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





                 PRESIDENT OBAMA'S EXECUTIVE OVERREACH 
                             ON IMMIGRATION

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 2, 2014

                               __________

                           Serial No. 113-120

                               __________

         Printed for the use of the Committee on the Judiciary


         
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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
RAUUL 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

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                            DECEMBER 2, 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..................................................     4
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Member, Committee on the Judiciary.........    23
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Member, Committee on the Judiciary....    24

                               WITNESSES

Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished 
  Professor of Jurisprudence, Chapman University, Dale E. Fowler 
  School of Law
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38
Jay Alan Sekulow, Chief Counsel, American Center for Law and 
  Justice
  Oral Testimony.................................................    58
  Prepared Statement.............................................    60
Thomas H. Dupree, Jr., Partner, Gibson, Dunn & Crutcher LLP
  Oral Testimony.................................................    72
  Prepared Statement.............................................    74
Marielena Hincapiee, Executive Director, National Immigration Law 
  Center
  Oral Testimony.................................................    79
  Prepared Statement.............................................    81

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     5
Additional Material submitted by the Honorable John Conyers, Jr., 
  a Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     9
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................    27
Prepared Statement of the Honorable J. Randy Forbes, a 
  Representative in Congress from the State of Virginia, and 
  Member, Committee on the Judiciary.............................    34
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................   109
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................   117
Material submitted by the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas and Member, 
  Committee on the Judiciary.....................................   145
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................   151
Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, Committee 
  on the Judiciary...............................................   162
Material submitted by the Honorable Ted Deutch, a Representative 
  in Congress from the State of Florida, and Member, Committee on 
  the Judiciary..................................................   172

                                APPENDIX
               Material Submitted for the Hearing Record

List of Material submitted by the Honorable Zoe Lofgren, a 
  Representative in Congress from the State of California, and 
  Member, Committee on the Judiciary.............................   189
Prepared Statement of the National Council of Asian Pacific 
  Americans......................................................   190
Prepared Statement of Dorotea Mendez, Community Leader, Texas 
  Organizing Poject (TOP)........................................   191

 
          PRESIDENT OBAMA'S EXECUTIVE OVERREACH ON IMMIGRATION

                              ----------                              


                       TUESDAY, DECEMBER 2, 2014

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 1:52 p.m., in room 
2141, Rayburn House Office Building, the Honorable Bob 
Goodlatte (Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Sensenbrenner, Coble, 
Smith of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, 
Gohmert, Jordan, Poe, Marino, Gowdy, Labrador, Farenthold, 
Holding, Collins, DeSantis, Smith of Missouri, Conyers, Nadler, 
Scott, Lofgren, Jackson Lee, Cohen, Johnson, Pierluisi, Chu, 
Deutch, Gutierrez, Bass, Richmond, DelBene, Garcia, Jeffries, 
Cicilline.
    Staff Present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halatei, Parliamentarian & General Counsel; 
George Fishman, Counsel; Kelsey Deterding, Clerk; (Minority) 
Perry Apelbaum, Minority Staff Director & Chief Counsel; 
Danielle Brown, Parliamentarian; and Tom Jawetz, Counsel.
    Mr. Goodlatte. Good afternoon. This hearing of the 
Judiciary Committee will come to order. Without objection, the 
Chair is authorized to declare recesses of the Committee at any 
time.
    We welcome everyone to this morning's hearing on President 
Obama's executive overreach on immigration, and I will begin by 
recognizing myself for an opening statement. But I also want to 
point out to the Members and to the audience in attendance 
today, you are all welcome to be here, but Rule 11 of the House 
rules provides that the Chairman of the Committee may punish 
breaches of order and decorum by censure and exclusion from the 
hearing.
    President Obama has just announced one of the biggest 
constitutional power grabs ever by a President. He has declared 
unilaterally that by his own estimation almost 5 million 
unlawful immigrants will be free from the legal consequences of 
their lawless actions. Not only that, he will in addition 
bestow upon them gifts such as work authorization and other 
immigration benefits. This, despite the fact that President 
Obama has stated over 20 times in the past that he doesn't have 
the constitutional power to take such steps on his own and has 
repeatedly stated that ``I'm not a king.'' We will now ask that 
the video be rolled.
    [Video shown.]
    Mr. Goodlatte. As The Washington Post's own fact checker 
concluded, ``Apparently he's changed his mind.'' President 
Obama admitted last week that ``I just took an action to change 
the law,'' and, I should add, a jewelled crown worthy of King 
James of England who precipitated the glorious revolution by 
dispensing with the laws passed by parliament.
    The Constitution is clear. It is Congress' duty to write 
our Nation's laws, and once they are enacted, it is the 
President's responsibility to enforce them. Article II, Section 
3 of the Constitution requires the President to ``take care 
that the laws be faithfully executed.'' President Obama wants a 
special pathway to citizenship for 11 million unlawful 
immigrants and without any assurance that our Nation's 
immigration laws will be enforced in the future, and he is 
upset that Congress won't change America's immigration laws to 
his liking. Thus, he has decided to act unconstitutionally, 
under the guise of ``prosecutorial discretion.''
    While law enforcement agencies do have the inherent power 
to exercise prosecutorial discretion, the authority as to 
whether to enforce or not enforce the law against particular 
individuals, this power must be judiciously used. Clinton 
administration INS Commissioner Doris Meissner told her agency 
that prosecutorial discretion ``is a powerful tool that must be 
used responsibly'' and that ``exercising prosecutorial 
discretion does not lesson the INS' commitment to enforce the 
immigration laws to the best of our ability. It is not an 
invitation to violate or ignore the law.''
    Even President Obama's Department of Homeland Security 
Secretary Jeh Johnson has admitted to the Committee that there 
are limits to the power of prosecutorial discretion and that 
``there comes a point when something amounts to a wholesale 
abandonment to enforce a duly enacted constitutional law that 
is beyond simple prosecutorial discretion.'' The Obama 
administration has crossed the line from any justifiable use of 
its authority to a clear violation of his constitutional 
responsibility to faithfully execute the laws.
    There is a difference between setting priorities, focusing 
more resources on those cases deemed more serious, and setting 
enforcement-free zones for millions of unlawful aliens. By 
boldly proclaiming that there will be no possibility of removal 
for millions of unlawful aliens, President Obama eliminates 
entirely any deterrent effect our immigration laws have. He 
states plainly that those laws can be ignored with impunity. 
Such actions will entice others around the world to come here 
illegally, just like his Deferred Action for Childhood Arrivals 
program encouraged tens of thousands of unaccompanied alien 
minors and families from Central America to make the dangerous 
trek to the United States.
    The President relies on a memo prepared by his Justice 
Department's Office of Legal Counsel to proclaim that his 
actions are constitutional, but that very memo finds that, 
``Immigration officials' discretion in enforcing the laws is 
not unlimited. Limits on enforcement discretion are both 
implicit in and fundamental to the Constitution's allocation of 
governmental powers between the two political branches.''
    The memo admits that ``the executive cannot under the guise 
of exercising enforcement discretion attempt to effectively 
rewrite the laws to match its policy preferences.'' And the 
memo quotes the Supreme Court's Heckler v. Chaney decision in 
stating that the executive branch cannot, ``consciously and 
expressly adopt a general policy that is so extreme as to 
amount to an abdication of its statutory responsibilities.''
    The memo in fact is an indictment of President Obama's 
actions. The President also mistakenly claims that his actions 
are nothing new. It is true that previous Presidents of both 
parties have provided immigration relief to groups of aliens, 
sometimes themselves abusing the power of prosecutorial 
discretion. However, usually the actions were based on 
emergencies in foreign countries, thereby relying upon the 
broad constitutional power given to a President to conduct 
foreign affairs.
    For example, Chinese students were protected from 
deportation after the Tiananmen Square massacre in 1989 and 
Haitian orphans who were in the process of being adopted by 
U.S. citizens before the devastating Haitian earthquake of 2010 
were granted humanitarian parole to come to the U.S. What about 
President George H.W. Bush's Family Fairness policy, which the 
White House cites to justify his power grab? Size and scope 
matter, and only about 80,000 aliens applied for that program.
    As to the White House's claim that it covered more than 1.5 
million aliens, The Washington Post fact checker concluded 
that, ``The 1.5 million figure is too fishy to be cited by 
either the White House or the media. Indeed, the 100,000 
estimate that the INS gave on the day of the announcement might 
have been optimistic.'' The Washington Post assigned the White 
House claims three Pinocchios.
    Without any crisis in a foreign country to justify his 
actions and in granting deferred action to a totally 
unprecedented number of aliens, President Obama has clearly 
exceeded his constitutional authority. No President has so 
abused and misused the power of prosecutorial discretion as has 
President Obama.
    By acting lawlessly and assuming legislative power, the 
Obama administration is driving full speed ahead to a 
constitutional crisis, tilting the scales of our three-branch 
government in his favor and threatening to unravel our system 
of checks and balances. President Obama has entered the realm 
of rewriting the laws when he can't convince Congress to change 
them to match his personal taste.
    As law professor David Rubenstein has written, ``The more 
broadly or generally a systematic policy applies, the more it 
takes on the hue of law.'' Rather than working constructively 
with the new men and women Americans elected to represent them 
in Congress, the President is making his relationship with 
Congress increasingly toxic by unconstitutionally acting on his 
own. Tragically, President Obama's shortsighted actions have 
further set back congressional efforts to enact legislation to 
reform our broken immigration system.
    I look forward to today's hearing and the testimony of our 
eminent witnesses. And now I am pleased to yield to the 
gentleman from Michigan, the Ranking Member of the Committee, 
Mr. Conyers, for his opening statement.
    Mr. Conyers. Thank you.
    Ladies and gentlemen----
    [Disturbance in 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. The 
Capitol Police will remove the disruptive members from the 
audience immediately. The Capitol Police will remove the 
members of the audience from the hearing room.
    The Chairman apologizes to the gentleman from Michigan for 
the interruption, but he is now advised to proceed with his 
opening statement without penalty for the delay in starting.
    Mr. Conyers. Mr. Chairman and Members of the Committee and 
those who have joined us here this afternoon in the House 
Judiciary Committee, I would respectfully disagree with a 
number of assertions by our Chairman, Mr. Goodlatte.
    President Obama did not change the law. He acted within the 
law consistent with the Constitution and past precedent. Now, I 
have not noticed that there were many constitutional law 
professors on the Committee, and I am certain that when 
President Obama decided 2 weeks ago to use his authority under 
existing law to do what he can to fix our broken immigration 
system, I could have not been more pleased.
    I defy any of my colleagues on this Committee or anyone in 
Congress to tell me our immigration system is not broken. We 
know that it is. But I am disappointed that this Congress, like 
a number of them before it, has done nothing to fix the 
problem. Republican leaders in the House won't allow us to vote 
on a bipartisan bill, S. 744, that passed the Senate last year 
with 68 votes out of 100. This Committee has marked up a series 
of bills, each one of them less palatable than the next, but 
hasn't even reported them to the floor.
    And so I would urge that you consider that the only bills 
that we have seen on the floor would have deported dreamers and 
the parents of United States children denied basic protections 
to children fleeing violence and persecution.
    Now, faced with this congressional inaction, the President 
of the United States decided it was time to take action. The 
President's reforms will help to secure the border, focus our 
resources on deporting felons, not families, and require 
undocumented immigrants to pass a criminal background check and 
pay for their fair share of taxes in order to register for 
temporary protection from deportation. Now these actions will 
keep millions of families with United States citizen children 
from being torn apart, families led by hard-working mothers and 
fathers. And finally, these actions are not only appropriate, 
but they are lawful. There is a great deal of information 
available publicly to support the President.
    On November 20, eleven prominent legal scholars wrote a 
letter explaining the President's action, and I quote, 
``explaining that the President's actions are within the power 
of the executive branch and that they represent a lawful 
exercise of the President's authority.'' I ask unanimous 
consent to include that in the record.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]
    
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    Mr. Conyers. Thank you.
    The letter was signed by a former head of the Department of 
Justice Office of Legal Counsel and a person who worked in the 
solicitor general's office. It was signed by liberal professors 
like Laurence Tribe and conservative professors like Eric 
Posner. Five days later, 135 immigration law professors echoed 
that conclusion and provided substantial constitutional, 
statutory, and regulatory authority for these actions. That 
letter also reviews the historical precedent that support the 
President's move. And I ask unanimous consent that the letter 
from 135 immigration professors be included in the record.
    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    [The information referred to follows:]
    
    
    
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    Mr. Conyers. Thank you.
    As people who were once charged with providing legal 
counsel to the government on this precise question, they write 
that, ``We have all studied the relevant legal parameters and 
wish to express our collective view that the President's 
actions are well within his legal authority.'' And of course, 
the Administration requested a formal opinion by the Office of 
Legal Counsel and made the document public nearly 2 weeks ago, 
and I ask unanimous consent to include in the record the Office 
of Legal Counsel opinion.*
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    *The submitted material is not reprinted in this hearing record but 
is on file with the Committee, and can be accesssed at http://
www.justice.gov/sites/default/files/olc/opinions/attach
ments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf
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    Mr. Goodlatte. Without objection, it will be made a part of 
the record.
    Mr. Conyers. Thank you again.
    And of course, the Administration requested a formal 
opinion by the Office of Legal Counsel and made this document 
public nearly 2 weeks ago.
    Now, I know that many Members on the other side of the 
aisle are not pleased about the President's decision. We 
continue to hear calls for shutting down the government. Some 
have even talked about censoring the President or suing the 
President or even worse. But it seems to me, ladies and 
gentlemen, that the majority now has a choice. They can do what 
we were elected to do. They can come to the table and work to 
pass a real immigration reform bill. They can hold a vote. And 
that is exactly what I am prepared to do today.
    I thank the Chairman for his tolerance, and I yield back 
any time that may be remaining.
    Mr. Goodlatte. The Chair thanks the gentleman and now 
recognizes the gentleman from Texas, Mr. Smith, for his opening 
statement
    Mr. Smith of Texas. Thank you, Mr. Chairman. I also want to 
thank Mr. Gowdy, the gentleman from South Carolina, for 
yielding me his time.
    [Disturbance in hearing room.]
    Mr. Goodlatte. The Committee is not in order. The Capitol 
Police will remove the disruptive members from the audience 
immediately. You may leave now and the Capitol Police will 
escort you out as soon as they return.
    The gentleman from Texas is recognized.
    Mr. Smith of Texas. Thank you, Mr. Chairman.
    Before he took office, President Obama swore an oath to 
``preserve, protect, and defend the Constitution of the United 
States.'' Yet he is now taking executive action to legalize 
millions of illegal immigrants all on his own, contrary to the 
Constitution. President Obama should remember his oath of 
office to uphold all laws, including immigration laws.
    This Administration is undermining the separation of 
legislative and executive powers that our Founders wrote into 
the Constitution to prevent tyranny. And President Obama is 
violating the Constitution, which explicitly reserves 
immigration policy for Congress. Article I, Section 8, Clause 4 
of the Constitution provides that Congress shall have power to 
``establish a uniform rule of naturalization.'' The Supreme 
Court has long found that this provision of the Constitution 
grants Congress full power over immigration policy. In 
addition, by suspending the enforcement of our immigration laws 
against nearly half the illegal immigrants in the United 
States, President Obama is violating his constitutional 
obligation to take care that the laws be faithfully executed.
    President Obama previously described the limitations that 
the Constitution places on his role as President. He has 
explicitly stated many times, as the Chairman noted, that he 
does not have the power to grant executive amnesty without the 
authorization of Congress. For instance, on March 28, 2011, he 
stated that, ``With respect to the notion that I can just 
suspend deportations through executive order, that's just not 
the case, because there are laws on the books that Congress has 
passed . . . The executive branch's job is to enforce and 
implement those laws.''
    And constitutional scholars agree. Constitutional law 
professor John Hill of the Indiana University School of Law 
writes that, ``There is a word for the President's plan to 
issue an executive order granting residency status for up to 5 
million undocumented aliens now living in the U.S.: 
unconstitutional.'' This is unquestionably law making. 
President Obama has now apparently forgotten what any first-
year law student understands: that the President cannot make a 
law without the consent of both houses of Congress.
    Constitutional law professor Josh Blackman of the South 
Texas College of Law writes, ``It cannot be the rule of law 
that the President can create arbitrary criteria of where the 
law will not apply and then exempt anyone who meets those 
criteria. This is the very type of a broad policy against 
enforcement that is so extreme as to amount to an abdication of 
the President's statutory responsibilities.''
    And the American people themselves are opposed to President 
Obama's latest executive amnesty. Despite the heavy media bias 
in favor of amnesty, a recent NBC News/Wall Street Journal poll 
found that Americans oppose his executive amnesty by 48 percent 
to 38 percent.
    The American people know the President's executive amnesty 
grants work permits to millions of illegal immigrants which 
hurts many hard-working Americans who struggle to find full-
time work and good paying jobs. The Obama administration has 
placed the interest of illegal immigrants above the needs of 
millions of unemployed and underemployed Americans. This 
amounts to a declaration of war against American workers.
    The Constitution is not a technicality. It is the document 
that has preserved our freedoms for more than two centuries. 
Ever American should be very concerned about President Obama's 
violating the Constitution and not enforcing the laws of our 
Nation.
    Thank you, Mr. Chairman, and I will yield back.
    Mr. Goodlatte. The Chair thanks the gentleman and is 
pleased to recognize the Ranking Member of the Subcommittee on 
Immigration and Border Security, the gentlewoman from 
California, Ms. Lofgren, for her opening statement.
    Ms. Lofgren. Thank you, Mr. Chairman.
    When President Obama spoke from the East Wing of the White 
House 2 weeks ago about the steps he would take to improve our 
broken immigration system, he was responding to loud and 
sustained calls for action from people all over the country. He 
can't change the law, but he can take certain actions within 
the law.
    The President recognized what we all know: Our immigration 
system is badly broken. Millions of families face the threat of 
separation by deportation every day, parents from children, 
husbands from wives. Entrepreneurs and highly skilled 
immigrants from around the world want to drive innovation and 
create jobs and opportunities here, but instead we erect 
barriers and make them go elsewhere to create their companies. 
Farmers rely on the work of undocumented immigrants to support 
their industry. We all rely on their food. I was thinking with 
my family at Thanksgiving how much we have to be grateful for, 
but I'm not grateful that the farm workers who put that food on 
our table are living in fear.
    Now, before I entered public service, I practiced and 
taught immigration law, and throughout my 20 years in Congress 
I have worked across the aisle to enact sensible immigration 
reforms, and we have come close several times. In 2006, the 
Senate passed a bipartisan bill, but the House Republicans 
squandered the opportunity to close the deal and instead passed 
an enforcement-only bill.
    Last year the Senate again passed a bipartisan immigration 
reform bill that brought historic adversaries, the Chamber and 
the AFL-CIO, growers and farm workers, everybody together with 
a 68 vote in the Senate, and again we did nothing with that 
opportunity here on the House side. In fact, I was part of our 
own group of eight here in the House where we tried to craft a 
bipartisan House bill. We did actually write a bill, but in the 
end we were unable to move forward.
    So it was only in the face of congressional inaction that 
the President decided to do something. He recognized there are 
costs to doing nothing, and he looked for opportunities that 
are permitted in current law to avoid some of the costs. There 
are many things the President can't do to fix our immigration 
system, and nothing the President did either alleviates the 
need for legislative action or prevents Congress from acting.
    Now, the focus of the President's legal authority is 
allegedly the topic of this hearing, and I think it's important 
to remember that the President announced reforms in many 
different parts of the immigration system, including a new 
strategy to focus enforcement on the southern border, pay 
reforms for ICE personnel, several different efforts to make 
the immigration system work better for entrepreneurs. I haven't 
heard anybody complaining about those efforts of the President. 
No, it is only about the families of American citizen children. 
And this talk of executive overreach really is about deporting, 
I think, the parents of U.S. citizen children, and I think it's 
a darn shame.
    By this point, much has already been said about the legal 
authority going back to really Eisenhower in the 1950's. Every 
President has used the similar or same authority in the 
immigration context. The authority stems from the President's 
constitutional duty to take care that the laws be faithfully 
executed. In Heckler v. Chaney, the Supreme Court explained 
that this duty does not require the President to act against 
each technical violation of law, and when the Supreme Court in 
Arizona v. the United States struck down the majority of 
Arizona's SB 1070 law, the court specifically reaffirmed that, 
``broad discretion'' exercised by Federal immigration officials 
extend to ``whether it makes sense to pursue removal at all.''
    In 1999, Members of the Congress from both parties, 
including Members who still serve on this Committee, wrote to 
then Attorney General Janet Reno and asked her to issue 
specific instructions to guide in the use of prosecutorial 
discretion, and several years later Congress in the Homeland 
Security Act specifically directed the Secretary of Homeland 
Security to establish national immigration enforcement policies 
and priorities. That is precisely what Secretary Johnson has 
done.
    Now to the Family Fairness program, which serves as an 
important historical precursor to the Deferred Action for 
Parental Accountability program. President Reagan's Family 
Fairness program was announced at a 1987 hearing before the 
House Immigration Subcommittee and it offered protection from 
deportation to certain spouses and children of persons who were 
legalized in the 1986 act. When the program was expanded under 
George H.W. Bush in 1990, the INS Commissioner estimated that 
as many as 1.5 million people would be eligible for protection 
from deportation and work authorization.
    I heard the Chairman's comment about Pinocchios in The 
Washington Post, but I recently discovered two documents that I 
would ask unanimous consent to put into the record. The first 
is the decision memo that announced the Family Fairness policy 
dated February 8, 1990, where the Department estimates that the 
Family Fairness policy provides voluntary departure and 
employment authorization to potentially millions of 
individuals, and the other document, also dated February 8, 
1990, which indicates that the intention or expectation is that 
greater than 1 million IRCA-ineligible family members will file 
for the benefit.
    Mr. Goodlatte. Without objection, those documents will be 
made part of the record.missing one more deg.
    [The information referred to follows:]
   
