim Gerlach. Representative Gerlach 
represents the 6th District of Pennsylvania. He was first 
elected to Congress in 2002. On January 13th, Representative 
Gerlach introduced H.R. 3857, the Enforce the Take Care Clause 
Act. This legislation puts a procedure in place for the House 
or the Senate to authorize and bring a lawsuit to seek 
immediate judicial relief in the event that the President fails 
to take care that the laws be faithfully executed.
    Our second witness is Tom Rice. Representative Rice 
represents South Carolina's 7th Congressional District. He is 
currently serving his first term in the House. On December 12th 
of last year, Representative Rice introduced H.Res. 442, the 
Stop This Overreaching Presidency Resolution. The resolution 
directs the House to institute legal action to require the 
President to faithfully execute the law.
    Our third witness is Diane Black. Representative Black 
represents the 6th District of Tennessee. She is currently 
serving her second term in the House. In December, 
Representative Black introduced H.R. 3732, the Immigration 
Compliance Enforcement Act. Her bill requires the 
Administration to eliminate the public advocate position within 
the Immigration and Customs Enforcement Agency, a position that 
Congress has already defunded.
    Our final witness on this panel is Ron DeSantis. 
Representative DeSantis is a Member of the Judiciary Committee 
and represents Florida's 6th Congressional District. He is 
currently serving his first term in the House. On January 29th, 
Representative DeSantis introduced H.R. 3973, the Faithful 
Execution of the Law Act. The bill strengthens existing law by 
requiring all Federal officials who establish or implement a 
formal or informal policy to refrain from enforcing a Federal 
law, to report to Congress on the reason for the non-
enforcement.
    I would ask each witness to summarize his or her testimony 
in 5 minutes or less. To help you stay within that time, there 
is a timing light on your table. When the light switches from 
green to yellow, you will have 1 minute to conclude your 
testimony. When the light turns red, it signals the witness' 5 
minutes have expired.
    As is customary, Members will not be asked to stay to 
answer questions. I would like to thank my colleagues for 
participating in this hearing.
    First of all, I want to turn to Representative Gerlach, and 
I welcome all of the Members of the House who are participating 
on this panel. And we will begin with you, Jim.

  TESTIMONY OF THE HONORABLE JIM GERLACH, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Gerlach. Thank you, Mr. Chairman, and Ranking Member 
Conyers, and all Members of the Committee for the invitation to 
testify today.
    There is no question that on several occasions in recent 
years we have witnessed an unparalleled use of executive power 
to selectively apply, enforce, and even ignore duly-enacted 
laws. Testimony presented to this Committee last December 
outlined a number of instances where, by regulation or 
executive order, the President has acted contrary to his power 
and duty under Article 2 to faithfully execute all laws.
    The Affordable Care Act is just one, and perhaps the most 
glaring, example. The ACA has been revised, altered, and 
effectively rewritten by the President and his Administration 
23 times since July, with the most recent executive action 
coming 2 weeks ago when the President unilaterally declared a 
1-year delay of the employer mandate for companies with 50 to 
99 full-time workers.
    My reading of the testimony presented in the hearing in 
December made it quite clear that the President, through his 
actions on the ACA, as well as other areas of executive action, 
is fundamentally altering the delicate constitutional balance 
among the 3 branches of our Federal system, and the concept of 
an imperial presidency has reentered our national dialogue. It 
was because of this powerful testimony that I began thinking 
about how we in the Congress, as a co-equal branch of 
government, can work to preserve that critical balance between 
the legislative and executive branches that our framers worked 
so hard to establish.
    To start, I think we can agree that Congress has fairly 
limited means of redress in the event that the executive branch 
circumvents the legislative branch through its decisions not to 
enforce certain Federal law. Congress can try to pass new laws 
to either remedy or defund a violating action, but a president 
who undertook the action will not likely support the measure. 
Where the action rises to a high crime or misdemeanor, the 
House may initiate an impeachment proceeding, but such an 
avenue would surely be extremely divisive within Congress and 
the Nation generally, and would divert the attention of 
Congress from other important issues of the day.
    Finally, judicial relief could be sought, but we well know 
that that process can take years and years while the underlying 
transgression continues.
    So these thoughts ultimately led me to introduce H.R. 3857, 
the proposed Enforce the Take Care Clause Act. I drafted the 
bill to provide either house of Congress with a new fast-track 
process to have the Federal courts quickly and thoroughly 
review questions of whether a president is properly executing 
this take care clause, and, if not, present a mechanism for 
immediate judicial relief to remedy the situation.
    Specifically, this legislation authorizes the House or 
Senate, upon passage of a resolution in either chamber by a 60 
percent super majority, to bring an expedited action before the 
U.S. District Court for the District of Columbia seeking review 
and declaratory or injunctive relief in the event a president 
fails to meet the constitutional requirements to faithfully 
execute the law. That Court's decision would have to be issued 
within 90 days and would be immediately and directly appealable 
to the U.S. Supreme Court for a final determination of whether 
a president has acted in a constitutional manner.
    Some have questioned whether Congress has standing to bring 
a legal action against a president in such a situation. I 
believe it does. Article I vests Congress with all legislative 
power, including in Section 8 the power to make all laws which 
shall be necessary and proper for carrying into execution all 
other powers vested by the Constitution, in the Government, or 
any officer thereof. One of the other powers is a president's 
executive power under Article 2, the power and duty to 
faithfully execute the law.
    Further, the Supreme Court has the authority to hear any 
cases arising from this legislation because the judicial power 
conveyed to it in Article 3 extends to all cases arising under 
this Constitution and the laws of the United States. In other 
words, I believe the Court may hear a case procedurally brought 
to it by a duly-enacted law on the issue of whether the 
Congress believes a president has failed to properly execute 
his constitutionally-vested power.
    Given the number of examples where this President has 
clearly failed to execute all law, I believe it is time for 
Congress to put in place a procedure for a fast-track, 
independent review of those executive actions. Consequently, I 
look forward to working with the Members of the Committee to 
implement the common sense procedural reform outlined in this 
legislation so that we can, one, establish a practical 
mechanism to resolve serious questions of executive overreach; 
two, retain the deep-rooted constitutional balance between the 
legislative and executive branches; and, three, help restore 
the public's overall confidence in our system of governance.
    Thank you very much, Mr. Chairman, for the opportunity to 
testify.
    [The prepared statement of Mr. Gerlach follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    


                               __________
    Mr. Goodlatte. Thank you, Mr. Gerlach.
    Congressman Rice, welcome.

  TESTIMONY OF THE HONORABLE H. TOM RICE, A REPRESENTATIVE IN 
           CONGRESS FROM THE STATE OF SOUTH CAROLINA

    Mr. Rice. Chairman Goodlatte, Ranking Member Conyers.
    Mr. Goodlatte. You may want to pull that a little closer 
still.
    Mr. Rice. Chairman Goodlatte, Ranking Member Conyers, and 
Members of the Judiciary Committee, thank you for inviting me 
to discuss the constitutional concerns raised by President 
Obama's unwillingness to faithfully execute the law as required 
by Article 2, Section 3 of the Constitution. We are a Nation of 
laws, and no man, including the President, is above the law.
    When charged with enforcing an unpopular tax in the Whiskey 
Rebellion, President George Washington noted in a letter to 
Alexander Hamilton, ``It is my duty to see the laws executed. 
To permit them to be trampled upon with impunity would be 
repugnant to that duty.'' Two hundred and twenty years later, 
President Obama has repeatedly proven himself willing to pick 
and choose which laws or portions thereof he wishes to enforce 
or rewrite the laws at his whim.
    My resolution, House Resolution 442, entitled Stop This 
Overreaching Presidency, or the STOP Resolution, is intended to 
enforce the separation of powers. If adopted by a majority of 
the House of Representative, the STOP Resolution would require 
that the House as an institution bring a lawsuit against the 
President to require that he carry out his duties pursuant to 
the take care clause of the Constitution.
    I have heard from many of my colleagues or from some of my 
colleagues that a legal action against the President would be 
radical. But, my friends, I believe when the President 
repeatedly says that if Congress fails to act on his agenda 
that he will enact his agenda through executive order, he is 
trampling our Constitution and our very freedom, and that is 
far more radical.
    The STOP resolution highlights four instances in which 
President Obama's Administration overstepped its bounds in 
enforcing our laws. One is the unilateral decision to delay the 
employer mandate for business owners. And I want to dwell on 
that for a minute.
    My history is as a tax lawyer as a CPA, and the Supreme 
Court has ruled that these penalties under these mandates are a 
tax. The President simply has no right to decide when and to 
whom he is going to apply the tax. If a President has that 
right, then what would prevent the next President from saying I 
do not like any of the mandates under Obamacare, and, 
therefore, I am not going to enforce any of them? Or what would 
stop the next President from saying, you know, I think the 
maximum tax bracket is too high; therefore, I am not going to 
enforce that?
    And all of these consistent changes to the Affordable Care 
Act. You know, businesses have to implement that, and unlike 
the Federal Government, they have more than a 3-month time 
horizon. So they plan out in the future. And when we have these 
constant changes at the President's whim, think about what that 
does to businesses' planning capabilities, to their hiring 
capabilities, to their expansion capabilities. And we should 
not wonder why our economy is struggling.
    Also, my act mentions the 1-year extension of the 
substandard insurance policy under the Affordable Care Act. 
After the President's promise, if you like your plan you can 
keep it, was judged the biggest lie of the year, the President 
opted for a quick political fix: the President's adoption by 
executive order of the Dream Act, which Congress considered and 
failed to take up, and the waiver of the work requirements 
under the TANF laws.
    Standing. My office has provided to this Committee a legal 
brief on H.Res. 442 in general and the standing issue in 
particular. In addition, since I introduced this resolution, 
several experts in constitutional law, including some in the 
panel behind me here, have weighed on the viability of H.Res. 
442 in the media.
    To summarize, while standing is not guaranteed, we have a 
good argument based upon several factors. The first is this 
would be brought by the House as institution, not by a few 
random congressmen. Second, as opposed to prior cases, such as 
Raines, the President's actions here are in direct violation of 
existing law.
    STOP has garnered 117 co-sponsors, as well as significant 
interest from Americans across the country. I understand there 
are a number of alternatives here to enforce to enforce Article 
2, Section 3, but this resolution has one distinct advantage: 
it only requires House action. As my colleagues are well aware, 
the Senate rarely acts on House-passed legislation.
    This is not a partisan issue. We have all heard then 
Senator Obama's concerns about executive overreach by President 
Bush, and another failed promise that he has as president to 
work with Congress. A hundred and seventeen of my colleagues 
and I support STOP because we believe, as our founders did, 
that we are a Nation of laws. And no person, including the 
President, is above the law. A government of the people, by the 
people, and for the people is more than just a broken campaign 
promise. It is the wellspring of our freedom, and it must not 
be ignored.
    My friends, we all took an oath when we took this office. 
We pledged to God to protect and defend our Constitution. 
President Obama took that same oath. We should not allow that 
oath to be one more broken campaign promise. Let us adopt H.R. 
442 and require the President to abide by his word.
    Thank you. I yield back.
    [The prepared statement of Mr. Rice follows:]
    
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                               __________
    Mr. Goodlatte. Thank you, Mr. Rice.
    Congresswoman Black, welcome.

  TESTIMONY OF THE HONORABLE DIANE BLACK, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF TENNESSEE

    Ms. Black. Thank you, Mr. Chairman, for asking me to 
testify here today.
    By circumventing our Nation's laws, the Obama 
Administration has ignored constitutional duties and completely 
discredited itself, losing good will along the way with Members 
of Congress. While this Administration's lawlessness has been 
most widely noticed with President Obama's implementation of 
Obamacare, it applies to areas far beyond healthcare.
    For instance, in February of 2012, U.S. Immigration and 
Customs Enforcement appointed a so-called public advocate to 
act as a lobbyist for illegal and criminal aliens within the 
agency. This lobbyist disrupted detention procedures and 
undermined the hardworking men and women who have dedicated 
their careers to securing our borders and protecting the 
American people. In fact, Chris Crane, the president of the 
National ICE Council--the ICE employee's union--called this 
position, and I quote, ``nothing but waste, fraud, and abuse.''
    In response to this outrageous appointment, I introduced an 
amendment, H.R. 5855, the Department of Homeland Security 
Appropriations Act of 2013, to defund this position. This 
amendment passed the House of Representatives by a voice vote, 
and this same language was included in H.R. 933, the Continuing 
Resolution, that was signed into law by President Obama on 
March the 26th, 2013. The clause read, and I quote, ``None of 
the funds made available by this Act may be used to provide 
funding for the position of the public advocate with the U.S. 
Immigration and Customs Enforcement.''
    After we thought that the matter had been taken care of by 
an Act of Congress, approved by the President, last August, 
thanks to information obtained by the watchdog group, Judicial 
Watch, we learned that the most transparent Administration in 
history had quietly changed the title of the position to avoid 
complying with the very law that the President had signed. The 
Administration changed the title of ``public advocate'' to 
``deputy assistant director of custody programs and community 
outreach. It was a change in name only. The Administration kept 
the very same person in the position and made no change to the 
job itself.
    This kind of outrageous shell game is a perfect example of 
this pen and phone President circumventing the will of Congress 
to force his own agenda, and is exactly why the American people 
cannot trust this Administration. Despite the House and the 
Senate passing language to defund this position and stop this 
waste of precious taxpayer dollars, this Administration and its 
ICE officials blatantly skirted the law and allowed the 
agency's employees to continue their activities as though 
nothing had changed.
    ICE records indicated that for exactly 1 week, the public 
advocate, Andrew Lorenzen-Strait, served as a management and 
programs analyst, only to be given yet another job title on 
April 1. And since that date, he has served as the deputy 
assistant director for customs programs and community outreach. 
This program did not exist prior to March the 26th of 2013, and 
since its creation has housed a number of programs and staff 
members who previously operated within the Office of the Public 
Advocate.
    When the reports of this shameless maneuvering began to 
surface, my office immediately began seeking an explanation 
from ICE, only to be repeatedly stonewalled. And on September 
23, of 2013, after a month of constant requests for 
information, sometimes including several calls a day, yet given 
no clear answers for this behavior, I sent a formal letter to 
then-acting director, John Sandweg, requesting information 
about ICE's action following the enactment of H.R. 933. On 
December the 12th of 2013, following months of evasion and 
failure to respond by ICE, I introduced H.R. 3732, the 
Immigration Compliance Enforcement Act, legislation that would 
force the agency to comply with the law by shutting down any 
form of this illegal alien lobbyist.
    Specifically, the ICE Act would defund both the position 
and prohibit the creation of any new position within ICE that 
would allow the agency to ignore the law and continue its pro-
illegal immigration activities. It is of the utmost importance 
that ICE be required to comply with the will of the American 
people as expressed through Congress.
    President Obama's flouting of the law cannot be allowed to 
continue, and if this Administration wants to maintain any 
credibility with Congress or the American people, they would 
stop flagrantly ignoring the laws that Congress writes and the 
President signs.
    Thank you for my time here today, and I yield back the 
balance of my time.
    [The prepared statement of Ms. Black follows:]
    
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                               __________
    Mr. Goodlatte. Thank you.
    Congressman DeSantis, welcome to have you on the other side 
of the table there on this Committee, and pleased to hear your 
testimony now.

