    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                        UNCONSTITUTIONALITY OF OBAMA'S
                        EXECUTIVE ACTIONS ON IMMIGRATION

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

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               FEBRUARY 25, 2015

                                   __________

                                Serial No. 114-3

                                   __________

             Printed for the use of the Committee on the Judiciary

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

                                       ______

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   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                HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

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

                                C O N T E N T S

                                  ----------

                               FEBRUARY 25, 2015

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary     1
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     3
    The Honorable Trey Gowdy, a Representative in Congress from the
      State of South Carolina, and Member, Committee on the Judiciary     5
    The Honorable Zoe Lofgren, a Representative in Congress from the
      State of California, and Member, Committee on the Judiciary....     6

                                   WITNESSES

    The Honorable Adam Paul Laxalt, Attorney General of Nevada
      Oral Testimony.................................................    10
      Prepared Statement.............................................    13
    Josh Blackman (testifying in his personal capacity), Professor,
      South Texas College of Law
      Oral Testimony.................................................    19
      Prepared Statement.............................................    21
    Elizabeth Price Foley (testifying in her personal capacity),
      Professor, Florida International University College of Law
      Oral Testimony.................................................    25
      Prepared Statement.............................................    27
    Stephen H. Legomsky (testifying in his personal capacity),
      Professor, Washington University School of Law
      Oral Testimony.................................................    59
      Prepared Statement.............................................    61

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Zoe Lofgren, a Representative
      in Congress from the State of California, and Member, Committee
      on the Judiciary...............................................   101
    Material submitted by the Honorable Sheila Jackson Lee, a
      Representative in Congress from the State of Texas, and Member,
      Committee on the Judiciary.....................................   118
    Material submitted by the Honorable Judy Chu, a Representative in
      Congress from the State of California, and Member, Committee on
      the Judiciary..................................................   127
    Material submitted by the Honorable Hakeem Jeffries, a
      Representative in Congress from the State of New York, and
      Member, Committee on the Judiciary.............................   142

                                    APPENDIX
                   Material Submitted for the Hearing Record

    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 Doug Collins, a
      Representative in Congress from the State of Georgia, and
      Member, Committee on the Judiciary.............................   196

        UNCONSTITUTIONALITY OF OBAMA'S EXECUTIVE ACTIONS ON IMMIGRATION

                                  ----------

                          WEDNESDAY, FEBRUARY 25, 2015

                            House of Representatives

                           Committee on the Judiciary

                                Washington, DC.