    
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    Ms. Lofgren. Now, when then Commissioner McNary stated in 
1990 that the program would begin, he said, ``It is vital that 
we enforce the law against illegal entry. However, we can 
enforce the law humanely. To split families encourages further 
violations of the law as they reunite.'' He understood that a 
smart enforcement strategy can also be a humane enforcement 
strategy, and that is no different than today.
    Now, if there is one key difference between the Family 
Fairness program and the deferred action program announced by 
the President last month, it's that Presidents Reagan and Bush 
offered protections to people who were knowingly and 
intentionally denied protection by Congress when they passed 
the 1986 act. By contrast, the President is now acting in the 
face of historic intransigence by House Republicans who will, 
if no action is taken by the end of this month, have wasted two 
opportunities in 8 years to advance immigration reform bills.
    The President's actions are lawful. They are also smart 
because they will allow DHS to focus limited resources on 
serious criminals, recent arrivals, and gang members. Finally, 
they are consistent with basic American values like 
accountability, family unity, and compassion.
    I would note that H.R. 15 is sponsored by 201 Members, both 
Democrats and Republicans. There is still time to take this 
bill to the floor for a vote, and I hope that Republicans will 
do so.
    And finally, I just want to respond very briefly to the 
argument in the video that we saw of the President making 
various comments about the limits of his authority. I guess if 
the President had said multiple times that 5 plus 5 equals 15 
and then he finally says 5 plus 5 equals 10, he would not be 
wrong when he finally said 5 plus 5 equals 10.
    Second, the timing of the President's statements were 
important. All of those statements were made before March.
    Mr. Issa. Mr. Chairman, how many finallys can we have? We 
are going to run out of time here shortly.
    Mr. Goodlatte. The Chair is giving some leniency because 
the Chair's own opening statement was in excess of 5 minutes.
    Ms. Lofgren. I did note that and I----
    Mr. Goodlatte. The gentlewoman can conclude.
    Ms. Lofgren. I am almost through. I would just note that 
those statements were made before the President asked the 
Secretary of Homeland Security to do a complete review of the 
immigration system to see what could be fixed administratively, 
which resulted in his memorandums and the formal opinion by the 
Office of Legal Counsel.
    And finally, as we will see throughout this hearing, the 
legal question isn't even a close one. The President has clear 
legal authority to defer removals when it is in the national 
interest. Chief Justice Roberts reaffirmed that principle just 
2 years ago. Our immigration laws recognize this authority. 
Past Presidents have used this authority regularly. Our 
President is doing so now, and I for one am grateful that he 
is. And I yield back.
    Mr. Goodlatte. The Chair thanks the gentlewoman.
    Without objection, additional Members' opening statements 
will be made a part of the record.
    [The prepared statement of Mr. Forbes follows:]
 Prepared Statement of the Honorable J. Randy Forbes, a Representative 
 in Congress from the State of Virginia, and Member, Committee on the 
                               Judiciary
    Mr. Chairman, if you didn't enforce the rules of this Committee, 
people would break them as we have seen here today. More people would 
break the rules during the next hearing and even more the hearing after 
that. Soon those that strictly followed the rules will wonder if they 
should continue to do so if there are no consequences for breaking the 
rules and if they are treated the same as those who break the rules.
    If you didn't enforce the rules, there would be no order. There 
would be no framework for conducting the business of the Committee.
    Just weeks ago, we witnessed a staggering instance of non-
enforcement. The President of the United States chose to act 
unilaterally to stop enforcement of our Nation's immigration laws. In 
2012, he stopped enforcement of the law for children brought into the 
country illegally by their parents.
    Now, he has stopped enforcement of the law for roughly 4 million 
more people living in this Nation illegally.
    Meanwhile, we have people who have followed the rules--some waiting 
for years--to enter this country lawfully with the hopes of gaining 
legal status or ultimately citizenship. What incentive do people have 
to continue to do this?
    Continued non-enforcement of the law will only lead to more of the 
same. The president has a constitutional duty to ensure that the laws 
of the United States are faithfully executed. Blatantly choosing to 
abdicate this duty and refusing to enforce the law rewards those that 
broke our laws, harms those that chose to come legally, and undermines 
the constitutional framework upon which this Nation was built.
    Further, if the president refuses to enforce our immigration laws, 
he could choose not to enforce our property or criminal laws as well.
    Under the precedent set by President Obama, a president could also 
unilaterally decide not to prosecute any of the 1.6 million people 
arrested annually for federal property crimes \1\, choosing instead to 
focus federal resources on violent crimes.
---------------------------------------------------------------------------
    \1\ http://ojjdp.gov/ojstatbb/ezaucr/asp/ucr_display.asp.
---------------------------------------------------------------------------
    Under President Obama's new precedent, a president could also grant 
prison amnesty to those 30,000 people who would otherwise have been 
charged for federal crimes for which they would serve terms of 3 years 
or less in federal prison.\2\
---------------------------------------------------------------------------
    \2\ http://www.bop.gov/about/statistics/
statistics_inmate_sentences.jsp.
---------------------------------------------------------------------------
    As the November 19, 2014, Department of Justice Office of Legal 
Counsel opinion \3\ stated, ``the Executive cannot, under the guise of 
exercising enforcement discretion, attempt to effectively rewrite the 
laws to match its policy preferences . . . An agency's enforcement 
decisions should be consonant with, rather than contrary to, the 
congressional policy underlying the statutes the agency is charged with 
administering.''
---------------------------------------------------------------------------
    \3\ http://www.justice.gov/sites/default/files/olc/opinions/
attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf.
---------------------------------------------------------------------------
    We are a Nation of laws, and a foundational aspect of our 
government is the separation of powers. This unilateral action on the 
part of the President not only sets a dangerous precedent, it threatens 
to unravel that very foundation our Nation was built upon.
                               __________

    Mr. Goodlatte. We thank our witnesses for joining us today, 
and if you would all please rise, we will begin by swearing you 
in.
    Do you and each of you swear that the testimony you are 
about to give shall be the truth, the whole truth, and nothing 
but the truth, so help you God? Thank you.
    Let the record reflect that all the witnesses responded in 
the affirmative.
    Mr. Ronald D. Rotunda is the Doy & Dee Henley chair and 
distinguished professor of jurisprudence at Chapman University. 
Prior to joining Chapman, he was a professor of law at the 
George Mason University School of Law and the Albert E. Jenner 
Jr., professor of law at the University of Illinois. He is the 
coauthor of the seven-volume ``Treatise on Constitutional 
Law,'' the author of ``Modern Constitutional Law,'' a leading 
course book on constitutional law, and he has coauthored the 
most widely used course book on legal ethics, ``Problems and 
Materials on Professional Responsibility.'' Mr. Rotunda 
received his BA and JD from Harvard University, where he was a 
member of the Harvard Law Review.
    Mr. Jay Sekulow is the chief counsel for the American 
Center for Law and Justice, which advocates for the protection 
of constitutional and religious freedom. A distinguished 
professor of law at Regent University, Mr. Sekulow has argued 
12 cases before the Nation's highest court, including McConnell 
v. FEC, where he ensured the constitutional rights of young 
people remain protected with a unanimous decision guaranteeing 
that minors can participate in political campaigns. Mr. Sekulow 
received his Ph.D. from Regent University with a dissertation 
on American legal history. He is an honors graduate from Mercer 
Law School, where he served on the Mercer Law Review, and an 
honors graduate of Mercer University.
    Mr. Thomas H. Dupree is a partner in the Washington, D.C., 
office of Gibson, Dunn & Crutcher, where he is a member of the 
firm's litigation department and its appellate and 
constitutional law practice group. In 2013 and 2014, Chambers 
and Partners named Mr. Dupree one of the leading appellate 
lawyers in the United States. In 2014, Mr. Dupree argued and 
won by a unanimous vote a landmark personal jurisdiction case 
in the United States Supreme Court. Prior to joining Gibson, 
Dunn & Crutcher, Mr. Dupree served as deputy assistant attorney 
general in the Civil Division of the Department of Justice, 
ultimately becoming the principal deputy assistant attorney 
general. Mr. Dupree graduated cum laude from Williams College 
and with honors from the University of Chicago Law School, 
where he served as an editor of the University of Chicago Law 
Review.
    Marielena Hincapiee is executive director of the National 
Immigration Law Center. She is a public interest lawyer who 
specializes in protecting and advancing the rights of immigrant 
workers, particularly those who are undocumented. She has 
authored numerous publications and policy analyses, provided 
strategic assistance and training to thousands of legal and 
social service providers, labor unions, and community-based 
organizations. She holds a juris doctorate degree from 
Northeastern University School of Law, served on the American 
Bar Association's Commission on Immigration, and is currently a 
member of the board of directors of Jobs With Justice and 
Welcome.US.
    I welcome all of you. I would ask that each witness 
summarize his testimony in 5 minutes or less. Your entire 
statement will be made a part of the record. To help you stay 
within that time limit, 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, 
that is it, time is up, and it signals that you should finish 
your sentence and your statement.
    So thank you all. We will now proceed first with Mr. 
Rotunda.

 TESTIMONY OF RONALD D. ROTUNDA, DOY AND DEE HENLEY CHAIR AND 
 DISTINGUISHED PROFESSOR OF JURISPRUDENCE, CHAPMAN UNIVERSITY, 
                  DALE E. FOWLER SCHOOL OF LAW

    Mr. Rotunda. Thank you, Mr. Chairman and respective Members 
of the Committee. I think it's important to explain that I 
favor increased immigration into the United States. If American 
Indians had strict immigration laws, perhaps none of us would 
be here.
    People want to come here for the same reason my parents 
wanted to come here, the land of opportunity and freedom. My 
parents did not know the language. They did not know the 
customs. They were strangers in a strange land. My mother told 
me years later the first night in the United States, though she 
was well past the age of toilet training, she had an accident. 
She was so excited to be here. My father fought in World War II 
as a spy for the Americans. He was a good spy because he spoke 
Italian like a native.
    When he was in his 90's, I remember taking him to the VA 
doctor, and the doctor said, looking at the paper, ``so you're 
Italian.'' My father said, ``No, American.'' You have to 
realize he did not know who was President. He did not know what 
year it was. He did not know my name, though he knew I was a 
friend. But he knew he was an American.
    So I favor reform along the lines of the President. Whether 
Congress exercises comprehensive immigration reform or goes one 
step at a time isn't important. The government tells us there's 
over 11 million undocumented aliens here. We're not going to 
march 11 million people south of the border. Democracies just 
don't have mass deportations. But we also, I think, should all 
agree, we have to secure our borders. If a 15-year-old can 
cross our borders, an Al Qaeda agent can as well.
    So the issue is not whether we agree with the President's 
goals. In general I share them. The issue is whether it is 
constitutional for the President to act unilaterally to rewrite 
our immigration laws and change the status of, he says, about 5 
million Americans, almost half of them are here without papers. 
The President's executive power does not give him the power to 
govern by decree. It does not give him the power to suspend the 
law. If he can actually do this and get away with it, I guess 
future Presidents could say that they're going suspend more 
parts of the Affordable Care Act. Maybe they'll suspend it all. 
We don't need a Congress to repeal it. We just need a President 
to say, ``I suspend it.''
    The President said repeatedly over the last several years, 
I think over 20 times, he iterated and reiterated he does not 
have the power to do this, and then he did it. Why? He says in 
his statement to the people, Congress has failed.
    Congress doesn't fail when it fails to enact a presidential 
proposal. If the Constitution were a computer program, we would 
not say that the separation of powers is a bug. It's a feature 
of the program. The Framers wanted to make it difficult to 
enact laws, so we're going to have to learn to compromise. The 
President won't get all that he wants. Both sides of the aisle 
will have to compromise as well. There is going to have to be 
compromise.
    Article II provides that the President shall take care that 
the laws be faithfully executed. This clause is not a general 
grant of powers. It's actually a limitation on the power. The 
President must execute the law faithfully. A whole series of 
opinions of the Office of Legal Counsel--I'll call them OLC 
opinions, and I refer to them in my paper have said this 
repeatedly, that the President cannot suspend the laws, that he 
has prosecutorial discretion for criminal acts, to refuse to 
prosecute criminally, but not civilly. Deportation, the court 
has told us, is civil and not criminal.
    The President tells us that this deal doesn't apply to 
anyone who comes recently. He says, Congress has failed, and 
then asks ``are we a Nation that accepts the cruelty of ripping 
children from their parents' arms? Are we a Nation that values 
families?'' Apparently we'll accept this cruelty and rip 
children from their parents' arms if they came here illegally 
before the arbitrary date of January 1, 2010. No explanation 
about why that's okay. Why couldn't it be January 2nd or 
December 31?
    The new DHS policy reads an awful lot, it looks like a 
statute. I mean, it is six single-spaced pages, it talks about 
provisos, benefits, an arbitrary date. It grants, apparently 
from the newspapers, it says repeatedly that these people will 
now get Social Security cards. We don't know how Social 
Security cards have anything to do with prosecutorial 
discretion. The OLC opinion spins a theory that relies on 
historical incidents, not legal precedents but historical 
incidents, and, secondly, reading a lot into a few selected 
segments of the statute. Case law is precedent. Historical 
examples are not.
    In any event, others have already distinguished those 
examples. They're not about my theory. I'm not going to 
duplicate their efforts in any event. No other President has 
said he's acted because Congress has failed and then issued an 
immigration order. No other President has said that he's doing 
something that over the last several years he repeatedly said 
is unconstitutional. The President should at least explain, or 
the OLC opinion should explain why that was wrong. If somebody 
decided for years that 5 and 5 is 11 and suddenly it comes out 
to be 10, we'd like to know why. Was it on the road to Damascus 
he got hit by lightning or what made him change his mind?
    The New York Times says, ``Obama, Daring Congress, Acts to 
Overhaul Immigration,'' and he does have an overall immigration 
reform. The OLC opinion admits that a general policy of 
nonenforcement would foreclose exercise of case-by-case 
discretion. Anyone who looks at this----
    Mr. Johnson. Mr. Chairman.
    Mr. Rotunda [continuing]. It looks like a statute.
    Mr. Johnson. Regular order, Mr. Chairman.
    Mr. Goodlatte. Mr. Rotunda, if you could summarize the 
remainder of your statement. It will all be part of the record.
    Mr. Rotunda. Yes. In my papers I cite about 10 OLC 
opinions, as well as Supreme Court opinions that say the 
President does not have the discretion to refuse to enforce 
civil law, and the OLC opinion ignored all of that, even 
ignored the statements and the important footnote in the 
Heckler opinion on which they relied. Thank you.
    Mr. Goodlatte. Thank you, Mr. Rotunda.
    [The testimony of Mr. Rotunda follows:]

    
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                               __________
    Mr. Goodlatte. Mr. Sekulow, welcome.

 TESTIMONY OF JAY ALAN SEKULOW, CHIEF COUNSEL, AMERICAN CENTER 
                      FOR LAW AND JUSTICE

    Mr. Sekulow. Chairman Goodlatte, Ranking Member Conyers, 
distinguished Members of the Committee, on behalf of the 
American Center for Law and Justice and over 75,000 of our 
members, thank you for allowing me to appear before you today.
    Determining presidential authority is a task which must be 
engaged in with only one question: Do the President's actions 
meet constitutional scrutiny? In this case, they do not.
    It is humbling for this grandson of a Russian immigrant to 
be before this Committee today. My father is in the audience. 
His father, my grandfather, came to the United States in 1914. 
In 1929, he applied for citizenship and filed a petition for 
naturalization. My daughter-in-law found this online. Two years 
later, a United States district court judge in Brooklyn, New 
York, granted Sam Sekulow his status. She found that order as 
well.
    I believe in immigration. I'm the grandson of that Russian 
immigrant. I get to argue cases before the Supreme Court of the 
United States and appear before this Committee. It's a humbling 
thing.
    Immigration law was complex for my grandfather in 1931, and 
it is still complex today. The Constitution, however, is not. 
Our system of government is straightforward. Congress writes 
the law, the President executes the law, the judiciary 
interprets the law. This is the separation of powers mandated 
by our Constitution. The President does not make the law.
    Now, with due respect, some of the statements that have 
been made, the President has stated that he changed the law, 
and I don't believe there's anyone on this Committee that 
believes the President has the authority to change the law. He 
was being heckled at an event similar to what we experienced 
today. There are passions on either side of the issues. I 
understand that. I think we all understand that. I join 
Professor Rotunda, and I believe in significant and complete 
immigration reform. I believe in a pathway to citizenship. But 
I believe to do that through the legal process set forth in the 
Constitution, and the President doesn't get to change the law. 
He actually said that, though, that he changed the law. That 
was how he handled the question that was asked.
    He changed the law. Presidents cannot change the law. He 
can't do so constitutionally, he cannot do so under Supreme 
Court precedent, and he can't change the law to comport with 
his preferred public policy, much of which I share. The 
President's executive action really disrupts the delicate 
balance of separation of powers that is the hallmark of our 
constitutional framework.
    Justice Frankfurter stated that, regarding immigration and 
immigration issues, talking about being the exclusive power of 
Congress, that the formulation of these policies is entrusted 
exclusively to Congress. Now, 5 and 5 does not equal 15 no 
matter how many times you say it, and when 5 and 5 then equals 
10, which is correct, that past constitutional wrong is not 
what made that correct. So this reliance that we have seen on 
some that President Reagan and President Bush and even 
President Eisenhower made or issued executive action or 
executive orders, which in some cases may be clearly 
distinguishable because they didn't set forth a new class, but 
even if they were not distinguishable, past constitutional acts 
do not get better with time. They are still just that, 
unconstitutional actions.
    President Obama also misplaces his reliance on the 
authority generally granted to the Secretary of Homeland 
Security. It's very different to utilize your resources to 
determine the status of your prosecutorial mandates and how 
you're going to use your limited resources. The condition of 
entry, though, of classes of aliens and having that denied or 
granted, and creating a class, a new class, is not what the 
President has the authority to do. As sympathetic as it might 
be to the plight of people involved, he simply doesn't have 
that constitutional authority.
    And I think that with all the emotion we have even seen 
today, you have to put that aside. The question is, it comes 
back to the same question, does the President have the 
authority? And by the way, if you look at the OLC memo and 
compare it to what the President said the deal was, quoting the 
President's word of what the deal is, I'd ask my colleague from 
the Immigration Law Center if she would recommend her clients 
accept the deal, because the deal the President talked about 
did not talk about unfettered discretion with the agency that 
could be terminated at any time with case-by-case 
determination.
    That's not the deal the President talked about. That's not 
the deal the President put in place. And I would not recommend 
my client to accept the deal that the President's actually 
offered, which is very different than the deal outlined in the 
OLC memorandum.
    I would ask that to my colleague because standardless, 
absolute discretionary review by government agencies has been 
something I've been dealing with for 30 years at the Supreme 
Court of the United States, and it generally does not go very 
well for the agency. OLC said it was required, though, for the 
President's actions to be deemed constitutional. I, as I said, 
I would not recommend my client to take the deal.
    In conclusion, in our view President Obama's actions are 
unconstitutional, President Obama's actions are unlawful, 
President Obama's actions violate the separation of powers. And 
in conclusion, even with sympathy to the cause of immigration 
reform, inpatient Presidents may not violate the Constitution 
if they don't get their way.
    Thank you, Mr. Chairman.
    Mr. Goodlatte. Thank you, Mr. Sekulow.
    [The testimony of Mr. Sekulow follows:]
    
    
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                               __________
    Mr. Goodlatte. Mr. Dupree, welcome.

         TESTIMONY OF THOMAS H. DUPREE, JR., PARTNER, 
                  GIBSON, DUNN & CRUTCHER LLP

    Mr. Dupree. Thank you, Mr. Chairman. Good afternoon. Thank 
you for inviting me to testify and to share my thoughts on the 
constitutionality of the President's directive granting 
deferred action eligibility to approximately 5 million people 
who are currently here in the United States in violation of our 
immigration laws.
    I served as principal deputy assistant attorney general 
under President Bush. In that role, I litigated many 
immigration cases and advised the White House on immigration 
policy and reform. In my view, President Obama's actions exceed 
his authority under the Constitution. The President was correct 
on the many occasions where he stated that he did not have the 
power to do what he has now done.
    While reasonable people can disagree over how best to fix 
our immigration system, and while there can and should be a 
robust public debate about how to address the status of the 
approximately 11 million people who are here in this country 
illegally, there should be no doubt that by unilaterally acting 
through executive action rather than through the Congress, the 
President has circumvented the process our Founders envisioned.
    The Framers of our Constitution were well aware of the 
dangers of executive overreach. That is why they wrote a 
Constitution providing for the separation of powers and why the 
first sentence of Article I, Section 1 of our Constitution 
states, ``All legislative powers herein granted shall be vested 
in the Congress of the United States.''
    The Framers also spoke to the President's duty to enforce 
the laws enacted by this Congress. Article II, Section 3 
provides that the President ``shall take care that the laws be 
faithfully executed.''
    In my view, President Obama's actions on immigration 
violate these constitutional provisions. His actions violate 
Article I, Section 1, and the separation of powers by rewriting 
the laws of the United States not through legislative amendment 
but through executive fiat. They also violate Article II, 
Section 3 because they amount to an abdication of the 
executive's duty to faithfully execute the laws of the United 
States.
    Let me say a word about the Take Care Clause. As its text 
makes clear, the President's duty is not optional. The 
Constitution says that he shall take care that the laws be 
faithfully executed. And the Constitution's use of the word 
``faithfully'' underscores that the President is to execute 
laws in a way that maintains fidelity to congressional design. 
It is hard to see how an order directing that Federal law not 
be enforced as to approximately 5 million people amounts to 
faithful execution.
    The Take Care Clause does not give a President discretion 
to choose which laws he will enforce and which he will not. As 
the head of the Office of Legal Counsel under President Clinton 
wrote, ``The Supreme Court and the Attorneys General have long 
interpreted the Take Care Clause as standing for the 
proposition that the President has no inherent constitutional 
authority to suspend the enforcement of the laws, particularly 
of statutes.''
    The consequences of this issue are not confined to 
immigration. If the President may use executive authority to 
simply ignore laws that he does not like, then it will be 
possible for future Presidents to unilaterally revise 
everything from Federal criminal law to tax law to 
environmental law and beyond.
    Of course, President Obama's directive goes beyond mere 
nonenforcement of the law. It has the effect of affirmatively 
granting benefits, including the right to apply for work 
permits to those falling within its ambit. The Administration 
has invoked prosecutorial discretion in an attempt to justify 
the President's actions. Prosecutorial discretion is well 
established in our Nation's legal traditions. In fact, the 
concept predates the founding and finds its roots in the common 
law of England. Nowadays no one can dispute that prosecutors, 
or in this context executive branch officials with the 
constitutional duty to enforce immigration laws, may exercise 
discretion in setting enforcement priorities and in deciding 
what charges to bring or whether to bring charges at all.
    But there are limits on prosecutorial discretion. Generally 
speaking, it applies to individual cases, situations in which, 
in the judgment of the prosecutor, it would be unjust or 
otherwise inadvisable to apply the full force of the law based 
on the circumstances of an individual case. When I served in 
the Justice Department, I can recall many instances where we or 
the Department of Homeland Security made a determination to 
exercise discretion in individual cases.
    Prosecutorial discretion, however, is not so elastic a 
concept that it can stretch to encompass what the President has 
done here, granting blanket relief to a potential class of 5 
million people. That is what makes President Obama's actions 
different from prior instances in which Presidents have granted 
immigration relief. The scale of the President Obama's 
directive significantly exceeds what past Presidents have done. 
Moreover, in prior instances, the executive was acting to 
implement a new statute consistent with the will of Congress. 
Here, in contrast, the executive is taking action precisely 
because Congress has refused to act in the way the President 
wants. Indeed, the President is attempting to write into law 
what Congress deliberately chose not to write into law.
    Finally, as many on this Committee will recall, during the 
Bush administration we were strong advocates of immigration 
reform, and we sought to get a bill through Congress. When we 
were unsuccessful, many of us were disappointed and frustrated, 
but we did not attempt to achieve through executive fiat what 
we could not achieve through the legislative process. We 
respected the system the Framers established.
    I thank the Committee for convening this hearing and look 
forward to your questions.
    Mr. Goodlatte. Thank you, Mr. Dupree.
    [The testimony of Mr. Dupree follows:]
    
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                               __________
   
   Mr. Goodlatte. Ms. Hincapiee, we are pleased to have you 
with us as well.