 TESTIMONY OF THE HONORABLE RON DeSANTIS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. DeSantis. Thank you, Mr. Chairman. It is often said 
that ours is a government of laws, not of men. If there is any 
one principle that embodies this maxim, it is the 
constitutional separation of powers. The framers of the 
Constitution considered the protection of individual liberty to 
be the primary function of government, and they designed the 
Constitution so that the major delegated powers--legislative, 
executive and judicial--were lodged in separate branches of 
that government.
    Article 1 of the U.S. Constitution states, ``All 
legislative powers herein granted shall be vested in a Congress 
of the United States.'' The Constitution delegates no 
legislative authority to the President. Instead Article 2, 
Section 3 of the Constitution imposes upon the President the 
duty to take care that the laws be faithfully executed. Under 
our Constitution, the President cannot amend, suspend, or 
ignore duly-enacted, constitutionally-valid laws, but must 
instead faithfully execute the laws on the books. Yet in a 
number of areas ranging from welfare work requirements, to 
illegal immigration, to ObamaCare, the current Chief Executive 
has failed to fulfill this important and long-standing duty to 
take care that the laws be faithfully executed.
    Now, the justifications that have been offered in defense 
of the President's conduct have ranged from weak to completely 
baseless. First, the fact that some Presidents have issued more 
executive orders than the current incumbent is irrelevant. The 
number of executive orders does not tell us anything about 
their constitutional propriety. A President could issue 
hundreds of executive orders about rudimentary executive branch 
business as authorized by law and not threaten the 
constitutional order at all, while an executive that issued 
merely a handful of executive orders could pose a real threat 
to liberty if those orders exceed the boundaries set by the law 
and the Constitution.
    Second, concern for executive branch lawlessness is not 
limited to, or even primarily concerned with, formal executive 
orders. The suspension of Obamacare's employer mandate, for 
example, was done not through executive order, but via a blog 
post. When the President purported to ``extend the ObamaCare 
grandfather provisions'' last November, he issued a statement 
from the White House press room, not a formal executive order.
    Third, it is not correct to say that the President can 
simply do what he wants unless and until a court stops him. 
Article 3 courts, as has been mentioned, have traditionally 
been limited to deciding concrete cases and controversies. The 
framers did not expect courts to simply referee disputes 
regarding the separation of powers absent the existence of a 
concrete legal case.
    As Madison argued in The Federalist, 51, the framers 
designed the system so that ambition would counteract ambition; 
that is, they expected Members of Congress in both the House 
and the Senate to place the institutional interests of the 
legislative branch ahead of their personal political interests 
and to check the executive when he attempted to usurp 
legislative authority.
    Fourth, the President's constitutional authority as 
commander-in-chief of the armed forces is qualitatively 
different than the President's obligation to enforce domestic 
law. Presidents such as Lincoln and Roosevelt have exercised 
Article 2 authority during wartime in a manner which still 
provokes considerable controversy. The scope of that power is 
important, but also inapposite to whether the current incumbent 
is satisfying the take care clause by faithfully enforcing 
domestic laws regarding issues such as healthcare, immigration, 
and welfare.
    Finally, the Supreme Court decision in Heckler v. Chaney 
does not justify the President's conduct. That case involved a 
lawsuit filed by death row inmates who claimed that Federal law 
compelled the Food and Drug Administration to review the drugs 
that State officials were planning to use to kill them via 
lethal injection. The Court recognized that, given limited 
resources, the executive branch has the discretion to 
prioritize enforcement actions. But possessing the discretion 
to prioritize how to enforce a statute does not mean the 
President possesses the ability to decide whether to enforce a 
statute at all.
    As the Supreme Court observed in Kendall v. United States 
in 1838, ``to contend that the obligation imposed on the 
president to see the laws faithfully executed implies a power 
to forbid their execution is a novel construction of the 
Constitution, and is entirely inadmissible.''
    I think the President's conduct needs to be scrutinized by 
the American people. That is why I recently introduced the 
Faithful Execution of the Law Act. Currently, the Attorney 
General is required to report to Congress any time the 
Department of Justice stops enforcement of a law on the grounds 
that it is unconstitutional. My bill strengthens this provision 
by extending the reporting requirement to include any Federal 
officer who implements a formal or informal policy of non-
enforcement, regardless of whether it is being done on 
constitutional or policy grounds. My hope is that this sunlight 
will prove to be a disinfectant that will serve to hinder the 
President from usurping the authority of Congress.
    The President is not a king. We are supposed to be a 
government of laws, not of men. The framers designed the 
Constitution to establish a system based on the rule of law in 
order to protect the liberty of the people. We in Congress have 
an obligation to use our authority to vindicate the intent of 
our founders and to check this executive.
    Thank you.
    [The prepared statement of Mr. DeSantis follows:]

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                               __________
    Mr. Goodlatte. Thank you, and I want to thank all the 
Members of the panel for your testimony, for the legislation 
that you have introduced, and the ideas you have contributed to 
the Committee on how to address this serious problem.
    As I indicated earlier and as is customary, the Members 
will not be asked to stay to answer questions, and I would like 
to thank my colleagues for participating in this hearing. And 
you are all excused.
    We now welcome our second panel today. And before you sit 
down, I am going to ask the other two to rise. As is customary, 
we will begin by swearing in the witnesses. If you would raise 
your right hand.
    [Witnesses sworn.]
    Mr. Goodlatte. Thank you very much. Let the record reflect 
that all of the witnesses responded in the affirmative.
    Our first witness is Jonathan Turley, the Shapiro Professor 
of Public Interest Law at the George Washington University Law 
School. Professor Turley is a nationally-recognized legal 
scholar who has written extensively in areas ranging from 
constitutional law, to legal theory, to tort law. He has 
published over 3 dozen academic articles and over 750 articles 
in newspapers, including the New York Times, USA Today, and 
Wall Street Journal.
    Professor Turley has been recognized as the second most 
cited law professor in the country.
    Our second witness is Christopher Schroeder, the Murphy 
Professor of Law and Public Studies at the Duke University 
School of Law. In December 2012, he returned to the faculty at 
Duke after serving for nearly 3 years as Assistant Attorney 
General in the Justice Department's Office of Legal Policy. 
Professor Schroeder has also served as Acting Assistant 
Attorney General in the Office of Legal Counsel at the Justice 
Department, and as chief counsel to the Senate Judiciary 
Committee.
    He is currently working on a book on presidential powers.
    Our final witness Elizabeth Price Foley, a professor of law 
at the Florida International University College of Law. She is 
the author of 3 books and several review articles, and is a 
frequent media commentator. Professor Foley has authored op-eds 
that have appeared in publications, including the Wall Street 
Journal, the New York Times, and the Washington Post.
    Prior to joining the faculty at Florida International, she 
was a professor at Michigan State University College of Law, 
and executive director of the Florida Chapter of the Institute 
for Justice.
    Welcome to you all. Your entire statements will be made a 
part of the record, and we ask that you summarize your 
testimony in 5 minutes or less. To help you stay within that 
time, there is a timing light on your table. When the light 
switches from green to yellow, you will have 1 minute to 
conclude your testimony. When the light turns red, it signals 
the witness' 5 minutes have expired.
    We will begin with Professor Turley, and welcome.

   TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC 
     INTEREST LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Turley. Thank you, Chairman Goodlatte, and thank you, 
Ranking Member Conyers, Members of the Committee, and also my 
esteemed panel that is joining me today. It is an honor to 
speak with you about a subject that is obviously important to 
everyone in this room, Members and citizens alike.
    I testified at the earlier hearing about the separation of 
powers, its history and its function, and also my view that the 
President has, in fact, exceeded his authority in a way that is 
creating a destabilizing influence in a tripartite or three-
branch system.
    Now, I want to emphasize, of course, that this problem did 
not begin with President Obama. I was critical of his 
predecessor, President Bush, as well. But the rate at which 
executive power is being concentrated in our system is 
accelerating, and, frankly, I am very alarmed by the 
implications of that aggregation of power. What also alarms me, 
however, is that the two other branches appear not just simply 
passive, but inert, in the face of this concentration of 
authority. The fact that I happen to think the President is 
right on many of these policies does not alter the fact that I 
believe the means he is doing it is wrong, and that this can be 
a dangerous change in our system. And our system is changing in 
a very fundamental way, and it is changing without a whimper of 
regret or opposition.
    And so, it is a great honor to speak with you again today 
about the implications, but also about what this branch can do 
to assert its powers and to regain balance in the system. I am 
a typical Madisonian scholar. I tend to view all branches as 
equal, but some more equal than others, and that would be the 
legislative branch. If you take a look at Article 1 and Article 
2, even a glance, you will see what I mean. The framers, 
particularly James Madison, spent a great deal of time 
developing this institution. It is the thumping heart of our 
system, and it has lost a great deal of power. And that power 
has largely been transferred to the executive branch.
    Before I talk about those options, I just simply want to 
note priorities and policies, and, yes, even presidents change. 
Our system is not supposed to change. It is the guarantee that 
we all have. It is an article of faith that we have with one 
another. It is a thing that has weathered wars and depression 
and social unrest. In our system, there is no license to go it 
alone. There is no freelancing. That does not mean that this is 
not difficult. It does not mean that we do not have divisions.
    I want to emphasize that last point. Recently, Congress has 
seemed, frankly, feckless and uncertain as to its authority. It 
surprises me given the institution created by people like James 
Madison. I do not, however, believe our dysfunctional 
government as it currently exists is simply the result of 
dysfunctional politics. It is simply untrue that we are living 
different or unprecedented times. The framers lived in these 
times.
    While people say you are acting like you want to kill one 
another, when the framers first joined this institution, they 
were literally trying to kill each other. They were using 
things like the Alien and Sedition Act to try to arrest their 
opponents. Thomas Jefferson referred to his opponents as the 
reign of the witches. This is not a different political time, 
and it should not be used as an excuse for extra constitutional 
action.
    Indeed, the branch that I blame the most for the problems 
we are having is the branch that is rarely mentioned, and that 
is the judicial branch. It was once referred to at least 
dangerous branch, but has made itself into the least relevant 
branch after Raines and other cases. Specifically, it has 
created barriers for Members' standing or legislative standing, 
which I think is key if we are going to rebalance this system. 
What is strange is that the Supreme Court has dealt with this 
by saying they are defending separation of powers by refusing 
to reinforce it. It is like a fire department refusing to put 
out fires because only you can prevent forest. They are tasked 
with the job of maintaining the separation of powers.
    I have listed the options in my testimony that this body 
can consider from direct legislative means, to things like 
appointments, to some of the legislation that is pending. I do 
want to emphasize one thing, however, in closing. This common 
article of faith that we have in our system has served us well. 
The short-term insular victories that are achieved in this term 
will come with prohibitive costs. I happen to agree with many 
of those policies, but I do not agree with the means.
    I believe we are now at a constitutional tipping point in 
our system. It is a dangerous point for our system to be in, 
and I believe that your response has to begin before this 
President leaves office. No one in our system goes it alone.
    Now, in closing, the fact is we are stuck with each other, 
whether we like it or not, in a system of shared powers, for 
better or worse. We may deadlock. We may even despise each 
other. The framers foresaw such periods. They lived in such a 
period. But whatever problems we have today in politics are of 
our making. We should not destroy the system that has 
maintained this country so well, that should be passed to 
future generations.
    And I thank you again for allowing me to address you.
    [The prepared statement of Mr. Turley follows:]
    
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                               __________
    Mr. Goodlatte. Thank you, Mr. Turley.
    Mr. Schroeder, welcome.

   TESTIMONY OF CHRISTOPHER H. SCHROEDER, CHARLES S. MURPHY 
 PROFESSOR OF LAW AND PROFESSOR OF PUBLIC POLICY STUDIES, AND 
   CO-DIRECTOR OF THE PROGRAM IN PUBLIC LAW, DUKE UNIVERSITY

    Mr. Schroeder. Thank you, Chairman Goodlatte, Ranking 
Member Conyers, Members of the Judiciary Committee. Thank you 
for the opportunity to testify before you today. You have my 
written testimony, and I will simply summarize its main points, 
illustrate them with one example, and then go to the general 
question of the meaning of the take care clause.
    When the executive branch exercises delegations of 
discretionary authority granted by law, it is executing the 
law. In deciding how to exercise discretion, the executive 
branch may appropriately consider equitable considerations and 
policy priorities that are not specifically prescribed by the 
Congress. Almost all statutes grant discretionary authority, 
including the discretion to set priorities and to determine not 
to engage in all possible enforcement actions. These choices 
are not intentioned with executing the laws. They are part and 
parcel of executing the law.
    Some of these actions may resemble legislative action in 
the words of the Chadha v INS Court, but the Court went on to 
say, ``The test of their legality is not that kind of eye test. 
Rather the test is to check them against the terms of the 
legislation that authorized them.'' Now, both DHS' deferred 
action decision and the actions the Treasury Department have 
taken, among others, but just to pick those two examples, have 
been explicitly justified as exercises of statutorily-delegated 
authority and prosecutorial discretionary authority.
    The Administration is not claiming any authority to 
suspend, nullify, or dispense with any law. Even assuming that 
it is possible to see a resemblance between these 
administrative actions and such labels, the proper approach to 
analyzing the actions must begin by taking the Administration 
at its word because if they are defensible as exercises of 
discretion granted by law, their resemblance to these other 
things is immaterial.
    So while Secretary Napolitano's memorandum memorializing 
her deferred action for childhood arrivals is brief, it relies 
explicitly on scarce resources, equitable considerations, and 
policy choices, which are classic factors influencing decisions 
not to enforce. And it also seems to be quite in line with the 
Supreme Court's recent recognition in the Arizona case of the 
important role that immediate human concerns play in 
immigration decisions. Not only does the deferred action seem 
to be well grounded in the general understanding of 
prosecutorial discretion and statutory discretion, both the 
Department of Homeland Security and the INS, prior to DHS' 
creation, have apparently long treated deferred action as a 
species of prosecutorial discretion with instances of 
exercising this authority extending back to at least 1975. It 
is fair to assume that Congress has been aware of this 
longstanding practice and has at least implicitly acquiesced in 
it.
    Now, I have more about Secretary Napolitano's decision and 
the Treasury decisions in my written remarks. But even there it 
is not my intention to delve deeply into these or other any 
questions of discretionary authority with regard to one or more 
of these actions. What I want to do is to articulate the 
appropriate way to understand what it means to execute the law 
faithfully in the context of statutes that grant discretionary 
authority, and to emphasize that analysis of the propriety of 
any exercise of discretionary authority must begin with the 
statutes and the authorities they grant. If the action can be 
squared with them, taking into account the full array of 
discretion that has been granted by law, then the action is 
faithfully executing the law.
    Suppose, however, that the executive branch oversteps, that 
it takes an action that is outside the boundaries that the 
statute has laid out. Is the President then guilty of violating 
his constitutional duty? In my view, not by virtue of that fact 
alone. The President's duty is to take care that the law is 
faithfully executed, not that it is flawlessly executed. No 
President could ever meet the standard of flawless execution.
    Because mere legal error is consistent with faithful 
execution of the laws, I do not believe the avoidance of legal 
error goes to the heart of the matter of the President's 
obligation. So what does? The heart of the matter, it seems to 
me, lies in exercising good faith and conscientious effort to 
take actions within the discretionary authority granted by law. 
So long as the President is taking are to ensure that this is 
being done, he is discharging his constitutional obligation.
    I thank the Committee for its time, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Schroeder follows:]
    
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                               __________
    Mr. Goodlatte. Thank you, Mr. Schroeder.
    Ms. Foley, welcome.