        The Committee met, pursuant to call, at 10:23 a.m., in room
    2141, Rayburn Office Building, the Honorable Bob Goodlatte,
    (Chairman of the Committee) presiding.
        Present: Representatives Goodlatte, Sensenbrenner, Smith,
    Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz,
    Marino, Gowdy, Labrador, Farenthold, Collins, DeSantis, Buck,
    Ratcliffe, Trott, Bishop, Conyers, Nadler, Lofgren, Jackson
    Lee, Cohen, Chu, Deutch, Gutierrez, Richmond, DelBene, and
    Jeffries.
        Staff Present: (Majority) Shelley Husband, Chief of Staff &
    General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
    Counsel; Allison Halataei, Parliamentarian & General Counsel;
    Kelsey Williams, Clerk; George Fishman, Counsel; (Minority)
    Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown,
    Parliamentarian; and Tom Jawetz, Minority Counsel.
        Mr. Goodlatte. Good morning. 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 the
    unconstitutionality of President Obama's executive actions on
    immigration. I will begin by recognizing myself for an opening
    statement.
        Last November, President Obama announced one of the biggest
    constitutional power grabs ever by a President. He declared
    unilaterally that, by his own estimation, almost 5 million
    unlawful aliens would be free from the legal consequences of
    their lawless actions. Not only that, by granting them deferred
    action, he would bestow upon them benefits such as legal
    presence, work authorization, and access to the Social Security
    Trust Fund and the Earned Income Tax Credit.
        President Obama took these actions despite having stated
    over 20 times in the past that he didn't have the
    constitutional power to take such steps on his own. As the
    Washington Post's own ``Fact Checker'' concluded, ``Apparently,
    he's changed his mind.''
        The Constitution is clear: It is Congress' duty to write
    our Nation's laws. Yet, President Obama admitted that, ``I just
    took an action to change the law.''
        The Constitution is also clear that once laws are enacted,
    it is the President's responsibility to enforce them. The
    Constitution requires the President to take care that the laws
    be faithfully executed. Yet, the very integrity of our
    immigration laws is now in question.
        Twenty-six States believe that President Obama's actions
    would cause them irreparable harm. They challenged his grant of
    deferred action in Federal district court in Texas. The court
    agreed with the States and has granted a temporary injunction
    halting, for the moment, the Administration's plans.
        The court stated that the Administration is ``not just
    rewriting the laws. It is creating them from scratch.''
        President Obama has justified his actions under the guise
    of prosecutorial discretion. 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.
        However, telling entire classes of millions of unlawful
    aliens that they face no possibility of being removed is not
    prosecutorial discretion. It is simply an abdication of the
    executive branch's responsibility to enforce the laws.
        The President relies on a memo prepared by his Justice
    Department's Office of Legal Counsel to attempt to justify his
    actions as 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 Federal court in Texas agrees. It found that the grant
    of deferred action ``does not simply constitute inadequate
    enforcement. The Government here is doing nothing to enforce
    the removal laws against a class of millions of individuals.
    The grant of deferred action does not represent mere
    inadequacy. It is complete abdication.''
        And the court points out that President Obama's actions go
    beyond even utter nonenforcement. He is, in fact, granting
    affirmative benefits to these aliens, as I described earlier.
        In absolutely no way can President Obama's actions be
    considered a justifiable use of the Administration's powers of
    prosecutorial discretion. They are a clear violation of his
    constitutional responsibility to faithfully execute the laws.
        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.
    However, most often, 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 of 1989.
        What about President George H.W. Bush's Family Fairness
    policy, which the White House cites to justify its power grab?
    This grant of voluntary departure was, in fact, authorized by
    the Immigration and Naturalization Act as it existed at the
    time.
        Without any crisis in a foreign country to justify his
    actions, and in granting deferred action without any statutory
    authorization, President Obama has clearly exceeded his
    constitutional authority. No Administration has so abused and
    misused the power of prosecutorial discretion as has the Obama
    administration.
        By 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. This
    Administration has entered the realm of rewriting the laws when
    it can't convince Congress to change them.
        The House of Representatives has taken decisive action this
    year to protect the Constitution. We have passed a Department
    of Homeland Security appropriations bill that would defund a
    series of unconstitutional actions of the Obama administration,
    including this grant of deferred action.
        Tragically, the House-passed bill is being filibustered in
    the Senate even as appropriated funds for the department are
    set to run out at the end of the week.
        By not even allowing the bill to be debated, those Senators
    who have chosen the path of filibuster and obstruction are
    threatening DHS's access to funds designed to keep Americans
    safe. They are also denying the American people a fair debate
    on this vital issue of whether Congress needs to take action to
    protect all our constitutional liberties. We can only hope that
    they will relent in time.
        I look forward to today's hearing and the testimony of our
    witnesses.
        It is now my pleasure to recognize the Ranking Member of
    the Committee, the gentleman from Michigan, Mr. Conyers, for
    his opening statement.
        Mr. Conyers. Thank you, Chairman Goodlatte, and to our
    witnesses.
        Members of the Committee, in 3 days, the Department of
    Homeland Security will run out of funds. While tens of
    thousands of Federal Government workers could be furloughed,
    around 200,000 workers will be forced to come back to work
    without receiving a paycheck. They will be told to patrol the
    border, conduct investigations, and secure our ports, but they
    will not be paid.
        Now, it is fairly well known that the Department of
    Homeland Security has notoriously low morale. That has been a
    problem since the department's creation a decade ago. This
    won't help.
        But I am sure those workers will do their jobs, which is
    more than I can say for the legislative branch of our Federal
    Government. Why do I say that? Because Congress has certain
    responsibilities. Some are complicated and some are less
    complicated, and we have failed to live up to our
    responsibilities for years.
        First, consider the most basic obligation we have. It is
    our responsibility to pass bills to fund the Government. If we
    don't do our job, the Government shuts down.
        Congressional Republicans got their wish in October 2013
    and shut the Government down for more than 2 weeks. Now, the
    majority here again is set on a collision course. This time,
    they will shut down the Department of Homeland Security because
    they refuse to pass a clean spending bill, because they want to
    block the Administration's executive actions on immigration.
        Now, keep in mind that the spending bill we are talking
    about was negotiated between Republicans and Democrats in the
    House and the Senate. Truth be told, there are aspects of that
    bill that I disagree with. I strongly oppose that detention be
    mandated and believe that it is wasteful and unjust to include
    that language in the appropriations bill. But I also understand
    the importance of funding the Department of Homeland Security
    and the need to keep our Nation safe.
        Second, Congress is also failing to do its jobs because it
    is ultimately our responsibility to fix our broken immigration
    system. Instead of doing that work, we are holding hearing
    after hearing to vilify the President for taking important and
    common-sense steps to prioritize the deportation of felons
    before families.
        The limited legislation that this Committee has considered
    would make our immigration system even less efficient, less
    humane, and less able to meet the needs of American families
    and businesses.
        Earlier this month, we held two Immigration Subcommittee
    hearings on draft language of four deportation-only bills that
    would separate families, strip protection from DREAMers,
    destroy the agricultural industry and the millions of jobs that
    depend on it, and return vulnerable children to face
    persecution and violence with no meaningful due process.
        Finally, I want to note that the title of today's hearing
    demonstrates a glaring disrespect for the Office of the
    Presidency and for this institution's responsibility to conduct
    oversight that is rooted in fact, rather than political
    presumption. The title of today's hearing is ``The
    Unconstitutionality of Obama's Executive Actions on
    Immigration.'' Not ``President Obama's Executive Actions,'' but
    ``Obama's Executive Actions.'' Since when are we on such
    familiar terms with our Commander in Chief? I cannot recall a
    previous Administration during which Members of Congress from
    either side of the aisle showed such a persistent disrespect
    for the Office of the Presidency.
        The title of this hearing is also interesting because it is
    a statement, not a question. It just presumes that the
    Administration's actions are unconstitutional, even though no
    court has found the actions unconstitutional, and there is
    strong legal authority and historical precedent supporting
    these policy decisions.
        So in closing, our current immigration system is not
    working for American families, businesses, or the economy.
    These problems require real legislative solutions. So I urge my
    colleagues on this Committee to start doing the job that we
    were sent here to do.
        Mr. Chairman, I yield back the balance of my time and thank
    you.
        Mr. Goodlatte. The Chair thanks the gentleman.
        It is now my pleasure to recognize the Chairman of the
    Judiciary Subcommittee on Immigration and Border Security, the
    gentleman from South Carolina, Mr. Gowdy, for his opening
    statement.
        Mr. Gowdy. Thank you, Mr. Chairman.
        Mr. Chairman, the thread that holds the tapestry of our
    country together is respect for and adherence to the rule of
    law. The law is the greatest unifying and the greatest
    equalizing force that we have in our culture. The law is what
    makes the richest person drive the precise same speed limit as
    the poorest person. The law is what makes the richest person in
    this country pay his or her taxes on precisely the same day as
    the poorest person in this country.
        The law, Mr. Chairman, is symbolized by a blindfolded woman
    holding a set of scales and a sword. The law is both a shield
    and a sword. And it is the foundation upon which this Republic
    stands.
        We think so highly of the law, Mr. Chairman, that in the
    oath of citizenship administered to those who pledge allegiance
    to this country, to their new country, it makes six different
    references to the law. So attempts to undermine the law via
    Executive fiat, regardless of motivation, are detrimental to
    the foundation of a democracy.
        President Obama, after the November midterm elections, I
    hasten to add, announced one of the largest extraconstitutional
    acts ever by a Chief Executive. He declared, unilaterally,
    almost 5 million undocumented aliens would receive deferred
    action under some newfangled definition of prosecutorial
    discretion. Moreover, in addition to using prosecutorial
    discretion as a license to rewrite the law, he also conferred
    benefits on those same people.
        You may like the policy. You may wish the policy where the
    law. But one person does not make law in a republic. If you
    enjoy a single person making law, you should investigate living
    in another country, because our Framers did not give us, nor
    have generations of our fellow citizens fought and served and
    sacrificed for a single person to make law in a unilateral way.
        So removing consequences for breaking the law is one thing.
    Distilling benefits such as work authorization and immigration
    benefits is another.
        The President himself recognized his own inability to do
    this, Mr. Chairman. More than 20 separate times he said he
    lacked the power to do what he ultimately did.
        In 2011, he said this, and I quote, ``The notion that I
    could just suspend deportations through Executive orders, that
    is just not the case.'' He told us time and time again, Mr.
    Chairman, that he was not a king.
        His position may have changed, but the Constitution has
    not. And that document is clear and it is time-tested and it is
    true, and it says that Congress passes laws and it is the
    responsibility of the Chief Executive to take care that those
    laws are faithfully enforced.
        Prosecutorial discretion----
        [Technical difficulty.]
        Mr. Gowdy. Is that better, Mr. Court Reporter? Let me see
    where I was.
        His position may have changed, but the Constitution has
    not. Prosecutorial discretion is real and constitutionally
    valid, Mr. Chairman, but it is not a synonym for anarchy.
        As U.S. District Court Judge Andrew Hanen wrote in his
    recent opinion, DHS does have discretion in the manner in which
    it chooses to fulfill the express will of Congress. It cannot,
    however, enact a program whereby it not only ignores the
    dictates of Congress, but actively moves to thwart them.
        The Constitution gives the President a lot of power, Mr.
    Chairman. He is the Commander in Chief. He nominates the
    Supreme Court Justices. He can veto legislation for any reason
    or no reason. He can fail to defend the constitutionality of
    the law. He has the power of pardon. He has a lot of power, Mr.
    Chairman.
        But what he cannot do is make law by himself. That is the
    responsibility of the Congress. If this President's unilateral
    extraconstitutional acts are not stopped, future Presidents,
    you may rest assured, will expand that power of the executive
    branch, thereby threatening the constitutional equilibrium.
        The argument that previous Administrations have acted
    outside constitutional boundaries holds no merit with me. The
    fact that other people made mistakes is not a license for this
    Executive to do the same thing.
        Mr. President, in conclusion, we live in a country where
    process matters. The end does not justify the means, no matter
    how good the intentions. When a police officer fails to check
    the right box on an application for a search warrant, the
    fruits of that search warrant are suppressed. What a police
    officer, even though he has the right suspect for the right
    crime, but he just fails to include one small part of those
    prophylactic Miranda warnings, what happens? The statement is
    suppressed, even though you have the right person, even though
    you have the right crime, because we view process over the end.
        And I am going to say this, then I will finish, I will say
    this to those who benefit from the President's policies, you
    may be willing to allow the end to justify the means in this
    case. You may well like the fact that the President has abused
    prosecutorial discretion and conferred benefits in an
    unprecedented way. You may benefit from the President's failure
    to enforce the law today. But I will make you this promise,
    there will come a day where you will cry out for the
    enforcement of the law. There will come a day where you long
    for the law to be the foundation of this Republic. So you be
    careful what you do with the law today, because if you weaken
    it today, you weaken it forever.
        With that, I would yield back.
        Mr. Goodlatte. The Chair thanks the gentleman for the very
    cogent remarks.
        It is now my pleasure to recognize the Ranking Member of
    the Judiciary Subcommittee on Immigration and Border Security,
    the gentlewoman from California, Ms. Lofgren, for her opening
    statement.
        Ms. Lofgren. Thank you, Mr. Chairman. The 113th Congress is
    considered to have been one of the most do-nothing Congresses
    in history. The biggest symbol of the Republican failure to
    govern was the unnecessary and irresponsible shutdown that
    lasted from October 1 through October 16. Federal employees
    were furloughed for a combined total of 6.6 million days. $2
    billion was spent on payroll to these furloughed employees for
    work that they were prevented from doing. The recovering
    economy took a hit, and millions of Americans were denied
    access to programs and services that they rely on.
        Perhaps it is fitting, then, that the 113th Congress ended
    with the so-called Cromnibus, a spending bill that promised to
    yet again put us on the path toward a government shutdown.
        We are only 2 months into the 114th Congress, but it
    already seems like the Republican majority in the House and
    Senate is trying to outdo itself. For the past 6 weeks, rather
    than proceed with the DHS funding bill that Democrats and
    Republicans in the House and Senate agreed to last year,
    Republican leaders in the House and Senate have insisted that
    funding be contingent on a series of poison pill immigration
    riders demanded by the most extreme Members and supported by
    all but a few.
        Since the Cromnibus was first hatched, many Republicans
    have argued that the President acted unconstitutionally on
    November 20, when he and the Secretary of Homeland Security
    announced a series of measures designed to bring a measure of
    sense to our broken immigration system. We have been told that
    these measures cannot be permitted to take effect.
        Last week, of course, a Federal judge issued a preliminary
    injunction halting two of those measures, the Deferred Action
    for Parental Accountability Program and the expansion of the
    Deferred Action for Childhood Arrivals program. These efforts
    are designed to offer temporary protection from deportation to
    certain parents of U.S. citizens and lawful permanent
    residents, and to DREAMers with long ties to our country. The
    Department of Justice this week requested a stay of the
    injunction and noticed an appeal.
        The matter is firmly in the hands of the Federal courts,
    the branch of the Government that the Constitution entrusts to
    settle disputes arising under the Constitution and the laws of
    the United States.
        Some people, including some Republicans in the House and
    Senate, have speculated that a court injunction would convince
    Republican leadership to stop holding the spending bill
    hostage. What we have seen over the past 2 weeks, however, is
    that many Republicans are even more determined to take us over
    a cliff and once more shut down the Government.
        Several points are worth noting. First, we continue to hear
    Republicans minimize the impact of a shutdown on national
    security by arguing that 85 percent of DHS employees were
    deemed essential during the last Government shutdown. I just
    can't understand how we in Congress would take comfort at the
    idea of forcing Border Patrol agents to secure our borders,
    Coast Guard personnel to patrol the seas, and ICE officers and
    agents to conduct law enforcement investigations and secure
    detention facilities, without receiving their paycheck. It is
    unconscionable, really.
        Further, it is bizarre that we will de-fund of the E-Verify
    program, stop the immigration enforcement efforts, but at the
    same time, because they are fee-supported, the processing of
    immigration petitions will be unimpeded. So the effort stops
    immigration enforcement, but it does nothing to actually stop
    the processing of immigration petitions.
        Second, since we know the court has already temporarily
    halted implementation of DAPA, expanded DACA, it is important
    to remember what other initiatives congressional Republicans
    are trying to block as part of DHS funding. They voted
    overwhelmingly to eliminate the DACA program itself, stripping
    protection for more than 600,000 DREAM Act kids and subjecting
    them once more to deportation. They voted to prevent DHS from
    implementing a new enforcement strategy along our southern
    border and creating three new law enforcement task forces. They
    voted to block DHS and DOD from working together to ensure that
    U.S. citizens who wish to enlist in the military would be able
    to do so notwithstanding immigration status of close relatives.
    They voted to stop DHS from taking important steps to
    capitalize on the talents of entrepreneurs, to help companies
    attract and retain highly skilled immigrants, and to promote
    citizenship.
        Just yesterday, USCIS issued a final rule extending work
    authorization to the spouses of certain H-1B visa holders who
    are beneficiaries of approved employment-based immigrant visa
    petitions. If the appropriations bill passed by the House were
    to have become law, USCIS would have been prevented from
    finalizing that rule.
        Republicans don't talk about the fact that they are
    refusing to fund DHS unless they block each of these efforts,
    but that is what they voted to do.
        Turning to today's hearing, I note that although the title
    of this hearing, as has been mentioned, presumes that the
    President's executive actions are unconstitutional, no court,
    including the Texas District Court that issued the preliminary
    injunction, has found that these actions are unconstitutional.
        In fact, a challenge to the original DACA program brought
    by the State of Mississippi was thrown out of court for lack of
    standing. And a challenge to the Administration's recent
    executive actions blocked by Maricopa County Sheriff Joe Arpaio
    was also dismissed for lack of standing.
        Of course, I am disappointed by the court's ruling, and I
    know millions of American families across the country are also
    greatly disappointed. Still, I expect that both programs will
    be upheld as fully within the President's legal authority by
    appellate courts.
        I say this because there is ample legal and historical
    precedent supporting the President's action. The Supreme Court
    has long recognized the Administration's authority to exercise
    prosecutorial discretion when enforcing our immigration laws
    and has specifically recognized that granting deferred action
    is a legitimate exercise of that authority. Congress directed
    the Secretary of Homeland Security to establish national
    enforcement priorities and policies, and empowered the
    Secretary to perform acts that he deems necessary for carrying
    out his authority under the Immigration and Nationality Act.
        Every year, Congress gives the Administration only enough
    money to apprehend, detain, and remove a fraction of the people
    in this country who are removable, and additionally directs the
    department to prioritize the removal of people with criminal
    convictions based on the severity of the offense. Although the
    Texas court ruling seems to turn on the fact that DACA
    recipients may apply for work authorization and Social Security
    cards, it fails to acknowledge that the legal authority for
    granting work authorization and Social Security cards is
    entirely distinct from the authority to grant deferred action
    and, in fact, is statutory. All of those authorities long
    predated DACA, and Congress has never taken action to limit
    that discretion.
        This is arguably the fourth hearing, Mr. Chairman, that we
    have held on the legal authority of the President's actions on
    immigration. The last two hearings----
        Mr. Goodlatte. The gentlewoman is advised that she is now 2
    1/2 minutes over. We all exceeded by a minute or so.
        Ms. Lofgren. I will then conclude by saying that the courts
    will ultimately decide whether the Administration's programs
    can take effect. It is our responsibility to reform the law,
    and it would be irresponsible of us to shut the Government
    down. We should allow the courts to do their jobs, and we
    should do our own.
        I would yield back.
        Mr. Goodlatte. The Chair thanks the gentlewoman.
        We welcome our distinguished panel today. If you would all
    rise, I will begin by swearing in the witnesses.
        Do you and each of you solemnly 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 very much. Let the record reflect that all the
    witnesses responded in the affirmative.
        Adam Paul Laxalt currently serves as Nevada's 33rd Attorney
    General and is the youngest attorney general in the country.
    Prior to becoming attorney general, he was in private practice
    in Las Vegas. Attorney General Laxalt served in Iraq at Forward
    Operating Base Camp Victory, where his team was in charge of
    more than 20,000 detainees. He has also served as a Special
    Assistant U.S. Attorney, as an assistant professor of law in
    the Leadership, Ethics and the Law Department at the U.S. Naval
    Academy, and as a Special Adviser to the Undersecretary of
    State for Arms Control and International Security. Attorney
    General Laxalt graduated magna cum laude from Georgetown
    University and also graduated from Georgetown University Law
    Center.
        Professor Josh Blackman is an assistant professor at the
    South Texas of College of Law, specializing in constitutional
    law and the United States Supreme Court, and is the author of
    ``Unprecedented: The Constitutional Challenge to Obamacare''
    and over a dozen other articles about constitutional law.
    Professor Blackman clerked for the Honorable Danny J. Boggs of
    the U.S. Court of Appeals for the Sixth Circuit and for the
    Honorable Kim R. Gibson of the U.S. District Court for the
    Western District of Pennsylvania, and is also the founder and
    president of the Harland Institute, which provides a stylized
    law school experience for high school classrooms, and the
    founder of the Internet's premier Supreme Court fantasy league.
    Professor Blackman graduated magna cum laude from George Mason
    University Law School and magna cum laude from Penn State with
    a B.S. in information sciences and technology.
        Professor Elizabeth Price Foley is a founding member and
    professor at Florida International University College of Law,
    where she teaches constitutional law. Prior to joining FIU,
    Professor Foley was a professor of law at Michigan State
    University College of Law, and served as a law clerk to the
    Honorable Carolyn King of the United States Court of Appeals
    for the Fifth Circuit. Professor Foley is the author of
    multiple books on constitutional issues, including ``Liberty
    for All: Reclaiming Individual Privacy in a New Era of Public
    Morality,'' and presently serves on the editorial board of the
    Cato Supreme Court Review. Professor Foley graduated summa cum
    laude from the University of Tennessee College of Law and holds
    a B.A. in history from Emory University and an LL.M. from
    Harvard Law School.
        Professor Stephen H. Legomsky is the John S. Lehmann
    University Professor at Washington University School of Law,
    focusing on U.S. comparative and international immigration, and
    is the founding director of the law school's Whitney R. Harris
    World Law Institute, a center for instruction and research in
    international and comparative law. He recently returned from a
    2-year leave of absence, serving as chief counsel of U.S.
    Citizenship and Immigration Services. He is the coauthor of
    ``Immigration and Refugee Law and Policy,'' which has been a
    required text at 176 law schools since its inception. Professor
    Legomsky graduated first in his class at the University of San
    Diego School of Law and clerked for the U.S. Court of Appeals
    for the Ninth Circuit.
        Your written statements will be entered into the record in
    their entirety, and I ask that you each summarize your
    testimony in 5 minutes or less. 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 have 1 minute to
    conclude your testimony. And when the light turns red, that is
    it. Your time is up. Please stop.
        Attorney General Laxalt, welcome. You may begin.