TESTIMONY OF MARIELENA HINCAPIEE, EXECUTIVE DIRECTOR, NATIONAL 
                     IMMIGRATION LAW CENTER

    Ms. Hincapiee. Thank you Chairman Goodlatte, Ranking Member 
Conyers, and Members of the Committee. Thank you for the 
opportunity to appear before you today.
    My name is Marielena Hincapiee. I'm the executive director 
of the National Immigration Law Center, an organization that is 
dedicated specifically to helping families, low-income 
immigrant families like mine to contribute their best to our 
country and achieve the American dream.
    I'm an immigrant from Colombia. I arrived as a child to 
Central Falls, Rhode Island when my father was recruited to 
work at a textile factory there. My parents, like the parents 
of those who might be eligible for deferred action under the 
President's executive authority, came here in pursuit of the 
American dream for their children.
    Last month, President Obama announced policy changes that 
bring much needed humanity and transparency to our immigration 
system. The President's actions are well within the scope of 
his authority. He is relying on the Doctrine of Prosecutorial 
Discretion which you have heard about which provides the 
Department of Homeland Security, as well as every law 
enforcement agency in this country, the authority to set 
enforcement priorities, to target resources, and to shape how 
the law will be implemented. The Doctrine of Prosecutorial 
Discretion is well-established with solid constitutional, 
legal, and historical grounds.
    First, it is well settled in the courts that the executive 
officials have wide latitude in exercising this prosecutorial 
discretion. In the seminal case of Heckler v. Chaney the 
Supreme Court held that the agency's decision to enforce or 
prosecute in either a civil or criminal matter is a matter of 
the ``agency's absolute discretion.'' This includes the 
agency's decision to prosecute or not to prosecute.
    In 2002, in enacting the Homeland Security Act, Congress 
expressly charged the executive branch with, ``Establishing 
national immigration enforcement policies and priorities.''
    Secondly, exercising prosecutorial discretion to 
deprioritize the deportations for certain individuals is 
consistent with the Take Care Clause in Article II, Section 3 
of the Constitution. Again, the Supreme Court held very clearly 
in Heckler v. Chaney, that because the executive branch is 
rarely provided enough funding to enforce every provision of 
every law against every single person in our country, the 
executive branch must develop enforcement priorities. The 
Heckler court specifically says, ``Fateful execution of the law 
does not necessarily entail acting against each technical 
violation of the statute.''
    Finally, in addition to the legal authority, there is ample 
historic precedent to the Obama administration's actions. 
Again, every Administration, Republican and Democrat since 
President Eisenhower, have exercised prosecutorial discretion 
to protect immigrants from deportation.
    President Obama's executive actions are also good policy. 
Not only will the President's actions bring order and 
transparency to DHS' enforcement priorities, it will also add 
billions of dollars to our coffers. Removing the threat of 
retaliatory deportation for workers will also improve working 
conditions for American workers. Moving workers from the 
informal economy, to the formal economy will improve America's 
economy. And by creating a process by which individuals can 
come forward, apply, register with the Government, the 
Government will be able to refocus its enforcement priorities 
instead of separating families.
    Most importantly, this is not about politics or abstract 
numbers. This is about our families. This is about our 
communities. It is about our country. One cannot underestimate 
the significant impact that this policy change will have on 
those who might benefit. The mothers, fathers, young immigrants 
who are here, who are working, who are studying, will be able 
to contribute even more fully to our society. Reasonable minds 
might disagree on the politics or whether this is even real 
good policy. But what is undeniable is that the status quo is 
wholly unacceptable.
    Lupita, a brave 13-year old who is in the audience today, 
understands the psychological trauma the threat of deportation 
can cause. I met her over 6 years ago when her father was 
detained in a large Los Angeles-area raid. During the years 
that followed, Lupita suffered and struggled. Most Americans 
understand that U.S. citizens like Lupita need their parents to 
help them grow. The President's actions are good news for 
Lupita and her little sister Marisol, because her mother Isabel 
who is also here today should qualify under this new deferred 
action program.
    Every daughter needs their mother. And our Nation's laws 
should support strong families rather than rip them apart. What 
is truly at stake here today is the fight for the soul of our 
Nation. Are we going to continue ripping away parents from 
their children? Are we going to deport young immigrants who 
want to contribute their best to helping make America great or 
are we going to use existing law to bring order, fairness, and 
equality to our immigration system so that immigrants with 
strong ties to our communities can fulfill their full human 
potential.
    Our country can, and must do better. The American people 
have long supported the principles behind these new immigration 
policies because they recognize that they are good for our 
Nation. I trust that in your hearts and minds, you and I share 
a desire to do what is best for our country and I look forward 
to working with you toward that end.
    Thank you again for the opportunity to testify today and I 
look forward to answering your questions.
    Mr. Goodlatte. Thank you.
    [The testimony of Ms. Hincapiee follows:]
        