 TESTIMONY OF ELIZABETH PRICE FOLEY, PROFESSOR OF LAW, FLORIDA 
            INTERNATIONAL UNIVERSITY, COLLEGE OF LAW

    Ms. Foley. Thank you. Mr. Chairman, Ranking Member 
Conyers----
    Mr. Goodlatte. You want to make sure that microphone is on 
and close to you.
    Ms. Foley. I believe it is on.
    Mr. Goodlatte. There go you.
    Ms. Foley. There we go. Okay. Mr. Chairman, Ranking Member 
Conyers, Members of the Committee, my name is Elizabeth Price 
Foley. I am a professor of constitutional law at Florida 
International University College of Law. I am absolutely 
honored to be here today to talk about this topic.
    I have provided the Committee with what I consider to be a 
road map of how the House can establish standing to sue the 
President as a means to enforce his constitutional duty to take 
care that the laws be faithfully executed. I believe Congress 
would, in fact, have standing to sue the President to enforce 
his duty of faithful execution, provided a four-part test is 
satisfied.
    First, the institutional injury alleged should be one that 
can be characterized as a nullification of a legislative act. 
The Supreme Court in Raines v. Byrd made it clear that if 
Members want to assert an institutional injury, the executive's 
act must effectively nullify a prior act of Congress. So, for 
example, if Congress declares X in a law, a nullification would 
be an executive act that effectively declares not X.
    So let us say Congress passes a law that says anyone who 
enters this country illegally shall be deportable. An executive 
act that declares a group of illegal immigrants to not be 
deportable would be a nullification of that law. Say Congress 
also enacts a law that says it shall, in fact, go into effect 
in 2014. An executive act that says the law shall not go into 
effect in 2014, but instead 2015, 2016, or whatever, would also 
clearly be a nullification.
    Second, the lawsuit should be explicitly authorized by a 
majority of the House. This is because the case law indicates 
that when Members assert an institutional injury, we have to 
make sure this is not a sore loser lawsuit that is brought by 
sort of an ad hoc, disgruntled group of legislators. Explicit 
authorization for litigation is critically important because 
what it does is it signals to the Court that the institution as 
an institution believes it has been injured.
    Third, the lawsuit should target the President's, what I 
call, benevolent suspensions of law, which means that there 
would be no private plaintiff available to adjudicate the 
constitutionality of the President's acts. A benevolent 
suspension of law is when the President grants a privilege or a 
waiver from the operation of law to a certain group of people 
that, of course, the President himself defines. So, for 
example, when the President delays provisions of Obamacare but 
not other provisions, or he decides not to deport some young 
people who have entered this country illegally, he benevolently 
has suspended the law with regard to that group of people.
    In these situations, the individuals are not sufficiently 
harmed to satisfy personal injury requirements of standing. In 
fact, no individuals are. Think about it. When you delay an 
employer mandate to provide health insurance, when you decide 
not to deport certain young illegal aliens, these actions 
undermine our laws certainly and our constitutional separation 
of powers. But they do not hurt any individuals enough to allow 
them to challenge the President's acts. In fact, if the 
constitutionality of benevolent suspensions of law is ever 
going to be resolved, it must be resolved through litigation by 
Congress against the President.
    Fourth, the lawsuit should target presidential acts for 
which legislative self-help is not available. The reason self-
help is salient to the courts is because they want to make sure 
that Congress could not just simply undo the executive's acts 
by simple majoritarian vote. But think about it again. When a 
president fails to faithfully execute the law, there is no 
simple majoritarian remedy available because what Congress 
wants in this situation is for the existing law to be enforced.
    Repealing a law that the Congress simply wants executed is 
obviously not a remedy here. Congress also could not enact 
another law in this situation because it has already enacted 
the law it thinks it wants. Congress again wants the existing 
law to be enforced.
    We should not also have to resort to the drastic act of 
impeachment. Peaceful court resolution is going to be a lot 
easier here, and I think that is what the courts would find. 
What Congress wants here, again, is faithful execution of the 
law. It may not think that the President should be entirely 
removed from office. It just wants the President to faithfully 
execute the law.
    Peaceful resolution of disputes between Congress, and the 
Court, and the president has been accepted by the courts since 
Marbury v. Madison, and faithful execution of the laws disputes 
should be no different. Separation of powers is clearly a 
critically important principle, and I think it is something 
that all Members of Congress, regardless of political 
persuasion, should want to see preserved. In the case 
particularly of benevolent suspensions, the only recourse, 
again, is for Congress to seek a court's declaration of the 
constitutionality of the President's acts.
    These are serious constitutional questions. There are 
reasonable arguments on both sides. They deserve a full and 
fair hearing in our courts of law. Thank you.
    [The prepared statement of Ms. Foley follows:]
    
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        Mr. Goodlatte. Thank you, Ms. Foley. We will now begin 
questioning under the 5-minute rule, and I will begin by 
recognizing myself.
    Professor Turley, many of the unilateral actions the Obama 
Administration has taken addressed controversial political 
issues effectively cutting the people's elected representatives 
in Congress out of the political process for a whole host of 
important issues. What is the effect on the political process 
of having the executive branch alone make these tough 
decisions? Is unilateral decision making good for our 
republican system of government?
    Mr. Turley. Well, thank you, Mr. Chairman. The greatest 
danger that we have really cannot be overstated when you have 
the concentration of power in one branch. That is precisely the 
danger that the framers were seeking to avoid. People like 
James Madison viewed the branches as sort of like bodies in 
orbit. They were locked in an orbit of shared powers.
    Once you have a concentration of authority in any one 
branch, it creates instability. But what people often miss is 
that separation of powers is really not about protecting 
Congress, about the institutional powers. Separation of powers 
was designed as a protection of liberty. It was to prevent the 
concentration of power by any of the branches that would 
threaten individual citizens.
    Mr. Goodlatte. Professor Foley, can you elaborate on what 
long-term institutional consequences would likely be if the 
current practice of benevolent suspensions of the law is not 
stopped?
    Ms. Foley. That is a really good question because I think, 
you know, if Congress cannot stop the President from these 
benevolent suspensions, I think the first thing that occurs to 
me is that people are going to become very cynical about 
government. They already are, but it is going to get worse, and 
particularly I think people are going to get very cynical about 
the Constitution. They are going to start thinking that law is 
politics.
    I already have students in my classes who think that, and 
it gets worse and worse every year because of situations like 
this. Situations like this, these benevolent suspensions, as 
they get more and more frequent and more aggressive, they are 
eroding our citizens' respect for the rule of law. We are a 
country of law and not men.
    You know, the other problem I would see from your 
perspective if I were sitting on the other side is that, you 
know, it is going to render Congress superfluous, right? You 
have a delicate situation here I understand, but think about 
whether or not you would ever want to tackle any super 
controversial issues if this continues. Think about, for 
example, comprehensive immigration reform. Why would you go to 
the trouble of reaching a very delicate political compromise on 
an issue like that if you actually think the President is just 
going to, you know, simply benevolent suspend those portions of 
the law he does not like after you reach that compromise?
    So if you want to stay relevant as an institution, I would 
suggest that you not stand idly by and let the President take 
your power away.
    Mr. Goodlatte. As Mr. Schroeder has noted, the President 
certainly has some discretion to set enforcement priorities in 
order to best allocate limited resources and to make a case-by-
case enforcement decision. But does that discretion encompass 
the complete non-enforcement of multiple statutes without any 
argument that they were unconstitutional, Ms. Foley?
    Ms. Foley. You are talking about just discretion to not 
enforce something? Could you repeat the question because it got 
a little long there around the margins.
    Mr. Goodlatte. Sure. I apologize. But we acknowledge, as 
Professor Schroeder noted, that the President has some 
discretion on case-by-case enforcement decisions. But the 
question is, does that discretion encompass complete non-
enforcement of multiple statutes without any argument that they 
are unconstitutional?
    Ms. Foley. Of course it does not. You know, there is a 
difference between enforcement discretion and non-enforcement 
of law with regard to an entire category of people. Enforcement 
discretion, for example, is when a prosecutor with limited 
resources says, you know what, I have got all these cases lined 
up, and I think I have got the best evidence to spend my 
limited resources prosecuting this one first, this 1 second, 
this one third.
    Prosecutorial discretion is not saying, well, I know I have 
this law and I know it says it shall do this and it shall do 
that. But I am just going to say it does not do that with 
regard to an entire category of people. That is an apple and an 
orange. This is not a simple matter of enforcement discretion. 
This is suspension of the law with regard to an entire category 
of people.
    Mr. Goodlatte. Professor Turley, it would appear that the 
largest impediment to Congress seeking judicial review of the 
President's failures to faithfully execute the laws is the 
doctrine of standing, which according to the Court is a 
doctrine required by the separation of powers. At what point 
must the separation of powers principles that standing is 
intended to preserve give way to the separation of powers 
concerns a congressional lawsuit would be intended to enforce?
    Mr. Turley. Well, it is an excellent question, Mr. 
Chairman. I have to say that I believe the Supreme Court has 
made an unholy mess out of the area of standing. And many of 
our problems are attributed to the fact that they have left the 
two branches to fight out in sort of raw power as opposed to 
resolving what are not political questions, but structural 
ones.
    And I have long believed, and I have represented Members of 
this Committee and other Committees challenging presidential 
action, that Member standing would go a long way to resolve 
some of these conflicts. They would not fester. Whatever the 
framers may have meant in the first three articles of the 
Constitution, it cannot possibly be this. It cannot possibly be 
a standing principle where literally no one seems to have 
standing to bring an issue before the Court. And it cannot 
possibly mean that a President can go to Congress and ask for 
something, be rejected, and then his unilateral authority to 
achieve the same result. Those things to me seem quite beyond 
the pale of anyone that looks at the Constitutional Convention.
    Mr. Goodlatte. Thank you. My time has expired.
    The gentleman from Michigan, the Ranking Member, is 
recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman. I first wanted to 
begin by asking the gentlelady or good witness about a 
statement that she posted on February 7 in which the title was 
that not even Congress can sue the President for failing to 
enforce the part of the Constitution, that sometimes, as has 
been argued here today, that he can successfully establish the 
standing. And it was titled ``Why Not Even Congress Can Sue the 
Administration Over Unconstitutional Executive Actions.'' Do 
you remember that was posted February 7 of this year?
    Ms. Foley. Absolutely. Yes. Yes, in fact, very recently----
    Mr. Conyers. Do you still hold to that position?
    Ms. Foley. No, let me clarify, if I may. If you look on 
footnote 119 of my written testimony, which is on page 31, I 
specifically note that I did not pick that title. When you 
write an op-ed for a large blog, like the Daily Caller, you 
write the substance, but you do not write the title.
    As I express in that footnote 119, what the article is 
about, if you read the substance of the article, is that I am 
saying that if the courts will not enforce the faithful 
execution duty, and if Congress will not impeach the President, 
then we have a problem. That does not mean that I do not think 
Congress would not have standing to sue the President if they 
tried to do so. That is a separate question.
    Mr. Conyers. You did say in there, though, that Congress 
probably does not have standing.
    Ms. Foley. I said most people think Congress probably would 
not. I am not one of them.
    Mr. Conyers. But you are not one of them.
    Ms. Foley. That is correct.
    Mr. Conyers. But you wrote that in the article.
    Ms. Foley. That most people think that? Absolutely.
    Mr. Conyers. Okay. I am going to offer that into the record 
just for all of us to be able to examine it.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]


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                               __________
    Ms. Foley. Thank you.
    Mr. Conyers. Now, Professor Schroeder, can one house of the 
Congress, in your view, successfully establish standing to sue 
the President to enforce the take care clause?
    Mr. Schroeder. Not under existing Supreme Court 
interpretation of congressional or legislative standing.
    Mr. Conyers. Individuals can if they can get standing.
    Mr. Schroeder. Individual citizens who have suffered what 
the Court calls a cognizable injury, in fact, can certainly sue 
to challenge whether the President's action has strayed outside 
of discretionary authority, and, therefore, is unlawful and 
should be rescinded or whatever. But Members of Congress have 
never been granted standing by this Supreme Court, and I do not 
see any inclination for a shift in their standing doctrine 
simply to challenge whether a President's action under a 
statute is one side or another of the boundaries that that 
statute says.
    Mr. Conyers. Now, Professor Schroeder, the clause itself, 
``take care that the laws be faithfully executed,'' does that 
clause itself not support and require the exercise of 
discretion by the President?
    Mr. Schroeder. Is that a question for me?
    Mr. Conyers. Yes, sir.
    Mr. Schroeder. Yes, it does.
    Mr. Conyers. And so----
    Mr. Schroeder. It is inevitable that the President has to 
interpret what the statute means. He has to figure out whether 
it applies in individual cases. He has to make decisions about 
executing them. Even the simplest statutes are going to require 
those kinds of discretionary choices and judgments.
    Mr. Conyers. And we have numerous examples where Presidents 
have exercised that authority under the Constitution, so 
numerous that it is surprising that we are holding, I think 
this is the second hearing, on this same subject as if this 
President has gone overboard with this or something. As a 
matter of fact, I think there are numerous examples of other 
presidents actually exercising this discretion far more than 
the current occupant of the White House.
    Mr. Schroeder. You could not begin to number them.
    Mr. Conyers. No. And so, I want to kind of lower the room 
temperature, taking into consideration the two witnesses on 
either side of you that this is a very dicey proposition that 
the Committee on Judiciary is going into for the second time, 
as if this is getting out of hand.
    And so, I tend to agree with the proposition of the witness 
here, Ms. Foley, that probably not even Congress can sue the 
Administration over unconstitutional executive actions. As we 
all know, there are many other ways to get at a president who 
they think has really strayed far over the lines.
    And with that, Mr. Chairman, I yield back the balance of my 
time.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from North Carolina, Mr. Coble, for 5 
minutes.
    Mr. Coble. Thank you, Mr. Chairman. Good to have the panel 
with us this morning. It is my belief, folks, that President 
Obama's credibility rating presently is fragile at best, 
expired at worst. And I appreciate you all being with us today.
    Professor Turley, some defenders of the President's 
unilateral actions have asserted that his actions were merely 
an exercise of prosecutorial discretion. Are these assertions 
correct, or is there a fundamental difference between 
prosecutorial discretion and many of the President's unilateral 
acts?
    Mr. Turley. Thank you, Congressman. As a practicing 
criminal defense attorney, I must say this is not like any 
prosecutorial discretion I have ever dealt with. Prosecutorial 
discretion is normally based on individual cases or relatively 
nuanced classes of cases. They do not involve categorical 
exclusions, like the ones we are dealing with here.
    They also do not involve actions that are taken after 
submitting to Congress requests for changes, being rejected on 
those changes, and then implementing them in the name of 
prosecutorial discretion. If that is allowed, then obviously it 
would turn our entire system into a pretense of democratic 
process. It would make a mockery out of the separations.
    What is fascinating about these areas is they happen to be 
areas in which we are deeply divided as a Nation. And that 
really makes this more serious, in my view, that there is a 
reason why compromise was not reached on these issues. The 
country is deeply divided. The framers never guaranteed that 
you could get compromise. What they guaranteed, or they thought 
they did, was that you have to try, that you cannot go it 
alone. You cannot freelance.
    So I do not view this as prosecutorial discretion. You can 
call it that if you want, but from my view, it is the clear 
circumvention of Congress, and for Congress not to act, in my 
view, borders on self-loathing. I do not understand why 
Congress would allow a president to come to this body and ask 
for reforms, some of which I happen to agree with, and then 
simply take unilateral action once this body refuses to 
implement those reforms.
    Mr. Coble. Thank you, Professor. Professor Foley, let me 
get your opinion on a hypothetical. Sometimes hypotheticals can 
be treacherous. I do not intend for it to be, however. During 
his presidency, George H.W. Bush proposed that Congress lower 
the tax rate on capital gains. Congress did not enact his 
proposal. Under President Obama's assertion of executive power, 
could President Bush simply have instructed the IRS not to 
enforce the tax code on capital gains greater than 10 percent?
    Ms. Foley. Well, I do not see why not. I mean, it seems to 
be an apt analogy to me. That was a benevolent suspension of 
law does, right? So you're hypothesizing that a conservative 
President essentially takes the Internal Revenue Code. He does 
not get the tax relief he requested for Congress, and so he 
unilaterally decides to change the rates that are explicitly 
mentioned in the Internal Revenue Code itself.
    And, of course, when he would do that, that would be a 
benevolent suspension of law because it is benevolent in the 
sense that it is not hurting anybody. People are paying fewer 
taxes. To the extent that, you know, the residual rest of the 
country, the taxpayers, are hurt by that, the Supreme Court had 
made abundantly clear that there is no generalized taxpayer 
lawsuits allowed. They do not have standing.
    So you would have to find some individual that had suffered 
a concrete, particularized personal harm from the President's 
lowering of the tax rates, and I do not see it. So you would 
have a classic benevolent suspension scenario, and I do not 
think that that is any more farfetched than what President 
Obama has been doing.
    Mr. Coble. I thank you. Professor Schroeder, let me try to 
get another question in before that red light illuminates. In 
your opinion, sir, at what point does a President cross the 
line from exercising his enforcement discretion to violating 
the duty of care that laws be faithfully executed?
    Mr. Schroeder. When he is no longer making a conscientious 
and good faith effort to interpret the statutory authorities 
that you have granted him and using that effort to stay within 
them. I think that is the boundary, because making any 
particular mistake by itself does not warrant the conclusion 
that he is no longer faithfully executing the laws.
    Mr. Coble. I thank you again for being with us today. Mr. 
Chairman, I yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentlewoman from California, Ms. Lofgren, for 5 
minutes.
    Ms. Lofgren. Thank you, Mr. Chairman. Before asking my 
questions, I would ask unanimous consent to place in the record 
a statement from the American Immigration Lawyers Association 
and a statement from the National Immigration Forum.
    Mr. Goodlatte. Without objection, they will be a part of 
the record.
    [The information referred to follows:]