     TESTIMONY OF THE HONORABLE ADAM PAUL LAXALT, ATTORNEY GENERAL
                               OF NEVADA

        Mr. Laxalt. Mr. Chairman, Ranking Member Conyers, and
    Members of the Committee, my name is Adam Paul Laxalt, and I am
    the Attorney General of Nevada. On behalf of Nevada, I thank
    you for the opportunity to testify today about the States'
    lawsuit challenging President Obama's unilateral executive
    action granting deferred action to over 4 million people. I
    represent one of the 26 States that have sued the Federal
    Government.
        While immigration is the substantive issue underlying the
    President's executive action, this lawsuit is not ultimately
    about immigration. Rather, it is about the President's attempt
    to change the law through unconstitutional executive action.
        Like most of us, I am the descendent of immigrants. My
    ancestors came here in search of a better life. My grandfather,
    Paul Laxalt, was the son of an immigrant sheepherder. He rose
    to become the Governor of Nevada and a United States Senator.
    In our Nation's history, similar stories have been repeated
    over and over. They are what we have come to know as the
    American dream.
        However, it has never been true that in order to sympathize
    with the plight of immigrants, or to believe in the American
    dream, one must reject our constitutional system. To borrow a
    phrase our President is fond of using, that is a false choice.
    In significant part, it is our commitment to the rule of law
    and to our Constitution that has drawn people to our shores
    across generations.
        Before taking unilateral action, the President said the
    following, ``I am President. I am not the king. I can't do
    these things just by myself.'' ``There is a limit to the
    discretion that I can show, because I am obliged to execute the
    law.'' ``I can't just make the laws up myself.'' ``We can't
    ignore the law.'' ``The fact of the matter is, there are laws
    on the books that I have to enforce.'' These are a series of
    comments the President made before this action.
        Subsequently, on November 20, 2014, after repeatedly
    acknowledging his duty to faithfully enforce the immigration
    laws passed by this body, and after emphasizing that he lacked
    the authority to unilaterally change those laws, President
    Obama directed his Secretary of Homeland Security to do just
    that and change the law. To quote the President himself, he
    said, ``I just took an action to change the law,'' that on
    November 25.
        In accord with earlier statements by the President, a
    coalition of States brought suit in Federal court to enjoin the
    President's unilateral action. Since the lawsuit was originally
    filed, the number of States challenging the President's action
    has grown to the majority of the 50 States. The States' lawsuit
    focuses on three areas.
        First, the Constitution requires the President take care
    that the laws be faithfully executed. During the Korean War,
    President Truman, relying on the exigencies of war,
    unilaterally seized the Nation's steel mills. President Truman
    justified unilateral action because Congress had refused to
    pass a statute authorizing his action. The Supreme Court held
    that Truman's actions were unconstitutional.
        Here, as Judge Hanen, the Federal judge presiding over this
    case, has observed, no statute gives the Department of Homeland
    Security the discretion it is trying to exercise. Quite the
    contrary, the President's Executive order not only ignores the
    dictates of Congress, but actively thwarts them. For the same
    reason that Truman's unilateral action in the steel seizure
    case was held unconstitutional by the Supreme Court, we think
    President Obama's unilateral action here is unconstitutional.
        Second, Federal statutory law, namely the Administrative
    Procedures Act, similarly requires that when an agency issues a
    substantive rule, it must be consistent with Congress' clear
    statutory commands. Under unambiguous Federal statutory law,
    the Department of Homeland Security--here I quote Judge Hanen
    again--is tasked with the duty of removing illegal aliens.
    Congress has provided that it shall do this. The word ``shall''
    certainly deprives the DHS of the right to do something that is
    clearly contrary to Congress' intent.
        The President's plan that millions of illegally present
    individuals be granted legal present work authorization
    eligibility for State and Federal benefits cannot be squared
    with Federal law, and, therefore, we believe violates the
    Administrative Procedures Act.
        Third, when a Federal agency changes the rules, like the
    President has ordered here, the Administrative Procedures Act
    also requires that due process is followed. That is, the agency
    must give fair notice of the rule change and allow public
    comment before implementing the change. Everyone agrees that
    was not done here, so this is the third reason the States are
    arguing the President's action violates the law.
        As you all know, on February 16, Judge Hanen found the
    States had standing and issued a preliminary injunction
    enjoining the implementation of the DAPA program. Now why
    Nevada joined, as Nevada's chief law enforcement officer,
    Nevada law requires that I initiate or join litigation wherever
    necessary to protect and secure the interests of the State.
        This suit is not about immigration. It is not about
    politics. It is about the rule of law and our constitutional
    system. This lawsuit transcends policy differences and seeks to
    prevent legislation from being usurped by executive fiat.
        Nevada joined this lawsuit because upholding our
    constitutional process is more significant than any policy
    directive that any political party may be pushing at a
    particular time.
        Thank you again, Mr. Chairman, for allowing me to testify
    before this Committee about this important issue.
        [The prepared statement of Mr. Laxalt follows:]

                                   __________
        Mr. Goodlatte. Thank you, General Laxalt.
        Professor Blackman, welcome. I understand your parents are
    with us today.
        Mr. Blackman. My dad is in the same color tie, so you know
    who he is.
        Mr. Goodlatte. Excellent.

        TESTIMONY OF JOSH BLACKMAN (TESTIFYING IN HIS PERSONAL
            CAPACITY), PROFESSOR, SOUTH TEXAS COLLEGE OF LAW

        Mr. Blackman. Thank you. Chairman Goodlatte, Ranking Member
    Conyers, and Members of the Judiciary Committee, my name is
    Josh Blackman. I am a constitutional law professor at the South
    Texas College of Law in Houston, Texas. I am honored to have
    the opportunity to testify about why DAPA violates the
    Constitution and imposes a severe threat to the separation of
    powers.
        In my brief time, I have three points. First, DAPA is an
    unprecedented exercise of presidential lawmaking power and is
    not consonant with the previous exercises of deferred action.
    Second, DAPA violates the President's duty to take care the
    laws are faithfully executed, as the Executive must enforce
    laws in good faith. Third, I will sound an alarm.
    Nonenforcement poses an encroaching threat to the separation of
    powers and the rule of law that Congress, not just the courts,
    must take steps to halt.
        So first, Congress has not acquiesced or given the
    President the authority to implement DAPA. The Justice
    Department's Office of Legal Counsel claimed that four previous
    instances of deferred action justify DAPA and its antecedent
    DACA through express or implicit congressional approval. These
    claims are demonstrably false.
        So first, in 1997, deferred action was granted for battered
    aliens under the Violence Against Women Act, VAWA, where a
    petition had already been approved, but a visa was not
    immediately available. Here, the deferred action served as a
    temporary bridge for those who would soon receive permanent
    status according to the laws of Congress.
        Second, in 2001, deferred action was granted for aliens who
    were readily deemed to be bona fides under the Victims of
    Trafficking and Violence Protection Act. Here, too, the
    differed action served as a bridge. Lawful status was
    immediately available on the other side of the deferral.
        Third, in 2005, deferred action was granted to foreign
    students who unfortunately lost their visas when Gulf Coast
    schools were closed following Hurricane Katrina. The deferred
    action bridged the gap and gave the students 4 months to enroll
    in another college or university in order to regain the status
    previously held.
        Fourth, in 2009, deferred action was granted for aliens who
    were widowed by the untimely death of their citizen spouse
    before the minimum 2-year period. Deferred action was granted
    where visa petitions had been filed but not completely
    adjudicated by the Government because of administrative delays.
    Again, a visa waited shortly after deferral.
        Historically, deferred action acted as a temporary bridge
    from one status to another, where benefits were construed as
    immediately arising post-deferred action. In contrast with
    DAPA, deferred action serves not as a bridge but as a tunnel to
    dig under and through the INA. There is no visa, the proverbial
    pot of gold, awaiting on the other side of this deferred action
    rainbow.
        My second point is that DAPA violates the President's duty
    to take care that the laws be faithfully executed. Article II
    imposes a duty on the President unlike any other in the
    Constitution. He shall, must, take care that the laws be
    faithfully executed. DAPA violates this duty for three reasons.
        First, with DACA, the blueprint for DAPA, the
    Administration limited officers to turn discretion into a
    rubberstamp. This did not reallocate resources, or defer to
    congressional policy, but rather was an effort to bypass it, a
    transparent one at that.
        Second, because DAPA is not consistent with congressional
    policy, according to Justice Jackson's decision in the steel
    seizure case, Presidential power is at its lowest ebb.
        Third, like the mythical phoenix, DACA and DAPA arose from
    the ashes of congressional defeat. The President instituted
    these policies after Congress voted down the legislation he
    wanted. Further, the President repeated over and over and over
    again that he couldn't act unilaterally in the precise manner
    he did. His actions and statements create the prima facie case
    of bad faith and point to a violation of the ``take care''
    clause.
        Third and finally, while I support comprehensive
    immigration reform, the President's unconstitutional actions
    cannot be sanctioned. I hasten to add, if upheld, Democrats
    have much, much more to fear from this dangerous precedent.
    Generally, Democrats like when the Government takes more action
    and Republicans like when the Government takes less action.
    Today, Democrats may approve of the President's decision to
    halt deportations, delay unpopular provisions of Obamacare, or
    not prosecute marijuana crimes. However, the situation would be
    very, very different if a Republican President declined to
    enforce provisions of the Tax Code, wavived mandates under
    environmental laws, or declined to implement Obamacare
    altogether.
        In the words of James Madison, Federalist No. 51, the only
    way to keep the separations of power in place is for ambition
    to counteract ambition. Although the courts play an essential
    role to serve as the bulwarks of a limited Constitution, our
    Republic cannot leave the all-important task of safeguarding
    freedom to the judiciary.
        To eliminate the dangers of nonenforcement, the Congress
    must counteract the President's ambition. The failure to do so
    here will continue the one-way ratchet toward executive
    supremacy and the dilution of the powers of the Congress and
    the sovereignty of the people.
        The rule of law and the Constitution itself are destined to
    fail if the separations of powers turn into mere parchment
    barriers that can be disregarded when the President deems a law
    broken.
        Thank you very much, and I welcome your questions.
        [The prepared statement of Mr. Blackman follows:]*
    ---------------------------------------------------------------------------
        *Note: Supplemental material submitted with this statement is not
    reprinted in this record but is on file with the Committee, and can
    also be accessed at: http://docs.house.gov/meetings/JU/JU00/20150225/
    103010/HHRG-114-JU00-Wstate-BlackmanJ-20150225-SD003.pdf.

                                   __________
        Mr. Goodlatte. Thank you, Professor Blackman.
        Professor Foley, welcome.

    TESTIMONY OF ELIZABETH PRICE FOLEY (TESTIFYING IN HER PERSONAL
    CAPACITY), PROFESSOR, FLORIDA INTERNATIONAL UNIVERSITY COLLEGE
                                 OF LAW

        Ms. Foley. Chairman Goodlatte, Ranking Member Conyers,
    Members of the Committee, thank you for the opportunity to
    testify again today.
        My criticisms with the President's immigration actions are
    based on legal process and not any particular policy or
    political results. What shape immigration reform may ultimately
    take is not my concern as a constitutional scholar. My sole
    concern is with preserving the Constitution and its separation
    of powers architecture.
        President Obama has repeatedly said that his motivation for
    taking executive action on immigration is because he wants to
    fix our broken immigration system. What this means is that he
    is trying to fix our immigration law because, of course,
    immigration law is the only immigration system that we have.
        So he thinks our immigration law is broken, and he believes
    that it is broken because it fails to exempt certain categories
    that he thinks deserve exemption from deportation and to whom
    he believes the law should grant benefits, such as work
    permits. But fixing a law by unilaterally changing it by
    granting exemptions, remedies, and benefits that the law
    doesn't provide is legislating. Or to be more precise, it is
    amending. That is a power that is given exclusively to Congress
    by the Constitution.
        The President's duty under the Constitution is not to fix a
    law that he thinks is broken, but to faithfully execute that
    law. When a President takes it upon himself the power to change
    a law he doesn't like, we have no democracy anymore. We have,
    instead, a legislature of one.
        If Congress doesn't oppose President Obama's Executive
    orders on immigration, it will be writing its own institutional
    obituary. When Congress fails to express disagreement with
    executive action, the courts tend to construe that as
    acquiescence or implied authorization by Congress. This is so-
    called category one from Justice Jackson's concurrence in the
    Youngstown steel seizure case. So Congress needs to be very
    careful here. It has a constitutional responsibility to
    vigorously protect its turf.
        President Obama's immigration actions are unconstitutional
    for three separate and distinct reasons that I elaborate in the
    written statement. First, they alter the status of certain
    illegal immigrants, magically transforming them from deportable
    to not deportable. Second, they provide a remedy called
    deferred action that Congress has not explicitly or implicitly
    authorized for this category of people. Third, they confer
    benefits upon certain illegal immigrants that, again, Congress
    has not explicitly or implicitly approved for this population.
        While any one of these particular reasons will render
    executive action unconstitutional, when you have all three of
    them existing as you do here with President Obama's executive
    actions on immigration, it creates sort of a Bermuda Triangle
    of unconstitutionality that has a uniquely powerful
    gravitational pull that is capable of eviscerating Article I's
    legislative powers.
        It is the combination of all three of these aspects of
    President Obama's Executive orders on immigration that make it
    uniquely dangerous to this institution. I would like to
    highlight two points that I elaborate on in the written
    statement that I think bear a little special mention.
        First, by granting work permits to DACA and DAPA
    recipients, President Obama's immigration orders encourage
    employers to hire illegal immigrants over lawful residents.
    That is because the Affordable Care Act does not allow illegal
    immigrants to obtain tax credits when they buy qualifying
    health insurance. So what happens is if you hire more DACA and
    DAPA recipients, this lessens the employer's exposure to what
    is called the employer responsibility tax under the ACA. So the
    more illegal immigrants you hire who are eligible for DACA and
    DAPA, then the fewer who are eligible to buy health insurance,
    and the fewer who are going to obtain a tax credit for doing
    so, and, therefore, the fewer employees that you have in your
    workplace who are capable of triggering that employer
    responsibility tax.
        Now, why do I go into that detail? Because it means one
    important thing. President Obama's immigration actions
    undermine the ACA itself by undermining its goal of providing
    insurance via the workplace. So it is no small irony here that
    by granting work permits to DACA and DAPA recipients, President
    Obama is, in fact, undermining his own signature legislative
    achievement.
        Second, DACA and DAPA recipients are eligible to apply for
    something called for advance parole. That means they can get
    advanced permission to leave the country and come back
    relatively quickly. Without advance parole, if you enter this
    country illegally and you leave, you have to then stay out for
    a long period of time, usually about 3 to 10 years, before you
    are allowed to reenter. So once a DACA or DAPA recipient
    reenters this country after being advanced paroled, they are
    considered to be paroled back into the country, and paroled
    individuals under the statute are eligible to adjust their
    legal status. They can do this as long as they qualify for a
    visa, such as, let us say, an employer-sponsored visa.
        So what does this mean? It means that at least for some
    DACA and DAPA recipients, obtaining advanced parole will
    provide a----
        Mr. Goodlatte. Professor Foley, you have exceeded your time
    limit considerably as well. Could you please summarize?
        Ms. Foley. Absolutely.
        It means that they will be able to have a pathway to U.S.
    citizenship. This is problematic because Congress has the sole
    power to decide who is granted citizenship under the
    Constitution. And even if just one person under DACA and DAPA
    is granted advanced parole and are applying, subsequently, for
    an adjustment of status, what we have is the fundamental
    usurpation of Congress' power over naturalization.
        Thank you, and I look forward to your questions.
        [The prepared statement of Ms. Foley follows:]