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  Mr. Goodlatte. We will now begin the questioning, and I'm 
going to reserve my questions at this time.
    I recognize the gentleman from Wisconsin, Mr. Sensenbrenner 
for his questions.
    Mr. Sensenbrenner. First of all, I think I should emphasize 
the point that this hearing is on whether the President's 
action is constitutional.
    The policy questions are not within the scope of this 
hearing, and I think will end up being debated at a later 
point, probably ad nauseam. What I would like to do is ask a 
couple of questions.
    First of all, why do you think the President on 22 
occasions said that he didn't have the power to do what he did, 
and then did a 180? Maybe Ms. Hincapiee, you can start out with 
an answer to that.
    Ms. Hincapiee. I would be happy to, Representative 
Sensenbrenner.
    So unfortunately, I think the President was talking 
politics. He made those comments, much to our dismay, because 
we believe for many years now that the President did and does 
in fact have the legal authority. The President on a number of 
those occasions was specifically talking about immigration 
reform. He has been so focused on getting immigration reform 
done with Congress that he continually told the immigrant 
rights community that he would not do----
    Mr. Sensenbrenner. Okay. Let me ask Mr. Sekulow what his 
opinion is on this subject.
    Mr. Sekulow. I think the President was correct when he said 
he could not make the law or change the law. He was speaking 
correctly. I think when he made the statement that he has 
changed the law, he recognized also that he did something. He 
thought he changed the law. He doesn't think, by the way, it 
was simply a policy decision. He stated, he changed the law. 
And I don't, as I said in my testimony, Congressman, I don't 
believe there is anybody on this Committee that believes the 
President has the authority to change the law. He knew he did 
not when he made the statement 22 times. And then he changed 
the law. He doesn't get to do that.
    Mr. Sensenbrenner. Okay, now, his own DHS secretary Jeh 
Johnson has stated there comes a point when something amounts 
to a wholesale abandonment to enforce a dually enacted 
constitutional law that is beyond simple prosecutorial 
discretion. I think that at least three of our witnesses 
believe that the President has crossed that line? Could you be 
more specific, and let me start with Mr. Dupree, be brief, and 
then work that way.
    Mr. Dupree. Well, thank you, Mr. Sensenbrenner. I think 
that Secretary Johnson was correct when he says that there is a 
line. I think in this case the President not only crossed the 
line, but that line is far, far, far in the distance.
    Mr. Sensenbrenner. Well, that's kind of like the line he 
drew on Syria, right?
    Mr. Dupree. I think that is an apt analogy.
    Mr. Sensenbrenner. Thank you.
    Mr. Dupree. And I don't know that the Constitution requires 
a certain number of people beyond which he could not grant 
deferred action to. I don't think the Constitution speaks to 
that degree.
    Mr. Sensenbrenner. Okay. My time is limited. Mr. Sekulow.
    Mr. Sekulow. I'm going to just quote very quickly from the 
opinion that has been quoted by Members of this Committee and 
some of the witnesses, and that is the Chaney opinion. This is 
the part that is conveniently ignored. ``Presidential action 
violates the Constitution''--this is the quote--``if he 
expressly adopts a general policy which is in effect an 
abdication of his statutory duty.'' And I think that's exactly 
what's happened here. The President changed the law.
    Mr. Sensenbrenner. Mr. Rotunda, briefly.
    Mr. Rotunda. Two things.
    Mr. Goodlatte. Turn on your microphone.
    Mr. Rotunda. I'm sorry. Heckler v. Chaney, it said the 
agency's decision not to prosecute or enforce, whether civil or 
criminal process, is generally committed to an agency's 
absolute discretion. The OLC does not quote the next sentence 
that says basically, the reason for this is because of lack of 
standing. The law of standing has changed dramatically. 
Massachusetts v. EPA is an example and so maybe now we will get 
a test of this.
    But the President, it is mind-boggling that the President's 
supporters say that when he told us earlier that he didn't have 
the power, he was just lying. That was politics. That was 
political campaign. My jaw is dropped.
    Mr. Sensenbrenner. Okay. Good.
    Now, the final question I have, and somebody can step up 
and be first, is: Doesn't a wholesale application or 
prosecutorial discretion to thousands, or millions, or maybe 
several millions of people, amount to a repeal of a duly 
enacted law, and does the President have the power to do that 
through prosecutorial discretion?
    Mr. Sekulow. Mr. Congressman, the President could and 
certainly could pardon people. Prosecutors exercise discretion 
on a case-by-case basis every time. You do see a situation 
where someone's alleged violations of SEC laws and there is a 
prosecutorial decision made to not move forward on that case. 
That's called prosecutorial discretion.
    What you don't see, is a decision being made, we are not 
going to enforce the SEC laws in the United States. That would 
be rewriting the laws, which a President or the executive can't 
do.
    Mr. Dupree. I agree with that and I would add to it that 
our Constitution does confer discretion on the executive to 
exercise discretion in individual cases. When do you what the 
President has done here, you cross the line from permissive 
action under the executive's rights under Article II, 
entrenches on this Congress' authority under Article I to say 
what the law is. It is a legislative act.
    Mr. Sensenbrenner. Thank you, my time is up.
    Mr. Goodlatte. The Chair recognizes the gentleman from 
Michigan, Mr. Conyers, for his questions.
    Mr. Conyers. Thank you.
    Attorney Hincapiee, you have talked about prosecutorial 
discretion and whether it can really encompass a program that 
allows people to come forward and affirmatively apply for 
protection. Do you consider this a form of prosecutorial 
discretion, ma'am?
    Ms. Hincapiee. Yes, Congressman. Basically, prosecutorial 
discretion in the immigration context, there are over 20 
different types of discretion. And here what the Administration 
has done is simply identified what the levels of priorities 
are, and has determined that parents of U.S. citizen children, 
and lawful permanent residents should not be deported and they 
will be given an opportunity to come forward. There is 
individual adjudication. This is not a massive blanket, giving 
people work authorizations simply because they are a parent of 
a U.S. citizen.
    Individuals will have to come forward. They will have to 
pass a criminal background check. They will have to show that 
they meet all of the eligibility criteria. And only after an 
individual adjudicator determines that that person merits 
deferred action will they be able to, under existing 
regulations, nothing new, existing regulations apply for an 
employment authorization document.
    Mr. Conyers. Of course.
    Now, let me talk about deferred action which has existed 
for decades. Dating back more than 40 years, INS exercised 
prosecutorial discretion to grant non-priority status based 
upon humanitarian consideration. But in this case the 
Administration says that it will also offer work authorization 
to people who receive deferred action, not amnesty, or anything 
else. Can you recall any legal authority for that, and is that 
a break in tradition?
    Ms. Hincapiee. Absolutely not. Again, the President has not 
created any new laws. The deferred action, as you mentioned 
yourself, Congressman, has existed--deferred action has existed 
for decades on the books. And in fact, the regulations, the 
immigration regulations section--8 CFR Section 274a.12 
specifically lists out who is eligible for work authorization.
    And subsection (c)(14) explicitly says that--I will just 
quote, ``An alien who has been granted deferred action, an act 
of administrative convenience to the Government which gives 
some cases lower priority, if the alien establishes an economic 
necessity for employment; is eligible for work authorization.''
    So this is, again, this is existing regulations on the 
books for many years prior to the Obama administration. There 
is nothing new in what the President has done.
    Mr. Conyers. Now, turning to Chief Counsel Sekulow, can you 
tell me what new statute Presidents George H.W. Bush, and 
Clinton were implementing when they granted deferred enforced 
departure and employment authorization to hundreds of thousands 
of Salvadoran, Haitians, Liberians, after Congress chose not to 
extend their temporary protected status?
    Mr. Sekulow. Mr. Conyers, the Supreme Court is recognized 
when it comes to matters of foreign concern, national security, 
there are issues where they have allowed deferred action. 
However, I reiterate what I said at the hearing in my 
testimony. I don't believe and I still believe, actually, that 
the actions of President Bush, and President Reagan, as 
President Obama's are constitutionally suspect, and I don't 
think the fact that you have got a 30- or 40-year history of 
action that is unconstitutional doesn't get better with time.
    I think it is important to point out that this is not an 
enforce-free zone creation here. This is different than even 
those cases.
    Mr. Conyers. I get your drift. Let me ask you about 
whether--this goes to you, Mr. Dupree, as well. Can you tell me 
what new statute George H.W. Bush was implementing when he 
granted deferred enforcement departure and employment 
authorization to approximately 80,000 Chinese nationals at the 
Tiananmen Square massacre?
    Mr. Dupree. Mr. Conyers, the first President Bush, I think, 
was doing two things in his grants of immigration relief. One 
is, he was following on certain actions taken by his 
predecessor, President Reagan in interpreting the Immigration 
and Reform Control Act of 1986. And I think that both President 
Reagan and President Bush were faithfully implementing the will 
of Congress in issuing regulations pursuant to ICRA.
    With regard to particular grants, either of Chinese 
nationals, Tiananmen Square, as Mr. Sekulow said, that is well 
recognized authority that when you have a foreign crisis, often 
one that generates a large number of refugees, that the 
President in large part owing to his duties under the 
Constitution to engage in foreign affairs and oversee the 
Nation's foreign relations, often will grant temporary 
protected status to persons from affected Nations.
    Mr. Conyers. Well, the answer in both of these instances 
were none. But I appreciate your interpretation.
    My time is exhausted, and I thank the Chairman.
    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 you with us today.
    Mr. Rotunda, let me start with you. Some of the 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 indeed a fundamental 
difference between prosecutorial discretion, and many of the 
President's unilateral actions?
    Mr. Rotunda. The short answer, if I can be short, is 
prosecutorial discretion, the case is referred to criminal 
prosecutions. The refusal to not prosecute somebody who enters 
the United States fraudulently in violation of its criminal 
laws.
    The Office of Legal Counsel has said, the 1990 opinion, it 
says, the President's powers do not permit the President to 
determine as a matter of policy discretion which statutes to 
enforce. Obviously, the President cannot refuse to enforce a 
statute he opposes for mere policy reasons. Now, you would 
think the present OLC opinion would distinguish that. They 
don't even cite it. And there is a whole series of other ones 
where they don't cite it. In Galvan v. Press, the Supreme Court 
said Congress is the authority in immigration matters, not the 
President. The President implements the law. You would think 
that the OLC opinion would try to distinguish that. They ignore 
it.
    Mr. Coble. I thank you, Mr. Rotunda.
    Mr. Sekulow, let me bring one of the President Bushes into 
the hearing room here. President H.W. Bush proposed that 
Congress should lower the tax on capital gains, you may recall. 
Congress did not enact his proposal. Under President Obama's 
assertion of executive power, could President Bush simply have 
ignored or instructed the IRS not to enforce the tax code on 
capital gains greater than 10 percent?
    Mr. Sekulow. If President Bush would have done that, he 
would have been exercising an unconstitutional policy that he 
would be implementing. It would not be legal and it would be 
unlawful. Having said that, I think it's a great analogy to 
what's happened here. I keep going back to this, but the truth 
of the matter is, the President, you can play the 22 times the 
President said, I'm not a king and I have to work with 
Congress. But the President of the United States, and I want to 
read this because this addresses this, made this exact 
statement.
    Mr. Coble. If you will, be terse. I have got one more 
question for you. Go ahead.
    Mr. Sekulow. Okay, very quickly. The President said, I just 
took an action to change the law. And as I keep saying, no one 
on this Committee can possibly believe that the President has 
that authority. He just doesn't. You couldn't do it for taxes. 
You can't do it for immigration.
    Mr. Coble. I thank you, sir.
    Mr. Dupree, and Madam, let me put this question jointly to 
you all. I am advised that there may be approximately 5 million 
who are waiting in line, complied with the law, who may fall 
victims of double standards. Is my concern justified?
    Mr. Dupree. I think it is. I fear, and I feel badly for 
people who have been waiting in line, waiting their turn, and 
now, unfortunately, may be penalized and that they are moved 
farther back in the line, precisely because they had the bad 
judgment to respect our laws and play by the rules.
    Mr. Coble. Is 5 million an accurate count?
    Mr. Dupree. That sounds right to me. I don't profess to 
have personal knowledge of that, but that sounds right.
    Mr. Coble. Madam, do you want to be heard on that question?
    Ms. Hincapiee. Sure. I completely agree that there is a 
need to address the backlog, the visa backlog, and frankly, 
this is where Congress needs to act and pass immigration reform 
so that families can be reunited.
    However, we do have 11 million people in this country, and 
what the President has done has said individuals who are 
parents of U.S. citizens, lawful residents, are low level 
priority. However, he will continue enforcing the law based on 
the appropriations you have provided. So there is no abdication 
of his authority. Let's remember, only about 4 or 5 million 
people are estimated to benefit from this deferred action 
program and other changes. There are another 6 million plus 
individuals who will be subject to deportation and detention 
under the appropriations that the Congress has allocated.
    Mr. Coble. I thank you.
    Mr. Sekulow.
    Mr. Sekulow. Yes, sir?
    Mr. Coble. I cut you off earlier. We have a few moments. 
Maybe you want to reclaim your time.
    Mr. Sekulow. Yes, sir, if I may. I am just going to--it is 
in response to my colleague. Here is the problem: Under the 
President's plan, what lawyer would recommend to their client 
who was an unlawful immigrant in the United States that even 
fit under this plan, what lawyer would recommend that their 
client register for this knowing that to be constitutional, OLC 
said, you have to have absolute discretion and that the 
President on his own can cut this program off at a moment's 
notice.
    So now you have disclosed yourself publicly. You may have 
come out of the shadows, but the light at that point will be so 
bright you could end up in a situation worse than you were in 
to begin with.
    Mr. Coble. Thank you.
    The red light is about to illuminate. Thank you all again.
    Mr. Goodlatte. Would the gentleman yield? Would the 
gentleman from North Carolina yield to the Chair?
    Mr. Coble. I will be pleased to.
    Mr. Goodlatte. I thank the gentleman and without objection, 
the gentleman is recognized for an additional 30 seconds.
    I just want to make one important point here. The 
gentlewoman, Ms. Hincapiee, stated that the other 6 million 
would be subject to deportation. But the President, the same 
time he signed the Executive Order that made it clear that 
those 5 million would be entitled to a legal, administrative 
legal status, also changed other rules that made it clear that 
the vast majority of the remaining 6 million who are already 
here will not be subject to action to deport them because----
    Ms. Lofgren. Would the gentleman yield?
    Mr. Goodlatte. I will recognize the gentleman for an 
additional 30 seconds so he can yield to the gentlewoman from 
California.
    Mr. Coble. I have the time and I will yield.
    Ms. Lofgren. I will just note that it is indeed correct 
that the other 6 million have fallen into the new categories.
    However, we have 11 million undocumented individuals. 
Congress only appropriates sufficient funds to remove 400,000 a 
year. Surely, the Chairman is not suggesting that there should 
be no policy on who should come first of the 400,000 of the 11 
million.
    And I yield back.
    Mr. Coble. Well, reclaiming my time, I don't want to 
penalize those who have complied with the law. That's the 
direction from which I was coming.
    I reclaim and yield back.
    Mr. Goodlatte. The Chairman recognizes the gentleman from 
New York, Mr. Nadler for 5 minutes.
    Mr. Nadler. Thank you.
    Thank you, Mr. Chairman. I am glad that this is not a 
hearing on the policy because if it were a hearing on the 
policy, I would point out that in the last Congress, this 
Committee reported four bills--I'm sorry, voted for four 
immigration bills, none of which had report language or went to 
the floor. So that's how active this Committee has been, or the 
House has been in trying to deal with the policy problem which 
everybody agrees with.
    But let me ask a few very specific legal questions about 
the President's power.
    First of all, Professor Rotunda, you quoted Heckler v. 
Chaney. In Heckler v. Chaney the Supreme Court explained that 
``An agency's decision not to prosecute or enforce, whether it 
is a civil or criminal process is a decision generally 
committed to an agency's absolute discretion.''
    In your written remarks you distinguished Chaney by saying 
it really focused on standing and by saying the law on standing 
has evolved significantly since that decision. But do you know 
how many times the court in Chaney mentioned standing in its 
opinion? Zero. The decision actually had nothing to do with 
standing. The case involved a lawsuit against the FDA brought 
by prisoners who were due to be executed by lethal injection. 
They sued to force the FDA to ban the use of these particular 
drugs for executions after the FDA denied their petition for 
enforcement. It is hard to imagine that even the most 
conservative judge would find standing lacking in that 
situation.
    So given the fact I don't see how you find standing there. 
And the case does stand for the proposition that the agency's 
decision to prosecute or enforce is at its discretion.
    Mr. Rotunda. Yeah, please look at 470 U.S.----
    Mr. Nadler. I can't hear you, sir.
    Mr. Rotunda. I'm sorry. Please look at 470 U.S. page 831, 
the text at note 4--as well as note 4. In note 4, the court 
says: ``We don't have a situation where it could justifiably be 
found that the agency has 'consciously and expressly adopted a 
general policy' that is so extreme as to to amount to an 
abdication of the statutory responsibilities.'' It then cites 
with approval Adams v. Richardson, a DC case in 1973, which 
found standing and ordered the agency to act.
    Now, I would have thought the OLC, since it relied on this 
case, I think 20 times, would have pointed out why somehow that 
footnote was irrelevant to them.
    Secondly, you are absolutely right. It does not use the 
word standing, but it talks about the course--what it says in 
the paragraph before the text at footnote 4, is that generally 
the agency exercises coercive power over an individual. That's 
how the courts get standing.
    Mr. Nadler. But generally, the agency may exercise coercive 
power over an individual at its discretion. It doesn't have to 
exercise discretion. That's what an agency has to do.
    Mr. Rotunda. I'm sorry, the court says at text and footnote 
4, that we emphasize, the decision is only presumptively 
unreviewable; but presumption may be rebutted where the 
substantive statutes provided guidelines for the agency to 
follow in exercising its enforcement power.
    Mr. Nadler. Okay, so the court is saying that the agency 
has discretion, and in its enforcement power, and the statute 
gives it guidelines in how to exercise that discretion.
    Mr. Rotunda. It says that it is presumptively unreviewable, 
but when it is exercising power in a way that has standing, it 
can be reviewed. I mean, that is basically what Adams v. 
Richardson said, if I can just finish the sentence, and if you 
fast forward to Massachusetts v. EPA, where the State of 
Massachusetts, forced the EPA to institute regulations with 
carbon dioxide pollution and global warming. Excuse me, and the 
Supreme Court said----
    Mr. Nadler. Excuse me, you are wrong on that too. The 
holding of the court says very clearly, ``We hold only that EPA 
must ground its reasons for action or inaction in the 
statute.'' That is, if the EPA wishes to deny a petition of 
rulemaking, it needs to do so in a matter that is ``not 
arbitrary and capricious or otherwise not in accordance with 
the law.'' But it is its decision.'' All that is saying is, it 
can't be arbitrary and capricious, which is the normal 
standard.
    Mr. Rotunda. If the court said that, they wouldn't say it 
was presumptively unreviewable. They would say it would always 
be unreviewable. And the court reviewed--the court reviewed the 
EPA in Massachusetts v. EPA.
    Mr. Nadler. The court said that the EPA had that 
discretion.
    Let me ask you a different question, though. The statute 
very clearly says that certain individuals shall upon the order 
of the Attorney General be removed. That would seem, the key 
words ``upon the order of the Attorney General'' would same to 
indicate that the executive branch official has discretion to 
decide whether those undocumented immigrants be deported or 
not.
    Mr. Rotunda. You are dealing with a complex statute, and 
you are taking out a phrase.
    Mr. Nadler. You are dealing with a lot of complicated court 
decisions and taking out phrases.
    Mr. Rotunda. I'm sorry, what?
    Mr. Nadler. You are dealing with a lot of complicated court 
decisions and taking out phrases.
    Mr. Rotunda. I found pretty much due to it holding, and 
when I quote from the OLC, from their prior cases where the OLC 
says the President doesn't have the discretion to refuse to 
enforce laws he disagrees with as a matter of policy, maybe 
there is a way to distinguish that. But a good legal opinion 
would have done that----
    Mr. Nadler. Let me read you from the case of Arizona v. 
U.S., which is probably the most recent--probably the most 
relevant case. In Arizona the Supreme Court relied upon the 
broad discretion exercised by Federal immigration officials and 
let me read from you the decision. ``Congress has specified 
which aliens may be removed from the United States and the 
procedures for doing so.''
    May be. ``Aliens may be removed if they were inadmissible 
at the time of entry, had been convicted of certain crimes, and 
meet other criteria set by Federal law. Removal is a civil, not 
a criminal matter. A principal feature of the removal system is 
the broad discretion exercised by immigration officials. 
Federal officials, as an initial matter, must decide whether it 
makes sense to pursue removal at all.'' QED, end of discussion.
    Mr. Rotunda. I wonder why the President for 6 years----
    Mr. Nadler. Excuse me, I asked you about the Supreme Court 
ruling. The President may have been mistaken, and he may not 
have studied the issue. That is not the point. The point is, 
the Supreme Court has told us that Federal officials as an 
initial matter must decide whether it makes sense to pursue 
removal at all. A principal feature of the removal system is 
the broad discretion exercised by immigration officials. That 
would seem right there to justify almost any discretionary 
program that isn't arbitrary and capricious.
    Mr. Rotunda. Now, I----
    Mr. Goodlatte. The time of the gentleman has expired. The 
gentleman may briefly answer the question.
    Mr. Rotunda. Yeah. I would have thought the OLC would have 
at some point, rather than sitting on its haunches and 
vegetate, tell the President, for the last 6 years, you have 
been wrong.
    Mr. Nadler. But you didn't answer what the Supreme Court 
just said here.
    Mr. Rotunda. I wish I could----
    Mr. Nadler. I wish you could too.
    Mr. Goodlatte. The Chair recognizes himself for his 
questions, and will give the gentleman Mr. Rotunda an 
additional few seconds, to respond again to that.
    Mr. Rotunda. Galvan v. Press, page 531 of volume 347, the 
court said: ``In the enforcement of these immigration policy'' 
and I'm quoting now, ``the executive branch of the Government 
must respect the procedural safeguards of due process, but the 
formulation of these policies is entrusted exclusively to 
Congress.'' That has become about as truly embedded in the 
legislative and judicial issues of our body politic as any 
aspect of our Government. Now, maybe you can distinguish that, 
too, but I thought----
    Mr. Goodlatte. Let met buttress your argument here.
    In Arizona v. U.S., the Supreme Court said: ``Discretion in 
the enforcement of immigration law embraces immediate human 
concerns. Unauthorized workers trying to support their 
families, for example, likely pose less danger than alien 
smugglers or aliens who commit a serious crime.'' But it goes 
on to say, ``the equities of an individual case may turn on 
many factors, including whether the alien has children born in 
the United States, long ties to community,'' et cetera, et 
cetera.
    So the issue really here is, what is the meaning of 
prosecutorial discretion? Has the President abused that 
discretion when he applies it in a blanket way to 5 million 
people or does it----
    Mr. Nadler. Mr. Chairman.
    Mr. Goodlatte. For what purpose does the gentleman seek 
recognition?
    Mr. Nadler. To make a 30-second comment on what you just 
said.
    Mr. Goodlatte. I am not going to yield to you. I'm going to 
ask my questions of the gentleman.
    Mr. Rotunda. The President has dispensed the law, suspended 
the law until he says otherwise. That is not what you normally 
think of as prosecutorial discretion, which typically involve 
suspensions of the criminal law, not the immigration laws, at 
least the civil aspects of immigration.
    Mr. Goodlatte. And President Obama cites an opinion of the 
Justice Department's Office of Legal Counsel to justify his 
executive legalization of millions of unlawful aliens. Isn't it 
true that the Office of Legal Counsel doesn't have a 
particularly great track record when it comes to questions of 
executive power?
    For example, in 2012 the Obama administration touted an OLC 
opinion justifying the President's controversial recess 
appointments. Didn't the Supreme Court subsequently rule that 
those appointments were unconstitutional, in a unanimous nine 
to nothing ruling?
    Mr. Rotunda. He lost nine to zero.
    Mr. Goodlatte. The Justice Department Office of Legal 
Counsel states that the salient feature of class-based deferred 
action program, the establish of an affirmative application 
process with threshold eligibility criteria does not in and of 
itself cross the line between executing the law and rewriting 
it. This is because each program has also left room for case-
by-case determinations giving immigration officials discretion 
to deny applications even if the applicant fulfills all of the 
program criteria. This feature of the proposed program ensures 
that it does not create a categorical entitlement to deferred 
action that could raise concerns that DHS is either 
impermissibly attempting to rewrite or categorically declining 
to enforce the law with respect to a particular group of 
undocumented aliens.
    However, in President Obama's deferred action for childhood 
arrivals, DACA program, executive legalization for illegal 
immigrants who came to the U.S. as minors, the promise of 
discretion for adjudicators is mere pretense. In reality, DHS 
has admitted to the Judiciary Committee that if an alien 
applies and meets the DACA eligibility criteria, they will 
receive deferred action.
    In reality, immigration officials do not have discretion to 
deny DACA applications if applicants fulfill the criteria. 
Thus, by the Office of Legal Counsel's own admission, the 
President's DACA program is constitutionally suspect. The 
rules----
    Mr. Conyers. Mr. Chairman, parliamentary inquiry. Are you 
using your own time?
    Mr. Goodlatte. I'm using my own time.
    Mr. Conyers. Well, I'm glad that you announced that.
    Thank you very much.
    Mr. Goodlatte. The rules of the game will most assuredly be 
the same for President Obama's latest executive legalization. 
Thus, isn't it true that the OLC would also clearly find the 
President's latest gambit constitutionally suspect? Mr. 
Sekulow.
    Mr. Sekulow. Well, I think here is the situation. When you 
read the OLC memorandum and the justification for the case-by-
case individual analysis, it goes on to state--now, I wish some 
of the people that were protesting would stay for the rest of 
this and see if they really like this deal so well, the deal 
the President put forward, because as he said, ``As we 
previously noted, deferred action confers no lawful immigration 
status, provides no path to lawful permanent residency or 
citizenship, and is revocable at any time in the agency's 
discretion.''
    Now, that is markedly different than what the President 
told the 4 million people to come out of the shadows, from what 
he actually told them, to what OLC said he can do. And when you 
look at the OLC memo, on the individual case-by-case 
determination and you look at it in the context of reality, 
there is no way that it can be handled on a case-by-case basis. 
So it is either a blanket exemption across the board, or it is 
not.
    Mr. Goodlatte. Thank you.
    Mr. Dupree, did you want to add to that?
    Mr. Dupree. I agree with that. I think the language in 
there referring to the purported case-by-case analysis is 
simply window dressing and tend to confer a patina of 
constitutional legitimacy on this policy, which is plainly 
unconstitutional.
    Mr. Goodlatte. It's a blanket governance.
    The Chair recognizes the gentleman from Virginia, Mr. 
Scott, for his questions.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, we could put an end to this debate by passing 
some kind of comprehensive immigration reform. Apparently, many 
on both sides of the aisle agree it's a policy, and so instead 
of arguing process, let's get on with comprehensive immigration 
reform. But in the meanwhile, it has been acknowledged that 
about 11 million people are potentially subject now to 
deportation. Congress has spoken, and has not appropriated 
anywhere close to enough money to deport everyone, as my 
colleague from California has said. And so Ms. Hincapiee, we 
have to establish some policy as to priority. What is wrong 
with the policies articulated by the President?
    Ms. Hincapiee. So, there is nothing wrong with the policies 
announced by the President. In fact, they are based on 
Congress' will over the years to say that we should respect 
family unity and that the fact that the Administration has 
decided to focus on the parents of U.S. citizens, and lawful 
permanent residents is good policy and the Administration gets 
to decide. They have that executive discretion to decide who is 
a low-level priority so that they then can use and follow the 
law, the appropriations that have been provided by Congress, to 
focus on serious criminals and individuals who pose national 
security threats, et cetera.
    Mr. Scott. Thank you.
    Professor Sekulow, if the Administration said and states 
where the States have eliminated prohibitions against marijuana 
that they are not going to prosecute any low-level marijuana 
cases, would that be constitutional?
    Mr. Sekulow. Well, I think the Supremacy Clause, if there 
is a Federal law on marijuana use, the State can override it.
    Mr. Scott. That is right, absolutely right. If the 
President says notwithstanding that reality, they are not going 
to prosecute cases would that be constitutional?
    Mr. Sekulow. On a case-by-case basis utilizing 
prosecutorial discretion, he could do that. What he could not 
do though, Congressman Scott, would be to say we are no longer 
going to enforce the drug laws in the United States, or even 
particularly the marijuana laws in the United States. That 
individual case-by-case determination is critical, but it is in 
this memo because it was the only way to justify the 
President's actions.
    Mr. Scott. So it would not be constitutional to not 
prosecute in those States?
    Mr. Sekulow. If the President were to determine as a matter 
of executive action----
    Mr. Scott. Right.
    Mr. Sekulow [continuing]. That he was not going to enforce 
the laws against utilization of marijuana as a criminal act, I 
believe that that would not be within his authority.
    Mr. Scott. In those States.
    Mr. Sekulow. In those States. Saying on an individual basis 
he wants to exercise discretion, he can do that on an 
individual basis.
    Mr. Scott. And if you disagree with that, then that's 
pretty much where we are on this debate?
    Mr. Sekulow. Pretty much.
    Mr. Scott. Okay. Now the Family Fairness Program, I 
understand that President Bush covered about 42 percent of the 
undocumented population; the Obama administration, this 
Executive Order covers about 35 percent.
    Can you explain, Mr. Sekulow, how Presidents Reagan, Bush, 
Clinton and Bush, can you remind us how they can do something, 
but all of a sudden President Obama can't do essentially the 
same thing?
    Mr. Sekulow. As I said in the written testimony, 
Congressman Scott, and as I said in my opening statement, I 
don't believe that President Bush, President Clinton, President 
Bush, and President Obama have the constitutional authority to 
do what they did. And the fact that it has been done for 4 
Administrations and over 25 or 30 years, as I said, 
constitutional violations don't get better with time.
    I mean, some have argued that there is statutory 
determination distinctions that are at play here. I don't take 
that position. I take the position that if you look at it just 
constitutionally, was there a constitutional basis upon which 
those actions were taken? And I'm frankly, I don't see it, and 
I'm sympathetic to what they are doing. It's just, I don't see 
it to be done that way. And these percentages should make--
constitutionality is not determined by the percentage of 
violations. If there is a violation of 1 percent, it is as bad 
as a violation of 99.
    Mr. Scott. Is there any constitutional legal distinction 
from a general deferment and a country-specific action?
    Mr. Sekulow. Yes, because the President has inherent--and 
the Supreme Court has recognized this--has inherit ability to 
deal with matters of foreign affairs and national affairs of 
the country.
    Mr. Scott. And if there is a violation, who has standing to 
complain?
    Mr. Sekulow. The great question. The standing question. I 
think some of the States are going to try to have standing in 
this particular case. Standing always are difficult in these 
kind of challenges.
    Mr. Scott. If the President had just done it without 
talking about it, what would be the result there?
    Mr. Sekulow. He would have been found out. You can't do it 
to 4 million people. And I will be, again, brutally honest 
here, as someone who is in favor of comprehensive immigration 
reform, as a lawyer, I would not recommend my client take a 
deal where their status is revokable at any time at the 
agency's discretion. So maybe he would have done it. I question 
how many people are going to actually take part in this.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    The Chair recognizes the gentleman from Alabama, Mr. Bachus 
for 5 minutes.
    Mr. Bachus. Thank you.
    I think maybe listening to everyone on the panel, I think, 
and most of the Members on the dais, we all agree that our 
country, its citizens, and even our immigrants need 
comprehensive immigration reform.
    And Mr. Dupree said, you have been frustrated for years 
over our inaction. So let's agree on that just for purposes of 
argument. Does that make what the President did constitutional 
if it is unconstitutional?
    Mr. Sekulow. Well, in my view, Congressman, no, it would 
not. And I think, to Congressman Scott's point, I think it 
actually has hurt the debate because as you see here and you 
hear, there is a lot of agreement of the need for, you know, a 
constitutional path, a legal path of immigration reform.
    And look, when I hold my grandfather's naturalization 
papers up, it means a lot to me. Me when they call my name at 
the Supreme Court and say, Mr. Sekulow, we will now hear from 
you, and I am the grandson of that Russian immigrant, I get it.
    But the process has to be right. And I think, 
unfortunately, the President's action which I still think is 
not only constitutionally suspect, but dangerous for the 
potential client, I don't think that advances the debate 
because we are talking about, as Congressman Scott said, we are 
talking about this, instead of getting real comprehensive 
immigration reform through, which would include border 
security.
    Mr. Bachus. Yeah, and I think I know Mr. Sensenbrenner said 
we are here to figure out why he did what he did. I don't think 
that's helpful at all. I mean, we would probably come up with 
100 different variations on why he did it. I don't think that's 
material. I think it's whether it is constitutional or 
unconstitutional.
    And I think we go back to, you know, this little book here, 
How Our Laws Are Made.** I mean, you know, fifth grade, and I 
want to introduce this.
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    **The material referred to is not reprinted in this hearing record 
but is on file with the Committee and can be accessed at http://
thomas.loc.gov/home/lawsmade.toc.html.
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    Mr. Goodlatte. Without objection it will be made a part of 
the record.
    Mr. Bachus. And then we back that up with not only Section 
1 of Article I, but Section 8 which actually says to establish 
uniform rules and naturalization. And it didn't give it to the 
President; clearly, and simply gave it to the Congress. Now, 
some of us may disagree with that. But it's the Constitution.
    Mr. Rotunda. Mr. Bachus, a brief comment. Justice Jackson 
in Youngstown Sheet & Tube v. Sawyer said, ``The President's 
power is at its lowest when he is acting contrary to the 
express or implied will of Congress.'' And the President has 
basically admitted the implied will of Congress, if not 
expressed, is not to act in this area at least not yet. So his 
power should be at the lowest.