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    Ms. Lofgren. Now, I recognize the Chairman's discretion to 
allow Members who testify not to answer questions, and so I did 
not raise an issue on that. But I also do not want people to 
feel that I am taking an unfair opportunity to point out that 
our colleague, Congresswoman Black, was the one--I have just 
got to say this because it is very easy for us in Congress to 
attack career civil servants. They are not able to defend 
themselves. And I think sometimes it is important that other 
Members of Congress provide their defense.
    She talked about a lawyer who works for ICE, Mr. Andrew 
Lorezen-Strait, who is a career civil servant. He has been a 
lawyer in the agency since long before President Obama was 
elected. He was appointed to serve as the liaison for 
immigration detention policies with interested parties, 
community groups, associations of lawyers, and bar 
associations. This is not very different than, you know, what 
local police agencies do where you have somebody who can 
interface with community who are interested in policies. To 
call him an illegal alien lobbyist, I think, is quite a slur 
and very unfair.
    And Congresswoman Black, of course, as all of us do, has 
the opportunity to provide legislation. She did. She is a 
relatively new Member and apparently did not know that if you 
just prohibit funding for a title, it complies with the law to 
eliminate funding for that title, but essentially to maintain 
functions. So I guess she is doing a re-do, but I think to 
blame the agency for inept drafting is really, again, rather 
unfair to the agency and also to the career individuals. And I 
just felt it was important for some of us at least--I mean, ICE 
is not my favorite agency, but fair is fair.
    I wanted to talk, if I could, a little bit, Mr. Schroeder, 
about the take care clause as it relates to immigration. You 
know, I went over and listened to the arguments during the 
Arizona v. United States case, and it was a fascinating hearing 
before the Supreme Court. But in the decision itself, this is 
what they said, ``A principal feature of the removal system is 
the broad discretion exercised by immigration officials who, as 
an initial matter, must decide whether it makes sense to pursue 
removal at all.'' That is what the Court said about what the 
executive's authority is today and always has been. Deferred 
action has been part of immigration law for decades. This is 
nothing new.
    And so, I guess the question for me is, if there is 
agreement that the Department has to make some decisions in 
terms of resources on what to do, given that the Supreme Court 
has said there is broad discretion to make decisions about what 
priority to make. Do you think somehow it is a violation if 
there is order put into those decisions by the heads of the 
agency for policy, or does this have to be left to officers 
without any kind of guidance to make that decision on their 
own?
    Mr. Schroeder. Not at all, Congresswoman, and I thank you 
for the question. As a matter of fact, if you think about it, 
if one of the rationales for granting deferred action are the 
equitable considerations that relate to the circumstances of 
the people affected by that decision, one of the things that is 
most inequitable to those people is the uncertainty of their 
situation, not knowing whether somebody is going to come and 
take an action against them, being completely at sea as to what 
their status is.
    Now, that is the normal situation, but if you were going to 
take deferred action on the basis of a consideration of the 
equities of childhood arrivals, one of the things you would 
want to do is put their mind at ease. It would be part of the 
equity of the situation to do that.
    Ms. Lofgren. Can I ask one further question because it is 
something, you know, I have often thought about. If you have 
this discretion, and you do according to the Court, is there 
not an equal protection issue here where if you have an officer 
in, you know, one part of the country saying we are going to 
exercise discretion for childhood arrivals, but an office in 
another part of the country saying we are not? Does that not 
call out for a policy decision on the part of the agency itself 
on what to do? Is there not an equal protection motivation 
there?
    Mr. Schroeder. One of the most fundamental principles of 
our jurisprudence equitable application of the law is that like 
cases be treated alike. And if you think the dominant 
explanation of your treatment of a group of people is shared by 
all of them, then you need to treat everybody alike. And a 
case-by-case approach to the problem, in fact, will not lead to 
that.
    Ms. Lofgren. I see my time is up, Mr. Chairman. I yield 
back.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Texas, Mr. Smith, for 5 minutes.
    Mr. Smith of Texas. Thank you, Mr. Chairman. Rather than 
ask questions, I have a brief statement to make, after which I 
yield you the balance of my time.
    ``Mr. Chairman, the Obama Administration has ignored laws, 
failed to enforce laws, undermined laws, and changed laws by 
executive orders and administrative actions. These include laws 
covering healthcare, immigration, marriage, drugs, and welfare 
requirements. Other presidents have issued more executive 
orders, but no president has issued so many broad and expansive 
executive orders that stretch the Constitution to its breaking 
point.
    As for not enforcing laws, in 2011, the President 
instructed the Attorney General not to defend the Defense of 
Marriage Act in court. This Monday, the Attorney General 
declared that State attorneys general are not obligated to 
defend laws they believe are discriminatory. At other times, 
the President has decided not enforce immigration laws as they 
applied to entire categories of individuals. And the President 
has decreed a dozen changes to the Affordable Care Act, known 
as Obamacare. But neither the President nor the Attorney 
General have the constitutional right to make or change laws 
themselves. That is what happens in a dictatorship or a 
totalitarian government.
    The President and the Attorney General do have a 
constitutional obligation to enforce existing laws. If they 
think a law is unconstitutional, they should wait for the 
courts to rule, but their opinion is no substitute for due 
process and judicial review. It is their job to enforce 
existing laws, whether they personally like them or not.
    Ours is a Nation of laws, not a Nation of random 
enforcement. To put personal preferences above democratically-
approved laws reeks of arrogance and conceit, especially when 
citizens could be penalized or jailed for not following those 
same laws. Officials violate the Constitution they have sworn 
to uphold if they ignore laws or counsel others to do so.
    Mr. Chairman, all true reform starts with the voice of the 
people. If American voters rise up and speak loudly enough, 
they will be heard in the corridors of the White House and in 
the halls of Congress.''
    Thank you, Mr. Chairman, and I will yield back.
    Mr. Goodlatte. I thank the gentleman for yielding to me. 
And, Ms. Foley, in following up on the discussion that the 
gentlewoman from California just had with Mr. Schroeder, the 
argument is made that deferred action on a whole category of 
people, somewhere between half a million and a million people, 
is acceptable. Now, the principle on which that is founded is 
prosecutorial discretion.
    Has prosecutorial discretion such elasticity that an entire 
category of people could be recipients of deferred action 
simply based upon their being in the category when the Congress 
has on the books for many, many years laws signed into law by 
presidents of the United States, made it illegal for those 
people to be present in the United States? Are we not talking 
about here the exception swallowing the rule when you 
essentially carve out the vast majority of people in the 
category to have deferred action?
    Ms. Foley. Yes. I mean, this is sort of a dangerous and 
scary moment. That is not discretion. I mean, that is raw, 
lawmaking power is what that sounds like to me. Think about 
what discretion is. Discretion inherently by the executive is a 
case-by-case decision, just like a, you know, U.S. attorney 
makes discretions as to whom to prosecute first.
    And I believe Mr. Schroeder a second ago mentioned equity. 
We are trying to do equity here. Equity itself is inherently 
individualized. When courts exercise equity powers, the whole 
point of equity is to do an individualized case-by-case 
assessment as to what is right. That is not what President 
Obama is doing. He is not doing case-by-case assessment. He is 
doing entire categories with a giant magisterial brush. He is 
wiping out an entire category of people to whom the law 
applies. In my book, that cannot possibly be characterized as 
prosecutorial discretion.
    Mr. Goodlatte. And there is a great debate going on here in 
the Congress right now about what the appropriate action is to 
be taken with regard to children brought here illegally by 
their parents. Is not the whole point of that if the Congress 
does not act and the President is impatient with that, does he 
somehow have the power to reinterpret the law and stretch the 
meaning of deferred proceeding to say, well, I am going to 
effectively create a new law by allowing 500,000 to a million 
people to remain here in a deferred action legal status that 
the law was never intended to provide for?
    Ms. Foley. Well, let us hope not, right? And I am sure if 
you ask the American people they would say that is not their 
understanding of what the President is supposed to do when he 
is charged under Article 2 with the faithful execution of law.
    And as Professor Turley pointed out a second ago, when the 
President does something like that where he proposes a 
legislative reform to a law to Congress and Congress discusses 
and debates it extensively and rejects his proposal, and then 
he turns around and through, again, executive order as his own 
unilateral act decides to simply implement those reform 
proposals by himself without congressional authorization, that 
is the worst possible fact pattern. I cannot imagine that a 
court looking at that fact pattern would say, oh, that is just 
prosecutorial discretion.
    Mr. Goodlatte. I thank the gentleman for yielding, and his 
time has expired. The gentlewoman from Texas, Ms. Jackson Lee, 
is recognized for 5 minutes.
    Ms. Jackson Lee. Let me thank the witnesses who have taken 
their time to be here this morning. There is no doubt that each 
of you, scholars that you are, believe in your position and 
certainly are students of the Constitution. And I respect and 
appreciate that.
    I want to recount a comment made by some former senators 
who were at a program yesterday morning. And one said that she 
has no doubt that all Members who come here come here with a 
belief and an opportunity--excuse me--come here with a belief 
and an opportunity to do what is right. And I want to place 
that on the record. However I may disagree with Members' 
approach, whether it be House or Senate, I cannot doubt their 
integrity and their belief.
    On the other hand, listening to the leader of this House, 
after making a commitment to comprehensive immigration reform, 
and we all were inspired by the collaborative nature of that 
discussion representing his conference, came back 5 days later 
and indicated that he could not go forward because of the lack 
of trust in the President of the United States.
    Now, I did not approve and felt there was a constitutional 
question on the Iraq War, and certainly as we proceeded and 
went beyond our seeming authorization, maybe the Afghan War. 
But I wanted to recollect as to whether or not during that 
timeframe we spent time introducing legislation that I hold in 
my hand. So let me quickly read one paragraph: ``Whereas, 
because of President Obama's continuing failure to faithfully 
execute the laws, his Administration's actions cannot be 
addressed by the enactment of new laws because Congress cannot 
assume that the President will execute the new laws any more 
faithfully than the laws he already ignored, leaving Congress 
with no legislative remedy to prevent the establishment of what 
is, in effect, an imperial presidency.'' If that is not over 
the top in a legislative document with no basis in form 
whatsoever.
    So I disagree with Professor Foley because in actuality, 
deferred adjudication, Mr. Schroeder, if you would, does give 
discretion. What it does is it puts in place a procedure for 
the dreamers to have a process of application. And the 
authorities, meaning the Administration, the executive branch, 
then makes an assessment of whether you are eligible. There is 
discretion. There is a framework. There is equal protection of 
the law. It is not a vast wave, a tsunami.
    And I am going to be posing a question, because I took down 
the words of Professor Foley that indicted dangerous and raw. 
Maybe Ukraine, maybe places that we have confronted in South 
Sudan or Sudan. But to suggest that we have a chief executive 
officer that is dangerous and raw, if I am correctly saying it.
    So let me just pose this question to you. First of all, why 
are Republicans so insistent on deporting dreamers, so much so 
that they would distort the executive position the President 
and what ICE is doing faithfully, and, I believe, 
appropriately? And then why would legislation be introduced 
after a Member has indicated that a particular member of the 
public service is an illegal alien lobbyist, and finds no 
insult to that? I respect all of you here, and I respect my 
colleagues. But I raise a question of frivolity, legislative 
milk toast.
    Mr. Schroeder, would you comment on this question of raw 
and abuse of power, and as well the question of equal 
protection, and whether or not this is a broad sweep that 
should be subjected to a question of whether the President can 
be trusted, and whether or not, as I put in the record very 
quickly these numbers that I had on a sheet of paper. And I am 
going to let you start, Mr. Schroeder. Go right ahead until I 
find them, and I will just shout out in a moment. Thank you.
    Mr. Schroeder. Thank you, Congresswoman. Well, two basic 
points. One is I think trying to incorporate or encompass all 
the actions that have been discussed over the months in this 
general conversation about whether the President is discharging 
his duty or not ignores the fundamental point. You have to make 
individualized decisions that hold up the President's action 
against existing statutory authority and discretionary 
function, and decide on a case-by-case basis whether or not the 
action is over the line or not. I believe that most of these 
actions are legally defensible as matters of the exercise of 
that discretion, but that is the analysis you have to go 
through.
    Let me just clarify the relationship of the immigration 
decision and the President's authorities with respect to the 
Congress' failure to pass the Dream Act, because a lot has been 
made of that. The Congress also did not pass the Anti-Dream 
Act. The Congress did not act in this area, so that left in 
place existing immigration laws. If the President's legal 
authority after you debated and did not pass the Dream Act 
justifies the deferred action that was taken, it is only 
because it would have justified it if he taken it a year 
before, because he has never claimed anything more than to act 
on the basis of existing discretionary authorities in the 
immigration laws.
    Ms. Jackson Lee. But is it raw? Is it power that is raw and 
dangerous?
    Mr. Schroeder. No, ma'am.
    Ms. Jackson Lee. Is it, in essence, a violation of the 
equal protection law or anything other than other presidents 
have done to clarify policy?
    Mr. Goodlatte. Regular order.
    Mr. Schroeder. Absolutely not.
    Ms. Jackson Lee. Mr. Chairman, let me ask unanimous consent 
to introduce into the record very quickly as it relates to 
executive orders, President Clinton introduced 364, President 
Bush introduced 291, and President Obama 168 as of January 20, 
2014. And I think that clarifies the record.
    Mr. Goodlatte. If that is a document, without objection, it 
will be made a part of the record.
    [The information referred to follows:]