                                   __________
        Mr. Goodlatte. Thank you, Professor.
        Professor Legomsky, welcome.

     TESTIMONY OF STEPHEN H. LEGOMSKY (TESTIFYING IN HIS PERSONAL
       CAPACITY), PROFESSOR, WASHINGTON UNIVERSITY SCHOOL OF LAW

        Mr. Legomsky. Thank you very much, Mr. Chairman, Ranking
    Member Conyers, and honorable Members of this Committee, for
    the privilege of testifying at this important hearing.
        I appreciate that reasonable minds can and do differ about
    the policy decisions, but I want to respectfully share my
    opinion that the President's actions are clearly within his
    legal authority. That is not just my opinion, by the way. This
    past November, 135 immigration law professors and scholars
    joined in a letter expressing their views that these actions
    are ``well within the legal authority of the executive
    branch.''
        We are people who have spent years and, in some cases,
    including mine, decades studying, teaching, researching, and
    writing on immigration law, and we are very familiar with what
    the statute allows and what it forbids.
        The President has not just one, but multiple sources of
    legal authority for these actions, and I have submitted a
    detailed written statement that documents each of them. I also
    identify there every legal objection I could think of that the
    President's critics have offered, and I explain why, in my
    view, none of them ultimately withstand scrutiny.
        So with limited time, I will hit just a few key points and
    refer you, please, to the written statement.
        Deferred action has been standard agency practice for many
    decades, and it has been expressly recognized by Congress in
    several provisions and in many court decisions. Furthermore,
    every lawyer knows that statutes are not the only source of
    law. The most explicit legal authority for deferred action, but
    not the only authority, is in the formal agency regulations,
    which have authorized it since the earliest days of the Reagan
    administration. These regulations, by the way, were adopted
    through notice and comment procedures, and they do have the
    force of law.
        None of these laws, not one of them, says or even remotely
    implies that deferred action is per se illegal whenever the
    number of recipients is large.
        The most vocal critics, including Judge Hanen in
    Brownsville, have misunderstood what deferred action is. They
    have confused deferred action itself with certain things you
    can apply for if you get deferred action. Deferred action
    itself is just one form of prosecutorial discretion. It is a
    decision not to prioritize a person's removal, at least for the
    moment. The only thing affirmative about it is that the agency
    is giving the person a piece of paper, letting them know that
    that is the case.
        Every immigration scholar and practitioner knows that
    deferred action can be revoked at any time for any reason, and
    the Government can bring removal proceedings at any time.
    Contrary to what my new friend Professor Foley has said, there
    is nothing in any law that says that this makes a person who is
    deportable not deportable or that it gives them some kind of
    status. That is simply not true.
        It is true that existing laws allow deferred action
    recipients to apply for certain other things, including work
    permits, and if they are granted, Social Security cards.
        But the executive actions do not touch any of those laws.
    So my feeling is, if you object to them, then by all means,
    argue for challenging them. But there is nothing wrong with
    deferred action itself, or this particular use of it.
        Importantly also, DACA and DAPA applications----
        Mr. King. Mr. Chairman? Can we ask the witness to speak
    into the microphone, please?
        Mr. Legomsky. I am sorry.
        Mr. Goodlatte. Pull it a little closer to you.
        Mr. King. Thank you.
        Mr. Legomsky. Sure.
        DACA and DAPA applications do not create binding rules or
    create substantive rights or statuses. The Secretary's memo
    says this explicitly. They are discretionary, both on paper and
    in actual practice. As for the latter, I hope there is a chance
    to expand on that subject during the question period.
        Finally, there have been some melodramatic claims that if
    these executive actions are legal, why then there must not be
    any limits at all on what future Presidents can do. My written
    statement identify at least four significant, concrete,
    realistic limits. I have time now just to whiz through them.
        In a nutshell, one, the President cannot simply refuse to
    spend resources Congress has appropriated for enforcement, as
    President Nixon famously discovered. But that is not a problem
    here because President Obama has spent every penny Congress has
    given him for immigration enforcement, and he has used it to
    remove 2 million people. Nothing in these executive actions
    will prevent him from continuing to do the same.
        Two, the governing statutes impose limits. They will
    generally indicate how broad the executive discretion is in a
    particular area. In this case, Congress has given the Secretary
    of Homeland Security especially broad responsibility for, and I
    quote, ``establishing national immigration enforcement policies
    and priorities.''
        Now nobody claims that power is limitless. It is, of
    course, subject to any specific statutory constraints. But to
    date, none of the critics have identified any specific
    statutory provisions that they can credibly say DACA or DAPA
    violate.
        Three, the particular priorities can't be arbitrary or
    capricious. These particular executive actions set three
    priorities: national security, public safety, and border
    security. I doubt many would say those are irrational.
        And fourth and finally, even if the priorities are
    rational, they can't conflict with any enforcement priorities
    that Congress has specifically mandated. But here it is just
    the opposite. Congress has expressly mandated exactly these
    very same three priorities.
        So there are serious limits, and these actions fully
    respect them.
        Thank you very much again for the opportunity to testify.
        [The prepared statement of Mr. Legomsky follows:]