    Justice Jackson--or Justice Frankfurter, rather, in that 
opinion also said that we are not dealing with a situation 
where there is a temporary emergency and the President is 
acting until he can persuade Congress to act. That ends on its 
own. Neither one of those statements was discussed in the OLC 
opinion.
    Mr. Bachus. Thank you.
    And let me say this: You know, the question has been asked, 
and I think it's answered in the question: Can the President 
create, amend, suspend, or ignore an act of Congress? I think 
the answer is right there, an act of Congress.
    Mr. Dupree. I would also point out----
    Mr. Bachus. And the answer is no.
    Mr. Dupree. One of the many grievances articulated against 
British rule in the Declaration of Independence was the kings' 
propensity to suspend or disregard the lawful enactments of 
parliament. And so it really goes back to the very foundations 
of our country.
    Mr. Bachus. Right.
    Mr. Dupree. In fact, I think it was Mr. Scott who referred 
to, let's discuss policy rather than process, but the point is, 
process matters. It mattered to our Founders and it should 
matter to----
    Mr. Bachus. And let met tell you why it ought to matter to 
those who are in our country without legal status. Many of them 
came here because there was no rule of law in their country. 
And they came here because we have rule of law.
    And to come, or even for us to allow them to come and start 
with a violation of rule of law actually degrades not only our 
citizens, but those who are here, who we all owe the protection 
of our laws, whether you agree or disagree with this, are for 
everyone's benefit.
    And they are, our liberty, liberty, liberty. That's what 
they talked about when they wrote these things. And this is a 
loss of liberty. And it just doesn't matter why the President 
did this, or his motivation, or whether we think it is 
reasonable. It is not. It violates the rule of law.
    Does anyone disagree with that?
    Ms. Hincapiee. I respectfully disagree, Congressman Bachus, 
and the reason, again, is I think we are going back and forth 
between is the President following the Constitution, and----
    Mr. Bachus. Well, let me ask you this:
    Mr. Goodlatte. The gentleman's time is expired. He can 
state his question very quickly and you can respond very 
quickly.
    Mr. Bachus. Does the President have the right to create an 
act of Congress, to amend an act of Congress, or to suspend an 
act of Congress, or to ignore an act of Congress? And you know, 
this is 50 pages.
    Mr. Goodlatte. That's the question.
    Ms. Hincapiee. Absolutely not. And that is not what the 
President is doing here. The President is continuing to follow 
the act of Congress by enforcing and using the appropriations 
for 400,000 deportations a year, and secondly, exercising----
    Mr. Bachus. So he has the power to legalize what is 
illegal?
    Ms. Hincapiee. No, he is not providing any legal status to 
individuals. This is simply temporary reprieve from 
deportation. There is no legal status that is being conferred.
    Mr. Goodlatte. The Committee is advised that we have three 
votes on the floor and we will stand in recess and we will 
reconvene immediately after those votes.
    It's my understanding that Mr. Rotunda has some concerns 
with a flight that he doesn't want to miss, and the Committee 
will certainly work with him to accommodate that. If you can 
stay as long as possible, great. But if you need to leave 
during this vote period which is going to last at least a half-
hour, we understand.
    And the Committee will stand in recess.
    Mr. Marino [pesiding].I am going to call this hearing back 
to order. Thank you for waiting. I apologize. I don't think we 
will have anymore interruptions. And the Chair now recognizes 
the Congresswoman from California, Ms. Lofgren.
    Ms. Lofgren. Well, thank you very much, Mr. Chairman, and I 
am glad that the--obviously the last votes of the hour have 
resulted in a much smaller panel back from the votes, so we 
will not be here that much longer. I do want to make a couple 
of comments.
    First, since all of this is submitted to the record under 
oath, I want to make a correction I am sure was inadvertent. 
Mr. Sekulow, in your written testimony, on page 5, footnote 22, 
you assert that there was a provision that allowed for--in the 
statute--that allowed for humanitarian relief for family 
members. When I read that, I thought, Did I get this wrong? And 
so I went and reread IRCA, and I just want to correct the 
record because it is exactly incorrect.
    The statute--well, let me just read what the Committee said 
when they passed the vote. This is the Committee report for 
IRCA: It is the intent of the Committee that the families of 
legalized aliens will obtain no special petitioning right by 
virtue of the legislation. They will be required to wait in 
line as the same manner as immediate family members of other 
new resident aliens.
    The provision that you referenced in the footnote relates 
to humanitarian waiver but only for those individuals, if you 
look at 8 U.S. Code 1401, who are ineligible for other reasons, 
and so it specifically does not provide relief to individuals 
who were made intentionally ineligible for leave under the 
statute. I am sure that was inadvertent, but I would ask 
unanimous consent to put the public record into the record.
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    Ms. Lofgren. I also wanted to question, I guess, an issue. 
In footnote 21 on your testimony, you mentioned the CRS report 
about granting relief. I think it is important--and I would ask 
unanimous consent to place into the record the Congressional 
Research Service report that is referenced, that that, 
according to the CRS, was the first time or at least the most 
notable time that the grant of blanket extended voluntary 
departure was made for domestic policy considerations rather 
than a crisis in a foreign national's homeland.
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    Ms. Lofgren. And I think that is an important issue because 
I think you, sir, and also Mr. Dupree have indicated that prior 
grants of relief were related to the President's inherent 
foreign policy position, and that is clearly--hasn't been the 
case for many decades.
    Finally--well, I guess it is not finally because I don't 
want to be corrected by my colleague from California, but I am 
sorry that Mr. Rotunda has had to leave because I did want to 
comment on a couple of the points that he made. He mentioned 
that the--and I have lost my notes here. Now let me go to you, 
Mr. Dupree.
    You mentioned in your written testimony a former head of 
the Office of Legal Counsel under President Clinton, and we 
researched who was that person, and it turns out, unless there 
were two individuals who made the exact same comment, that it 
was Walter Dellinger. And it occurred to me that, although you 
are quoting him, Mr. Dellinger is 1 of the 10 legal scholars 
who has written to us saying that although they differ on the 
merits of immigration reform, they do not disagree on the power 
of the President and that they have reached the opinion that 
the President's action most recently are completely lawful and 
consistent with governing law and with the policies that 
Congress has expressed in the statutes that it has enacted.
    In fact, when he was making the Take Care Clause comment, 
it was in reference to a request or an opinion regarding 
whether the Constitution limits the authority of the Federal 
Government to submit to binding arbitration. And the OLC 
opinion concluded that there was no such constitutional 
prohibition. As the Supreme Court in Heckler v. Chaney had 
indicated, the faithful execution law does not necessarily 
entail acting against each technical violation of the statute, 
but the case cited really has nothing to do, in my judgment, 
with the points that you are making relative to the immigration 
matter.
    I am wondering, since we only provide sufficient funds to 
deport about 4 percent of the undocumented population a year, 
and since the statute itself charges the Homeland Security 
secretary to establish national immigration enforcement 
policies and priorities, how would it lead you to a conclusion 
that establishing those priorities to fit within the funding 
made available would somehow be impermissible? Mr. Dupree.
    Mr. Conyers. Mr. Chairman, I ask unanimous consent that the 
gentlelady be granted 2 additional minutes.
    Ms. Lofgren. Mr. Dupree.
    Mr. Marino. One minute.
    Mr. Dupree. Congresswoman, my view is that there is no 
question that the executive and Department of Homeland Security 
have the constitutional power to set enforcement priorities. In 
my view, the setting of enforcement priorities is inherent in 
the concept of discretion, and it is something that is 
committed by our Congress to the executive. Where I think that 
President Obama has gone awry is, number one, in indicating 
that he essentially is going to abandon enforcement as to a 
very significant percentage of the affected population, and 
number two is that this really goes beyond a mere statement of 
saying, We are not going to remove you. This amounts to a 
determination that will enable potentially 5 million people to 
claim benefits under Federal law, so it is more than just----
    Ms. Lofgren. If I may. There are no benefits, and I would 
like to thank Mr. Sekulow. We don't agree on the constitutional 
question, but you do note that section 274A(h)(3) of the 
Immigration Nationality Act does apply----
    Mr. Marino. Congresswoman's time has expired.
    Ms. Lofgren. May I ask unanimous consent to put some things 
into the record, please?
    Mr. Marino. Yes, I was going to ask you that, if you wanted 
to put some documents in.
    Ms. Lofgren. I would ask unanimous consent to put the 
following statements into the record: Statements by the 
National Hispanic Christian Leadership Conference; the Lutheran 
Immigration Refugee Service; the Episcopal Church; the Church 
World Service; the AFL/CIO; the American Federation of State, 
County, and Municipal Employees; the American Federation of 
Teachers; the Asian Pacific American Labor Alliance; Bend the 
Arc; the Coalition of Black Trade Unionists; the Economic 
Policy Institute; the Communications Workers of America; Jobs 
With Justice; the Labor Council for Latin American Development; 
the Laborers International Union of North America; the National 
Education Association, the United Auto Workers; the United Food 
and Commercial Workers International Union; the United 
Steelworkers; Asian Americans Advancing Justice; the American 
Civil Liberties Union; the American Immigration Council; the 
American Immigration Lawyers Association; Appleseed; Common 
Cause; Farm Worker Justice; Fair Immigration Reform Movement; 
the Latino Victory Project; Latino American Working Group; the 
National Council of La Raza; One America; and We Belong 
Together; along with 10 stories compiled by United We Dream.
    Mr. Marino. Without objection, those documents will be 
entered for the record.***
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    ***The submissions referred to are not printed in this hearing 
record but are on file with the Committee. A list of this these 
submissions is also available in the Appendix on page 
189.#22,27,19,15,3,4,5,8,10,11,13,14,23,26,28,32,35,36,37,1,2,7
,6,9,12,20,21,24,25,31,33,38,17 deg.
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    Mr. Marino. The Chair now recognizes the Congressman from 
California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Sekulow, you are familiar with the Youngstown v. Ohio 
case.
    Mr. Sekulow. Yes.
    Mr. Issa. Is there any question in anyone's mind whether or 
not the basic question of the President is relying on his 
constitutional authority and not on any statutory authority in 
this case?
    Mr. Sekulow. Well, he believes he is relying on his 
constitutional authority. Under Youngstown Steel, I don't think 
he meets that standard at all. It would be at the lowest ebb 
they said.
    Mr. Issa. But presuming that he does.
    Mr. Sekulow. Yeah.
    Mr. Issa. Presuming that he is relying, clearly not on the 
intent of Congress--clearly when he talks about work permits 
and so on, going well beyond any statutory visas that exist, he 
has only his constitutional authority. So let me ask a series 
of questions, and I will first ask it to you and then the other 
witnesses.
    Mr. Sekulow. Okay.
    Mr. Issa. If the President decided to expand his current 
definition to include all persons with health issues, would 
there be any difference in that basis? If he decided--and I 
will go through a quick series. If he decided that any person 
who had a means of support, any person who had gainful 
employment, any person who had a life-threatening disease, any 
person who was unable to find a job in their home country, any 
person who in fact had been here more than 5 years, period, 
wouldn't all of those arbitrary categories be just as binding 
and just as legitimate as the one that he has created in order 
to create roughly 5 million or almost half of all illegals 
becoming legal?
    Mr. Sekulow. If the President's constitutional analysis was 
correct, that would be correct, Mr. Chairman.
    Mr. Issa. So if we allow this authority to be left 
unchecked, the President could at any time pick any category, 
any group of people, and allow them all to stay here, simply 
under the basis that he created a list of requirements that if 
they met them, they could stay.
    Mr. Sekulow. Yes. And under his theory, at any time, he 
could change his mind the next day and say, now you all have to 
leave. That is the problem.
    Mr. Issa. And let's go into that because I think for all of 
you, I want this question. Back in 2003, I authored the Alien 
Accountability Act. That allowed for a 6-year hiatus in 
deportation of any individuals who came forward, voluntarily 
submitted themselves, and stood up for a procedure in which 
they would only be guaranteed a temporary work permit if they 
could show that they were gainfully employed, and then they 
would be subject at the end of the 6 years, if were not renewed 
by some other work permit, to then leave.
    The interesting thing about that was it looks a lot like 
the President's act. The difference, of course, is that it 
would have lasted for more than just the President's time, but 
in this case, when the President's term expires, the next 
President can be just as arbitrary, or even this President, as 
you said, could be just as arbitrary.
    Mr. Sekulow. Right
    Mr. Issa. So the reason I couldn't get a single Democratic 
cosponsor, including my good friend Howard Berman when he was 
here, was that the interest groups that were just named by my 
colleague from California all said they will never sign up for 
this because in fact they would come out of the shadows, expose 
themselves, and at any time could be deported.
    From a practical standpoint, are there two truisms, which 
is, one, if you could name this category as broadly as you do, 
can't you name any category?
    Mr. Sekulow. Yes.
    Mr. Issa. And, two, if in fact you want people to come out 
and disclose themselves, on what basis would this lack of full 
force of binding agreement for more than the whim of the 
President's next morning coffee, why would this cause people to 
actually come out from the shadow?
    Lastly, the gentlelady, I want to know if in fact, if 
people don't come from the shadows under this act, has the 
President still given them complete immunity, or is this 
contingent in any way on whether or not they turn themselves in 
because that is something the President hasn't said? If 
somebody hasn't signed up within the period he specified, would 
they then be subject to deportation? I will get to you last.
    But please, Mr. Sekulow, I know I gave you a lot of 
questions, but the questions I have are broader than the 
answers the President gave.
    Mr. Sekulow. Well, I would point to the Administration's 
justification under the OLC document where they say that 
ultimately that the only way that this is constitutional is 
that it is revokable at any time and your proposal, your 
legislation, which would have been based on law if passed, 
would have had a concrete, not only constitutional, but a 
statutory basis upon which to respond to a real situation.
    What the President has done--that is why I said if I am the 
lawyer representing some of these clients, I would be very 
hesitant to say come out of the shadows under the whim of what 
could be changed literally the next day. There is no guarantee 
in this whatsoever. This does not solve the serious problem 
that we have in this country on immigration.
    Mr. Issa. Okay. And then probably the second question just 
because my time has expired.
    Mr. Marino. Quickly please, because the Congressman's times 
has expired, but go ahead and answer the question
    Ms. Hincapiee. Sure. So----
    Mr. Issa. But I do have 1,200 unanimous consent requests 
coming up, too. No, just kidding. Please.
    Ms. Hincapiee. So if people--if I understand the question, 
Congressman, if people don't come forward, will they still be 
subject to deportation; is that correct?
    Mr. Issa. If somebody is apprehended not having signed up 
under the President's plan, he is silent on the question of is 
Homeland Security simply going to ignore them, or is it 
contingent on signing up because the President implied that it 
was contingent on signing up, but I could find nothing in his 
order that actually convinced me that it was?
    Ms. Hincapiee. So assuming that if somebody doesn't come--
let's say it is a parent of a U.S. citizen child and they for 
whatever reason don't come forward and they later----
    Mr. Issa. Like they are smart and know that it is arbitrary 
and could be gotten rid of at any time.
    Ms. Hincapiee. They are deemed 9 months from now to say--
and they are potentially subject to deportation. They may be 
considered a lower level priority, so the immigration agents 
maybe in your district, for example, may decide, no, this is a 
parent of a U.S. child, I am not going to deport the because I 
have got somebody who is a national security threat. So those 
discretionary decisions will be made on a day-by-day basis 
individualized on an ongoing just as they were before----
    Mr. Issa. But in the case of DACA, the discretion never 
sent anyone out, right?
    Mr. Marino. The gentleman's time has expired.
    The Chair now recognizes Congresswoman Jackson Lee from 
Texas.
    Ms. Jackson Lee. As I said earlier this morning, in another 
hearing on this topic, I thank in this instance the Chairman 
and Ranking Member for an important discussion that is the 
responsibility of the United States Congress. And, in that 
discussion, I think it is well clear that different opinions 
are to be presented.
    I also think it is important for the record for many who 
are not members of this panel to understand that when a 
particular party is in the majority, it gives them the right to 
have the dominant opinion on the panel. The three persons 
arguing against the Executive order are only reflective of the 
opinion of the majority. They are not reflective of the broad 
base of legal thought across America.
    I represent to you that there are now 135 law professors 
and others of prominent law schools from Harvard to Columbia to 
Washington University to individuals from various law firms, 
prominent who completely disagree with the remaining two 
members of the panel, which I hope gives us a basis for making 
an intelligent decision which really speaks to what all of us 
would like to do is to have legislation passing comprehensive 
immigration reform.
    But my dear friends who are there who I thank for being 
here are not the final statement. They are a representative 
sample of the opposition. We have exactly one witness and those 
of us who have a different perspective. So I would like to 
quickly put into the record a statement from Dr. Sharon 
Stanley-Rae, Christian Church Disciples. I come from it from a 
humanitarian perspective. I think the executive order is 
narrowly drawn, but she says, I come with hands full of faith 
statements like my own from dozens of faith communities that 
repeatedly name our values for people over politics, community 
safety over partisan strategies, family unity and welcome over 
fears of foreigners and humanitarian compassion for children 
and families above rhetoric and rank.
    I ask unanimous consent to put her entire statement in the 
record.
    Mr. Marino. Without objection.
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    Ms. Jackson Lee. I believe the Arizona case in 2012, Mr. 
Sekulow, completely disagree with your interpretation. 
Executive orders are narrowly drawn. The Executive order the 
President issued is clear on its face, and therefore, the 
example of my good friend from California about people who have 
different reasons for possibly coming out are clearly not in 
the executive order. It lists the priorities according to 
terrorism, felons, multiple misdemeanors. It is written out 
very clearly.
    And, in this case, it clearly indicates that the Supreme 
Court has said that discretion in the enforcement of 
immigration law embraces immediate human concerns, unauthorized 
workers trying to support their families, for example, who are 
likely to pose less danger than aliens and smugglers or aliens 
who commit a serious crime. The equities of an individual case 
may turn on many factors, including whether the alien has 
children born in the United States, clearly what the President 
has enunciated.
    So, in essence, although you are dynamic legal scholars, 
and those of us who have gone to law school relish your 
cerebral ability, but you are make a mountain out of a mole 
hill, and you are wrong. You are absolutely wrong. It is based 
on emotions. It is based on opposition to immigration, despite 
your constitutional prowess, and I say that globally. I am not 
pointing out any names here. Because we have a Supreme Court 
decision that says that this Executive order is within the 
confines of its discretion.
    Let me ask Ms. Hincapiee this question, and I have a 
question for Mr. Dupree, quickly if I can.
    If you would, Ms. Hincapiee, we have been hearing about 
stay under the covers, don't come out. That is frightening 
people and, again, just putting people in a box. What is your 
thought about continually telling people that, as a lawyer, I 
would advice my clients not to take advantage of this defining 
Executive order?
    And then I just quickly want to ask Mr. Dupree that he 
quoted from one of the counsels from Bill Clinton. I want to 
ask him who that counsel was and what was the approach of his 
citing that person.
    Yes, Ms. Hincapiee.
    Ms. Hincapiee. Great. So thank you for the question, 
Congresswoman, and for your leadership on immigration for many 
years. The National Immigration Law Center has been very 
involved in the implementation of the Deferred Action for 
Childhood Arrivals program. The new program announced by the 
President, the Deferred Action for Parental Accountability, is 
very similar and premised on the same thing. As lawyers, as a 
legal organization, we do advise individuals of what the risks 
are, and the fact that this is an individualized adjudication 
that someone at USCIS is going to review the applications, look 
at all of the evidence, are you eligible for the criteria, do 
you meet the criteria, and only at that point will the 
Department of Homeland Security decide whether the person 
merits deferred action.
    However, the reason we do advise that individuals come 
forward is because the status quo is unacceptable, as I shared 
in my testimony, and parents, the mother who was here earlier 
today, Isabel, prefers to come out of the shadows to make sure 
that she is there for her daughter at the end of the day, so 
they will take that risk, even if a future Administration may 
terminate this program.
    Ms. Jackson Lee. Mr. Chairman, would you yield Mr. Dupree 
to answer the question that I did get on the record, please. I 
would ask for courtesy.
    Mr. Marino. You have 30 seconds, sir.
    Mr. Dupree. Absolutely.
    Ms. Jackson Lee. Who are you citing from?
    Mr. Dupree. It is Walter Dellinger's opinion. I believe 
Congresswoman Lofgren was correct. It was the opinion on the 
Federal Government's ability to switch the finding arbitration.
    Ms. Jackson Lee. Then you are aware that he has said that 
this Executive order is consistent with governing law with the 
policies that Congress has expressed in the statutes?
    Mr. Dupree. Yes, and if I could address that. Look, 
Congresswoman Jackson Lee, I like law professors. I have been 
known to associate with law professors, but the day that we 
choose to elevate the opinions of the law professoriat over the 
text of the Constitution is the day that I fear for the 
Republic.
    Ms. Jackson Lee. I doubt that that is the case, but he was 
in the Office of Legal Counsel, and I imagine he had to read 
the Constitution, but we will disagree but not be disagreeable.
    Thank you so very much, Mr. Chairman. I yield back
    Mr. Marino. The Chair recognizes Congressman King.
    Mr. King. Thank you, Mr. Chairman.
    I thank the witnesses for your testimony and your patience 
for us to come back to this hearing after our votes on the 
floor. I would first ask if each of you have read the 33-page 
OLC guiding document; is that true for each of the witnesses?
    And let the record reference that they nodded or affirmed 
yes to that.
    And so I would take you back to a time in my memory when 
then Secretary of Homeland Security Janet Napolitano sat at 
that very table and we had a discussion about the lack of 
constitutionality of the Morton memos and DACA, and I promised 
her that day that she would face litigation, and, of course 
they have; drug out, as we likely expected.
    But I also recall in that foundational document that she 
referenced on an individual basis only seven times in a one-
and-a-third page document, and so it came to my attention when 
I was reading through this 33-page OLC component of advice for 
the President that purports to rationalize how the President 
conduct himself and can conduct himself in a constitutional 
fashion, I put it through my Word processor, and I came up when 
I used these phrases--``case-by-case,'' ``discretion,'' 
``individual''--those three searches, and I came up with 152 
incidents of it in this 33-page document, which caused me to 
think that I know that they were preparing for the litigation 
in the Morton memos that had seven mentions of individual basis 
in it, but I didn't realize how paranoid they were about the 
litigation that is bound to come in the 33-page document here 
of the OLC, the Office of Legal Counsel.
    I would also like to put into the record a few things that 
I picked out of here. I mean, I read not the full thing 
studiously like you all did, but I got through the first third 
of it pretty well, and I concluded there is enough advice here 
that says no to the President that if I had been he, I would 
not have followed it any longer. I would have decided, Well, I 
guess maybe I was right the 22 times I told the public I didn't 
have the authority to do this.
    And so here is one thing I think that is important out of 
the OLC opinion: Deferred action does not confer any lawful 
immigration status.
    Let's put that one up in the record. Another one: DHS' 
decision not to seek alien removal--well, that is just an 
underlying component, but I continue--may apply for 
authorization to work in the United States under certain 
circumstances, that being a discretionary decision of the 
executive branch of government as I understand it.
    I skipped to page 6 where this document says that ``the 
executive cannot, under the guise of exercising enforcement 
discretion, attempt to effectively rewrite the laws to match 
its policy preferences.''
    And continuing, ``an agency's enforcement decision should 
be consonant with, rather than contrary to, the congressional 
policy underlying the statutes the agency is charged with 
administering.''
    And further, in the same paragraph, I might add, on page 6, 
``When the President takes measures incompatible with the 
expressed or implied will of Congress, his power is at its 
lowest ebb.''
    There is more. In fact, I think I will continue. On page 7, 
it says, ``Third, the Executive Branch ordinarily cannot, as 
the Court put it in Chaney, `consciously and expressly adopt[] 
a general policy' that is so extreme as to amount to an 
abdication of its statutory responsibilities.''
    There is more. This is the first third of this, at least, 
is a devastating article, if you are the President trying to 
defend your action. And so I would start first with Mr. 
Sekulow, and could you begin to explain to me what I am missing 
as I read this OLC document?
    Mr. Sekulow. You know, the President's lawyers clearly 
advised him that in order for his Executive order or Executive 
action, in their opinion, to meet constitutional scrutiny, 
there would have to be individual case-by-case determination 
which is revokable at any time at the agency's discretion, 
which is markedly different than the deal the President offered 
when he gave his speech.
    Mr. King. And so, on an individual basis only, would that 
be a class or a group of 5 million people, perhaps?
    Mr. Sekulow. Well, the reality is an individual 
determination on a case-by-case basis with 5 million people 
cannot happen.
    Mr. King. Mr. Dupree, would you care to comment?
    Mr. Dupree. Congressman King, I shared your reading of that 
memo, and that is the thing that struck me as remarkable is 
that the memo lays out certain legal premises correctly, in my 
view. Many of them are correct, but then the conclusion it 
draws from those legal premises is profoundly flawed. The 
people at OLC are very smart, and I think they understand what 
the law is, and I think, as I said, in portions of the memo, 
they accurately state the law. But I think they completely 
misfired in advising the President that what he was proposing 
was constitutional. It plainly is not.
    Mr. King. And I thank you. And I did read the concluding 
paragraph, and I will just put that into the record. It says, 
in sum, for the reasons set forth above, we conclude that the 
DHS' proposed prioritization policy and its proposed deferred 
action program for parents of U.S. citizens and lawful 
permanent residents would be legally permissible--I would say 
that is inconsistent with at least the first 7 or 8 pages--but 
that the proposed deferred action program for parents of DACA 
recipients would not be permissible.
    When I read that, I think could it be that they have said 
that the DACA recipients came here due to no fault of their own 
so it has to be somebody else's fault, would that be the 
parents of the DACA recipients, Ms.----
    Mr. Marino. The gentleman's time is expired. You can answer 
the question.
    Mr. King. Could I ask the witness to answer the question, 
please, Mr. Chairman?
    Ms. Hincapiee. Sure. Really quickly. I think the--of 
course, I respectfully disagree with my colleagues here to the 
right, which is that the OLC memo is very carefully written. 
And it lays out what the President's limitations are and 
clearly states that the program that the President has 
announced falls within those legal limits. And the way that the 
current DACA program exists is individualized adjudications. I 
tell you that because I personally have assisted individually 
young immigrants who qualify for DACA and put their 
applications together so that they can be adjudicated.
    Mr. King. But could it be that the parents were the ones at 
fault?
    Mr. Marino. Okay. The gentleman's time is expired. His 
documents will be entered into the record.****
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    ****See supra text accompanying note *.
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    The Chair now recognizes Mr. Cohen.
    Ms. Lofgren. Mr. Chairman, could I ask unanimous consent to 
put two things in the record?
    Mr. Marino. Go ahead.
    Ms. Lofgren. There has been a lot of discussion about----
    Mr. Marino. Quickly, please.
    Ms. Lofgren [continuing]. Authorized employment, so I would 
like to put Section 274A(h)(3) of the Immigration Nationality 
Act along with the regulation providing that those aliens who 
have deferred action may receive work authorization in the 
code.
    Mr. Marino. Without objection.
    [The information referred to follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                               __________
    Mr. Marino. Mr. Cohen, you are up.
    Mr. Collins. Mr. Chairman, could I just ask unanimous 
consent that--to instead of citing it, that we just admit the 
entire Immigration Naturalization Code into the record so that 
we don't have to continue to go through piece by piece.*****
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    *****The information referred to is not reprinted in this hearing 
record but can be accessed at http://www.uscis.gov/iframe/ilink/
docView/SLB/HTML/SLB/act.html.
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    Mr. Marino. I have no objection to that.
    Mr. Collins. This law is being ignored now, but it is law.
    Mr. Marino. Mr. Cohen.
    Mr. Cohen. Thank you.
    Ms. Hincapiee, let me ask you a question. I believe you 
have said that you believe the President's actions are lawful; 
is that correct?
    Ms. Hincapiee. That is correct.
    Mr. Cohen. And it is because he has discretion, 
prosecutorial discretion. Some people have asked that he had 
said in the past about some set of facts or laws that he didn't 
have this authority, and he changed his opinion, and you gave a 
reason for that, but let me--what is the--and I don't recall. I 
don't know if anybody here does. What were the facts upon which 
when the President said he didn't have the authority? Were they 
the same limited situation as he has got going now where he is 
just doing deferred prosecution? Was the other responses to 
people that wanted to get a fast track to citizenship and some 
other things that are not part of this program?
    Ms. Hincapiee. Sir, that is a very good question, 
Congressman. What the President was responding to was basically 
demands from the immigrant rights community, from grassroots 
organizations, and from immigrants themselves to stop all 
deportations. And that was a consistent demand, which he often 
said, no, I cannot do that.
    And then the second piece which I tried to explain in my 
testimony earlier, the context, the timing of when the 
President was making those comments was always because he was 
specifically focused on getting comprehensive immigration 
reform done through legislation.
    Now I should share, on March 14th of earlier this year, I 
sat across from the President and specifically talked to him 
about the need for him to exercise his legal authority, and 
even there, he said, I agree, but I am focused on immigration 
reform, and all of you immigrant advocates also need to be 
focused on immigration reform. And he disagreed with the extent 
of authority that we believe he has, and one of those examples 
is the parents of DACA or workers. We believe at the National 
Immigration Law Center that workers who have been here for over 
5 years who meet certain criteria should potentially be 
eligible.
    So this Administration has decided, by consulting the 
Office of Legal Counsel, to take a much more conservative 
approach about what kind of discretion they are willing to take 
on and also have set forth the specific enforcement priorities.
    Mr. Cohen. And Mr. Sekulow, you agree that--well, first, 
let me finish up with Ms. Hincapiee. The foundation upon which 
the President acted that you believe is constitutional is the 
same foundation that President Reagan and President George 
Herbert Walker Bush acted upon; is that correct?
    Ms. Hincapiee. Absolutely. They have all--every 
Administration, Republican and Democrat, including Presidents 
Reagan and President Bush, Sr., used prosecutorial discretion 
to provide--at the time, it was voluntary departure. And here 
it is the same thing. It is deferred action. It is simply a 
different type of prosecutorial discretion, a different type of 
deferred action.
    Mr. Cohen. Thank you.
    Mr. Sekulow, you said you agreed that--and maybe differed a 
little bit in degree, but that President Bush and Reagan, and 
you threw in Clinton and maybe Bush, II, that they also were 
wrong and that four wrongs don't make a right.
    Mr. Sekulow. I basically what I said was constitutional 
violations don't get better with time, and I don't see an 
underlying--this is my view. I don't see an underlying 
statutory base. I am sympathetic with what they are trying to 
do, as I am with the President, but that doesn't mean there is 
a constitutional base on which to do it, so----
    Mr. Cohen. Well, let me ask you this, and I know you are 
not a politician. But why is it that in all those other four 
instances, nobody came out and questioned the President's 
authority from either side----
    Mr. Sekulow. Yeah.
    Mr. Cohen [continuing]. And and nobody came out and filed a 
lawsuit and nobody even suggested the possibility of impeaching 
Presidents Bush, Reagan, Clinton--they did get to Clinton for 
whatever else, but--and then Bush. What is the difference? Why 
is this President--why do they say it pass over different from 
all other Presidents?
    Mr. Sekulow. Oh, sorry.
    Mr. Cohen. Yeah.
    Mr. Sekulow. I think, Congressman, you answered it. There 
is a political element it to, and it is the sheer numbers and 
scope of what we are dealing with. You are dealing with 5 
million people. And, you know, when you ask about the question, 
which I think was a good one, about was the President talking 
about deportation or was he talking about something else, that 
is a good question, but let me read you the exact quote.
    He was at a speech. He was giving a speech. He had 
hecklers, much like we saw today, that were concerned about 
this. And they were saying, Stop the deportations. And the 
President said, Now, you are absolutely right that there have 
been significant numbers of deportation--that is true--but what 
you are not paying attention to is the fact that I just took an 
action to change the law.
    So the President views what he did, even though the OLC 
doesn't say that, but the President viewed it as stopping 
deportations. And he said he took action to change the law. So 
I don't think what any of these Presidents have done is more 
than constitutional framework. That is in my view.
    Mr. Cohen. Ms. Hincapiee, do you believe--and you are not a 
politician either.
    Ms. Hincapiee. I am not.
    Mr. Cohen. That the reason why the response to this has 
been so different under this President, do you believe it is 
just because of the number, or do you believe that there is 
some other reason that makes this President different from all 
other Presidents?
    Ms. Hincapiee. I would have to say that I do believe this 
is different. He is the first African American president. He is 
being attacked for a number of issues, and historically, every 
single President, Republican and Democrat since Eisenhower, 
have used their prosecutorial discretion and used their 
executive authority.
    I would also add that when Bush, Sr., exercised that 
prosecutorial discretion, they, too, believed that they were 