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                               __________
    Mr. Goodlatte. And the Chair recognizes the gentleman from 
Alabama, Mr. Bachus.
    Ms. Jackson Lee. I thank the gentleman, and I yield back.
    Mr. Bachus. Thank you. First let me ask you this, just 
following up on the gentlelady from Texas. It is my 
understanding that President Bush--George W.--and President 
Obama have used these executive orders quite frequently. Was 
that also true of President Clinton? From what she said, he 
actually issued more. I was thinking he had issued much fewer.
    Mr. Schroeder. Congressman, I do not have the numbers in 
hand. This is an authority that presidents have used across 
Administrations for decades, but I am not familiar with the 
numbers.
    Ms. Foley. And, you know, again I have stated publicly and 
in articles that we need to be clear that quantity has nothing 
to do with it. Presidents issue executive orders all the time, 
and you can look them up online. And if you look them up, it is 
routine things like creating this little group, this little 
commission to do this, you know, things that have to do with 
his independent Article 2 authority. So plenty of executive 
orders are perfectly constitutional, so it is not a numbers 
game. It is about the quality of what the President is doing. 
And that is the question: is this President doing things of a 
qualitatively different nature than his predecessors?
    Mr. Bachus. All right. You are the Democratic witness, Mr. 
Schroeder. It is pretty true that what Professor Foley is 
saying. Is it not just the last two presidents that have sort 
of pretty much by executive order either refused to do what a 
statute said or not follow that statute?
    Mr. Schroeder. Well, I agree with the point that Professor 
Foley made. It is not the numbers, it is the quality. It is a 
longstanding practice. I think in the current executive order 
numbering system, we are in the 13,000's. President Eisenhower 
issued an executive order establishing affirmative action and 
non-discrimination requirements of Federal contractors in the 
1950's. President Kennedy followed that up. So those were 
already in the 11,000's.
    Mr. Bachus. But in quality, is it getting worse?
    Mr. Schroeder. Well, there again, I cannot hazard a global 
assessment. I believe that if we are talking about the last 
three last presidents, with whom I have had some familiarity, 
and their executive order practice, I believe that the activity 
is fairly comparable across all three of those president.
    Mr. Bachus. How about Mr. Turley? Do you agree with that?
    Mr. Turley. I agree, Congressman, with my colleagues that 
you cannot look at the raw numbers any more than you can look 
at raw numbers of bills passed to determine how effective a 
Congress is. You have to look at what is being done. And I do 
think that situation has gotten far worse in the last two 
presidencies. George W. Bush, I thought, was rightfully 
criticized for his signing statements where he adopted 
interpretations that seemed to be wholly at odds with what 
Congress had said.
    But this has accelerated under President Obama to a point 
that I think is alarming, that we can disagree with the 
policies with regard to the Dream Act. But Members of this body 
thought that they had a consistent rule. They rejected an Anti-
Dream Act because they believed that the law itself should 
remain the same. Now, we can agree or disagree with that, but 
the fact is what the President achieved unilaterally was 
precisely what he had been refused by Congress. And that has to 
raise separation issues of great import.
    Mr. Bachus. Professor Schroeder, you have testified on 
this. You at least, I think, have represented yourself as 
somewhat of an expert on this. What is the most egregious 
example, in your mind, of an abuse by the President of an 
executive order?
    Mr. Schroeder. I thought that President Bush's decision to 
authorize the NSA to engage in warrantless wire taps when there 
was pretty clear law on the books that the only two means that 
you in Congress had intended wire taps to be utilized was 
either through the normal criminal process or pursuant to a 
FISA warrant was a pretty egregious misuse----
    Mr. Bachus. Of course, you know the War Powers Act and 
national security are sort of carved out. The final question, 
if Congress were to bring action, how long would it take? I 
mean, the courts, they are sometimes so slow to respond, it is 
into the next Administration before you get an answer.
    Mr. Schroeder. Well, regrettably, Congressman, because I do 
not have anything against the effort by Congress to enforce 
what it believes are principles of right law, I think it would 
not take long because I believe the Court would throw it out 
quite quickly. I just do not think there is congressional 
standing in this area to entertain the kind of litigation that 
is being contemplated.
    The President would immediately reply, if he replied on the 
merits at all, by saying I am within my discretionary statutory 
authority. Then the court would be faced with answering a 
garden variety legal question about the application of law to 
certain facts that is just the kind of thing that it has said 
that this body, or the other body, or the two of you together 
does not have standing to litigate.
    So I just do not think these lawsuits will bear much fruit, 
regrettably, from the point of view of enabling you or others 
who advocate for the legislation to pursue that kind of 
litigation that Professor Foley advocates. It would take a 
dramatic change in the existing Supreme Court jurisprudence, 
which I do not see on the cars.
    Mr. Bachus. Professor?
    Ms. Foley. It would not take a dramatic departure from 
existing precedent. Look, the Supreme Court has only decided 
two legislature standing cases other than Powell v. McCormack, 
which was not an institutional injury suit, it was a personal 
injury suit, when he was excluded from the chamber.
    So we have two cases. We have Coleman v. Miller, and we 
have Raines v. Byrd. Coleman v. Miller, there was standing for 
the legislators to bring an institutional injury suit. Byrd v. 
Raines, there was not. The reason is patent because in Coleman 
v. Raines, what you had was a group of Kansas State 
legislators. In fact, you had 21 out of 40, a majority, of 
Kansas State legislators basically saying that the lieutenant 
government acted unconstitutionally when he broke a tie 
regarding that State's ratification of a child labor amendment.
    The Supreme Court said under those circumstances we are 
convinced that both the institution, i.e., the Kansas Senate, 
has alleged an injury, an institutional injury, of sufficient 
magnitude that it satisfies the injury requirements of 
standing. And second, we actually believe that this group of 
legislators is appropriately authorized. It does represent the 
institution as an institution because it is a majority of them.
    Now, compare and contrast that to what was going on in 
Raines. In Raines you had a group of six congressmen and 
senators who were challenging the constitutionality of the Line 
Item Veto Act. Basically you can see just by the way I have set 
up the fact pattern that this is a disgruntled group, a small 
group, of disgruntled legislators who believed that the law 
that their own colleagues just passed should not have been 
passed and was unconstitutional. There is no way the Supreme 
Court is going to uphold standing under those facts.
    If you follow the four-part test that I have laid out, you 
have a very good shot at standing.
    Mr. Bachus. All right, thank you.
    Mr. Goodlatte. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Illinois, Mr. Gutierrez, 
for 5 minutes.
    Mr. Gutierrez. Yes, thank you, Mr. Chairman, and welcome to 
all of you for testifying here. Unfortunately, everything you 
said will never translate into any legislative action as none 
of the people that spoke before you or any of the things that 
you said. This is political theater. That is why we are here. 
We are not here to really hear about your interpretations of 
the Constitution, as wise and as well founded as they are. Let 
us skip over the obvious. The obvious is we had some principles 
on immigration reform. We do not want to deal with them, so why 
do we not blame the President? So what we have here is another 
do-nothing hearing in a do-nothing Congress which will arrive 
at do-nothing legislation.
    Mr. Issa [presiding]. Would the gentleman yield?
    Mr. Gutierrez. No, I have 5 minutes, and I know how serious 
you are about limiting people to their 5 minutes.
    Mr. Issa. I was going to be kind.
    Mr. Gutierrez. Okay, then fine. [Laughter.]
    Mr. Issa. I, for one, would like to testify that I am 
interested in a lot of other executive orders. I thank the 
gentleman.
    Mr. Gutierrez. Thank you. I hope I will get the extra 15 
seconds back at the end. [Laughter.]
    And so, the gentleman says that that is what he has raised 
already. But, you know, Ms. Foley talked a lot about the Dream 
kids, and most of the conversation here has been about 
immigration. Let us not kid ourselves, right? And Obamacare, 
which they do not like obviously to begin with, so I am not 
sure why they are so angry about his delaying the 
implementation of a law they all voted against and detest. But 
here is another thing. They have a very clear policy on 
immigration, and they brought forward some principles.
    So why are we here? We are here because it is really a do-
nothing Congress. And here is what they say to the President. 
They say, you know, the leaders of the do-nothing Congress, you 
know, they are really going to come after you, Mr. President, 
if you do something about immigration, if you dare be a do-
something President because we want a do-nothing President to 
go along with the do-nothing Congress, because that is what 
they said to us. They said, well, we have some principles, and 
they articulated those principles, and they brought those 
principles forward.
    And you know what they did? They elevated the debate. What 
happened as a result of that? I am going to tell you what 
happened as a result of that. I, the President, Nancy Pelosi, 
and everybody on this side of the aisle said, great, let us 
have that conversation and let us have that dialogue so we do 
not have a do-nothing Congress.
    Instead they want to talk about the dreamers, half a 
million young kids, right? Well, let me just tell you, Ms. 
Foley, you are wrong. There is prosecutorial discretion. Every 
last one of them has to pay nearly $500 in a petition before 
the government to get prosecutorial discretion. And while 
hundreds of thousands of them have received it, thousands upon 
thousands of them have been denied. It is on a case-by-case 
basis that it is done, just as it should be. It is not as 
though somebody waved the wand and said everybody who arrived 
here before they were 16. That is wrong.
    And let me just say something else. It is not that the 
Congress did not necessarily say let us not hurt the Dream 
kids. No, they affirmatively said in the House of 
Representatives that they should have a pathway to 
legalization, and they should have a pathway. That law was 
passed in the House of Representatives. And 55 senators said 
that the same thing should happen in the Senate.
    So let us make it clear, except, of course, they brought 
something up, cloture. I think that is in the Constitution. 
Yes, Thomas Jefferson, and George Washington, and Madison, they 
all brought up the rule of cloture. That is the way they 
stopped it in the Senate otherwise.
    And the thing is I do not know why they are complaining so 
much. While their principles were very good and very welcoming, 
and I was very happy to see them, do you know what they said 
about the Dreamers? They should get legal permanent residence. 
Do you know what that means? A green card. No fines. I read 
their principles very clearly, and they should have an 
immediate pathway to citizenship. So why are we not celebrating 
what the President did in that case?
    And then said they said the Hastert rule, the Hastert rule, 
the Hastert rule. Really? The Hastert Rule never really 
existed. Who says that? Dennis Hastert, the former Speaker of 
the House. That is what he says about the Hastert Rule. And 
moreover, the former Speaker of the House--I know we can be 
silly about this and laugh about this and make everything a 
joke, but it really is not because since you proposed those 
principles, this do-nothing President who does not enforce the 
law has deported 29,000 people. He detains more people than any 
President, over 400,000 a year.
    So let us not kid ourselves. There are hundreds of 
thousands, millions of American citizen children who every day 
are in fear of losing their mom and their dad. This is not a 
laughing matter where we can simply just laugh about it. There 
are Americans, American citizens, yes, born here in this very 
country. And I think we should take that seriously. But this 
meeting is not about that. It is about attributing some fault 
to the President of the United States.
    You know, I can show you time and time again prosecutorial 
discretion. This is a letter, November 8, 1999, signed by Henry 
Hyde and Lamar Smith, along with dozens of other Republicans 
Members saying to then President Clinton, you are not using 
prosecutorial discretion, on what, on immigration. I would like 
to introduce it for the record, please, because I think that 
that is very, very important.
    Mr. Issa. Without objection, it will be placed in the 
record.
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                               __________
    Mr. Gutierrez. So what are we doing here? We are doing 
nothing. We have a problem in America, 11 million people. They 
need help. And you know what? You know what really, really hurt 
me the most was that we raised the expectation. We said to 
those people there is hope that, yes, the gentleman from 
California and the gentleman from Illinois, who many times do 
not get along on ideological issues, but maybe can find common 
ground on immigration issues. And, you know, when they said 
this is hard, when the Speaker said this is hard, I said, so 
what else is new. That is what we were sent here to do, hard 
things. If it were easy, they should have another group of 
people come here.
    And you know how they felt? They felt dashed. They felt 
destroyed. They felt disillusioned. And that is why I have to 
just say, listen, if you are not going to do anything, then do 
not tell the President not to do anything. Let him help----
    Mr. Issa. The gentleman's time has expired by 1 minute and 
a half.
    Mr. Gutierrez [continuing]. So those dreamers do not have 
to have their moms and dads deported from this country. Let 
somebody do something on behalf of the American people and for 
the immigrants of this Nation. Thank you very much, Mr. 
Chairman.
    Mr. Issa. I want to thank the gentleman. I now recognize 
myself in order. And I join with the congressman's thoughts in 
one sense: Congress does need to act. But, Mr. Turley, I would 
like to leave that particular executive function aside and go 
to a couple of other questions, some of which I think have not 
been covered.
    Is it not true that every action of every confirmed 
individual--secretary of fill in the blank, EPA administrator, 
and so on. Every one of those individuals offered up and 
confirmed by the Senate for a Cabinet-level position, every 
time they say do something, even in an email, is it not 
effectively an executive order, not a presidential executive 
order, but an executive order of the executive branch duly 
distributed throughout authorized Cabinet positions.
    Mr. Turley. Well, I think it could be executive action. It 
certainly could be a policy. You are allowed to challenge under 
the Declaratory Judgment Act policies that are implemented 
sometimes outside of strict executive order.
    Mr. Issa. Right. But the term ``presidential executive 
order,'' which the gentleman from Illinois was relatively 
animated about, these are a relatively few actions of the 
executive branch compared to the tens of thousands of actions 
that occur through the regulatory process, through guidance, 
and as much as possible through--and I will give you an 
example. And this is Article 3. I am sorry, it is still Article 
2. The U.S. Attorney in the Southern District of California 
some years ago basically made a decision not to go after 
Coyotes, simply not to prosecute them, that it was not worth 
it. That is an order by an executive delegated down, is that 
not correct?
    Mr. Turley. It is, and one of the things I would point you 
to is that the Declaratory Judgment Act allows people to 
challenge acts and policies of the executive branch. The vast 
majority of those things are not technically executive orders, 
but they are executive action. They are policies.
    Mr. Issa. Right. So following up on, if you will, all of 
these actions which affect somebody somewhere or, quite 
frankly, the will of Congress as often signed by a President. 
You know, Mr. Conyers and I go back a lot of Congresses, so we 
may have passed something signed by a previous Congress. We may 
have signed something over the objection, the veto, of a 
president. But ultimately, laws have been passed, and they 
become the basis under which all executive action occurs. Is 
that correct? And I just ask is that true to both the other 
witnesses, that that is really the entire universe of what we 
are talking about, even though this hearing is pulled up to the 
level of the chief executive. But you all would agree that this 
is all executive action.
    Mr. Schroeder. Yes, I would agree with that.
    Ms. Foley. [Nonverbal response.]
    Mr. Issa. Okay. Then let me ask the salient question that 
has nothing to do with immigration, but has to do with all of 
these executive orders, executive actions, rules, regulations, 
and the like. At current, the United States Congress has not 
formally given itself standing to intervene on a regular basis, 
going to Article 3, when they believe that an entity of the 
executive branch has failed to properly execute or even 
interpret existing law. Is that correct that standing does not 
basically exist? The courts have generally found that we have 
not given ourselves standing on behalf of the American people. 
Is that agreed by all three?
    Mr. Turley. Well, I would----
    Mr. Issa. I heard your answer, Ms. Foley, at one point. 
But, Mr. Turley, in general, if I were to object to the 
President's executive order, or to Gina McCarthy's at EPA 
action, I would not in the ordinary course have standing as an 
individual Member. Is that correct?
    Mr. Turley. As an individual Member.
    Mr. Issa. And this Committee, if it were to find that the 
President's actions were inconsistent with the Constitution or 
with existing law, they would not have predictable standing.
    Mr. Turley. That is where I would quibble a bit because I 
have long taken the view that Members do have inherent 
standing. And also we have had, particularly in subpoena cases 