                                   __________
        Mr. Goodlatte. Thank you, Professor.
        I will start the round of questioning, and I will recognize
    myself. I will start with a question for you, Professor
    Legomsky.
        You state in your testimony that the ``Administration's
    recent executive actions do not even approach an abdication of
    its statutory responsibilities.''
        What, in your view, would the Administration have to do to
    abdicate its statutory responsibilities? Would granting
    deferred action to all 11 million unlawful aliens be enough?
        Mr. Legomsky. My answer to that is yes, that would be
    enough.
        Mr. Goodlatte. So would, say, 9 million, would that exceed
    it?
        Mr. Legomsky. The answer to that would depend on an
    empirical question. The question is, would the President still
    be spending substantially the resources Congress has provided?
        Mr. Goodlatte. Let us remember the President, when you talk
    about deportations, the President counts people for deportation
    the previous Administrations did not count because they simply
    turned them back at the border rather than taking them through
    a process and deporting them. So about two-thirds of the people
    who are ``deported'' under the President's 2 million figure
    that you cited were not counted in previous Administrations,
    because they weren't put through that process.
        But, be that as it may, you are saying that if the
    President blows through all the money in a way that uses it all
    up, whatever that number is, that is the number of people he
    can give not only deferred action to but also employment
    authorization and Social Security benefits and Earned Income
    Tax Credit and legal presence in the United States?
        Mr. Legomsky. Well, as I just said a moment ago, that is
    only one of what I see as four different limits. But the answer
    is yes. The President must spend the resources Congress has
    provided.
        Mr. Goodlatte. And as long as he does that, if that meets
    the number, if he spends it all on 100,000 people, which is the
    number of actual deportations that occurred last year, 102,000,
    then he can give deferred action to the other 10.9 million
    people who are unlawfully present in the United States. That is
    your answer?
        Mr. Legomsky. No, it is not, Mr. Goodlatte. For I think the
    third time, I think there are other limits as well, and they
    include not only spending the money but making sure it is
    within the terms of the statute, making sure the priorities are
    rational, making sure the priorities are compatible with those
    Congress has specifically mandated and so on. So it would
    depend on all of those things.
        Mr. Goodlatte. Well, let me just ask our other panelists,
    Attorney General Laxalt, would you like to respond to that
    assertion, that the President has this massive discretion?
        Mr. Laxalt. You know, I think, zooming out, Congress has
    been debating this for many, many years. And in this particular
    case, this path was specifically not voted on by Congress. So
    by President Obama's own words many times over again before he
    did this, this is just not a power that our constitutional
    system contemplated him having.
        If he does, as Mr. Chairman, I believe, was heading this
    direction, if 5 million is okay, then why isn't 6 million, and
    why isn't 7 million? And then, you know, if 2 years is okay,
    then why isn't 3?
        So it seems pretty clear that, by his own words, he has
    stepped over. And once you add the benefits that are included,
    there is just no justification that this fits under
    prosecutorial discretion.
        Mr. Goodlatte. Let me follow up on that. You and 25 other
    States attorneys general, including some Governors, I think, in
    some States have brought an action in the District Court in
    Texas. Do you agree with what Judge Hanen said in his opinion
    in that case, that the Department of Homeland Security ``cannot
    enact a program whereby it not only ignores the dictates of
    Congress, but actively acts to thwart them. The DHS Secretary
    is not just rewriting the laws; he is creating them from
    scratch''
        Mr. Laxalt. We believe, as the three claims that have been
    made, that the Constitution has been violated under the ``take
    care'' clause. The Administrative Procedures Act has been, as
    Judge Hanen, thwarted. He did not ultimately decide that for
    the sake of this preliminary injunction. He reserved that as
    well as the constitutional issues for the future. But the
    States, certainly, still believe that in all three cases the
    President has failed.
        Mr. Goodlatte. Let me afford that opportunity for Professor
    Blackman and Professor Foley to respond to that as well.
        Mr. Blackman. So I think that Professor Legomsky actually
    opined that DAPA didn't quite go far enough, and it is an
    important reason why. In a November 25 blog post on the
    Balkinzation blog, Professor Legomsky wrote that, ``How come
    DAPA didn't apply to the parents of the DREAMers?'' Right, the
    parents of the DACA beneficiaries?
        I think this raises a very important point. Many of the
    professors who signed that letter think that the President
    didn't go quite far enough. So even the DOJ's perception was
    more narrow than that of the professoriate.
        But I will stress for the moment that the reason why they
    didn't go far enough was because there has to be some sort of
    relationship to a parent, a group that Congress has preferred.
        DACA was for people without any legal status. DAPA was for
    parents of U.S. citizens. One important point is parents of
    U.S. citizens need to wait 21 years before they can petition
    for a visa, followed by a 10-year bar. More importantly,
    parents of lawfully permanent residents can never get visas
    through their children. So this is a case where the policies
    are favoring people who have not been a class Congress has
    preferred.
        Mr. Goodlatte. Professor Foley?
        Ms. Foley. Yes, I would just say it seems patent to me that
    both DACA and DAPA are categorical exemptions from law. And
    with respect to Professor Legomsky, who says that is not the
    case, just look to President Obama's own words when he
    announced DAPA publicly in November of 2014. He said in a
    televised speech before the Nation, ``All I am saying is we are
    not going to deport you.'' I think that speaks volumes.
        The other thing I would say with regard to DACA is just
    look at the numbers. We have 2 years of experience with DACA at
    this point, and the latest numbers as of the end of 2014 show
    that 97 percent of DACA applications have been approved by the
    Administration. And in a letter from Director Leon Rodriguez to
    Senator Grassley not too long ago, he admitted that the reasons
    why the 3 percent had been rejected is because they are not
    filling out the paperwork properly or attaching the right check
    for the processing fee.
        That, to me, sounds like, if you meet the criteria that has
    been unilaterally established by this President, you will get
    an exemption from deportation. And that is not what the INA
    declares.
        Mr. Goodlatte. Thank you.
        The Chair now recognizes the gentleman from Michigan, Mr.
    Conyers, for 5 minutes.
        Mr. Conyers. Thank you, Mr. Chairman.
        Professor Legomsky, could you respond to the question that
    has been posed by the Chairman?
        Mr. Legomsky. I will get it right this time.
        First of all, the figure is 95 percent, not 97 percent.
    Professor Foley's numbers are quite old, and the current USCIS
    Web site has laid this out in detail for several months now. We
    can speak later, if you wish, about whether even 95 percent is
    too high, but it is actually 95 percent.
        But second, I think, with respect, you have confused
    denials with rejections. When you were speaking about people
    losing because they hadn't signed a form or check or submitted
    the fee, those are the rejections. There are more than 40,000
    of those. But in addition, there are more than 38,000 denials
    on the merits. I think it would come as quite a surprise to
    those folks to learn that decisions are being rubberstamped.
        Mr. Conyers. Thank you very much.
        Let me ask you this. In your opinion, do the executive
    actions taken by the Administration, both DACA and DAPA,
    alleviate the need for Congress to pass broad immigration
    reform measures?
        Mr. Legomsky. Thank you, Congressman. I would say the
    answer is no.
        As the President himself has made clear on many occasions,
    he can't do what Congress can do. Only Congress can create
    immigration status and a path to a green card and eventually
    citizenship. All he has done with deferred action is to say
    that we will give you a temporary reprieve from removal. We
    will make you eligible to apply for a work permit. If it is
    granted, then you can apply for a Social Security card.
        But that does not approach a green card, which would give
    you the right to remain permanently, the right to eventually
    naturalize, and the right to bring in any of your family
    members and so on. Deferred action doesn't do any of those
    things.
        Mr. Conyers. Thank you. Let me ask you about the Texas
    litigation. Judge Hanen enjoined a deferred action program
    because he believed the applications were not being adjudicated
    on a case-by-case basis and concluded that this was not
    happening in the DACA context.
        Do you think that that is a reasonable way to approach the
    decision in that case?
        Mr. Legomsky. Thank you. I am glad to have a chance to
    answer that question, because it really lies at the basis of
    the APA denial and even the constitutional claim.
        Judge Hanen had no support in terms of evidence in the
    record that that was true. The starting point is the
    Secretary's memo. It explicitly says, repeatedly, you must
    engage in individualized, case-by-case determinations. It also
    specifically says that even if the threshold criteria are met,
    you still need to exercise discretion.
        Furthermore, there is a lot of discretion being exercised
    just in determining whether the threshold criteria have been
    met. For example, to figure out whether somebody is a threat to
    public safety, it is not just a question of fact. It is also an
    opinion as to how much of a threat a person has to be before we
    will deny it, and so forth.
        So what the critics are really reduced to having to argue,
    in effect, is that this USCIS workforce is somehow going to
    systematically disobey the Secretary's clear, explicit
    instructions to exercise discretion.
        There is not one shred of evidence in the record to support
    such an accusation.
        Mr. Conyers. Now, are the President's critics correct when
    they argue that the President himself does not believe DACA and
    DAPA are legal? Has he contradicted himself somewhere along the
    line?
        Mr. Legomsky. I don't want my answer to sound
    disrespectful, but that has been one of the most irritating
    objections that I have been hearing along the way. I know that
    it makes for good political theater to keep saying the
    President has contradicted himself. But when you actually look
    at the statements the President has made, with just one
    exception, almost all of them have just been grand, general
    statements about how ``I have to obey the law. I cannot suspend
    all deportations,'' which, of course, he has not done, and so
    forth.
        He recognizes that there are limits to his discretion. And
    obviously, he believes that DACA and DAPA do not exceed those
    limits, as do the vast majority of experts in the field.
        The one exception, I have to acknowledge, is the
    unfortunate statement made in a spontaneous reaction to a
    heckler at one gathering when he said, ``I took an action to
    change the law.'' I am sure that if the President could go back
    and edit his comments, as so many of us would love to do when
    we speak orally, he would realize he should have said, ``I took
    an action to change the policy,'' because that is a more
    accurate description of what he did.
        But to read global, legal significance into that one
    offhand comment does seem to me highly misleading.
        Mr. Conyers. Thank you for the balance that you brought to
    this discussion.
        I yield back my time.
        Mr. Gowdy [presiding]. I thank the gentleman from Michigan.
        The Chair will now recognize the gentleman from Virginia,
    Mr. Forbes.
        Mr. Forbes. Mr. Chairman, thank you.
        Mr. Legomsky, let us go back to your political theater
    remark, because there have been two lines on that political
    theater that our friends on the other side of the aisle have
    played over and over again for audiences around the country.
        One of them was kind of found in your testimony, your
    written testimony, that this Administration is okay because
    they have removed more immigrants, illegal immigrants, than any
    other Administration. In fact, you state in here that they have
    removed, I think you said 2 million aliens.
        But isn't it really a little deceptive, because aren't
    about half of those removals claimed by ICE? They actually
    originate because they are caught along the border. In fact,
    one of the articles pointed out said this: The statistics are
    deceptive because, Obama explained, enhanced border security
    has led to Border Patrol agents arresting more people as they
    cross into the country illegally. Those people are quickly sent
    back to their countries, but are counted as deported illegal
    immigrants.
        Is that a fair statement?
        Mr. Legomsky. It is factually correct.
        Mr. Forbes. Okay, then let me follow up, because I only
    have 5 minutes.
        We had sitting right where you are sitting now the
    presidents of both the ICE agents and the border agents who
    testified unequivocally that they are the ones interviewing
    these people and that it is the President's policies that were
    causing more and more of these people coming across the border.
        Isn't it really true, if you are talking about political
    theater, that that is, for the President to say he is sending
    more people back that he is stopping at the border, kind of
    like a fire chief justifying his right to commit arson because
    it helped him put out more fires. It just doesn't make sense to
    me.
        And then when you look at the other line that they have
    been using on their political theater, it is this one: Well,
    somehow or another, if Congress doesn't act, and I determined
    as President of the United States that the law is broke and it
    just doesn't work, then all of a sudden it shifts the
    constitutional power over to me.
        So Attorney General Laxalt, I would ask you, if you look,
    and you know, Congress, as I understand it, has the authority
    to establish a uniform rule of naturalization. Is there
    anything in the Constitution that says if the Congress doesn't
    want to act because they like where the policy is, or even
    because they can't act, that somehow that shifts the
    constitutional right over to the President, and that he can
    take any action that he otherwise couldn't have taken
    constitutionally?
        Mr. Laxalt. Thank you, Mr. Congressman.
        You know, this is the crux of the argument and of the
    lawsuit. It, certainly, is one of my biggest concerns. It has
    been so for many years, going back to probably when I was a law
    student at Georgetown.
        Our Constitution is eroding, and the executive branch
    continues to take more and more power. I can't think of a more
    clear example of something that the Constitution clearly says
    the Congress is supposed to perform.
        And as I said earlier, Congress has debated this. The
    President did not get the policy he wanted, and now he has
    decided to do it.
        I would like to read a quote in answering to Professor
    Legomsky. I don't mean to gang up on you here, but as to your