going to be covering about 40 percent of the undocumented 
population at the time. And it was after Congress expressly 
said that they were not going to cover the children and spouses 
of immigrants who were legalized under IRCA. There was late 
Senator Chafee had an amendment that was expressly denied and 
defeated that would have done what President Bush decided to do 
anyway.
    Mr. Cohen. I thank each of you.
    Thank you, Mr. Chair.
    Mr. Marino. The Chair recognizes Congressman Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And I thank all of you as witnesses for being here today.
    Mr. Chairman, of all of the relevant premises I think we 
could consider, perhaps the most foundational would be to 
simply read the oath that President Barack Obama made when he 
laid his hand upon the Lincoln Bible almost 6 years ago: I do 
solemnly swear that I will faithfully execute the Office of 
President of the United States and will, to the best of my 
ability, preserve, protect, and defend the Constitution of the 
United States.
    Mr. Chairman, I believe the recent Executive action by the 
President on illegal immigration is categorically incompatible 
with that oath. I am also convinced that there are very few 
things a President can do more dangerous to a republic such as 
ours. If American Presidents in the future should consider 
these days precedents and consider themselves unconstrained to 
the Constitution as a matter of routine, the rule of law in 
America will be no more, and so much of what so many men and 
women have died on dark battlefields to protect will be undone.
    These are not light issues, Mr. Chairman.
    And so, Mr. Sekulow, my first question is to you, sir. 
Justice of the Supreme Court James Wilson once explained that 
the Take Care Clause meant that the President has the 
``authority not to make or alter or dispense with the laws but 
to execute and act the laws which are established.'' So, sir, 
do you believe that the President's recent actions comport with 
Mr. Wilson's conclusions, and is the President refusing to 
adhere to the Take Care Clause in an attempt to evade the will 
of Congress?
    Mr. Sekulow. I think that is the fundamental question, and 
it is not the policy issue of whether it is good or bad as far 
as immigration reform goes. It is, is the President's action 
moored in constitutional authority? In my view, it is not.
    Mr. Franks. Mr. Dupree, let me ask you. You state in your 
testimony that when President Bush was unable to get 
comprehensive immigration reform through Congress, ``that we 
did not attempt to achieve through executive fiat what we could 
not achieve through the legislative process. We respected the 
system the Framers established.'' That is your testimony. Do 
you believe that this Administration is respecting the 
Constitution when it grants deferred action to a class of 
millions of unlawful immigrants?
    Mr. Dupree. I do not, Congressman. I do not think that the 
President's actions are consistent with the system that our 
Framers established, and I would point out that one of the 
ironies is that the Bush administration, and particularly the 
Justice Department in which I served, was often criticized for 
excessive assertions of executive power. And yet when it came 
to immigration, we held back. We did not act through executive 
fiat. We did not act through executive order, but rather, we 
deferred to the Congress, we respected the congressional role 
under Article I, Section 1--Article I, Section 8, which confers 
the power to grant--make immigration laws on this Congress, and 
we held back.
    Mr. Franks. Mr. Sekulow, let me ask you, if a President 
holds himself unconstrained to the Constitution, what are the 
implications to a republic like ours?
    Mr. Sekulow. It could end up with lawlessness. I mean, the 
real problem here, and I said this in my testimony earlier, and 
we said in our written submission, is that under the 
President's lawyers interpretation of this executive action, 
the President could wake up tomorrow morning and say, you know 
what, that executive action I took 2 days ago, I don't want to 
do that anymore, and you now have these people apply for 
something that doesn't exist, and I think that is part of the 
problem here. If you are not moored in the Constitution, the 
danger to the republic is the separation of powers becomes 
meaningless, which was a major--it is our entire constitutional 
framework.
    Mr. Franks. Yeah. Well, Mr. Chairman, I guess I would just 
suggest to you that the issue that we are dealing with here in 
the central consideration is one of profound significance, and 
if we allow the rule of law to be jettisoned, which it appears 
that we may be on that road, then I am afraid we would all owe 
Great Britain a pretty profound apology for that little 
unpleasantness we had with them a few centuries back.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Franks. I would yield back.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Franks. I would yield.
    Ms. Jackson Lee. I thank the gentleman.
    I started by acknowledging that there are differences of 
opinion, but I really think we can work through this, and I 
would only say to the gentleman, an Executive order--and both 
to the gentlemen here--is limited by the President's tenure. It 
is temporary. The President knows that. I think that is a bogus 
argument, but what we can do is we can pass, Mr. Franks, with 
you, immigration law by this Congress, and I hope we will do 
that.
    With that, I yield back, Mr. Chairman.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Marino. The Chair now recognizes Congressman Johnson.
    Mr. Johnson. Thank you, Mr. Chairman. It should serve as no 
surprise to anybody in this room that the first hearing of this 
Committee that we would have after our return from our August 
break, or excuse me, after our return from Thanksgiving. We 
have had so many breaks; I am getting confused about it. But 
you know, our very first hearing, we only have two more weeks 
to go, and this is a messaging hearing, as opposed to a 
substantive oversight hearing of presidential action. This is 
just another example of the strategy that Republicans have 
employed since the very moment that President Obama was sworn 
into office, and that is to obstruct everything that the 
President set out to do.
    Now, they won't give the President credit for being the 
deporter in chief. I mean, he has deported, under his 
Administration, more people than any President in history. Do 
you think you would ever hear a Republican give him praise for 
that? No. They will find something to obstruct that process, so 
it doesn't matter what it is. It is just we are going to say no 
to it, and so, then you get a group of lawyers together. My 
wife is lawyer, by the way. I mean, we have been married for 34 
years, and we have been lawyers the whole time. And man, we sit 
down, whatever I say, she is going to take issue with from a 
legal perspective. Any legal issue that we start discussing, 
she is automatically going to take the opposite side, and she 
is going to argue it earnestly and convincingly, and you three, 
along with the fourth gentleman was here, have done the same 
thing, and I believe that you feel earnest about the topic here 
today.
    But I also know that you are lawyers, and lawyers can argue 
either side of an issue and do so compellingly. And so my hat 
is off to you because all three of you all are topnotch 
lawyers, litigators, and that is what lawyers do, and lawyers 
also take abstract principles of law, apply them to the facts 
that a client will present to you, and then you will give the 
client the options. You won't select the option for the client. 
You won't direct the client to do this, but you will give the 
client a range of options, and the client will decide for him 
or herself which option to take, and then if you want to retain 
that client because that client pays well, you are going to go 
to court and you are going to argue for whatever position that 
client decided upon, and you are going to do so very earnestly, 
and you are going to do it convincingly, and you may be 
fortunate enough to win the case, and that is what lawyers do 
and that is what you all are doing.
    And that is what I used to do. I still do it when I argue 
with my wife, but this, ladies and gentlemen, is not a 
courtroom. This is a legislative chamber, and our power as a 
legislature comes out of Article I of our Constitution, and so 
we are sitting here talking about Article II, and there is not 
one thing that us legislators here with Article I power can do 
about Article II power, other than to sue the President, and we 
don't have to have this hearing to do that.
    We don't even have to have a hearing for the Republicans to 
decide that they are going to impeach the President or that we 
are going to file a lawsuit on him, or we are going to 
prosecute him. We don't need that. So what this body is doing 
is actually wasting time when we could be passing comprehensive 
immigration reform, just like the Senate did almost 2 years 
ago, and then we are refusing to do our obligation to the 
people that they elected us to do. This is the most do 
nothingness Congress in the history of mankind, and we are 
doing nothing today other thank what we have always done in 
this Congress under Republican leadership, and that is to say 
no, obstruct the President, and so I don't have any questions.
    I think each one of you all have argued your positions 
admirably, and if I were the judge, I would be deciding this 
case, my ruling would go in favor of the minority, the 
underdog.
    Mr. Marino. The gentleman's time is expired.
    The Chair now recognizes Congressman Gowdy.
    Mr. Gowdy. I thank the gentleman.
    I thank Mr. Chairman.
    Ms. Hincapiee, among many limitations in life is my 
inability to glean other people's motives or be able to read 
their minds. I could have sworn in response to a question you 
received from Mr. Cohen, you suggested race was the basis for 
why we may have this constitutional perspective. Did I 
understand you correctly?
    Ms. Hincapiee. I believe I was responding to the question 
about is there an explanation about why, despite the fact----
    Mr. Gowdy. Well, let me offer another explanation to you, 
okay. Not a single Republican who is here right now ever served 
under a Republican President, not one, so I hope I do live long 
enough to hold a Republican President to the exact same 
standard that I am holding this one, but for you to run to race 
as the explanation for why we hold the position that we do--
Harry Reid had a very different perspective on recess 
appointments when there was a Texan in the White House. And 
none of us accused him of geographic discrimination. In fact, 
hell, for that matter, Senator Obama had a different 
perspective on executive overreach than President Obama. And 
nobody runs to race as an explanation for that. So I would just 
caution you to be careful when you try to import motives to 
people.
    With that, what are the limits of prosecutorial discretion?
    Ms. Hincapiee. So among the limits of prosecutorial 
discretion is that the President must comply with existing 
statutes, such as the appropriations. So the President can't 
simply stop deporting everybody, and in fact, what they have 
done here is they have listed new priorities, so----
    Mr. Gowdy. So he can't stop deporting everybody. Well, I 
mean, what are the limits? So as long as he deports one person, 
then that is a proper exercise of prosecutorial discretion?
    Ms. Hincapiee. No, under the current appropriations, the 
current----
    Mr. Gowdy. I am not talking about appropriations. I am 
talking about the constitutional doctrine of prosecutorial 
discretion, which if you marry up with the pardon clause means 
you don't have to enforce it, and if they do break it, you can 
pardon them for it.
    Ms. Hincapiee. Right. Under the constitutional doctrine, we 
should take two pieces. One is you have got the Take Care 
Clause, which says that the President must take care to enforce 
the laws that exist.
    Mr. Gowdy. Ms. Hincapiee, your answer is much more complex 
than my question. What are the limits of the doctrine of a 
prosecutorial discretion?
    Ms. Hincapiee. The limits are that the President must 
enforce the laws based on statute, so one is----
    Mr. Gowdy. I thought he just announced he wasn't going to 
do that, that he was carving out categories and exceptions.
    Ms. Hincapiee. In addition to----
    Mr. Gowdy. And not on a case-by-case basis, too. For entire 
categories.
    Ms. Hincapiee. No, he is not stopping, he is not saying 
that he is not going to enforce the law whatsoever vis-a-vis 
those individuals. He is saying he is creating a program by 
which individuals can come forward if they meet certain 
criteria, and they will be held accountable to apply, pay a 
fee, pass a criminal background check, and----
    Mr. Gowdy. But that is not the current law, right?
    Ms. Hincapiee. That is what is possible under deferred 
action, and that is what he has developed, correct.
    Mr. Gowdy. Well, I want to talk to you for a second about 
that background check, and I want to get into the policy a 
little bit. Can you tell me what a nonserious criminal is? 
Because when I look at the White House talking points, they are 
interested in serious criminals, so tell me what a nonserious 
criminal is.
    Ms. Hincapiee. It could include somebody, for example, who 
has been detained for shoplifting, let's say a, I don't know, a 
22-year-old who takes lipstick, and that is a misdemeanor and 
she gets----
    Mr. Gowdy. So just misdemeanors. Nonserious criminal refers 
to misdemeanors convictions?
    Ms. Hincapiee. Right. And, in fact, there are certain 
misdemeanors that are considered serious criminals under the 
recent memos from the Department of Homeland Security as well.
    Mr. Gowdy. How about domestic violence? How many domestic 
violence convictions can you have and still remain?
    Ms. Hincapiee. I believe domestic violence is considered a 
serious crime under the new----
    Mr. Gowdy. It wasn't under the comprehensive Senate 
immigration bill, which I have heard lots and lots of my 
colleagues embrace. I think you can have up to three domestic 
violence convictions and still remain on a path to something 
under the Senate version. How about recidivist DUI?
    Ms. Hincapiee. I believe DUI completely disqualifies you as 
well.
    Mr. Gowdy. A single DUI conviction----
    Ms. Hincapiee. Conviction, correct.
    Mr. Gowdy [continuing]. Is considered a serious criminal.
    Ms. Hincapiee. That is my understanding.
    Mr. Gowdy. Even though it is a misdemeanor?
    Ms. Hincapiee. That is my understanding, yes.
    Mr. Gowdy. Where could I go to find out whether or not that 
understanding is correct or not? It wasn't on the White House 
talking points. They talked about gang members, but I am not 
aware of a Federal crime for being a member of a gang. Is there 
one? I know it is a sentencing enhancement. Is there a crime 
for being a member of a gang?
    Ms. Hincapiee. Well, in fact, that is some of the concerns 
that some advocates have that if it is simply--if you are being 
considered a gang member because you live in a certain ZIP code 
and you are being associated or is it really based on----
    Mr. Gowdy. Well, I understand your concern is that it might 
catch too many people. My concern is the opposite, that it 
won't catch the right people, so it is not a crime to be a 
member of a gang. You have to commit another underlying 
offense, and then it is a sentence enhancement, so how are you 
going to determine who the gang members are?
    Ms. Hincapiee. Well, there are gang databases that exist. 
We assume, again----
    Mr. Gowdy. So if you are in a gang database, will you be 
deported?
    Ms. Hincapiee. We don't have enough information from the 
Administration yet, right. Remember, this was just announced.
    Mr. Gowdy. Well, I have got the talking points that gang 
members are going to be deported.
    Ms. Hincapiee. But the talking points are not sufficient. 
They will be issuing guidelines with respect to how they will 
implement this program.
    Mr. Gowdy. Who is ``they''?
    Ms. Hincapiee. The Administration, the White House and the 
Department of Homeland Security.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Marino. The Chair recognizes Ms. Chu.
    Ms. Chu. Ms. Hincapiee, I want to address this claim that 
President Reagan and Bush only did a deferred action as a 
cleanup measure for laws that were already agreed upon by 
Congress, and that is IRCA, of course. However, isn't it true 
that Congress actually considered whether the spouses and 
children of persons who obtain legal status through IRCA should 
be granted special protection under the law and explicitly 
chose not to do so, and that both President Reagan and Bush 
chose to expand this law anyway with deferred action and work 
authorization?
    Ms. Hincapiee. Yes, Congresswoman, and thank you for your 
leadership, particularly on the Power Act. Yes, absolutely. The 
big difference between what Presidents Reagan and Bush, Sr., 
did versus what President Obama has done--they exercised 
prosecutorial discretion; they are using existing statute to 
provide deferred action and allow people to get work 
authorization--however, both under IRCA, the Congress 
considered and rejected the fact that children and spouses who 
didn't meet certain criteria would not be eligible, and then 
after IRCA was passed, the quote-unquote cleanup, there were a 
number of amendments that were introduced at different points, 
the Family Fairness Act, that also, that failed. One was with 
cloture--the cloture vote failed, and then, secondly, on 
October 7, 1987, the late Senator Chafee introduced an 
amendment specifically to amend the Immigration Nationality 
Act, to waive the continuous residence requirement under the 
legalization program for spouses and children of qualified 
legal aliens, and that also was defeated.
    Despite the fact that those different attempts by Congress, 
and this was a Republican Senator, to address this issue, 
Presidents Reagan and Bush, Sr., decided this was unfair to 
deport the children and spouses of people who were legalized 
under IRCA, and secondly, they recognized they had the legal 
authority to exercise that discretion and provide voluntary 
departure for those individuals and eventually work 
authorization as well.
    Ms. Chu. So both Presidents Bush and Reagan acted in 
contrast to Congress, not in conjunction with Congress.
    Ms. Hincapiee. Correct. They acted against congressional 
will and exercised their legal authority, which was well 
established and continues to be well established today.
    Ms. Chu. Okay. It has also been said repeatedly today that 
this deferred action is unfair because the beneficiaries will 
jump in line before millions of others who are waiting in line.
    Why is this incorrect, Ms. Hincapiee?
    Ms. Hincapiee. So, unfortunately, again, this is incorrect 
because there is a lot of misinformation about what the 
deferred action program is. People are not getting onto any 
path to citizenship. They are not becoming lawful permanent 
residents. They are simply getting a temporary reprieve from 
deportation and will be able to work because the regulations 
allow them to get work authorization if they get deferred 
action.
    So we still have a need, and as Congressman Johnson was 
just saying a few minutes ago, there is a need for 
comprehensive immigration reform to address the needs of the 
individuals who are waiting in line. Nothing that the President 
has done changes in any way that need for immigration reform. 
And my understanding is H.R. 15 is still pending in Congress. 
There's still a few weeks left in this session, and I have been 
very comforted by the number of comments many people made today 
about the support for comprehensive immigration reform, and I 
would urge every single one of you to use the remaining days in 
this session to pass H.R. 15.
    Ms. Chu. Ms. Hincapiee, it's been also said repeatedly 
today that this deferred action creates a class of individuals 
who are considered for deferral of deportation a blanket, that 
this is a blanket nonenforcement program. Is this a blanket 
nonenforcement program? And, for instance, with DACA, have 
there been denials of the applications? Can you tell me how 
many of them there have been because I've read that it's 1,377 
requests that have been denied.
    Ms. Hincapiee. Right. So, yes, this is not a blanket 
amnesty or a blanket program whatsoever. DACA, the program 
that's been in existence for the last 2 years as well as the 
new program are, based on individual adjudications, and so, 
again, individuals have to put forth the evidence that they 
meet all of the criteria, and I must say to you, Representative 
Chu, I mean, we have held large clinics through DACA where 
young immigrants have come with reams, volumes and volumes of 
evidence documenting all of their continuing residence, 
everything from report cards to immunization records, the 
student-of-the-month record, the certificates, letters, et 
cetera, from the school. They have come forward with a lot of 
evidence, and that is why it has been a successful program, 
because the majority of them have been able to meet the 
criteria required.
    That said, there are many who have also been denied, and in 
fact, most recently, with the DACA renewal program, we have 
seen an increase in rejections of DACA applications, which we 
continually raise to the Administration to understand the 
reasons for those rejections.
    Ms. Lofgren. Would the gentlelady yield?
    Ms. Chu. Yes.
    Ms. Lofgren. I would like----
    Mr. Marino. The gentlewoman's time is expired.
    Ms. Lofgren. I want to make a unanimous consent request.
    Mr. Marino. Should we just do a blanket unanimous consent?
    Ms. Lofgren. No, this is specifically----
    Mr. Marino. Please, go ahead
    Ms. Lofgren. My good friend, the Chairman of the 
Subcommittee had a number of questions about eligibility for 
the deferred action program, which is specified in the 
memorandum dated November 20. Those who are priorities for 
removal, which includes the misdemeanors and the like, are 
specified in that memo. And I would like to, since there were 
questions about that, put this memo in the record so people 
will understand who is eligible and who is not eligible.
    Mr. Marino. Without objection.
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    Mr. Marino. The Chair now recognizes Congressman Labrador.
    Mr. Labrador. Thank you very much.
    Ms. Hincapiee, I would like to join my good friend from 
South Carolina and advise you and all the other Members of this 
Committee. I actually have a question for you. When the 
Congress went after President Clinton, were they racist when 
they were against his policies?
    Ms. Hincapiee. I don't recall what you are--I am not sure 
what you are referring to, Congressman.
    Mr. Labrador. Just any time that the Congress objected to 
President Clinton's policies, were they being racist?
    Ms. Hincapiee. It is out of context, but your point is well 
taken, both of your points.
    Mr. Labrador. When President Clinton was impeached, was it 
because the Members of Congress were being racist?
    Ms. Hincapiee. No.
    Mr. Labrador. When the Democrats filed articles of 
impeachment against President Bush, was it because they were 
being racist?
    Ms. Hincapiee. No, Congressman.
    Mr. Labrador. It was because they disagreed with his 
policies, wasn't it, and they thought that he had exceeded his 
authority as President of the United States and they thought 
that he had committed impeachable offenses.
    I disagreed with them, and that is why no one on this side 
has filed articles of impeachment against this President but 
I----
    Mr. Conyers. Yet.
    Mr. Labrador. I think you guys might, but I don't think any 
Republican wants to do that. I think you might try to do it 
under Republican hands, but no one is talking about impeachment 
here. No one is talking about anything like that, and we 
disagree with his policies. We disagree with everything he has 
done on immigration, but to assert here in a hearing, in an 
open hearing under oath that it might be racism is why we are 
disagreeing with the President's policies, I think is beyond 
the pale.
    Now, let's talk about some of these facts that are 
happening here. You did not answer the question about what the 
limit to the President's authority might be under deferred 
adjudication. Are there any limits to his authority?
    Ms. Hincapiee. The limits to his authority have to do with 
the statutory limitations, and so, again, those----
    Mr. Labrador. But you said he created a program. There is 
no statutory program that allows him to do this program. You 
said it in your own testimony that he created a program that 
now we're using and, according to you, in individualized 
adjudication, but he created that program, right?
    Ms. Hincapiee. Right. The creation of the program is. So, 
under the Homeland Security Act, Congress has charged the 
executive branch, and specifically the Secretary of the 
Department of Homeland Security.
    Mr. Labrador. I understand that, and then you're going to 
argue that it's because we don't have enough appropriations. If 
the Homeland Security Department started deporting more people 
than they have funds for, can't they just come to Congress and 
ask for more money to start deporting people?
    Ms. Hincapiee. Yes, they could definitely do that, but that 
was actually not the argument I was going to make. The argument 
I was going to make was simply that under the Homeland Security 
Act, the Department of Homeland Security has identified 
priorities for who is considered a high level priority, who is 
a low level priority.
    Mr. Labrador. But they don't get to set those priorities.
    Ms. Hincapiee. Excuse me?
    Mr. Labrador. They don't get to set those priorities. The 
Congress has set those priorities for them. They have said that 
there is a certain class of people that are here unlawfully and 
without document, and they should be deported. It is not that 
the Department of Homeland Security that gets to set that, 
those premises.
    Ms. Hincapiee. So it is a combination of the two, 
Congressman. So under 6 U.S.C., section 202, subsection 5, the 
statute is very clear that the Secretary of Homeland Security 
shall be responsible for the following: Subsection 5, 
``Establishing national immigration enforcement policies and 
priorities.''
    Mr. Labrador. But those priorities are in memos, not in 
statutes, isn't that correct?
    Ms. Hincapiee. Well, the statute says the Department gets 
to decide what those priorities are. And then secondly, as any 
administrative agency, any executive agency, then gets to 
decide, based on resources, based on policy priorities, based 
on what is considered good public policy, et cetera, they 
determine a combination of. It's the same way that----
    Mr. Labrador. So if I run for President, and I decide that 
I don't like any EPA regulations, I don't like the EPA and I 
don't want to enforce any of the regulations, can I under 
prosecutorial discretion decide not to enforce any of the EPA 
rules?
    Ms. Hincapiee. You could, except the legal limitation again 
would be if there is a statute that requires the EPA to 
specifically enforce certain parts of it.
    Mr. Labrador. Well, there is a statute that requires them 
to specifically enforce immigration laws. Now, if I decide that 
I don't like tax laws, can I decide as President that I don't 
want to enforce the tax laws?
    Ms. Hincapiee. But, again, that is not, Congressman, with 
all due respect, that is not what this Administration is doing.
    Mr. Labrador. That is exactly what this Administration is 
doing. I was an immigration lawyer. You can do an 
individualized adjudication and I had many of my clients who I 
asked for deferred adjudication for. And I said, they have a 
set of facts that makes them eligible for deferred adjudication 
and usually it was because there was nothing in the law that 
allowed them to stay in the United States legally, correct, and 
I think you have done that as an immigration lawyer as well.
    Ms. Hincapiee. Uh-huh.
    Mr. Labrador. But in the end, you ask for an individualized 
adjudication.
    Ms. Hincapiee. Right.
    Mr. Labrador. Not for a whole class of people. You didn't 
just say, I want every one of my clients who has lived in the 
United States for 5 years to have deferred adjudication.
    Ms. Hincapiee. With all due respect, that again is not what 
the Administration is saying. The Administration is saying 
there is going to be accountability. Individuals who meet 
certain criteria can come forward.
    Mr. Labrador. There is no accountability.
    Mr. Marino. The gentleman's time has expired.
    The Chair now recognizes Congressman Deutch.
    Mr. Deutch. Thanks.
    Ms. Hincapiee, would you like to finish your answer?
    Ms. Hincapiee. Thank you, Congressman. I was just saying 
that, again, what the Administration is doing is simply saying, 
here is a low-level priority. This is a criteria. Individuals 
still need to come forward, individually and affirmatively, and 
only at that point are they considered for deferred action. 
There is no blanket, every mother and father come today and get 
a work authorization document.
    Mr. Deutch. Thank you. Thanks.
    So I just wanted to take a moment. We're discussing 
President Obama's so-called executive overreach, but I fear 
that the characterization makes light of what is a very sad 
reality that law enforcement agencies face every day, which is 
there are limited resources. Officials must pick and choose 
which crimes and which charges to pursue. Every law enforcement 
agency, from the FBI to your local police department, chooses 
where to focus their resources. A state prosecutor makes 
choices. Perhaps they direct their staff to focus more on 
prosecuting domestic violence and less on marijuana possession. 
DOJ makes choices. The Administration has to determine where to 
focus its resources. Officials ask themselves questions, do we 
spend more on prosecuting corruption of the banking sector or 
do we focus more on Medicare fraud?
    In fact, right on down to the most basic level of law 
enforcement, everyday police officers exercise discretion when 
enforcing our laws. They let some speeding drivers go with a 
warning. They charge others with reckless driving. Likewise, 
when it comes to immigration enforcement, there is no way for 
the Department of Homeland Security to deport more than 11 
million undocumented immigrants in the United States, even if 
that's the goal of some in Congress.
    Mr. Rotunda, when he was here earlier, made it clear, 
democracies just don't have mass deportations. So in an era of 
limited resources, DHS has to prioritize. The Administration is 
merely articulating something that law enforcement officers do 
every day, the FBI, the CIA, DOJ, the State prosecutors, all 
the way down to city cops. How else can immigration enforcement 
officials exercise their discretion and prioritize which of the 
approximately 11 million undocumented immigrants should be 
searched for, rounded up, detained, and deported?
    The President's Executive orders on immigration made clear 
that DHS should direct their limited resources toward deporting 
those undocumented immigrants who commit serious felonies or 
significant misdemeanors. This enforcement prioritization based 
on available funding sources will ensure that undocumented 
immigrants who pose a serious risk to the safety of our 
communities will be deported, while those who have been 
residing in the U.S. for many years and who have worked and who 
have contributed to our communities can remain.
    I want to give you a practical example. Beatriz Perez has 
lived in the United States for 22 years. She and her four 
children live in my home State of Florida. A trained teacher in 
Mexico, she avoided going into her field here out of fear of 
deportation, instead making a living for her four children by 
selling fishing nets. Lourdes, 24, and Jassiel, 22, both 
qualified for delayed deportation status under the President's 
DACA policy. Mariel, 16, and Karen, 15, are both American 
citizens. The question is, should Beatrice Perez be deported 
and separated from her children? Should the Department of 
Homeland Security make this hard-working mother of four 
children, including two American children, a priority for 
deportation? I ask for unanimous consent to submit a summary of 
the Perez family into the record.
    Mr. Marino. Without objection.
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                               __________
    Mr. Deutch. Thank you.
    Exercising prosecutorial discretion for our Nation's 
immigration laws should ensure that law enforcement resources 
are used in a fiscally prudent manner and prevents us from 
unnecessarily taking people away from their families and 
stowing them in extremely expensive detention centers, which is 
the last point I would like to touch on.
    Here is the problem. For more than a decade this Congress 
has required in the Department of Homeland Security 
appropriations bill that Immigration and Customs Enforcement 
maintain an average daily detention population. This required 
daily detention population, the detention bed mandate, has 
increased over the years to 34,000 people. It is an 
unprecedented restriction in law enforcement. It is costly 
financially. It takes a significant toll on families living in 
our communities.
    Congress requires that 34,000 people be kept in detention 
facilities and provides more than $2 billion a year to hold 
undocumented immigrants in detention facilities. That's $5.5 
million a day. It costs $159 to hold a person in detention. 
Less costly alternatives to detention cost between $0.70, and 
$17 per day. Decreasing our Nation's costly detention 
population could free up the funds that ICE could direct toward 
other critical responsibilities.
    The detention bed mandate is unprecedented. No other law 
enforcement agency has a quota on the number of people they 
must keep in jail. None of them. Nowhere in this country. 
Providing ICE with discretion to fill detention beds based on 
need and not a number imposed by Congress would be consistent 
with the best practices of law enforcement. To satisfy the 
daily bed quota ICE officials are forced to find and remove 
undocumented immigrants from their families, even if they have 
committed no serious crime, even if they pose no flight risk to 
appear for immigration proceedings, and many undocumented 
immigrants have been living in the U.S. for years and are 
productive members of our communities. Removing them from their 
families to satisfy the bed mandate creates an enormous toll on 
our families.
    Now, Mr. Chairman, as we go through the rest of this 
discussion, let's bear in mind that this Congress has some 
things that we can do. We can pass immigration reform and, I'm 
heartened to hear so many of my Republican colleagues talk 
about the need to do so, or seemingly their willingness to do 
so, and it has been so hard to have a vote. But let's also 
remember that we should stop taking away the discretion of law 
enforcement----
    Mr. Marino. The gentleman's time has expired. The 
gentleman's time has expired.
    The Chair recognizes Mr. Farenthold.
    Mr. Farenthold. Thank you very much, Mr. Chairman.
    We have already seen what happens when the Administration 
telegraphs what they are and aren't going to do with respect to 
enforcing our immigration laws, and that is a crisis on the 
Southwest border. And I'm a South Texas representative. Last 
summer I was down there and witnessed firsthand the problems 
caused by a bunch of children, in some cases completely 
unaccompanied, in some cases with their parents, crossing the 
border based on a mistaken belief that if they got here, they 
are going to get to stay. The President's policy has a date 
certain in there, but these dates tend to slip. And we are 
telegraphing that we really do not have a serious intent to 
enforce our immigration laws. Not only is this damaging to the 
balance of power between Congress and the White House, they are 
also going to damage border security and open us up to a 
similar crisis in the future.
    And I want to ask Ms. Hincapiee if you think this action is 
going to cause more people to try to cross the border 
illegally.
    Ms. Hincapiee. No, Congressman, and for two reasons. One 
is, the deferred action program that the Administration has 
announced specifically says that it only covers individuals who 
have continuously resided in the United States since January 1 
of 2010, so that's the last 5 years. So for any individual who 
comes tomorrow or today, they're not----
    Mr. Farenthold. All right, but didn't we under Reagan say 
that we were only going to grant legal status to those folks 
that were here on a certain date, and here we are doing 
something similar again? It seems like we're wasting our time 
doing anything before the border is secure.
    Mr. Dupree, do you think we're going to see more people 
coming and attempting to cross the border illegally as a result 
of this policy.
    Mr. Dupree. I think we absolutely will. I think that the 
Administration's policies are followed very closely outside the 
United States, and I think we saw that with the episode that 
you referred to a minute ago. And I think there also, as you 
have alluded to, there really has been kind of a session of 
mission creep. I mean, it's been one of a one-way ratchet in 
which the Administrations, and Republican as well as Democrat 
administrations, say we'll provide limited relief. And guess 
which way that relief gradually goes? It expands and it 
expands.
    Mr. Farenthold. It also frustrates me that the President's 
action is going to make it more difficult for Congress to find 
a path forward on both securing the border and dealing with 
immigration reform. We have got issues with high-tech workers. 
We have got issues with agriculture workers. We have got a ton 
of issues that we need to deal with, with immigration. And it 
seems like the President is driving a wedge between the White 
House and Congress in doing this.
    My understanding, you worked with the Bush administration 
on immigration reform. From your work trying to pass 
immigration reform, do you think this is going to damage the 
prospects of Congress acting?
    Mr. Dupree. Well, to say the least, if the President 
asserts the power, in my view unconstitutionally, to act 
unilaterally, it's basically saying to Congress good riddance. 
I don't need you, regardless of whether you pass a law, 
regardless of whether you don't pass a law, I'm going to make 
immigration law myself. So you all are the ultimate judges of 
this, but from my perspective it is very hard for me to see how 
this would enhance the likelihood of cooperation from Congress.
    Mr. Farenthold. And Ms. Hincapiee has argued for very broad 
interpretation of prosecutorial discretion. Mr. Sekulow, do you 
believe that this broad of interpretation, I mean, does that 
leave us anything with the Take Care Clause or has this just 
become an orphan clause in the Constitution that has no meaning 
if we take this broad of a definition?
    Mr. Sekulow. I think it is what the court in Chaney said, 
that when you have nonenforcement on such a broad-based scale, 
that you are, in essence, not enforcing the existing law. I 