where standing of Committees have been recognized.
    Mr. Issa. No, and I have one out in Fast and Furious. Mr. 
Conyers had one in Harriet Miers. So we are two people who 
believe in Article 1 power. So let me ask the follow-up final 
question. It is only one question of this entire line. If we 
either or do not have standing, in your opinion, does the 
Congress have the ability through statute to give itself 
explicit standing to go to Article 3 to resolve such disputes 
as we shall determine in statute? In other words, by statute do 
we have the ability to give ourselves standing on behalf of the 
American people?
    And let us presume for a moment that the standing was based 
on a house, a house of Congress, as Mr. Conyers and I did each 
during our time, where only one house made a determination and 
was granted standing in the district court to have it decided. 
His was decided and mine is in the process of being decided.
    From a statutory standpoint, which is really the 
constitutional question, do you believe we have the ability to 
pass a statute which would then explicitly give ourselves 
standing? And let us just use executive orders, even though I 
would anticipate that the regulatory process that often leads 
to regulations or rules which are inconsistent with our belief 
of what the law says. Do you believe we can give ourselves 
standing through statute explicitly?
    Mr. Turley. If the question is to me, I do believe that. 
Whether the courts would accept it--there is obviously 
hostility toward it. I would simply hasten to add that when you 
look at standing, you have to look at two different barriers 
that are presented by the courts. One is Article 3 cases, and 
one is called prudential principle cases. On prudential 
principles, this body can do a lot in advancing a claim of 
standing. In terms of the interpretation under Article 3, you 
cannot statutorily change the meaning of Article 3 as set by 
the Supreme Court. Only the Court can do that absent a 
constitutional amendment.
    Mr. Issa. Okay. Well, I want each of you to be able to 
answer briefly. But you are both familiar, I presume, with the 
Harriet Miers, the Bates case, and now with Amy Berman Jackson, 
her decision to grant standing and to find that the executive 
branch cannot assert that the court, Article 3, lacks the 
ability to decide differences of opinion between our bodies. 
Would you then say that at least we have the ability to pass a 
statute, and that they would have to give it similar 
consideration?
    Mr. Schroeder. Well, purely as a predictive matter, no. I 
think you have drawn an apt distinction between the ability of 
this body to enforce its own internal legal processes against 
the executive. I would distinguish those situations versus a 
disagreement with the President over how the laws that apply to 
the citizens of the United States are being interpreted. But 
that is just my predictive reading of the cases. It is worth 
what you are paying for it. I mean, ultimately it is going to 
be decided by a court, and whether the three of us agree or 
disagree, is not going to----
    Mr. Issa. But you would agree, and, Mr. Gohmert, I will go 
quickly to you. I apologize. You would agree that it is only a 
question of standing because ultimately it is a question of 
whether you are an injured party and have standing, and whether 
or not each of us representing 700,000 people and collectively 
representing 318 million people, have standing on behalf of one 
or more of those people that may be affected. That is the only 
question before the Court.
    Mr. Schroeder. Right. Ultimately a question of standing, 
there are two problems. One is the peculiar jurisprudence with 
respect to the legislature suing. I read those cases to say 
essentially the lawsuits are allowed when it is a question of 
process. Is there some ambiguity in the process by which a law 
is being followed through the tracks to get to enactment or not 
that is ambiguous to justify a lawsuit? So can the lieutenant 
government in Kansas be involved in a constitutional amendment 
decision, or does the Constitution prohibit that, and it made a 
difference as to whether the resolution was adopted or not?
    Mr. Issa. Thank you. Mr. Gohmert, thank you. You are 
recognized.
    Mr. Gohmert. Thank you, Mr. Chairman. And, Mr. Chairman, I 
am going to follow up on your questions. I am just going to 
read from Article 3, Section 1, so we all know what we are 
talking about. ``The judicial power of the United States shall 
be vested in one Supreme Court and in such inferior courts as 
the Congress may from time to time ordain and establish.'' 
Congress has the power to create district courts. If we want to 
create more district courts, we could do so. Does everybody 
agree with that?
    Mr. Schroeder. Yes.
    Ms. Foley. Absolutely.
    Mr. Gohmert. And we have the power to create more Federal 
circuit courts, Federal appellate courts, if we wish, correct?
    Ms. Foley. Yes.
    Mr. Gohmert. We have the right to eliminate district and 
appellate courts, correct?
    [Nonverbal response.]
    Mr. Gohmert. You all are nodding your heads. I take that as 
an affirmative answer.
    Ms. Foley. Yes.
    Mr. Schroeder. Right. There is a little problem at the 
margins about totally denying a remedy of a citizen for due 
process or other constitutional problems. But absent that, yes.
    Ms. Foley. And assuming concurrent jurisdiction by state 
courts, you would not have a due process problem. So, yes.
    Mr. Gohmert. Well, but actually there is only one court we 
cannot eliminate, and that because it is created in the 
Constitution, and that is the Supreme Court, correct?
    Ms. Foley. Correct.
    Mr. Schroeder. Right.
    Mr. Turley. Although you do have the power to add members 
to that Court.
    Mr. Gohmert. Yes, we do have the power to add members to 
that Court if we wish. I agree with you, and that has been 
tried, and I am glad it was not successful.
    But I come back to this: if we have the power to create 
courts, whether we call them district courts, or immigration 
courts, or tribunals, or whatever inferior courts that we 
choose to create, then following up on Chairman Issa's 
question, why would we not also have the power to say what 
standing would be allowed in the court that we create? Any of 
you.
    Ms. Foley. Well, actually I think it is because the 
relevant language of the Constitution is not Article 3, Section 
1, but Article 3, Section 2, which extends the judicial power 
to certain cases and controversies, including cases that arise 
under the Constitution, treaties and laws of the United States, 
and cases between citizens of diverse States. So in 
interpreting----
    Mr. Gohmert. But if we eliminate every court but the 
Supreme Court, which we can do, and let them hear the Section 2 
issues, then we should be able to create courts and say these 
courts will give standing to these litigants. We do that with 
immigration courts. We have done that with Uniform Code of 
Military Justice creating military courts or courts martial. So 
I know very intelligent people get to argue, well, you have the 
language of Coleman, and then the Raines position and all.
    But I am saying if you stand on the Constitution alone, I 
do not understand how Congress would not have power to say we 
are creating these district courts, and you will give standing 
to Members of Congress, whether it is one who voted for or 
voted again a bill, or whatever. Whatever we chose to say, 
these have standing, understanding that we cannot change the 
powers of the Supreme Court to hear the things in Section 2.
    Just because the Supreme Court has the power to hear the 
things in Section 2 does not mean that every court we create 
has to hear all of those things in Section 2. Is that not 
correct? Otherwise, we could not create immigration courts, or 
courts martial, or district courts, correct?
    Ms. Foley. With respect, I think you are actually incorrect 
about this, and let me just briefly explain. The courts that 
you are referring to are non-Article 3 courts. You are right in 
the sense that certainly constitutionally only the U.S. Supreme 
Court has to exist. What would happen if Congress exercised its 
power to----
    Mr. Gohmert. What power do we have to create courts other 
than Article 3?
    Ms. Foley. Correct.
    Mr. Gohmert. I know we have power over immigration and 
things like that under Article 1.
    Ms. Foley. Article 1.
    Mr. Gohmert. But under Article 3 is where we derive our 
courts power, correct?
    Ms. Foley. Right. So let us say Congress used its power and 
eliminated all district courts and U.S. courts of appeal, as 
you are hypothesizing. What would happen? What would that world 
look like? Would the U.S. Supreme Court be able to hear direct, 
immediate trial, essentially, of congressional standing? And 
the answer, I think, has to be no.
    I hope everyone on the panel will agree with me here 
because under Article 3, Section 2, the Supreme Court has 
original and appellate jurisdiction. It only has original 
jurisdiction under Article 3, Section 2 for a very narrow 
category of cases.
    Mr. Gohmert. That is correct.
    Ms. Foley. And what you are hypothesizing would not be an 
exercise of appellate jurisdiction, but original jurisdiction. 
And this standing lawsuit that you are hypothesizing would not 
be an exercise of appellate jurisdiction, but original 
jurisdiction. For example, Article 3, Section 2 says the 
Supreme Court has original jurisdiction over cases involving 
ambassadors, public ministers, and consuls, I believe, and that 
is it, right? Is there anything else there that I am missing? 
That is it.
    Mr. Gohmert. Well, I could read it to you, but my time has 
expired, and I am still looking for an answer to my question.
    Ms. Foley. So, no. So the answer would be, no, you could 
not eliminate the courts and allow the Supreme Court to hear--
--
    Mr. Gohmert. I am not wanting to eliminate any courts. I am 
saying that by implication, if we can create a court, we can 
also create that court's jurisdiction, understanding the limits 
of Section 2 for the Supreme Court.
    Ms. Foley. And I am respectfully disagreeing because under 
the Constitution, the Supreme Court can only hear original 
jurisdiction cases as a trial court in very narrowly-defined 
categories. It otherwise can only exercise----
    Mr. Gohmert. You are still talking about if we eliminated 
all of the courts, and I am not talking about that. I do not 
want to eliminate the courts. I am talking about the power of 
Congress, if we have the power to create a court, then we have 
the power to say which courts will hear which disputes.
    Ms. Foley. And I am telling you that I do not think that is 
correct.
    Mr. Gohmert. We could divide up the district courts and say 
these can hear these disputes, these can hear these disputes, 
correct?
    Ms. Foley. No, only for non-Article 3 courts.
    Mr. Gohmert. We do not have power to say what the 
jurisdiction is of a district court----
    Ms. Foley. No, you have----
    Mr. Gohmert [continuing]. And that they will have 
jurisdiction to hear appeals from bankruptcy court? We do not 
have the power to say that?
    Ms. Foley. If you are asking the basic question could you 
give standing to an Article 3 court, a lower Article 3 court 
now that you are not hypothesizing----
    Mr. Gohmert. Well, you said no when I said----
    Mr. Issa. The gentleman's time has expired.
    Ms. Foley. The answer I gave was no.
    Mr. Gohmert. Well, she said that I was wrong about an 
issue, and I want to establish that when she said I was wrong 
about us being able to split up the district courts and give 
some district courts some authority, other district courts 
other authority, we have the power to do that. And when you 
said I was wrong, you were inaccurate. You were going back to 
your assessment over standing, correct?
    Ms. Foley. I am sorry. I must have misunderstood your 
question. However, if you are asking can the Congress give 
jurisdiction to the court to establish standing, the answer is 
clearly no.
    Mr. Gohmert. I asked does Congress have the power to divide 
district courts----
    Mr. Issa. Would the gentleman yield the time he does not 
have for just a moment?
    Mr. Gohmert. Sure.
    Mr. Issa. Under Justice Breyer, the Fed Circuit was created 
to hear appellate of patent and trademark. And Justice Breyer 
has very publicly said that perhaps he should have created 
special courts, Article 3 courts, to consider them. So would it 
be reasonable to say, on behalf of Mr. Gohmert, that that type 
of decision of what kinds of cases go to what kinds of courts 
and what appellate process is at least proven in the case of 
the Fed Circuit to be in law and well recognized?
    Ms. Foley. That is correct, but I understood that the 
congressman was asking could you give the court standing. And 
the answer would be no.
    Mr. Gohmert. Well, I have moved onto other questions.
    Mr. Issa. And we will now move onto the gentleman----
    Mr. Gohmert. And I appreciate the Chairman's indulgence for 
giving me almost as much time as he took.
    Mr. Issa. No problem at all. Mr. Poe will forgive you in 
time. The gentleman from Texas is recognized.
    Mr. Poe. Thank you for being here. I enjoy and think it is 
quite worthwhile for us to engage in conversation about the 
Constitution. We ought to do more about that.
    I want to cut to the chase. The Congress has given under 
the Clean Water Act, if I understand it correctly, a cause of 
action to, let us say, environmental groups under the Clean 
Water Act so they can go to court. What if we use that same 
analogy--I am not talking about standing--cause of action. 
Congress receives under legislation a cause of action to sue 
under the concept of a violation of the law regarding this 
issue of executive orders. I did not frame the question very 
well, Professor Turley, but you could frame it better and then 
answer it for me.
    Mr. Turley. No, it is framed perfectly well. And the 
problem is that unfortunately all these roads end up back at 
Rome. You know, you can create those causes of action. You can 
create what are called private attorneys general in statutes 
like the Clean Water Act. But the Court has placed an overlay 
on that question that said even if you satisfy the standards of 
the statute, you must still establish for us that we have 
Article 3 standing.
    Now, I think that the Court has really made a mess of this 
in that it is almost incomprehensible as you look at all these 
cases of what they are meaning, including the recent Windsor 
decision, which was splintered all over the place on standing. 
And I am still not quite sure what Justice Kennedy ultimately 
found standing on. But I will note that standing was found by 
Members of Congress in the Blagg organization, and that was 
from one house.
    So the answer is the Supreme Court has said no matter what 
Congress does, we have to be satisfied that there is a case or 
controversy under Article 3. Now, to make things even tougher, 
because of Marbury v. Madison, the Court has always said we 
alone are the final interpreter of Article 3. So the end result 
is what they say Article 3 is is what Article 3 is until we can 
get them to change their minds.
    But what Congress can do is to maximize the ability to get 
standing under an alternative basis, which is called prudential 
principles. Now, that will not negate the Article 3 
limitations, but the Court has recognized that it can grant 
under prudential principles standing. And notably in the 
Windsor decision, the Court did say that they felt that really 
they had to grant those because of the abandonment of the 
defense of the statute--in this case, DOMA--by the 
Administration. And they needed to guarantee an adversarial 
process.
    Mr. Poe. I have two more questions, so I had better make 
them quick. I do think, however, on the cause of action that 
may get us to the courthouse front steps as opposed to not even 
getting there. Same situation is going on. I mean, Congress has 
become, I think, because of the executive orders, you know, the 
whim of this Administration. It could be the whim of any 
Administration of whether they are going to ignore the law or 
write its own law.
    Let us switch to the judiciary branch, which is supposed to 
be the weakest branch of government if I remember my 
constitutional law history that you all taught us. What if the 
judicial branch in a lawsuit, hypothetical lawsuit--you all 
love hypotheticals--the judicial branch, the Supreme Court 
rules that the Administration cannot do this, and the 
Administration ignores the judicial ruling of the Supreme 
Court. Oh, I am going to use my pen and phone and just ignore 
the judicial ruling of the Supreme Court. What is their remedy? 
If we do not have a remedy, what is the Supreme Court's remedy?
    Mr. Turley. Well, of course, that is the question that I 
believe President Jackson asked when he asked where is your 
army to the chief justice of the United States.
    Mr. Poe. You made your ruling, now you enforce it.
    Mr. Turley. That is right. And so fortunately, this country 
has been committed to the rule of law, and presidents have 
rarely taken that position. In terms of the enforcement, it 
would be left to Congress that has the most direct ability to 
combat the other branch.
    And, you know, Madison assumed that in these fights, the 
branches would jealously protect their own authority, but they 
would be equally worried about authority being taken from 
another branch by a third branch because they want to prevent 
the concentration of authority.
    Mr. Poe. Last question briefly. You mentioned impeachment 
in your written testimony, Professor Turley. Quick comment 
about what you think that might be as an alternative.
    Mr. Turley. You know, I testified at the Clinton 
impeachment and I was the lead counsel in the last judicial 
impeachment, so I am very leery of even mentioning that word.
    Mr. Poe. But you did. [Laughter.]
    Mr. Turley. Well, the reason I did is because courts 
routinely, almost as a mantra, refer to the power of the purse, 
legislative oversight, and impeachment when they say checks and 
balances on the President. I don't believe impeachment is a 
solution here because courts have really enabled the President 
in this sense by creating ambiguous standards where he can 
claim that he believes he is acting within the law.
    But more importantly, we will be in seriously bad shape if 
impeachment is the only remaining check and balance. It is like 
running a nuclear plant with an on/off switch. We cannot do it, 
and it will not bring stability to our system.
    Mr. Poe. Thank you very much. I yield back.
    Mr. Goodlatte [presiding]. The Chair recognizes the 
gentleman from Pennsylvania, Mr. Marino, for 5 minutes.
    Mr. Marino. Thank you, Chairman. Welcome, everyone. It is 
good to get involved and engage in this debate.
    First of all, let me preface my statements and my questions 
by saying I am displeased with executive orders that past 
presidents have executed, Republicans and Democrat, but I was 