    comment that the President, his multiple statements didn't
    exactly say he couldn't do this, a heckler told him that you
    have the power to stop deportations, and Obama replied,
    ``Actually, I don't. And that is why we are here.'' ``What you
    need to know, when I'm speaking as President of the United
    States and I come to this community, is that if, in fact, I
    could solve all these problems without passing laws in
    Congress, then I would do so. But we are a Nation of laws. That
    is part of our tradition. And so the easy way out is to try to
    yell and pretend like I can do something by violating our laws.
    And what I am proposing is the harder path, which is to use our
    democratic processes to achieve the same goal that you want to
    achieve.''
        This President knows that he can't do this. He knows that
    our system did not allow him to take these extra steps. There
    is no question, as Judge Hanen said in his opinion, there is a
    wide berth for prosecutorial discretion. I don't think you are
    going to get a lot of argument about that.
        But this goes so much further than any prosecutorial
    discretion that has ever been exerted. If this was allowed,
    then Congress' role in this entire field is abdicated. Why
    would Congress take year after year to debate these issues if a
    President is able to take a scope we have never seen before,
    and, in addition, add benefits on top of simply deciding to not
    deport?
        Mr. Forbes. We saw that kind of syntax change when we heard
    you can keep your insurance policy, if you want to, as well.
    But it makes no sense that we have these arguments.
        My time is out, Mr. Chairman. I yield back.
        Mr. Gowdy. Thank the gentleman from Virginia.
        The Chair will now recognize the gentleman from New York,
    Mr. Nadler.
        Mr. Nadler. Thank you. I must begin by saying I am
    surprised to hear the attorney general of a great State
    confusing political statements with legal statements. All the
    quotes from the President are interesting in a political debate
    and a political discussion. They are not interesting in terms
    of what his powers actually are--his opinions, frankly, in a
    political context at all.
        What is interesting, what is relevant, as the attorney
    general should know, as everyone here should know, are what the
    laws are, the precedents are, the court decisions are, not the
    President's or anybody else's political statement in any
    context.
        Let me ask Professor Legomsky, we heard that the
    President's exercise of discretion, since it is categorical, is
    somehow different, and that he is establishing categories of
    people to whom he is giving rights that Congress hasn't chosen
    to give. Essentially, that is the gravamen of what we are being
    told, I think.
        I think, rather, and please comment on this, that that is
    untrue. The President is exercising discretion in granting
    deferred action to certain people he can choose. The Supreme
    Court has said it. Congress has specifically said it. He can
    choose to do that by group, by category.
        In fact, it would be difficult, I mean, if the President
    came out with a list and said the following 2 million people by
    name are granted deferred action, we would think that is sort
    of ridiculous, although I don't think anybody would question
    his authority to do that.
        By doing it by category, I don't think he changes that. And
    please comment on the fact that he isn't invading Congress'
    prerogative because this deferred action can be revoked at any
    time, number one. It confers no permanent benefits. It has been
    stated repeatedly that these people get benefits. They may get
    a Social Security card, but my understanding is they don't get
    benefits.
        Could you comment on those two points?
        Mr. Legomsky. Sure. I think everything you just said is
    absolutely correct.
        Two things on the discretion issue. First of all, I do
    agree that there really is no law out there that says the
    President couldn't grant deferred action on the basis of a
    class-based discretionary judgment, if he wanted to do so. We
    don't have to reach that issue here, however, because the
    President didn't even do that. He did provide specifically, or
    the Secretary did, for individualized discretion.
        I want to add that this is the way agencies normally
    behave, and it is a very sensible. You want the agency to
    provide some generalized guidance to its officers as to how
    they are to exercise discretionary power, first of all, because
    you want political accountability to rest with the leaders;
    secondly, because you want this information to be transparent,
    because it is important; and thirdly, the officers on the
    ground need to know what to do; and fourth, we want some
    reasonable degree of consistency. To the extent possible, you
    don't want relief to depend on which officer you happen to
    encounter or which prosecutor's desk your file happens to land
    on.
        And in this particular case, the evidence in the record
    shows that, in fact, these case-by-case evaluations are being
    made.
        Mr. Nadler. Thank you very much.
        Before my next question, I would like to simply comment on
    some of what has been said in the dialogue with Mr. Forbes and
    some others.
        The decision to formally remove border-crossers rather than
    to return them was a strategic choice first made by President
    Bush in order to disincentivize future illegal entries. A
    formal removal creates future bars to admission.
        Would you comment on that?
        Mr. Legomsky. Sure. I think border apprehensions and
    priorities make sense both for the reason you just gave,
    Congressman, and for another very important, practical reason.
    It is just very smart strategy.
        It is a lot smarter to stop a person at the border than it
    is to divert resources from the border, let people in, then try
    to chase them down years later.
        Mr. Nadler. Thank you.
        Many of the critics of the deferred action program complain
    that they go beyond nonenforcement of immigration laws and
    instead affirmatively provide a lawful status to people who
    were previously in unlawful status. Is that correct?
        Mr. Legomsky. No. Their status remains unlawful. They do
    have something called lawful presence, which has a very
    specific meaning in one particular provision. But their status
    definitely is still unlawful.
        Mr. Nadler. Still unlawful. And finally, critics of the
    President's action suggest that they are unprecedented and act
    as though these issues are entirely novel to the Federal
    courts.
        Hasn't the Supreme Court, in fact, spoken about the extent
    to which the Administration has authority to exercise
    prosecutorial discretion in the immigration area specifically
    and whether granting deferred action is an appropriate form of
    that discretion?
        Mr. Legomsky. Yes, they have done that in a couple cases,
    as have many of the lower courts. One Supreme Court decision
    specifically recognized deferred action by name. The facts were
    different, but the takeaway was the same. The President has
    this power.
        Mr. Nadler. So, finally, what about what the President has
    done, aside from the fact of his name, perhaps his party, and
    the politics of immigration, is different from what previous
    Presidents have done?
        Mr. Legomsky. I don't believe it is different. All fact
    situations are different in some sense, but they are not
    meaningfully different. A slightly different form was used than
    in previous cases, but the fraction of the undocumented
    population that the actions were predicted to effect is roughly
    the same. And in all other respects--the one common denominator
    is, in all of these cases, Presidents have used their powers to
    provide temporary reprieves from removal and temporary
    permission to work, both of them revocable, to large,
    specifically defined categories of undocumented immigrants.
    That is not unprecedented at all.
        Mr. Nadler. Thank you very much.
        My time has expired.
        Mr. Gowdy. Thank the gentleman from New York.
        The Chair would now recognize the gentleman from Arizona,
    Mr. Franks.
        Mr. Franks. Thank you, Mr. Chairman.
        Mr. Chairman, it is often said that when human rights and
    human laws are in human hands that men lose their freedom.
        Professor Foley, I sometimes am entertained by reading from
    the Federalist Papers to law professors like yourself. I am not
    an attorney, so it just gives me a little thrill, you
    understand?
        But in Madison statements in Federalist No. 47, he stated
    that, ``The accumulation of all powers, legislative, executive,
    and judiciary, in the same hands, whether of one, a few, or
    many, and whether hereditary, self-appointed, or elective, may
    justly be pronounced the very definition of tyranny.''
        The Framers of the Constitution understood that the
    accumulation of powers and tyranny were inseparable. They
    rejected giving the newly created Chief Executive the legal
    authority to suspend or dispense with the enforcement of the
    laws. That, of course, in their minds, was the province of
    Congress.
        So my question to you is, do you believe that the
    President's recent actions comport with the Framers'
    conclusions? And is President Obama refusing to adhere to the
    ``take care'' clause in an attempt to evade the will of
    Congress? And was he acting constitutionally when he did that?
        Ms. Foley. Congressman Franks, you ask a very salient
    question. Absolutely, the President here is violating the
    ``take care'' clause, because his duty under the Constitution,
    again, is to see to it that the laws are faithfully executed.
    So even if the laws are completely broken, and everybody on
    both sides of the aisle agree that the laws are broken, the
    President does not have the constitutional power to fix it. If
    it is going to be fixed, it has to be fixed by Congress and
    Congress alone.
        I think the Framers would be rolling over in their graves
    if they knew what this President was doing.
        And let me just address prosecutorial discretion for a
    moment, if I may. One of the hypotheticals that gets bandied
    about by those who support the President's action is to say,
    ``Well, a sheriff, for example, can decide that he is only
    going to pull over speeders who go 5 mph or more over the speed
    limit and let everybody else go. That is what this President is
    doing. There is no difference.''
        There is a world of difference between those two things.
    What that President is doing in that hypothetical is classical
    prosecutorial discretion. But that is not what President Obama
    is doing by these actions.
        To be analogous to what President Obama is doing here, that
    sheriff would have to, first of all, publicly pronounce to the
    world that he is not going to pull over the speeders despite
    the fact that the law says they are speeders. He would have to
    say, ``And if I do pull anybody over, I am only going to give
    them a fine of a dollar, even though the statute says that it
    is $100 or more fine. And then maybe also when I decide I am
    going to pull them over, I am going to give them a gift card
    from Best Buy. I am going to confer benefits upon them.''
        That is what this President is doing, and that is clearly
    not prosecutorial discretion.
        Mr. Franks. Well, I am not sure I should ask any more
    questions at that point.
        But, Professor Blackman, do you agree with the comments,
    basically?
        Mr. Blackman. Oh, absolutely. As I noted in my opening
    remarks, in Federalist 51, Madison wrote, ``Ambition must be
    made to counteract ambition.'' The President is ambitions;
    Congress is ambitious. The President wants something; Congress
    wants something.
        The only way to prevent tyranny, to prevent tyranny from
    the fringe, is if both of them butt their heads. In many
    respects, the gridlock we have today is a symptom of that. All
    too often people say, oh, Washington is gridlocked. Well,
    people who voted for you sent you here with certain positions.
    And it is very much the case that today people have a very
    stark opinions on issues.
        Now, while it is regrettable that this Congress hasn't seen
    to immigration reform, that is not a license to expand the
    President's power.
        As Justice Scalia noted last year in the Noel Canning case,
    gridlock is a feature, not a bug, of our constitutional order.
    Similarly, Justice Breyer, when he looked at these issues, said
    that these are political problems, not constitutional problems.
        So the point I would like to stress is the mere fact that
    Washington is gridlocked doesn't give the President additional
    power to transcend his constitutional authority.
        Also, briefly, the Arizona case was mentioned a moment ago.
    It definitely said the President has powers over discretion.
    But in the very next paragraph, it says, but the case may turn
    ``on the equities of an individual case.'' It says in the
    opinion, by Justice Kennedy, ``the equities of an individual
    case.''
        So when you read Arizona v. U.S., read both paragraphs, and
    this is won on a case-by-case basis. Thank you.
        Mr. Franks. Professor Foley, let me just quickly expand on
    one other thing you mentioned. The Federal District Court in
    Texas made this distinction between the Federal Government
    simply not enforcing immigration laws on removal of an
    individual and taking the next step of actually providing
    lucrative benefits to unlawful aliens. That seems to be an
    incredibly stark precedent here. Could you expand on that a
    little bit?
        Ms. Foley. Oh, absolutely. The conferral of benefits I
    think is the classic example of why you don't want to start
    going down the down this road constitutionally with the
    President, because think about what he is doing. He is, first
    of all, publicly announcing to everyone that even though the
    law says you shall be deportable, you are no longer deportable.
    And now I am going to give you this remedy called deferred
    action that Congress has blessed in certain other instances
    explicitly, but not blessed for this particular population.
        And then once he makes those moves, then he confers all
    these benefits upon this population. I mean, that is classic
    bootstrapping. And if the President can make the first two
    moves, then why not just bootstrap and add the other move,
    which is the conferral of benefits.
        That is what makes this so dangerous, because if Congress'
    core constitutional powers include anything, it is not just
    naturalization but it is the power of the purse. And these
    benefits have financial consequences, not only to the Federal
    Government, but, of course, to the States, which is why they
    have standing to sue him.
        Mr. Goodlatte [presiding]. The time of the gentleman has
    expired.
        The Chair recognizes the gentlewoman from California, Ms.
    Lofgren, for 5 minutes.
        Ms. Lofgren. Thank you, Mr. Chairman.
        Before asking any questions, I would ask unanimous consent
    to enter into the record five statements from the following
    organizations, explaining the legal authority for the
    President's actions, from the Constitutional Accountability
    Center, Asian Americans Advancing Justice, American Immigration
    Council,** National Council of La Raza, and the National
    Council of Asian Pacific Americans.
    ---------------------------------------------------------------------------
        **Note: The submitted material from the American Immigration
    Council is not reprinted in this record but is on file with the
    Committee, and can also be accessed at: http://docs.house.gov/meetings/
    JU/JU00/20150225/103010/HHRG-114-JU00-20150225-SD003.pdf.
    ---------------------------------------------------------------------------
        Mr. Goodlatte. Without objection, they will be made a part
    of the record.
        [The information referred to follows:]