mean, I don't know what is so confusing about prosecutorial 
discretion. A lot of you all have been prosecutors. I was a 
government lawyer.
    Mr. Farenthold. I learned it in law school. You don't 
arrest somebody for speeding to the hospital.
    Mr. Sekulow. Yeah. I was a tax lawyer for Treasury, and we 
had cases and sometimes would say, you know what, just based on 
our resources, we are not going to do that particular case. But 
we didn't say every case involving that particular industry we 
are not going to prosecute. That would not be prosecutorial 
discretion. That would be suspending the enforcement of the 
law.
    Mr. Farenthold. And my friend Mr. Labrador said he had one 
other question. I will yield the remainder of my time to him.
    Mr. Labrador. Thank you.
    Mr. Dupree, were you working with the White House on June 6 
of 2007?
    Mr. Dupree. Yes, I was.
    Mr. Labrador. Do you remember what happened in the Senate, 
because I'm tired of hearing that President Obama has been 
working so long for immigration reform, do you remember what 
happened in the Senate when then-Senator Obama decided to vote 
for poison pill amendments that killed the entire immigration 
bill that you guys were working on.
    Mr. Dupree. It was immensely frustrating. The way that that 
played out was immensely frustrating for many of us who had 
labored for months, and in some cases years, to effect 
immigration reforms.
    Mr. Labrador. And in fact, President Obama, who at the time 
was a Senator, had gone to the White House, looked at George W. 
Bush in the eye, and said that he would work for immigration 
reform, and then he went to the Senate floor and he killed 
immigration reform. And then he promised the American people 
the first thing he was going to do as President was going to do 
immigration reform, had a Congress, a House, and a Senate in 
Democratic hands, and did absolutely nothing.
    I think Ms. Hincapiee said it right. This has always been a 
political issue for this President. It has never been a policy 
issue.
    Thank you very much.
    Mr. Marino. Congressman Gutierrez is recognized.
    Mr. Gutierrez. Thank you, Mr. Chairman.
    As a segue to prosecutorial discretion, I'm just going to 
sit up here. Thank you so much. I didn't have the good fortune 
of being able to go to law school. I never met Thomas Jefferson 
or James Madison or Ben Franklin or George Washington. I read 
about them. And sometimes the lawyers kind of take us down 
memory lane like they're your first cousins once removed.
    But not having met any of them, I admit to that, and not 
having gone to law school, so I'm a little not as prepared as 
the gentlemen might be on the questions of law, but I supported 
and I have worked harder than anyone here, at least as hard as 
or harder than anyone here in working with Republicans. And you 
know what? They keep inviting me. They say, it will be next 
week, Luis, and here's our principles. And then they go, just 
kidding, I really didn't mean it.
    You know, they keep testing us and teasing us about 
immigration reform--we're going to do it, we're just not ready 
right now. The fact is that the Speaker called the President of 
the United States in June of this year and he said, despite all 
of your great efforts, Mr. President, and mine, we're not going 
to call a vote on immigration reform.
    So let's just put aside the fallacy that somehow this is 
disruptive to a system. It's almost as though you are coming 
here to tell us, oh, we were on the pinnacle of success and had 
the President not acted we'd all be convened here to do 
comprehensive immigration reform.
    The fact is it's just not reality. So let's deal with 
reality. The fact is that when you and I and others were 
working in the Senate to pass the bill, we passed a bill here, 
the Sensenbrenner bill, that was immigration reform in the 
House of Representatives when they controlled it, that 
criminalized every priest, every teacher, every doctor. That 
was the response to the Senate bill.
    So let's get it very, very clear here. Every time we have 
sat at the table and we have said, look, tell us what it's 
going to take, they refuse to act. It is now 23 months into the 
Congress, and we have not seen any legislation taken from this 
Committee to the House floor that isn't taking 800,000 young 
people and making them illegals once again, in the words of my 
colleagues.
    So not having met any of them, I just want to say that I 
did meet a few other people that I have had the privilege and 
the honor of meeting and working with, so I can't go back 200, 
300 years, or 400 years, when you guys suggest that 
prosecutorial discretion was well-established in the law. I can 
go back to November 4 of 1999. And here it is. And I'm just 
going to try to read a little bit of it. It says, ``There has 
been widespread agreement that some deportations were unfair 
and resulted unjustifiable hardship. If the facts substantiate 
the presentations that have been made to us, we must ask why 
the INS pursued removal in such cases when so many other more 
serious cases existed. We write to you because we believe 
people, you know, that discretion to alleviate some of the 
hardships.'' It says, ``The principle of prosecutorial 
discretion is well established. Indeed INS general counsel and 
regional counsel have taken the position, apparently well 
grounded in case law, that INS has prosecutorial discretion in 
the initiation and determination of removal proceedings. 
Furthermore, a number of principles indicate INS has already 
employed this discretion in some cases. Two hardship cases call 
for the exercise of such discretion. And over the past year, 
many Members of Congress have urged the INS to develop 
guidelines for the use of prosecutorial discretion.'' 
Guidelines for the use of prosecutorial discretion.
    Let me just suggest to you, I never met George Washington, 
Benjamin Franklin. I know you guys like taking us down memory 
lane, right, with the Founders. But I'll tell you what. I did 
meet Henry Hyde. I did meet Lamar Smith. I did meet Mr. 
McCollum. I did meet all of these gentlemen that have signed 
this. And let me just say that Henry Hyde, Lamar Smith, 
McCollum, and others that have signed this aren't some open 
borders kind of friendly to immigrant policy kind of Members of 
Congress. I think we could suggest that. And yet, what did they 
say? They wrote the Attorney General and the INS Commissioner 
and said prepare guidelines.
    Let me just suggest to you that Idaho has 1.6 million 
people. We deport 400,000 a year. It would take us, if we just 
spent all of our life in Idaho, it would take us the next 4 
years. We are not going to deport ourselves out of the issue of 
immigration reform. We are going to have to find a solution. 
And instead of here arguing as though we're the Supreme Court 
and you guys are some, I don't know, some solicitor generals 
telling us what is constitutional or not constitutional, I 
think we should roll up our sleeves and begin to do the work of 
fixing the immigration problem because we have not put one more 
person on the border to secure our borders, nor will we help 
one more family.
    And I would just end with this. Mr. Chairman, you know, I 
didn't go to law school, but it just seems to me that justice 
is about compassion too. It's about fairness. It's about 
looking and weighing the equities that people have. And I think 
4 million American citizen children we should take into 
consideration. Because guess what. Tonight my grandson, he is 
going to be taken, and my daughter is going to go to his school 
and go check out his report card. She is going to be able to 
take him to the library, she is going to be able to help him 
with his homework. She is going to be able to do a lot of 
things, take him to soccer. There's millions of undocumented 
immigrants that can't do that for their American citizen 
children. So let's stop. Nothing has been resolved here.
    Mr. Marino. The gentleman's time has expired.
    Mr. Gutierrez. Thank you so much, Mr. Chairman. Thank you 
for your indulgence and generosity.
    Mr. Marino. Congress Collins, you're next.
    Mr. Collins. Thank you, Mr. Chairman. And probably the one 
part I would disagree with my friend just now is the fact that, 
you know, amazingly enough, after a wonderful speech, carried 
by many, that everything was supposed to be solved a couple of 
weeks ago because the President acted. Undoubtedly we're far 
from that.
    This is concerning on many levels, and the problem that I 
have with the biggest part here is the fact that this has 
gotten mixed up into immigration and we are using immigration 
and we are using the stories of hardships, and I can understand 
that. But the problem is here, is a fundamental take the issue 
away. Remove the issue. Remove immigration, remove drug 
enforcement, and just go back to the simple idea of what the 
structure of government is. And that's the problem that I'm 
having here.
    And also, as a reminder, one, and I heard it mentioned from 
across the aisle that if we had passed bills, in which we had, 
they have never moved out of this Committee, I'm not sure why 
my friends across the aisle were concerned. They didn't vote 
for any of them in this Committee. So they wouldn't have 
worried about them on the floor of the House, so I'm not sure 
why that.
    And also, as my friend from Idaho mentioned just a few 
moments ago, the reason that most of us believe that this is a 
really political issue for this President is because when he 
chose to overhaul the healthcare system, when he chose to go 
after the big banks, the Too Big to Fail, when he chose a lot 
of other priorities, do you know what he didn't choose as a 
priority? He did not choose illegal immigrants. He did not 
choose the immigrant community. He did not.
    So we can complain all we want about differences of opinion 
and what did and did not move. So the issue comes is, now I can 
do it, I'm in my last term, and I don't like what Congress has 
or has not done.
    My question also is this, and I'm just sitting here 
pondering this, because I did sit through law school and I'm 
proud that I did sit through law school, and I haven't met 
George Washington either. But the books and stories have told 
me a lot about how this history was founded and the folks who 
strived to come here, and rule of law matters. And if you come 
from a country in which rule of law does not matter, and the 
reason you are coming is you want to find rule of law, what 
does it say when we're going to avoid the rule of law in this 
country? Take immigration off of it and just look at the 
balance of power.
    Ms. Hincapiee, let me just ask a question. You used the 
term. Define for me policy change.
    Ms. Hincapiee. Policy change?
    Mr. Collins. Yes. You use it quite regularly in your brief.
    Ms. Hincapiee. Sure. Under the, again, what the Department 
of Homeland Security has done, it has said in the past we were 
deporting parents of U.S. citizen children.
    Mr. Collins. Is an Executive order policy change or is it 
prosecutorial discretion?
    Ms. Hincapiee. It's prosecutorial discretion.
    Mr. Collins. So you are saying policy change to not do 
something would be captured under prosecutorial discretion?
    Ms. Hincapiee. Right. So just technically, the President 
has not issued an Executive order. He has issued Executive 
actions. All these are directives by the Department of Homeland 
Security identifying what their policies and priorities are--
again, completely consistent with the Homeland Security Act.
    Mr. Collins. In looking at this, take it away, and I know 
you can't because it's a cause for you, and I get that. Take 
immigration out of this.
    Ms. Hincapiee. Uh-huh.
    Mr. Collins. What is the limit here? And you sort of blew 
off my colleagues who said about tax law and about other 
things. You came across that way. So you just say, well, no, it 
can't happen. Tell me why it can't. Because many people who 
would have said in this body 40, 50 years ago on different 
issues, or even 20 years ago, would have sat here and said, 
well, there's no way a President would just blanketly take a 
group and just do away with it, in a sense, and hide it under 
here is an outline. Why is it now not conspiracy theory to 
think that any President, Republican or Democrat, can use this 
as precedent?
    Ms. Hincapiee. So again, I believe that the President is 
actually following the law, the Constitution statutory, 
regulatory framework. And what the President has done here is 
the same that previous Administrations have done. In the 
future, taking the immigration issue out of this, if it were 
tax law, if it were environmental, if it were labor employment 
laws----
    Mr. Collins. Then why didn't he do it before the election? 
Why didn't he do it before the election? Why didn't he do it 6 
years ago? Because broadly he knew it's a political issue. He 
knew it would cost his party politically. He chose to go after 
the election. It's political.
    Standing, Mr. Sekulow, States. Would you say at least in a 
short answer States have at least a good argument for standing 
on this?
    Mr. Sekulow. I would say of the potential plaintiffs, they 
probably have the best argument. But standing is always a 
difficult task.
    Mr. Collins. Very quickly. Also, those who are currently 
legally in line and it is taking forever to process their legal 
applications and now the same officers are going to have to 
deal with the deferred action program, would they have 
standing?
    Mr. Sekulow. Possibly.
    Mr. Collins. So they are being hurt. There are damages. 
That is another legal term. Damages have to be found.
    Also, in reference to the gentleman from Illinois, the 
letter that he stated, minor detail here, wasn't dealing with 
illegals. It was dealing with legal permanent residents and 
developing a process for them. He was not dealing with 
illegals. It was legal permanent residents.
    With that, Mr. Chairman, I yield back.
    Mr. Marino. The Chair recognizes Congressman Jeffries.
    Mr. Jeffries. Thank you, Mr. Chair. And I thank the 
witnesses for their presence here today. Let me just start with 
Mr. Sekulow.
    There are approximately 11 million undocumented immigrants 
in the country right now, correct?
    Mr. Sekulow. That's the number I understand, yes.
    Mr. Jeffries. Okay. And Congress appropriates resources to 
the Department of Homeland Security, correct?
    Mr. Sekulow. Yes, sir.
    Mr. Jeffries. And those resources are used in part to 
undertake the deportation of undocumented immigrants, true?
    Mr. Sekulow. That's correct.
    Mr. Jeffries. Okay. Now, the Department of Homeland 
Security does not have the resources, based on what Congress 
has allocated to it, to deport those 11 million undocumented 
immigrants, correct?
    Mr. Sekulow. Absolutely correct.
    Mr. Jeffries. Okay. So since we've established factually 
there's no way that DHS can deport 11 million undocumented 
immigrants because it does not have the resources to do so, 
it's got to establish priorities as it relates to deportation, 
true?
    Mr. Sekulow. Absolutely correct.
    Mr. Jeffries. Okay. Now, who actually has the authority to 
establish those priorities? Isn't it the Secretary of Homeland 
Security and therefore the President who appoints him?
    Mr. Sekulow. The Secretary of Homeland Security is 
authorized on a case-by-case basis. Prosecutors are authorized 
on a case-by-case basis. That's markedly different from a group 
exemption.
    Mr. Jeffries. Right. First of all, this is not a group 
exemption. And I think that has just been a blanket 
misrepresentation. I think many of my colleagues have actually 
corrected it, but there are at least five factors that 
individuals will have to prove, right? Present since 2010.
    Mr. Sekulow. Right.
    Mr. Jeffries. Documentation will be required to demonstrate 
that.
    Mr. Sekulow. Right.
    Mr. Jeffries. You can't just show up and make that 
representation.
    Mr. Sekulow. That puts you in the class.
    Mr. Jeffries. Reclaiming my time. I'm not finished.
    Mr. Sekulow. I'm sorry.
    Mr. Jeffries. Qualifying child. You have got to demonstrate 
that.
    Mr. Sekulow. Correct.
    Mr. Jeffries. Birth certificate, perhaps, passport, 
whatever the case might be.
    Mr. Sekulow. Right.
    Mr. Jeffries. Documentation.
    Continuing presence. Again, it's going to require 
documentation.
    Four, not an enforcement priority.
    And then five, of course you have to pass a criminal 
background check.
    Mr. Sekulow. Right.
    Mr. Jeffries. Those are all individual factors that will be 
assessed by the Department of Homeland Security to determine 
eligibility, correct?
    Mr. Sekulow. To determine if you're eligible for the class 
that does not constitute an individual determination.
    Mr. Jeffries. Okay. Well, we disagree on that.
    Now, in terms of--sir.
    Mr. Sekulow. Yes, sir.
    Mr. Jeffries. I'm on the dais. You are answering questions.
    Mr. Sekulow. Yep.
    Mr. Jeffries. We appreciate whatever authority you are 
bringing to this discussion.
    Mr. Sekulow. I appreciate that.
    Mr. Jeffries. But you are not the definitive authority. In 
fact, what the Supreme Court has said, and let's touch on that, 
the Arizona v. United States case has been brought up. Are you 
familiar with that case?
    Mr. Sekulow. Yes, sir.
    Mr. Jeffries. And do you believe that this case in any way 
contributes to the debate as to whether the President has 
discretion to defer deportation?
    Mr. Sekulow. No. SB 10, the conclusion of the Supreme Court 
was of course that the Federal Government has the authority and 
the States cannot override immigration authority that's 
Federally enunciated. The Supremacy Clause.
    Mr. Jeffries. Right, okay. Justice Kennedy stated in the 
majority opinion, a principal feature of the removal system is 
the broad discretion exercised by immigration officials. 
Federal officials as an initial matter must decide whether it 
makes sense to pursue removal at all. Correct?
    Mr. Sekulow. Yes.
    Mr. Jeffries. That's what Justice Kennedy said.
    Mr. Sekulow. Federal officials.
    Mr. Jeffries. Okay, now, we have already established that 
the resources don't exist for the Department of Homeland 
Security to remove all 11 million undocumented immigrants, 
true?
    Mr. Sekulow. Yes.
    Mr. Jeffries. So immigration officials, it seems to me, 
consistent with the Supreme Court decision which was written in 
2012 on immigration, not on FDA matters, not on other 
collateral matters, on immigration, establishes clearly that 
the Department of Homeland Security and this President have the 
ability to make priority determinations related to deportation. 
Isn't that clear?
    Mr. Sekulow. Over a State determination. It involved the 
constitutionality of SB 10. This is a very different situation, 
with due respect, Congressman, to a situation where there is 
going to be a blanket creation of a class that is now protected 
outside of congressional authority. The answer to your question 
is pass a law.
    Mr. Jeffries. I agree with that. The President agrees with 
that. Since President Eisenhower in 1956, 39 occasions there 
has been executive action related to deferred enforcement in 
connection with immigration, correct?
    Mr. Sekulow. Yes.
    Mr. Jeffries. Thirty-nine occasions, right?
    Mr. Sekulow. Yes.
    Mr. Jeffries. It happened under Eisenhower and Kennedy 
related to approximately 900,000 Cubans.
    Mr. Sekulow. Right.
    Mr. Jeffries. It happened under Ford with approximately 
200,000 Vietnamese. It happened under President Reagan, I think 
as it relates to approximately 200,000 Nicaraguans. It happened 
under George Bush 43 as it relates to Liberians. And of course 
it happened under the first President Bush with respect to 1.5 
million undocumented immigrants, correct?
    Mr. Sekulow. Yes.
    Mr. Jeffries. But you don't believe this President has the 
authority?
    Mr. Sekulow. I'm not sure--I have stated it very clearly, I 
thought, that I'm not convinced in all of those cases. Some of 
those cases were involving foreign policy issues where the 
President does have authority. But I have stated consistently 
in my testimony that I believe that, especially as it related 
to the situation with President Bush 41, as well as with 
President Reagan, that I think it is constitutionally suspect, 
as I think this is as well.
    Mr. Jeffries. All right, my time is expired. I yield back.
    Mr. Marino. The Chair recognizes Congressman Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank you for being here in this filibuster-style 
proceeding.
    You have heard the President, his proclamation, and he said 
that, in essence, since Congress didn't do anything that he had 
to act. And I just want to set the record straight. In July we 
had a bill to deal with border issues that was viscously fought 
within our party and there were massive changes and corrections 
that were made, and if we didn't have everybody, we had close 
to everybody in the Republican Party vote for the bill, about 
10 or 10:30 p.m. on Friday night, at the end of July.
    So we did pass a border bill, and I'm hoping whoever 
advises the President will be able to tell him that. But they 
have got these pesky fences between us and getting to the 
President. I have advised the head of our CIS--and Secret 
Service was here testifying recently--that since we are told 
fences don't work on our southern border, we really need to 
remove the fences at the White House. If they don't work, they 
don't work, take down the fences at the White House.
    But I've been perplexed. The President also said that, in 
essence, if you have been violating our laws for 5 years or 
more, you're our kind of people, we want you here. If you're 
new at violating the law, you haven't been violating it for a 
full 5 years, you're not our kind of people. We want 
longstanding law breakers.
    Can anybody explain to me why we should have a preference 
for people that violated the law more than 5 years as opposed 
to maybe new lawbreakers?
    Ms. Hincapiee. I'll take a crack at that.
    Mr. Gohmert. What's the advantage of having longstanding 
law breakers?
    Ms. Hincapiee. I think the rationale behind it is that 
individuals who have been here for a long time have deep ties 
to our community, have U.S. citizen children, are paying taxes, 
property taxes. Many of them are small business owners, et 
cetera. They're contributing to the economy in our country in 
many ways and have U.S. citizen children. They're invested in 
our country. They want to be Americans, but there aren't any 
legal channels to do so. And because of the conversation we 
have been having so far about the lack of--there are 11 million 
people. This Administration has been deporting more people than 
any others, any previous Administrations; 2 million people have 
been deported under the Obama administration.
    Mr. Gohmert. Okay, so you're saying that those things don't 
apply to people that have been here less than 5 years? If you 
haven't been violating immigration laws for 5 years then you 
really don't want to be a citizen and you don't want to have 
the advantages here?
    Ms. Hincapiee. No, the Administration is simply saying that 
they are going to consider recent entrants a higher level 
priority. Whether I agree with that or not, that's what the 
Administration has decided on.
    Mr. Gohmert. Okay.
    Ms. Hincapiee. Their discretion as the executive branch, 
again, under the Homeland Security Act and the appropriations 
that Congress has provided, it needs to balance a number of 
factors. So, unequovically, the Administration----
    Mr. Gohmert. My time is short. And I am just still looking 
for the rationale for saying people who violated the law more 
than 5 years or more are our kind of people. But the 5-year 
figure triggered a remembrance as well. My friend Steve King 
and I had gone to meet with immigration officials in England in 
recent years. And we were told they have a firm standing law in 
the U.K. That until you have paid into their British system for 
5 years, you are not entitled to any British benefits at all. 
Would there be a constitutional issue that any of you can think 
of if we were to pass such a law?
    Mr. Sekulow. No. I think that Congress has the authority--
the Supreme Court has recognized--the comprehensive authority 
to set standards both for naturalization, the Constitution says 
that, and the Supreme Court has said with regard to 
immigration, that it vests exclusively with Congress. I think 
you could set standards. We have in the past. The country has 
done that.
    Mr. Dupree. I completely agree. That is Congress' job, its 
prerogative.
    Ms. Hincapiee. Yep, Congress can change the law at any 
point.
    Mr. Gohmert. And you wouldn't see a problem if we passed a 
law like that, you have got to pay into the system for 5 years 
before you can participate?
    Ms. Hincapiee. And I would add that actually the majority 
of people who are here have been paying into the system. They 
pay approximately $8 billion, $9 billion into our Social 
Security system every year.
    Mr. Gohmert. That begs the question, though. There is 
plenty of evidence here lately, like the child tax credit, 
where people are getting much more back than they paid in. But 
since my time has just expired, I would urge lawyers that are 
in the room, a potential area for litigation, since the 
President thinks he has the constitutional right to do this and 
he was a constitutional professor in Chicago, it seems like 
maybe his students have a legitimate class action for their 
money back.
    I yield back.
    Mr. Marino. The Chair recognizes Congressman Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman.
    I want to first say the witnesses have described this 
action by the President as unilateral, and also claim that the 
fact that it could be removed at any moment somehow undermines 
its legitimacy. Of course, every Executive order by a President 
is unilateral. That is the definition of an Executive order. So 
the notion that this is somehow not legitimate because it is 
unilateral, it seems to me a completely specious argument. 
Similarly, the fact that it could be repealed by another 
President or by this President is also the exact same thing 
when that happens in every single Executive order.
    So I think those arguments that have been advanced by 
members of this panel are completely specious. I think you 
would agree, Mr. Sekulow, that the President's executive 
authority is neither enlarged nor limited by the words of the 
President. It is actually dictated by the Constitution and by 
the decisions of the Supreme Court of the United States. 
Correct?
    Mr. Sekulow. Yeah, but Executive action, though, 
incorporates what the President said, for in this particular 
case----
    Mr. Cicilline. But the constitutionality of the action is 
not determined by the description by any President. It is by 
what the Constitution permits and by the decisions of the 
Supreme Court. Correct?
    Mr. Sekulow. Yes.
    Mr. Cicilline. Okay. So the Supreme Court actually spoke to 
this question in Arizona v. the United States. And they said, A 
principle feature of the removal system is the broad discretion 
exercised by immigration officials. Federal officials, as an 
initial matter, must decide whether it makes sense to pursue 
removal at all.
    They go on to say, Discretion in the enforcement of 
immigration law embraces immediate human concerns. Unauthorized 
workers trying to support their families, for example, likely 
pose less danger than alien smugglers or aliens who commit a 
serious crime. The equities of an individual case may turn on 
many factors, including whether the alien has children born in 
the United States, long ties to the community, or a record of 
distinguished military service.
    So the United States Supreme Court in the most recent 
decision about the use of discretion in the context of 
immigration set forth both the right of the Federal Government 
to exercise prosecutorial discretion and even suggested some 
factors to consider in the exercise of that discretion.
    You have said in your testimony, you keep using the term 
``blanket approval.'' But, in fact, what the President did in 
his Executive order is articulate a series of factors which, if 
satisfied, would entitle that person to deferral of deportation 
action. And that means an individualized determination as to 
each of those factors. The fact that in fact those are a common 
set of characteristics doesn't make it a blanket. It makes it 
they still require an individual case-by-case determination, 
which is all that is required in the exercise of discretion.
    Now, Mr. Dupree, you said in both your written testimony 
and in your testimony today, that what disturbs you is the 
scale of this and also that it is different from past uses by 
other Presidents because it is not consistent with the will of 
Congress. Even Mr. Sekulow agrees the scale is irrelevant. It 
is either constitutional or not. And, in fact, when you look at 
scale, it is actually less in scale than President Bush's, 
which covered 42 percent of undocumented people. This covers 
35. So the scale argument doesn't work.
    Secondly, you say that it is inconsistent with the will of 
Congress, when in fact in President's Bush's use of Executive 
order it was in the face of clear express congressional 
disapproval of what Executive order did. And, in this case, 
President Obama's acting in the absence of an expression of 
congressional action. So the two bases for your argument have 
been completely undermined. Correct?
    No, this is to Mr. Dupree this is to you. This is your 
testimony. You say here the scale of President Obama's 
directive significantly exceeds what past Presidents have done. 
Untrue. You then go on, moreover, in prior instances, the 
executive was acting to implement a new statute consistent with 
the will of Congress. Also not true.
    Mr. Dupree. I disagree. Let me take scale on first. My view 
as to scale is that if you had an instance in which a President 
said, or the Secretary of Homeland Security said, I am 
exercising my discretion not to remove this one individual, 
clearly a permissible exercise of discretion.
    Mr. Cicilline. That is not what scale means. You are not 
talking about whether it is done individually. You talk about 
the scale of what is being done here in terms of the quantity 
or number of individuals followed. The point of it is the scale 
of this is considerably less than even the most recent action 
by President Bush. And the reality is this hearing is not about 
the authority of the President to do this. What we are really 
doing is delaying action by this Congress in trying to persuade 
the American people not to pay attention to the fact that this 
Congress has failed to pass comprehensive immigration reform. 
And rather than having a hearing where we are talking about 
what to do about that, we have a bipartisan bill that passed 
the Senate, that, if it came to the House floor, would pass. 
Instead, we have spent 4 or 5 hours where legal experts can 
pontificate about their own opinion about whether this is 
permissible, when it is very clear from every legal scholar I 
have read that this is permissible, that there is precedent for 
it. And I would ask unanimous consent to enter into the record 
a letter from the two general counsels of the United States 
Citizenship and Immigration Service, as well as general counsel 
for the Immigration and Naturalization Service, which conclude 
that they have studied the relevant legal parameters and wish 
to express their collective view that the President's actions 
are well within his legal authority.
    And with that, I yield back.
    Mr. Marino. Without objection.
    The Chair recognizes Congressman DeSantis.
    Mr. DeSantis. You know, we hear that, well, Congress hasn't 
acted, so then the President needs to act. But let me ask you, 
Mr. Dupree, because were you in the Bush White House, if 
Congress declines to enact a bill that the President wants, is 
there anything in the text, history, or structure of the 
Constitution that says that because Congress refused to act, 
that the President's Article II power is somehow augmented 
where he can go around Congress.
    Mr. Dupree. No, sir.
    Mr. DeSantis. That is totally foreign to our system of 
separated powers. Correct?
    Mr. Dupree. That is correct. Completely antithetical to it.
    Mr. DeSantis. And Bush would have never said, Well, 
Congress voted down my bill, I am going to go ahead and 
legalize people on my own or grant work permits. Correct?
    Mr. Dupree. That's correct. We were faced with virtually 
the same situation as President Obama was faced with, and we 
acted very differently.
    Mr. DeSantis. And the thing is the House, we actually 
considered, we did a hearing on this Gang of Eight bill, and it 
didn't have a lot of support on our side because the 
Congressional Budget Office said you would have millions of 
more illegal immigrants under that bill. One estimate was 7.5 
million more. So that problem was not solved at all. The ICE 
union said it actually made it worse. And the Congressional 
Budget Office actually said that it would lower wages and 
increase unemployment for U.S. citizens. So there was a lot of 
reasons why that was something. And the Senators who voted for 
that, most of them lost this past election year.
    Let me ask you this, Mr. Sekulow, prosecutorial discretion. 
So I am a Federal prosecutor. I may go after the heroin dealer. 
I am probably not going to go after the pot smoker. But what I 
don't do is issue the pot smoker a permit to where he can then 
keep smoking pot. And how does this idea of conferring positive 
benefits on somebody fit into the idea of prosecutorial 
discretion? Yeah, you may not have resources. You may have to 
set priorities about who you actually enforce the law against. 
But where in that doctrine does it now come from where you are 
going to issue a work permit and a Social Security number 
without statutory authority?
    Mr. Sekulow. Well, the grant of substantive benefit takes 
it out of what is classical prosecutorial discretion. I mean, 
you are absolutely correct on that. And in the context here, it 
is one thing to do prosecutorial discretion, as you said, on a 
particular offense in a particular case. It is quite another, 
as you just said, to then award a particular benefit. In this 
particular case, the granting of work authorization is a 
substantive benefit, which is allowed in certain circumstances, 
but this is not one of the categories upon which these work 
permits, if you will, are authorized. That would take an act of 
the United States Congress, because despite everybody's 
protestations on both sides of this, the reality is there has 
been a creation of a class here. And I would just like to say 
for the record those five criteria are the criteria for 
determining class, not the individual discretion as to whether 
in fact some would be admitted, because that discretion, 
according to the OLC memo, rests completely with the agency, 
not with the President in that sense.
    Mr. DeSantis. And I was struck by footnote 8 of the OLC 
opinion, where OLC, when the DACA program was going to be 
instituted, Obama a year before said he couldn't do it; they 
advised him orally. They didn't actually put it in writing, 
which I thought was interesting. And then in the footnote, they 
say, hey, it's got to be case by case. But the statistics on 
that is the approval rate is 95-plus percent.So how is that 
case by case if it's 95-plus percent? I think the way it's been 
implemented actually conflicts with the OLC footnote even on 
the mini amnesty that was done in 2012.
    Mr. Sekulow. The structure of our Constitution does not 
allow for government by Executive action only. It requires 
statutory action from the legislative branch period. Especially 
on an issue like this, where it is in the purview of Congress.
    Mr. DeSantis. Ms. Hincapiee, is it your understanding that 
under the President's new policy, that people who qualify for 
deferred adjudication will be eligible for Social Security and 
Medicare benefits? Because the White House had said if they pay 
in, then they will receive Social Security.
    Ms. Hincapiee. So under the existing regulations, and I 
just need--because this is related to what one of my colleagues 
has just said--the class that has been created is under the 
regulations. It is a class of aliens who are eligible for work 
authorization. The regulations, not the Obama administration, 
have determined, the regulations say individuals who have 
deferred actions that is 274A.12 subsection (C)(14), 
specifically say individuals who have deferred action. So that 
is the class. There is no new class being created.
    Mr. DeSantis. But Social Security, so they will receive 
Social Security and Medicare?
    Ms. Hincapiee. So, once they get a work authorization, 
employment authorization document, they will be eligible----
    Mr. DeSantis. And that, obviously, they would not have been 
eligible for that but for the President's action. So he is----
    Ms. Hincapiee. No, but for the immigration regulations and 
the statute.
    Mr. DeSantis. Right. But that may be the background 
regulation, but his action to put them into that situation is 
now. It is my understanding that they are not eligible for 
Obamacare subsidies. Is that your understanding?
    Ms. Hincapiee. Right. They are not eligible for Obamacare, 
nor are they eligible for----
    Mr. DeSantis. The problem, though, with the Obamacare thing 
is that, yeah, there is not going to be subsidies, but they are 
actually exempt under is the statute from Obamacare's employer 
mandate, which means that they don't count to that 50 employee 
limit. And so if you have, say, a naturalized U.S. citizen 
applying for a job versus somebody who is illegally in the 
country, qualifies under the President's Executive order, that 
business actually, it is about a $3,000 discount to hire the 
person who is here illegally over the person who is a U.S. 
citizen, even if they are naturalized.
    And so, you know, you said that you are an immigrants' 
rights activist, but it seems what the President's doing is he 
is driving a wedge between illegal immigrants and legal 
immigrants. Legal immigrants and naturalized citizens are going 
to be made worse off as a result of this.
    And I yield back.
    Mr. Marino. Thank you.
    I have not asked my questions. I am going to ask you if you 
care to respond to my question in writing. It doesn't have to 
be that long. Any of you. I am going to switch gears here. I 
want to know what Congress can do to have the United States 
Supreme Court hear argument on and give parameters or a ruling 
on Executive orders, executive privilege. I know that we can 
sue the President, no matter who it is, on a case-by-case 
basis. But my research tells me that the Supreme Court has been 
punting that back to us, saying it is a political issue; it is 
a procedural issue. And I am just hoping that sometime perhaps 
the Supreme Court will take that Executive order or executive 
authority with regard to what we have been seeing with 
Republican and Democrat Presidents. So if you care to answer 
that, I would love to read it.
    This concludes today's hearing. We thank all of our 
witnesses for joining us. I thank you for being so patient.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record. This hearing is adjourned. 
Thank you.
    [Whereupon, at 6:14 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