not in Congress at the time. I am in the Congress now, and I am 
very displeased with what is taking place in the executive 
branch.
    Professor Schroeder, you are one of three authors in 
Keeping Faith with the Constitution. And I have not read the 
entire book, but I have looked through passages of it, and I 
was impressed by what the three of you agreed to. And I am just 
going to cite some things here.
    It says, ``The authors have described what they call 
constitutional fidelity, a principle that serves not only to 
preserve the Constitution, meaning over time--but here is the 
line I think is critical--``but also to maintain its authority 
and legitimacy.'' And there is no doubt in my mind that from 
the heart and soul that you mean that.
    I do have concerns about at what point do you draw the line 
at discretionary implementation of the law? I was a prosecutor, 
a Federal prosecutor, and a district attorney for 18 years, and 
I know the authority that I had. But that authority was based 
on that precise case given the fact that there were specific 
instances or lack thereof that would determine whether I would 
prosecute or not prosecute. Are you saying that the President 
has the authority to elevate that in a broad stroke? For 
example, do not pick up illegals or detain them coming from the 
President to the Attorney General. Do not implement parts of 
the healthcare program. The Attorney General, which I am sure 
was through the direction of the President, telling States' 
attorneys general not to enforce certain laws if they do not 
like them.
    So, sir, I ask you, where do you draw the line, and that is 
a broad group, not a specific case. I took an oath as a 
prosecutor, but it was all based on specific facts, the facts 
of that particular case. So could you please address that, 
where you see the distinction?
    Mr. Schroeder. Well, Congressman, thank you. I certainly 
agree with you entirely that when you are sitting as a 
prosecutor and a case file comes before you or you have got to 
make a judgment in consultation with an FBI agent or other law 
enforcement agent as to whether is sufficient evidence to 
proceed, you may make a judgment on an individual basis, well, 
I think there is sufficient evidence to proceed, but I would 
rather put the office's priorities someplace else. That happens 
inevitably on a case-by-case basis.
    But presidents and attorneys general make these kinds of 
decisions all the time. Look what happened after September 
11th. The entire FBI pivoted to combat terrorism. They 
converted thousands and thousands of agents into 
counterterrorism agents. The JTTFs and the U.S. attorneys' 
offices in all of the hot spots that people were worried 
about----
    Mr. Marino. I was part of----
    Mr. Schroeder [continuing]. Focused like a laser beam. At 
the same time that was happening, other crimes, and people have 
criticized the Department for this. White collar crime 
prosecutions went way down. All kinds of prosecutions that 
before the FBI was investing resources in investigations that 
would lead to prosecutions were neglected. Those kinds of 
reallocation decisions are made all the time.
    Mr. Marino. Yes, but that is where I disagree with you. 
They were not neglected. Priorities were established.
    Mr. Schroeder. Priorities were established, exactly.
    Mr. Marino. But they did not say I am not going to 
prosecute these white-collar crimes because I do not believe 
they should be prosecuted. So are you going to allow the 
Attorney General or the President or states' attorneys to say, 
okay, I am not going to prosecute sex crimes when it involves a 
16-year-old and an 18-year-old because I think the 16-year-old 
is capable of making that decision? That is not the intent 
behind that. And the President and the attorneys general are 
just as responsible for criminal laws and civil laws, not 
painting it with a broad brush.
    There was a statement that you made in your opening 
statement, or at least when I read through this, you said, 
``While I have not examined all the statutes relevant to the 
recent Administration's actions on this point, I am not aware 
of any statutory restrictions on enforcement discretion that 
bear on those actions.'' My question to you is then how can you 
come to the conclusion that you have without exhausting all the 
relevant recent Administration actions. That would be like you 
saying to a law student who you ask a question, and they gave 
you an answer. And you asked them, well, did you forget about 
this particular research? Well, yes, I did. Well then, I do not 
want to hear your answer.
    Mr. Schroeder. Congressman, I agree with you entirely. I 
did not intend to, and I hope I have disclaimed appropriately, 
I do not mean to here offer you a final definitive legal 
conclusion on any of these actions. Some of them may be without 
the boundary. I was trying to indicate in my testimony that 
they have plausible justifications rooted in traditional 
exercise of prosecutorial discretion and understandings of the 
appropriate statutes. We would have to dig into them to see if 
those justifications are warranted.
    Mr. Marino. Okay, and I accept that, and I thank you. I 
like that response, and I do appreciate that response. So Has 
my time run out? I am color blind. I cannot tell what is going 
on over there. All right. I guess my time is up. Thank you so 
much. I yield back.
    Mr. Goodlatte. That is the best excuse I have heard so far. 
[Laughter.]
    Voice. I am going to use that.
    Mr. Goodlatte. So for any other Members of the Committee 
that are suffering from this same affliction, the red light is 
the one on the left. [Laughter.]
    But the Chair now recognizes the gentleman from South 
Carolina, Mr. Gowdy, for 5 minutes.
    Mr. Marino. I have a little dyslexia, too.
    Mr. Gowdy. Thank you, Mr. Chairman. I want to take a quick 
survey of executive power for those that are watching from home 
and hope that my old con law professor is watching from 
whatever nudist colony he retired to. [Laughter.]
    A president can veto legislation for any reason or no 
reason. A President can, through his or her attorney general, 
fail to defend the constitutionality of a law or portion 
thereof, even if that same president signed the very law into 
existence. A president can invite suit against a law and then 
fail to defend its constitutionality. A president, under some 
curious definition of prosecutorial discretion, can fail to 
enforce certain laws, even though money has been appropriated 
and there has been no challenge to its constitutionality.
    And Professor Schroeder used a new test called good faith, 
which I have not heard previous to today. That, in essence, Mr. 
Chairman, is a second veto, but it is more insidious than the 
first veto because now you can pick certain portions of a law 
and enforce it and ignore other portions even if the bill was 
only passed because of a compromise between competing 
positions. The president can pardon offenders even before they 
are indicted or prosecuted. And individual Members of Congress 
have no standing under Raines. We may or may not have standing 
under Coleman based on vote nullification and institutional 
standing.
    So, Mr. Schroeder, it seems to me that if you like part of 
a law, enforce it. If you do not, do not enforce the rest. You 
used the phrase ``good faith.'' I want to ask you this: what is 
the mandatory minimum for possession of 5 grams of cocaine 
base?
    Mr. Schroeder. I do not know, Congressman.
    Mr. Gowdy. It is 5 years, and it is set by statute. So the 
judicial branch has to follow that. The judicial ranch would 
never entertain the thought of saying even though there is a 
mandatory minimum, we are going to ignore it. So tell me how 
the Attorney General can.
    Mr. Schroeder. Well, Congressman, I think a lot of the 
discussion about non-enforcement of the law is focusing too 
much on the donut hole and not enough on the donut.
    Mr. Gowdy. With all due respect, Professor, you talked 
about immigration, and you talked about healthcare. I am 
talking about mandatory minimums. They could not be more clear. 
The legislative branch has the power to set the minimum and the 
maximum. And rather than this Attorney General doing what he 
should have done, which is say, you know what, I disagree with 
the law, I am not going to enforce any narcotics laws because 
all 50 States have concurrent jurisdiction in narcotics, he 
wants the best of all worlds. He is going to continue prosecute 
narcotics cases, just not tell the court what the drug amount 
is, thereby getting around the law. How does he do that?
    Mr. Schroeder. Congressman, I am sorry. I am not familiar 
with that decision that the Attorney General made that you are 
describing. I would be happy to take a look at it.
    Mr. Gowdy. Trust me. Even though I am a lawyer, trust me. 
He has said he is not going to inform the courts anymore about 
the drug amount because he disagrees with mandatory minimums. 
How is that the proper exercise of prosecutorial discretion? 
That is rewriting the law, Professor.
    Mr. Schroeder. Congressman, I would very much like to be 
able to answer your question. I am not going to be able to 
answer it until I look at the specifics of the situation. I 
just apologize for not being that thoroughly versed on this 
particular issue.
    Mr. Gowdy. All right. Well, let me ask Professor Turley. If 
he can do that with drug laws, why can he not do it with 
election laws?
    Mr. Turley. Well, I think that it really does hit the nail 
on the head. I mean, the problem with the Administration's 
argument is that it just simply proves too much. It would 
effectively make all of the separation of powers principles 
discretionary. And I do not see how you could possibly ascribe 
that purpose to a group of men who were remarkably pragmatic 
and practical. These are people that spent a lot of time trying 
to create balances and checks between the branches.
    This is the last group of people that would say, you know, 
we have this massive apparatus in Article 1 and Article 2 and 
Article 3. But in the end, it really will come down to the 
President making this decision. These are the last people that 
would say that.
    And I also believe they would feel the same way about the 
idea that we have plenty of cases now where the Court seems to 
say virtually no one has standing to bring up a constitutional 
violation. That is the reason I think a lot of the solution is 
right here in front of this table. Members of Congress are a 
relatively small group of people that, in my view, have all the 
elements of people that should have standing. We usually limit 
standing to parties that can present the best case, the ones 
that have the greatest interest. When it comes to separation of 
powers, these Members have the greatest interest. They have 
skin the game.
    Mr. Gowdy. I think the Court signaled that in Raines. The 
Court said this in dicta. We attach some importance to the fact 
that the House has not authorized this group to represent them, 
which I read to mean that perhaps if the House does authorize a 
group to represent them, and that is in Raines, not in Coleman.
    I know I am almost out of time, Mr. Chairman. Can I ask 
Professor Foley one question? It is quick, I promise.
    Mr. Goodlatte. Without objection, the gentleman is 
recognized for 1 additional minute.
    Mr. Gowdy. What happens if there is a technical violation 
of Miranda? Even though you got the right person, you know they 
committed the crime, but the police just failed to say, you 
know what, you can stop answering questions any time you want? 
What is the remedy for that for those watching at home?
    Ms. Foley. The exclusionary rule.
    Mr. Gowdy. Right, even though we have got the right person. 
In other words, to Professor Turley's point, I like the policy, 
but the process you used is wrong. And it is the same with 4th 
Amendment, and it is the same with the 5th Amendment. We are 
going to kick out evidence, and we are even going to let people 
we know are guilty go because we value process, and the end 
does not justify the means.
    So to your point, Professor Turley, that you agree with the 
policy, but you dispute the method by which this Administration 
is achieving it, I salute you, and I wish more of my colleagues 
cared enough to do the same. And with that, I would yield back.
    Mr. Goodlatte. The Chair thanks the gentleman, and 
recognizes the gentleman from Idaho, Mr. Labrador, for 5 
minutes.
    Mr. Labrador. Thank you, Mr. Chairman. And actually to 
follow up on this last comment from Mr. Gowdy, Mr. Turley, I 
appreciate you being here, and I appreciate the courageous 
stance that you have taken. In fact, I found it interesting 
after your last testimony the last hearing that we had how much 
you got attacked in the media. And I want you to explain what 
you went through because there was even a moment where actually 
a reporter who is here today just went off about the 
impeachment part of our hearing when there was only maybe one 
sentence uttered about impeachment in an entire 4- or 5-hour 
hearing. Could you go through a little bit?
    Mr. Turley. Well, there was certainly a lot of anger, and I 
am just talking about within my family. [Laughter.]
    I come from Chicago, a really staunchly Democratic and 
liberal family, so it has been months since I returned to the 
house. The fact is I realize that this is an area fraught with 
passions and politics and people feel very deeply about it. 
Many people feel that I have, you know, sort of betrayed folks 
that I usually work with.
    And in all truth, even though I have written and taught 
about separation of powers for many years, I have to admit that 
on some occasions when President Obama has done things that I 
liked--and I will list one, you know, the greenhouse gas 
regulations--I privately was glad he acted, and then I had to 
sort of catch myself because I did know that Congress had 
rejected some of those measures. And what is being implemented 
is a massive new regulatory scheme.
    And the fact is, even though I agree with the President in 
that area, this is a prototypical example of something that 
Congress needs to weigh in. And all of the passions that we 
have seen here is precisely why this is the institution that 
has to make the decisions. It is not enough to say I agree with 
what he has done, and it is certainly not enough to say this 
would not have happened if you had just done what the President 
told you to do.
    Mr. Labrador. Which is what I am hearing here. I have heard 
Mr. Schroeder say it. I have heard several of my colleagues say 
that if you would have done what the President told you to do, 
he would not have needed to act in the manner he acted. That, 
to me, sounds so dangerous. Why do you think, Mr. Turley, that 
that is dangerous for the future of this country?
    Mr. Turley. Well, what I would say to those that I often 
work in the environmental field and other areas where I happen 
to agree with the President, I believe that in time people will 
loathe the day that they remained silent during this shift of 
power. There will be a future president you do not agree with. 
And just as some laws are being negated or delayed or nullified 
today, the next round of laws may be something you care more 
deeply about, and that is what the framers warned us about when 
they said we are giving you not solutions. We are giving you a 
process, and this is the all-terrain vehicle of constitutional 
systems. It has been through everything.
    It is not a particularly beautifully written Constitution. 
Anybody who has said that has never read it. It was written by 
a wonk. You want a beautiful Constitution? Read some of the 
French constitutions. There are lots of them because they 
failed repeatedly. Our Constitution was written by practical 
people, and it has served us well. I do not think it is asking 
a lot of this institution to pass along that Constitution in 
the same shape that you inherited it.
    Mr. Labrador. Ms. Foley, you spoke one moment about the 
dangerousness of the magisterial power, and I do not think 
people understand what that means when you talk about a 
magistrate. What is the difference? Why is it dangerous to 
actually have magisterial power?
    Ms. Foley. Well, I mean, it is basically, you know, why we 
revolted against Great Britain, you know. We were concerned 
that we had a monarch who basically could suspend our laws and 
do what he wanted to do. When you get to the point where the 
only limitation on the President's, or the only definition of 
the President's, duty to faithfully execute the laws is what 
Mr. Schroeder suggested, which is sort of an overarching idea 
that the President has to act in good faith, I do not know what 
that would mean. I have no idea how anyone would enforce that. 
And what that is is, you know, effectively having a monarch.
    Mr. Labrador. Which is the danger of this. And, in fact, I 
believe--I have been a Member of the Tea Party. I think the Tea 
Party arose because there was a frustration with not having 
spoken up during the Bush years. And many people who were 
upset, like myself, that we did not say enough because Bush 
over exerted his constitutional authority. And we actually 
stood silent because it was our President who was doing it. And 
I think it was not necessarily an attack on the new President. 
It was a frustration that many of us had that we did not say 
enough, and I think that is why many of us are saying now.
    One last question for Ms. Foley and Mr. Turley. Can you 
please explain, because I have heard again and again 
prosecutorial discretion? And apparently there seems to be a 
misunderstanding of what prosecutorial discretion is. The 
people on the other side seem to think that if the 
Administration just decides there are three or four things that 
they have to comply with, then that is prosecutorial 
discretion. That is not the way I understand it.
    Ms. Foley. It is not the way I understand it either because 
think about what the President has done in the Dream Act 
situation, right? He has created a whole new category of people 
who are not deportable. And basically what this is, it operates 
as a blanket waiver for these particular people. And I believe 
it was Congressman Gutierrez when he was here earlier, he was 
the one who made the point that, you know, this is a case-by-
case adjudication. Well, it is only case-by-case if what you 
mean is that the President's people are checking to make sure 
that the President's boxes are checked. That is not what most 
people think of when they talk about prosecutorial discretion.
    Mr. Labrador. Mr. Turley?
    Mr. Turley. I have to agree with that. And my problem with 
the argument of prosecutorial discretion is that when I listen 
to the arguments, my question is, if that is prosecutorial 
discretion, what is not prosecutorial discretion? It would seem 
like everything would be prosecutorial discretion.
    Now, we can call a raven a writing desk. We can use 
whatever terms we want. But I cannot see how what is clear acts 
of circumvention of Congress can simply be forgiven in the name 