                                   __________

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                                   __________
        Ms. Lofgren. Thank you.
        Professor Legomsky, I just want to say publicly that I have
    been in Congress for 20 years. I have read a lot of testimony
    in many hearings over the years. Your testimony is the singular
    best, most concise, logical testimony I have ever read in my 20
    years in Congress, and I thank you very much for your service
    in that way.
        I would like to ask you just a few questions. Professor
    Foley, in her testimony, indicates that the undocumented
    immigrants who are covered by DACA and DAPA are ``no longer
    deportable,'' and that, according to the Office of Legal
    Counsel, ``Illegal immigrants who fall outside these three
    priorities are not to be deported at all.''
        Do you agree with that? And if not, why not?
        Mr. Legomsky. No, that statement is not true, and I am not
    sure where Professor Foley gets the authority. None is cited.
        They are, of course, still deportable. The Secretary has
    made clear that deferred action could be revoked at any time.
    There is nothing to prevent the Administration from initiating
    removal proceedings at any time. So I am not sure what the
    basis would be for that assumption.
        Also, I was neglectful in saying thank you so much for
    those generous words, which are really too generous.
        Ms. Lofgren. In the Reno case, Justice Scalia had a key
    holding that Congress had made immune from judicial review any
    action or decision to ``commence proceedings, adjudicate cases,
    or execute removal orders,'' and went on to say that, ``[a]t
    each stage, the Executive has discretion to abandon the
    endeavor, and at the time IIRIRA was enacted the INS had been
    engaging in a regular practice (which has become known as
    deferred action) of exercising that discretion for humanitarian
    reasons or simply for its own convenience.''
        Professor Foley, in her written testimony, I think tries to
    diminish the significance of that case, and to distinguish
    that, says that the court merely acknowledges that Congress did
    not want Federal courts to get tied up in adjudicating
    discrimination lawsuits.
        Do you agree with that? And if not, why not?
        Mr. Legomsky. I think Professor Foley makes a fair point in
    noting that that case did involve a denial of relief rather
    than a grant of relief. But the broad takeaway from the case is
    evident from the court's language, where it went out of its way
    to say that this discretion extends to the decision whether to
    adjudicate cases, how to adjudicate cases, and also whether to
    execute removal orders.
        So the facts might be slightly different, but I see no
    basis in the opinion for distinguishing it based solely on the
    facts.
        Ms. Lofgren. There has been a lot of discussion about how
    DAPA and DACA grant additional benefits, but it is my
    understanding that it simply defers action. And pursuant to
    Section 274A of the Immigration and Nationality Act, which
    provides that employment may be authorized either by the Act or
    by the Attorney General, and 8 CFR 274a.12 provides that an
    alien who has been granted deferred action, an Act of
    administrative convenience to the Government, may apply for
    authorization, if there is an economic necessity, which must be
    proven.
        Is it your position that it is only the statutory basis
    that is being exercised following a grant of deferred action?
    Or does the executive action give some kind of benefit
    directly?
        Mr. Legomsky. Yes. I think it is a little bit of both. I
    would distinguish two kinds of so-called benefits.
        First of all, there is benefit in simply receiving a piece
    of paper in which the Government tells you we are deferring
    action in your case. People can disagree on the policy of that.
    There are pros and cons of telling a person. But I have never
    seen anybody cite a law that says it is illegal to tell a
    person we are not going to proceed against you.
        The other benefits, the ones you have been describing just
    now, are, as you point out, specifically authorized by statute
    and even more specifically authorized by the regulations. They
    have been enforced since the early 1980's. Again, they do have
    the force of law. And they specifically say that if you
    received deferred action, you are eligible to apply for a work
    permit.
        Ms. Lofgren. Now, we appropriate money every year that
    allows for the removal of roughly 7 percent of those who are in
    the country in an undocumented status. I mean, the affidavits
    submitted to the judge in Texas by the head of ICE and the head
    of the Border Patrol indicate that having a piece of paper to
    note the priority would be helpful to them, because the cost
    for removal is not at the stop. It is the detention, the court
    processes. There are a lot of costs that go into that. And
    knowing that this person was not the priority at the beginning
    would be helpful to the agency before costs are incurred.
        Do you think that without having these priorities, we are
    going to end up having to say that the nanny who is caught on
    the street is as high of a priority as a drug dealer or gang
    member?
        Mr. Legomsky. I think that would be the logical result. It
    would be up to each individual police officer to decide, ``What
    do I think my agency's priorities ought to be?''
        I would add that in addition to the benefit you just
    described, mainly helping ICE sift out the low priorities so
    that they can focus on the high priorities, in addition, USCIS
    is collecting a lot of very useful law enforcement data that
    can be shared with these other enforcement agencies. Of course,
    all that is being paid for by the requesters themselves, not by
    the taxpayers.
        Ms. Lofgren. My time is expired, Mr. Chairman. I yield
    back.
        Mr. Gowdy [presiding]. Thank the gentlelady from
    California.
        The Chair would now recognize the gentleman from Texas,
    Judge Gohmert.
        Mr. Gohmert. Thank you, Mr. Chairman. Thank you to the
    witnesses who are here today.
        I want to direct the first question to our two law
    professors. Did both of you read the 123-page opinion by Judge
    Hanen?
        Ms. Foley. Yes.
        Mr. Blackman. Yes.
        Mr. Gohmert. Okay. I have it here myself.
        For full disclosure, Andy Hanen was a classmate in law
    school. He was one of the best and brightest. That is why he
    went with one of the best firms in the country in Houston, and
    why President Bush nominated him. He is a brilliant guy.
        Have you also read the response that has been filed by DOJ,
    both of you?
        Mr. Blackman. Yes.
        Ms. Foley. Yes.
        Mr. Gohmert. Well, I was noticing at page 10 of the
    response, where they are saying the Government would suffer
    irreparable harm absent a stay. And in the very next sentence,
    they say that the injunction Judge Hanen granted blocks DHS
    from exercising its authority conferred by Congress. And it is
    Congress that is trying to stop them from exercising the
    authority, not by a written Executive order, as Judge Hanen
    makes clear, but, as a good monarch would do, the President
    spoke law into existence, and then the Secretary of Homeland
    Security ran and put it into a memo.
        And so I am wondering if a law student, in response as a
    question, given a question, ``Here is your exam. Respond to the
    123-page opinion of Judge Hanen,'' and they came back and said
    irreparable harm because the injunction will prevent us from
    doing the job that Congress conferred on us, what would be your
    response as law professors to that answer?
        Ms. Foley. I guess my first response would be, again,
    bootstrapping argument, F, right? Because what is happening
    here is that they are saying they are going to suffer
    irreparable harm because they are prevented from doing what
    they think they have the authority to do. But, of course, the
    $6 million question is, do they have the authority to do what
    they are trying to do?
        It has to be no. The answer has to be no, because despite
    Professor Legomsky's attempt to identify four criteria that he
    thinks provide a meaningful limiting principle, with respect,
    they don't provide a meaningful limiting principle. If this
    President can do this, future Presidents can unilaterally
    suspend, for entire categories of people whom they prefer for
    some political reason, operation of various laws, environmental
    laws, labor laws, tax laws, and on and on and on. And that
    clearly upsets the constitutional balance. That is not faithful
    execution of the law.
        Mr. Blackman. And if I may add, the Ranking Member is
    correct. This was not a constitutional decision. The decision
    was on the Administrative Procedures Act.
        But I think Judge Hanen showed his hand a bit, maybe a
    Texas bluff, if I may use the example. And he suggested very
    clearly that there would be an abdication.
        The Constitution says the President ``shall take Care the
    Laws be faithfully executed.'' This tracks very closely with
    the standard in Heckler v. Chaney, which speaks of a complete
    abdication of the laws against an entire class of people.
        Judge Hanen's opinion explains very clearly why this is the
    case.
        Now, one aspect of Judge Hanen's opinion which hasn't been
    appreciated is that we need notice and comment, right? We need
    rulemaking. We need to see how this program is working. I think
    this hearing justifies why. We don't exactly know how this
    policy works.
        In my research, I found a checklist used by DHS which has
    no ``other'' box. It is the only way to deny DAPA, by checking
    the box. Professor Legomsky found some narrative form, which is
    slightly different. He actually admitted in his testimony there
    are different types of forms being used. Do we know which one
    is being used? No, we don't.
        This would be a perfect opportunity to take the time to
    show the American people how this is working. Show us what is
    happening, and then we can go to court.
        So I think if there is one salutary aspect of Judge Hanen's
    opinion, it is we can learn what this is doing. We are learning
    this now, after the memo has been released. Had Texas not filed
    the lawsuit when it did, this policy would be in effect, and
    there would be no opportunity to challenge it.
        Mr. Gohmert. My time is about to expire, but this is an
    incredible response in how poorly done it is, in my mind.
        The bottom of page 10, it says, ``For reasons long
    recognized as valid, the responsibility for regulating the
    relationship between the United States and our alien visitors
    has been committed to the political branches of the Federal
    Government. As such, the preliminary injunction necessarily
    causes an irreparable harm.''
        They cite that this belongs to Congress and then come back
    and say, so if you leave it to Congress, it causes the
    executive branch irreparable harm.
        For heaven's sake, our Justice Department needs better
    attorneys and especially when you look at page 15, saying that
    you have to throw out the injunction because it undermines the
    department's efforts to encourage illegal aliens.
        Again, Professor, it bootstraps. They were not given that
    responsibility. That is not their job.
        I see my time has expired.
        Mr. Gowdy. Thank the gentleman from Texas.
        The Chair would now recognize the gentlelady from Texas,
    Ms. Jackson Lee.
        Ms. Jackson Lee. Let me thank you very much, Mr. Chair. I
    think it is appropriate to acknowledge we have Members here and
    witnesses here, how much we appreciate you coming and offering
    your testimony.
        I also think it is important to acknowledge that there are
    many issues that this Judiciary Committee, my friends on the
    other side of the aisle, Republicans and Democrats work
    together and collaborate on. I think that should be a message
    preceding the very vigorous disagreement and unfortunate
    interpretation that is now given at this hearing.
        Let me associate myself with the words of my Chairman. I
    would like to think that this is a hearing regarding President
    Barack Obama's executive actions, and I would prefer him not to
    be called ``Obama'' and to honor the office which he holds.
        I also want to acknowledge the Constitution. We went
    through this argument, to the various professors, with respect
    to the powers of this President. And we all can interpret the
    final words of Section 2, that deals with ``shall take Care
    that the Laws be faithfully executed.'' And, therefore, we make
    the argument that the executive actions are in actuality a
    reflection of those laws being faithfully executed.
        So I don't really want you all to suggest that I am trying
    to show my smiling face, but immediately when the order came
    out from Texas, Texans and families that would have been
    severely impacted came together and said they stand with the
    President for the humanitarian, the relief, the authorized
    relief, the discretionary relief, that allows him not to convey
    status, but, through his Attorney General, to be able to have
    prosecutorial discretion and to be able to discern the
    prioritization, Professor, of crooks and criminals, felons
    versus the families.
        These are family members. This is an example of a parent
    who would be, if you will, separated from their child.
        And I think I want to make sure and that I have Professor,
    is it Legomsky? I am so sorry.
        Mr. Legomsky. Pretty close. Thank you.
        Ms. Jackson Lee. Pardon me?
        Mr. Legomsky. Yes, Legomsky. Yes.
        Ms. Jackson Lee. Legomsky. I want to make sure that I pose
    questions to you in my short period of time, because I think
    you elevated us to a level of understanding worthy of
    commentary.
        This is a hearing that contributes to political security
    and not national security. In this hearing, the backdrop, we
    are not funding DHS. That is a horrific tragedy in the midst of
    the crisis of ISIL, and we are doing it on untoward and
    misdirected arguments that really are not accurate. And I think
    that is important.
        I would say to my good friend from Nevada that we have
    documentation that Nevada would be severely hampered by the
    presence of your lawsuit, but more particularly not funding
    DHS. I may have the opportunity to present that into evidence.
    I am sort of looking through my documents right now.
        But there is documentation that grants that you would want
    and need would not be generated. And I ask you to review the
    impact of not funding DHS. And you would ask me, well, I am not
    at a DHS hearing. I just came from one. That is why I stepped
    away. But you are engaging in a discussion that tracks why DHS
    is not being funded, allegedly because these executive actions
    are unauthorized. And it is absolutely incorrect.
        Let me also show you, if I might, for the people who
    believe that this is a frivolous exercise, Professor Legomsky,
    these are the procedures that the discretionary efforts have
    asked these individuals to go through. And I think I count up
    to 15. I would really like to know how many of us go through 15
    eligibility requirements to do anything.
        Quickly, my question to you is, to go back to this
    constitutional question of the executive action, and you
    premised it on the fact that the President, the discretionary
    authority, but in actuality that the arguments made by my good
    friends, and I call them that, are incorrect, that his
    authority that he is now exercising is limited. It is not a
    broad parameter. It is not offering citizenship. It is not
    offering the Affordable Care Act.
        Could you just tell us how we are in the context of not
    having a runaway executive, laying the precedent for a runaway
    executive in the future?
        Mr. Legomsky. Yes, thank you.
        Mr. Gowdy. Professor, the gentlelady is out of time, but
    you may answer the question.
        Ms. Jackson Lee. I thank the Chairman for his indulgence.
        Mr. Legomsky. Thank you. Let me say first that, as outlined
    earlier, I think there are several tangible limits. I know
    Professor Foley has just said I don't think any of those four
    limits really work, but I am not sure why they don't work.
    There are real limits on what a future President can do.
        May I just say, also, that I very much appreciate your
    having brought to life what these issues are about. This is not
    an academic game. We are talking about the lives and the hopes
    of millions of people, and I am thankful to you for bringing
    that out.
        Mr. Gowdy. The Chair thanks the gentlelady from Texas and
    will now recognize the gentleman from Pennsylvania, the former
    United States Attorney, Mr. Marino.
        Mr. Marino. I have a request that, since I am running among
    three hearings today, would the Chairman skip me for a moment?
        Mr. Gowdy. I would be thrilled to go to the gentleman from
    Ohio, Mr. Jordan.
        Mr. Jordan. I thank the Chairman.
        Professor Foley, a number of my colleagues on the other
    side of the aisle have said Republicans are holding the DHS
    funding bill hostage. Now, Professor, we passed legislation
    last month that funds the Department of Homeland Security at
    the levels they agreed to, levels they wanted.
        So in your opinion as a legal scholar, do you think we have
    held anything hostage, or have we done just what,
    constitutionally, we are supposed to do?
        Ms. Foley. Congressman Jordan, I think you are doing
    exactly what the Constitution contemplates that you should do,
    what the Framers anticipated you would do. They anticipated
    that you would vigorously defend your constitutional
    prerogatives.
        Mr. Jordan. Right. But we passed the bill at the levels
    they want. We did include language in the legislation that said
    we think that what the President did last November was
    unconstitutional. We took an oath last month when we were sworn
    into this Congress to uphold the Constitution. So we put
    language in there that said we don't think you can use taxpayer
    money you shouldn't use. We are not going to allow you to use
    American taxpayer dollars to carry out an action we think is
    unconstitutional.
        Now, do you think believe the President's actions last
    November were unconstitutional, Professor Foley?
        Ms. Foley. I absolutely do. And let me just say that it is
    one thing to hold an appropriations measure hostage. It is
    another thing to hold the Constitution hostage, which is what I
    think the President has done.
        Mr. Jordan. Yes. So you think it is unconstitutional. I
    think it is unconstitutional. The two gentlemen to your right
    think it is unconstitutional. And a whole bunch of other folks
    on the right and the left of the political spectrum think what
    the President did was unconstitutional, right?
        Ms. Foley. That is correct.
        Mr. Jordan. And last week, we had a Federal judge say what
    the President did was unlawful, correct?
        Ms. Foley. Correct.
        Mr. Jordan. So the fundamental question, the fundamental
    question here is, how can Democrats insist on making sure that
    they can hold the DHS bill hostage to maintain the ability to
    fund something so many people think is unconstitutional and a
    Federal judge has said is unlawful?
        Don't you think, Professor Foley, that is the central
    question? How can Democrats insist we want a bill that allows
    us to fund something everybody--not everybody, but a lot of
    people--think is unconstitutional and a Federal judge has said
    is unlawful? How can they insist on that?
        Ms. Foley. I don't know. You may want to ask your
    colleagues on the other side of the aisle that question. But I
    would just say, again, in my opinion, it seems like it is, in
    fact, the other side of the political aisle that is holding the
    Constitution hostage.
        Mr. Jordan. But it is even worse than that, Professor
    Foley. They not only want to insist that they be able to fund
    something that is unconstitutional and a Federal judge has said
    is unlawful, they are not even willing to debate the issue on
    the floor of the United States Senate. I mean, it is one thing
    to make this, ``well, we think.'' Just bring it up for debate.
    Let us have the full debate like we are supposed to.
        The Committee next-door, we invited Secretary Johnson to
    come in and testify at an oversight hearing just next-door, and
    he refused to come testify. He can go on every TV show over the
    weekend and talk about this, but he can't come testify and
    answer these fundamental questions?
        So if anyone is holding it hostage, it seems to me it is
    the Democrats of the United States Senate. We have a bill over
    there funding the Department of Homeland Security at the levels
    the Democrats agreed to, but has language which says you can't
    do something that is unconstitutional and a Federal judge says
    is unlawful, and they refuse to even debate it.
        Ms. Foley. Well, that is a shame. That is not the way a
    constitutional republic is supposed to work. It is the process
    of debate and deliberation that gives you your value to the
    American people.
        And this is a controversial issue, and it ought to be
    discussed and debated. I mean, I am glad we are having the
    hearing today, but they shouldn't play politics with the
    Constitution.
        Mr. Jordan. Yes, and the final thing I would say, Mr.
    Chairman, and it has been said many times, but 22 times the
    President had said that he couldn't do what he did. Legal
    scholars on the left and right have said it is
    unconstitutional. A Federal judge has ruled it is unlawful. We
    have a bill that funds DHS at the levels the Democrats agreed
    to and puts language in there that is consistent with the
    President's statements 22 times, consistent with what legal
    scholars across the political spectrum say, and consistent with
    what the Federal judge just ruled on last Tuesday. It is
    unbelievable to me that we cannot just pass that legislation
    and do what the American people want us to do.
        With that, Mr. Chairman, I yield back.
        Mr. Gowdy. I thank the gentleman from Ohio. The Chair will
    now recognize----
        Ms. Jackson Lee. Mr. Chairman, could I ask unanimous
    consent for introducing two items into the record, please?
        Mr. Gowdy. Okay.
        Ms. Jackson Lee. Thank you, Mr. Chairman.
        I offered an eligibility chart. I would like unanimous
    consent to place that into the record.
        Mr. Gowdy. Without objection.
        Ms. Jackson Lee. A chart dealing with the State of Nevada
    Homeland Security profile summary of FEMA, I ask unanimous
    consent to place that into the record. I yield back.
        Mr. Gowdy. Without objection.
        [The information referred to follows:]