      List of Material submitted by the Honorable Zoe Lofgren, a 
 Representative in Congress from the State of California, and Member, 
                       Committee on the Judiciary
Statement of Dr. Samuel Rodriguez, President, National Hispanic 
        Christian Leadership Conference (NHCLC)
Statement of the Lutheran Immigration and Refugee Service
Statement on behalf of the Most Reverend Katharine Jefferts Schori, 
        Presiding Bishop and Primate of the Episcopal Church
Statement of the Church World Service (CWS)
Statement of the AFL-CIO
News Release from Lee Saunders, President, the American Federation of 
        State, County, and Municipal Employees (AFSCME)
News Release from Randi Weingarten, President, the American Federation 
        of Teachers (AFT)
News Release from the Asian Pacific American Labor Alliance, AFL-CIO 
        (APALA)
Statement of Stosh Cotler, Chief Executive Office, Bend the Arc: A 
        Jewish Partnership for Justice
News Release from Rev. Terry Melvin, President, Coalition of Black 
        Trade Unionists (CBTU)
Statement of Daniel Costa, the Economic Policy Institute (EPI)
News Release from the Communications Workers of America (CWA)
News Release from Jobs With Justice
News Release from the Labor Council for Latin American Advancement 
        (LCLAA)
News Release from the Laborers' International Union of North America 
        (LiUNA!)
Statement of the National Education Association (NEA)
News Release from the United Auto Workers (UAW)
News Release from Joe Hansen, International President, the United Food 
        and Commercial Workers International Union (UFCW)
News Release from Leo W. Gerard, International President, the United 
        Steelworkers (USW)
Statement of Mee Moua, President and Executive Director, Asian 
        Americans Advancing Justice (AAJC)
Statement of the American Civil Liberties Union (ACLU)
Statement of the American Immigration Council (AIC)
Statement of the American Immigration Lawyers Association (AILA)
Statement of Appleseed
Statement of Miles Rapoport, President, Common Cause
Statement of Farmworker Justice
Statement of the Fair Immigration Reform Movement (FIRM)
Statement of the Latino Victory Project
Statement of the Latin America Working Group (LAWG)
Statement of Charles Kamasaki, the National Council of La Raza (NCLR)
Statement of One America
Statement of Andrea Cristina Mercado and Miriam Yeung, Co-Chairs, We 
        Belong Together
Stories compiled by United We Dream

 
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