of prosecutorial discretion.
    Mr. Labrador. Thank you very much. I yield back my time.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Iowa, Mr. King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I thank the Chairman for 
holding this hearing. I would point out as I observed the first 
four witnesses, they are Republicans, and I had also observed 
that likely there was an offer made to the minority party to 
bring a Member forward that might have had some legislation to 
protect this Constitution. But I am sure they would have voiced 
that concern if they had had someone to offer.
    But here as I listen to each of the presenters of the 
Members who have drafted legislation to fix this issue, I was 
engaged by each one of their testimony and their presentation. 
But when I got down to the end of it, I had to kind of do an 
exhale of despair because it circled back around to Congress 
passes another law that tells the President to now follow and 
obey a new law.
    And so, it should be obvious to all of us by now that there 
is unlikely any law that we could possibly pass here in the 
Congress that is going to compel the President to enforce it 
unless it is to his political interest to do so. And I will say 
that is one thing that we can count on the President to do with 
regard to keeping the portions of his oath, and that is if it 
is in political interest and his philosophical interest, he 
will enforce it. If it is not, then he will look at the 
consequences, which might be a public pushback of great enough 
magnitude that it could be embarrassing.
    I think one of those points would be when in Obamacare, the 
conscience protection did not adequately protect, especially 
the Catholic church, but our religious institutions, and he was 
compelling them to provide contraceptive, abortafacients, and 
sterilizations, which was a direct violation of the principles 
of not just the Catholic church, but many other religious 
institutions. And individuals should stand in the same shoes, 
by the way.
    And so, the President did a press conference at noon on a 
Friday and he said, well, now I am going to make an 
accommodation to the religious institutions, and I am now going 
to require the insurance companies instead to provide these 
services--he called them services--for free. He repeated 
himself, for free. And if you scoured the rule that was written 
by Sebelius' HHS, there was not a letter changed in that rule. 
The President had spoken orally in a press conference, and the 
insurance companies lined up to do his will and his bidding. 
That was a chilling thing to witness as a sworn to oath to 
protect the Constitution Member of Congress.
    So all of this that we might do to pass legislation is not 
the answer. Things we might to do to cut off funding leaves us 
vulnerable to, oh, intradepartmental transfers of 
appropriations or even interdepartmental transfers of 
appropriations. That threshold is the patience of the public. 
And now we are talking about going to court and figuring out 
how to get standing because maybe Article 3 will save us. Well, 
they are the creatures of Congress. We could abolish them, I 
suppose, if they do not do the will and the bidding of 
Congress, everybody but the Supreme Court.
    But in the end, what if the President has the same level of 
disrespect for Article 3 as he does for Article 1? What if he 
wraps himself in the cloak of ``I have spoken and there is 
nothing you can do about it?'' And we have used the ``I'' word 
here, and we know that it is an impractical tool in this room. 
I was not a Member of Congress, but I know exactly where I sat 
back there behind David Schippers when he delivered the summary 
of the prosecution in the impeachment of Bill Clinton. And it 
went over to the United States Senate where we did not get 
constitutional justice out of the Senate. What we got instead 
was one vote that wrapped up all questions of whatever kind of 
violations the President might have had. And then into that 
question was should he be removed from office.
    We have Harry Reid as a shield in the Senate, so now all of 
these provisions that our founding fathers have laid out, if 
they did anticipate the circumstances, they could neither come 
up with a solution that they could write into the Constitution 
to offer to us.
    So I want to ask this question and go down to the line, 
first with Professor Turley. And that is, if the President 
shows the same level of disrespect for the judicial branch as 
he does for the legislative branch of our government, and 
refused to abide by a court, should we grant ourselves standing 
and somehow maybe overturn the veto of a President that would 
refuse to give us standing? What next is our recourse? And I 
think that is the question we should ask, but bleep through 
that. I know we are linear thinkers here, but we need to leap 
to what is our recourse if the legislative and the judicial 
branches of government are disrespected to an equal level, and 
the President is wrapped completely in the cloak of ``I am 
President; therefore, I can do what I want?"
    Mr. Turley. Well, what you are describing would be tyranny 
if it went that far. Then we would have issues of removal. But 
I do think that you have avenues which you can pursue. I 
complement those that are focusing on standing and focusing, 
for example, on litigation abandonment issues of defending 
statutes.
    I do not believe that the book is closed on Member 
standing, and I do not agree that it is so clear that Members 
do not have standing. Having litigated this issue for Members, 
I think there is room that can be expanded upon. That is the 
reason I think these are good ideas.
    But when you are talking about, well, what happens if all 
the safeties go off, you know, do we have the sort of meltdown. 
And the answer is that the framers, I think, assumed that there 
would always be two branches aggrieved by any aggregation of 
power in the third branch; that in the desperation of the 
separation of powers, you find alliances. What I think they 
never anticipated was the degree to which the judicial branch 
would be absent without constitutional leave on this issue. But 
I am hoping that that will change.
    Mr. King. Thank you. Professor Schroeder? Mr. Schroeder?
    Mr. Schroeder. Congressman, thank you. As you can imagine, 
I part company with you at the articulation of the problem. I 
think if you look at the President's actions that are being 
controverted, one by one, you will see that each and every one 
of them is justified argumentatively by application of 
statutory law. So I do not accept the proposition that the 
President is disrespecting this body.
    He came into office trying to distance himself from 
President Bush, who did say on some notable national security-
related questions that he had the ability to override----
    Mr. King. You are not going to contemplate my hypothetical 
then, Mr. Schroeder?
    Mr. Schroeder. Because I do not think we are in that 
situation. Were we----
    Mr. King. Since we are actually out of time then, I would 
just thank you and ask if Ms. Foley could respond. Thank you.
    Mr. Schroeder. Yes, thank you.
    Ms. Foley. Yes. I mean, it is a great and scary question. 
You know, if the President does not appreciate Congress' 
constitutional prerogative to make the law, and if courts are 
not willing to defend that constitutional prerogative because 
of standing or whatever issues, or maybe Congress itself is too 
hesitant to even challenge the President in court----
    Mr. King. Or if the President does not honor a judicial 
decision.
    Ms. Foley. Or if the President goes even further and does 
not even honor judicial decision, you know, the bottom line--
Jonathan is actually right--we are in tyranny. We do not have a 
constitutional republic anymore.
    Mr. King. Thank all the witnesses. And, Chairman, I yield 
back.
    Mr. Goodlatte. The Chair thanks the gentleman and 
recognizes the gentleman from Florida, Mr. DeSantis, for 5 
minutes.
    Mr. DeSantis. Thank you, Mr. Chairman. So just following 
up, Professor Schroeder, you said that the President's actions 
are justified by the applicable statutes. So for the Dream Act 
administrative amnesty, I think that is beyond prosecutorial 
discretion. You disagree. But where does the President get the 
authority to issue work permits for people who are in the 
country illegally when Congress has not even agreed to grant 
them legal status?
    Mr. Schroeder. Part of the regulations that the DHS has 
with respect to deferred action that have been on the books for 
a while, my understanding is, authorizes people who have been 
deferred to apply for work----
    Mr. DeSantis. So the regulation basically would trump the 
statute, which said they are not lawfully in the country. You 
would have to do that, correct?
    Mr. Schroeder. Well, in steps. Step one, what DHS is saying 
it has got longstanding authority, going back to 1975, to defer 
deportation actions. So that is step one. They claim they have 
that authority under the general discretionary statutes.
    Mr. DeSantis. But they are making a categorical 
determination.
    Mr. Schroeder. And then at step two, once you are in that 
category authorized by discretionary judgment, there are 
regulations, and if you looked at the regulations, they would 
back those up with references to the statute, authorized work 
authorization. So it is a two-step process.
    Mr. DeSantis. There is a distinction between regulations 
being asserted by an agency and what Congress has actually 
legislated definitely. But I take your point on that.
    You agree that this idea of if someone makes a criticism of 
the President acting one way to say, well, Reagan did 200 more 
executive orders, the number of executive orders tells us 
nothing about their quality, correct?
    Mr. Schroeder. Yes.
    Mr. DeSantis. Okay. And, two, most of the disputes that we 
are discussing are not formal executive orders. You can go to 
whitehouse.gov and look up executive orders--the mandate delay, 
the keep your plan, DACA. Those are not formal EOs with a 
number, correct?
    Mr. Schroeder. Correct.
    Mr. DeSantis. Okay. Professor Foley, well, first of all, 
part of the problem, I think, here is with respect to Obamacare 
particularly, these suspensions and delays are really designed 
for the President to help his political party in an upcoming 
election. I mean, this is not a notion of, oh, the statute is 
so complicated. They have had 4 years to impose these 
penalties. They obviously could do that. They are not doing it 
because they know if they were to do that there would be a 
political price to pay because the mandate would mean 
businesses would not expand or have a disincentive to expand. 
There would be an incentive to put people to 29 hours. And 
there was a cook who confronted the President directly about 
this at a Google town hall not too long ago.
    And so, that, to me, is why it is so problematic. I mean, 
it is not like they are just trying to kind of do it. They are 
doing it in a way to lessen the pain before this election and 
spread it out so they can evade political accountability for 
the decisions that they have made. And I just think that that 
is wrong.
    Let me play devil's advocate with you, Professor Foley, 
because, look, I mean, I am supporting kind of trying to do 
whatever we can. But in terms of enlisting the courts with 
this, you know, Hamilton said that the judiciary is beyond 
comparison, the weakest of the three departments. So the idea 
that they would kind of sit as a Mount Olympus and referee all 
these political disputes, I do not know that the Federalist 
Papers would necessarily justify that.
    And I would quote from Justice Scalia's dissent in the 
Windsor case, which concerns standing. It was a different 
issue, but he frames it like this, and I would just get your 
response. ``Congress must care enough to act against the 
President itself, not merely enough to instruct its lawyers to 
ask us,'' meaning the Court, ``to do so. Placing the 
Constitution's entirely anticipated political arm wrestling 
into permanent judicial receivership does not do the system a 
favor. And by the way, if the President loses the lawsuit but 
does not faithfully implement the Court's decree, just as he 
did not faithfully implement Congress' statute, what then? Only 
Congress can bring him to heel by, what do you think, yes, 
directly confronting the President.''
    So I guess my unease with it is it kind of seems like we 
are not really willing to do anything in Congress. I mean, we 
could withhold funding. The Senate could deny the President any 
appointments. They could say we are not going to consider any 
of these nominations until you start enforcing the law. So we 
have not really done anything in Congress, but yet we are kind 
of going to the courts basically hoping that they will bail us 
out.
    And again, like I said, I want to try whatever could be 
effective because I think we need to do checks, but I do not 
think from what Justice Scalia said that he would necessarily 
agree with going to the courts in this instance. So what is 
your response?
    Ms. Foley. Yes. I think you may be over reading Justice 
Scalia a bit because, first of all, the basic procedural 
posture of the Windsor case would be very different from a 
lawsuit that we are hypothesizing here.
    Mr. DeSantis. Absolutely.
    Ms. Foley. A couple of things. First, the only thing that 
is required constitutionally for a Member of Congress or 
Members of Congress to bring a lawsuit against the President 
would be the injury-in-fact, right? It also has to be 
redressable, you know, in causation. Those are the other two 
elements. I am assuming those would be satisfied by this kind 
of lawsuit. So it is injury-in-fact that we have to focus on, 
which is the constitutional possible impediment to Congress 
bringing a lawsuit.
    And when it comes to injury-in-fact, the Court has made 
clear that it is looking for in an institutional injury lawsuit 
nullification, some act by the President that is tantamount to 
nullifying what Congress has done. And if you are confident 
that you could pick a test case where it would be sort of the 
best poster child, right, for this fact pattern where Congress 
has declared X, and the President effectively said not X, then 
you can have confidence that you will satisfy the injury-in-
fact requirement.
    Now, the next level of analysis is, frankly, what I think 
Professor Turley has been emphasizing, which is the Court also 
very briefly mentioned, like in Raines, some prudential factors 
that it also is concerned about in institutional injury 
lawsuits by Members of Congress, things like the availability 
of self-help, which is what I think you are highlighting here, 
things like the possibility of explicit congressional 
authorization.
    So you would have to make sure that you had the best case, 
again, for checking those prudential boxes as well. When it 
comes to a lawsuit alleging presidential failure to faithfully 
execute the laws, you have to ask yourself, what would Congress 
be able to do to help itself? It cannot repeal the law, right, 
because it wants the law faithfully executed. It cannot reenact 
the law because what is it going to do, reenact the same law 
and say we really, really mean it this time?
    The other possibility is impeachment. And so you have to 
say, well, would a court actually go to the drastic step of 
saying we are going to require that Congress actually try to 
impeach the President or actually impeach the President before 
we will even consider a lawsuit challenging the President's 
failure to faithfully execute? I do not think a court would go 
that far because impeachment actually is not a remedy in the 
failure to faithfully execute scenario. Impeachment goes well 
beyond what Congress is seeking. Congress is simply seeking to 
faithfully execute the law, not get the guy out Congress.
    Mr. DeSantis. Well, what about the funding? I mean, could 
they not say you guys could just defund the deferred action 
program? No funds shall be used to implement a deferral of 
adjudication. Would that not be self-help?
    Ms. Foley. I do not think so for this reason: it depends on 
what case you pick, right? But, for example, let us take 
Obamacare. Most of Obamacare is self-funding. There are some 
things that are not self-funding that maybe you could toy with. 
But you again have to ask yourself, okay, say I am a judge. 
Would I say that I would demand that Congress go to the lengths 
of defunding all kinds of things that have nothing to do with 
Obamacare just so Congress can get leverage against the 
President to force the President to faithfully execute? That 
seems a little bit like overkill to me. There is not a tight 
means end fit there. I do not think that is what the courts 
mean when they reference self-help.
    So, for example, in the court where they first reference 
self-help, and this is the only Supreme Court where they 
reference self-help is in Raines v. Byrd, they mention it at 
the very end of the opinion in a separate section, Section 4, 
after they have already decided that the members failed 
constitutional injury-in-fact. So they are tacking this on at 
the end as prudential factors. And when they mention it very 
quickly in one sentence, you can immediately see the wheels 
turning, and you can say, well, what could Congress have done 
in Raines v. Byrd to provide self-help? That answer is clear. 
They simply could have repealed the Line Item Veto Act. When we 
are talking about President Obama's failure to faithfully 
execute, that option is not available.
    Mr. DeSantis. Great. Well, thank you. I yield back the 
balance of my time, if any.
    Mr. Goodlatte. The Chair thanks the gentleman. The Chair 
thanks all the Members, and most especially thanks all the 
witnesses for their valuable contribution, and our first panel 
for their ideas with regard to the legislative initiatives they 
have offered. This is an issue that concerns a great many 
people in the country and a great many of us in the Congress. 
So we will continue to work on this in a legislative fashion to 
try to make sure that any president is held within the 
authority that the Constitution grants him, and does not 
stretch the meaning of prosecutorial discretion and other 
clauses that, in my opinion, were never meant in statutes to be 
as elastic as this President has found them to be.
    I thank you all for your participation.
    Without objection, Members will have 5 legislative days to 
submit additional written questions for the witnesses, and we 
would ask that you answer those questions promptly, or 
additional materials to be submitted for the record.
    And this hearing is adjourned.
    [Whereupon, at 1:08 p.m., the Committee was adjourned.]
























                            A P P E N D I X

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               Material Submitted for the Hearing Record

Material submitted by the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary


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