                                   __________

                                   __________
        Mr. Gowdy. The Chair would now recognize the gentleman from
    Tennessee, Mr. Cohen.
        Mr. Cohen. Thank you, Mr. Chair.
        Professor Legomsky, you said how many different professors
    or attorneys specializing in immigration law felt that this was
    appropriate and constitutional?
        Mr. Legomsky. One hundred thirty-five immigration scholars
    and professors, not even counting practitioners, signed on to
    that letter.
        Mr. Cohen. Do you know how many people in that similar
    class, although the class is hard to define, said it wasn't
    constitutional?
        Mr. Legomsky. I am aware of two and a third person whose
    views are somewhat ambiguous on it. There are very, very few in
    number.
        Mr. Cohen. So 135-to-3. That is even better than Kentucky
    usually gets in basketball against bad opponents.
        Mr. Legomsky. Yes. I don't want to represent that every
    immigration professor has opined on the issue. But of those who
    have, those would be, roughly, the numbers.
        Mr. Cohen. And you are a professor of immigration law, is
    that correct, for 30 years?
        Mr. Legomsky. Yes, sir.
        Mr. Cohen. And you have written a textbook that is in,
    what, 183 law schools? Is that correct?
        Mr. Legomsky. It has been. I am very fortunate. Thanks.
        Mr. Cohen. You are, indeed, the most expert person we have.
    These other folks are fine people, and they have done a lot of
    good work trying to say that Obamacare is unconstitutional, and
    a lot of work on health care law, and some work saying that
    Colorado shouldn't be able to legalize, even though Justice
    Brandeis talked about the laboratories of democracy, they
    shouldn't be able to do that.
        But you are the expert, and none of these other folks have
    written textbooks on immigration law, lectured on immigration
    law. In fact, their main work has been on property law,
    constitutional law, and health law.
        You believe this is 100 percent constitutional, do you not?
        Mr. Legomsky. I do, and can I just say I have a great deal
    of respect for both of my colleagues here. They both have done
    some wonderful scholarship, and they are both top people in
    their fields.
        Mr. Cohen. Right.
        Mr. Legomsky. But, ultimately, whether the ``take care''
    clause has been violated depends on immigration law. If you are
    going to say the President hasn't taken care to faithfully
    execute the laws, you have to specify what laws you think the
    President has violated.
        And one of the things that struck me about this discussion
    is that there has been almost no reference to any specific
    provisions of the law that they actually say have been
    violated.
        Mr. Cohen. You are familiar with 6 USC 202? There is a
    clause there that says the Secretary shall, acting through the
    Undersecretary for Border and Transportation Security, shall be
    responsible for the following, and it gives eight items. Number
    five is establishing national immigration enforcement policies
    and priorities.
        Does that not clearly give the Administration the authority
    to do what they did?
        Mr. Legomsky. I think it does with one qualification.
        I agree with Professor Foley that that it's not limitless.
    The Secretary must exercise that power consistently with any
    specific statutory constraints. But again, no such constraints
    have been credibly identified.
        Mr. Cohen. And you were an attorney, also, I think for
    Immigration? Do you have any ballpark figure on how many
    dollars it would cost the taxpayers to hire enough attorneys
    and go through the proceedings to try to send those people out
    of the country?
        Mr. Legomsky. I am sorry, sir. I don't have a number on
    that. There have been studies, though. There is no doubt that
    the number was cost-prohibitive. It would be impossible to do.
        Mr. Cohen. Millions of dollars.
        Mr. Legomsky. Yes, many, many billions.
        Mr. Cohen. Could it----
        Mr. Legomsky. I am sorry, I want to take that back. I
    shouldn't say many billions, because I really don't know the
    number. But it is astronomical.
        Mr. Cohen. Astronomical is close to many millions. They are
    in the same ballpark.
        Presidents Reagan and Bush the first did much similar to
    what President Obama has done, and you commented that, other
    than I think it was maybe Ms. Lee and it might have been
    Representative Nadler, other than the difference in parties, et
    cetera, how would you distinguish the reprisals that this
    President has gotten that those didn't? Why is this President
    different from all other Presidents?
        Mr. Legomsky. Well, I think, first of all, they are very
    similar in that, in each case, the President was acting in an
    area in which Congress specifically decided not to act.
        One of the differences that Professor Foley mentioned, and
    I have to say this is a fair argument, though I disagree with
    it, the argument was, well, President Bush was exercising a
    specific statutory power because there was something in the law
    that authorized voluntary departure. I don't know that Congress
    intended for voluntary departure to be exercised on a class-
    wide basis, but there is that.
        The only point I would make is that, first, deferred action
    itself is recognized in many places in the statute. It has been
    recognized by many courts. And secondly, the most explicit
    legal authority, which does have the force of law, is the
    regulation that has been in force for more than 30 years.
        Mr. Cohen. Thank you, sir.
        I just want to make clear that, Professor Foley, I wasn't
    meaning anything about the U.T.-Kentucky game. They played a
    great first half. I was pulling for U.T. also, but Kentucky is
    just too much.
        I yield back the balance of my time.
        Mr. Gowdy. I thank the gentleman from Tennessee.
        The Chair would now recognize the gentleman from Texas,
    Judge Poe.
        Mr. Poe. I am over here on the far right. Let me ask you
    some questions. Thank you all for being here.
        Professor Blackman, thank you also for being here. South
    Texas, I couldn't get into South Texas, but I am glad you are
    here.
        Mr. Blackman. You can visit my classroom anytime, sir.
        Mr. Poe. Tell Professor Treece hello. He and I are
    contemporaries. It is quite a tribute to him or credit to him
    the school has him.
        Let us assume these hypotheticals. Being from law schools,
    law professors love hypotheticals, so let us talk
    hypotheticals.
        The next President, whoever it is, decides, ``I am going to
    postpone the individual mandate in Obamacare indefinitely.'' So
    be it. Issue a memo out to the fruited plain.
        The next President decides, ``I am going to postpone the
    implementation of EPA regulations indefinitely throughout
    fruited plain.'' Sends out a memo.
        ``I have decided that in all fairness, some people just
    should not have to pay income tax. So I am going to tell the
    IRS not to enforce the IRS Code to a certain, specific group of
    people that I think just shouldn't have to pay income tax.''
    Memo out to the fruited plain.
        And we could go on indefinitely, indefinitely.
        If everything stands like it is with the courts, the
    President, executive issues, orders, is this a possibility that
    these types of executive memos from future executives may just
    happen?
        Mr. Blackman. With respect, we are living in that era.
    President Obama has delayed the individual mandate once for an
    entire class of people based on a hardship. What was the
    hardship? Obamacare. It was too expensive.
        President Obama has delayed the employer mandate twice,
    until 2016. What was the hardship? Obamacare. It was too
    difficult.
        So, with respect, we are living in that era. And I think it
    is a very, very scary time. And take your example, and imagine
    future Presidents doing that as well. ``You know what? We don't
    have enough agents to enforce the Internal Revenue Code and the
    capital gains tax, so we are not going to enforce it. If you
    paid to us, we will refund it. And we will prospectively tell
    people. We can tell people the corporate income tax is way too
    high, so for any corporation who has at least so many
    employees, we are not going to enforce it. It is just too much
    work.''
        I think this sets a very dangerous precedent. Now one point
    I will add is faithfulness. The Constitution says you shall
    faithfully execute the law. I am okay with the President making
    a good-faith belief that his action is consistent with the
    statute. It is his discretion. I am okay with that.
        But I think what the facts demonstrate here is one of bad
    faith. The reason why the President's statement about lacking
    power is relevant is not for political theater. It is to say,
    he said this. He was asked, can you defer the deportation of
    the mother of a U.S. citizen? He said no. The Justice
    Department said no, this can't happen.
        Then suddenly, you lose in Congress. They find this
    authority. I think it is a prima facia case for bad faith.
        Now, we are in uncharted waters. If you open a
    constitutional casebook, where I do perhaps have some
    expertise, you will find that there is not much written on the
    ``take care'' cause. And that is why constitutional lawyers are
    actually relevant to the discussion why the separation of
    powers trumps immigration law when it goes too far.
        It was mentioned 6 USC 202 and 8 USC 1103, these provisions
    no doubt grant discretion. But they do not grant the amount of
    discretion that the Justice Department claims now. It is
    unconstitutional, under the nondelegation doctrine.
        And I should add that the OLC memo does not put that much
    weight on the supervision, but DOJ did. After they basically
    lost in oral arguments, they shifted their position to these
    two provisions and put a lot more weight on it.
        So I will stress that there is discretion, but it is within
    what happens in the ``take care'' clause, which, unfortunately,
    now we have to litigate. And it will be at the Fifth Circuit
    any minute and invariably at the Supreme Court.
        Mr. Poe. I want to reclaim my time, Professor. I only asked
    you the time. I didn't ask you to tell me how to make a watch.
    I mean that kindly, only because we have so little time,
    understand.
        My question was, those hypotheticals that I gave you, are
    those real possibilities, if everything stands the way it is,
    that the next future executive, in good faith, faithfully
    executing the law, the IRS Code, says it is just not fair that
    everybody has to pay this income tax of 39 percent or whatever
    it is? It is waived for those people.
        Or the EPA, it is too big of a burden out there on
    Americans to have to comply with the EPA regs. We will give
    them a pass. It is just not fair.
        That was my question, and the answer is, it is a
    possibility.
        Mr. Blackman. Yes. No, the answer is yes. If this precedent
    stands, that Presidents can make these good-faith arguments,
    then the game is over. Then you as a body of Congress have no
    power, and all you have left is your power of the purse.
        Mr. Poe. One more question. One more question, if that is
    permitted by the Chair.
        What if the same scenario exists, and you have a State
    Governor who decides that, as the executive of the State, that
    the Constitution empowers him or her to waive Federal law or
    Federal regulations, that it is his discretion or her
    discretion of the Governor, executive order, send out a memo to
    the State of whatever. I didn't say Texas, but it could be.
    Just ignore this Federal rule by a regulatory agency under the
    idea that the executive, whoever it is in the State, has the
    same authority.
        Mr. Blackman. Well, that would violate the supremacy clause
    in both cases. The Constitution is the supreme law of the land.
    The President is bound by it, and the States are bound by it,
    and neither can ignore it.
        Mr. Poe. All right. Thank you, Mr. Chairman.
        Ms. Lofgren. Will the gentleman yield?
        Mr. Poe. I am out of time. I yield back to the Chair.
        Mr. Gowdy. Thank you. Thank you, Judge Poe.
        The Chair would now recognize the gentlelady from
    California, Ms. Chu.
        Ms. Chu. Mr. Chair, I would like to enter into the record,
    the Center for American Progress report that says it would cost
    $50 billion to deport the estimated 5 million people who would
    benefit under DACA and DAPA.
        Mr. Gowdy. Without objection.
        [The information referred to follows:]

                                   __________
        Ms. Chu. Professor Legomsky, critics argue that even though
    DAPA and DACA have individualized criteria that officers have
    to use on a case-by-case basis, that the high rate of approval
    for these programs shows that there is some sort of blanket
    approval of these cases.
        Professor, you served as chief counsel of the USCIS in the
    Department of Homeland Security for several years, including
    during the time when DACA started, so I am curious to hear what
    you learned about the adjudication process of these cases. I
    understand that USCIS reports a 95 percent approval for DACA
    applications. Can you explain why this there is this high
    approval rate, and whether it is appropriate or not appropriate
    to conclude that officers are not making individualized
    assessments?
        Mr. Legomsky. Thank you. At first blush, I agree that 95
    percent sounds high, but it is not when you think about who is
    actually applying for DACA and DAPA.
        If you are an undocumented immigrant, and if in addition
    you have some other negative conduct in your background, there
    are at least two things you are very unlikely to do. First of
    all, you are not going to initiate contact with the Government
    and say, ``This is my name. This is where I live. I am
    undocumented, and I also have this other negative thing in my
    background. And here are my fingerprints, so that the FBI can
    do a background check on me.'' You are not likely to do that.
        Second, unless you are independently wealthy, and not many
    of these folks are, you are not going to send the Government a
    check for $465 for something you are very unlikely to receive.
        So for both reasons, this tends to be a very self-selecting
    population, overwhelmingly people with rock solid cases. And
    therefore, the high approval rate in no way is evidence that
    these decisions are being rubberstamped.
        And may I just add quickly also that the notion that they
    are being rubberstamped would come as quite a surprise to the
    38,000 people who have received denial notices.
        Ms. Chu. Thank you for that. Professor, Congress mandates
    through the Secretary of Homeland Security the national
    immigration enforcement policies and priorities. Thus, in doing
    so, the Secretary has directed the agency to prioritize certain
    categories of people over other categories.
        In the Texas case, Judge Hanen seems to accept that
    prosecutorial discretion is appropriate in this context.
    However, he seems to oppose the idea of granting deferred
    action and notifying the individuals that they are not an
    enforcement priority.
        Isn't deferred action in and of itself a form of exercising
    prosecutorial discretion? How would you counter Judge Hanen's
    reasoning?
        Mr. Legomsky. Well, I agree with you. I think you are
    absolutely right. Deferred action is simply an exercise of
    prosecutorial discretion. The only thing that distinguishes it
    from some exercises is that the Government is giving the person
    a piece of paper saying this is what we have decided to do.
        I think, with respect, that Judge Hanen has confused the
    question of whether deferred action is legal with the question
    of whether these other benefits are legal once deferred action
    has been granted. If he objects to those other benefits, for
    example, the ones that are codified in the statute or that are
    in the regulations, then properly what he should be doing is
    advocating for a change in those laws. But the President did
    not touch any of those. It is just deferred action.
        Ms. Chu. Professor, in Judge Hanen's opinion, he argued
    that DHS acted unlawfully because he did not allow the public
    to comment about the new DAPA program in accordance with the
    Administrative Procedures Act. Can you walk us through whether
    DHS was required to follow the Administrative Procedures Act
    before implementing the DAPA program?
        Mr. Legomsky. Yes, thank you. The APA notice and comment
    requirements, by statute, do not apply to general agency
    statements of policy, which the Supreme Court has expressly
    interpreted to include any guidance that the agency wants to
    give about how it plans to exercise one of its discretionary
    powers, which it has done here.
        So what this really turned on in this case was whether you
    believe DHS when they say they are exercising real discretion.
    Judge Hanen concludes that they were not. But the only evidence
    he cited was an unsupported statement by one USCIS agent,
    Kenneth Palinkas, whose support was simply, they are being
    decided by service centers, which by the way, is where the vast
    majority of USCIS adjudications are being decided. And he said,
    therefore, they must be getting rubberstamped. That simply
    doesn't follow.
        Adjudicators at the service centers, and I know this from
    personal experience, take great care to go over the
    documentation very carefully. There are also FBI background
    checks and so on. And if there is any case in which they think
    there would be some use in conducting a personal interview,
    then they can and will refer the person to an interview at a
    field office.
        So those are very careful adjudications. I don't know where
    he gets the idea that they are being rubberstamped.
        Ms. Chu. Thank you.
        I yield back.
        Mr. Gowdy. Thank the gentlelady from California.
        The Chair will now recognize the gentleman from
    Pennsylvania, the former U.S. Attorney, Mr. Marino.
        Mr. Marino. Thank you, Mr. Chairman.
        Good afternoon, panel. I am sorry that I wasn't here a
    great deal. But as I said, I have several hearings going on at
    the same time.
        Professor Legomsky, am I pronouncing your name correctly?
        Mr. Legomsky. Yes.
        Mr. Marino. As a prosecutor, I had the authority at the
    State and Federal level to use prosecutorial discretion, but
    only on a case-by-case basis, on an individual basis, not for a
    class. I couldn't simply say, if I wanted to, that those
    individuals driving under the influence, even though they are
    above the .08, those that are below .1, I am not going to
    prosecute. Would you agree with that?
        Mr. Legomsky. Yes.
        Mr. Marino. Okay. The President's deferred action, as far
    as I see it from a legal perspective, is simply saying that I
    am not going to prosecute now, but I may down the road and I
    may not. So wouldn't you agree with me that those who are here
    that the President wants to defer deportation are violating the
    law?
        Mr. Legomsky. Congressman, I think now I answered your
    first question too quickly. I should have said, ``Yes, but.''
    As long as discretion is left to the individual officer to
    decide whether to initiate prosecution in the case that you
    described, then it does seem to be perfectly legal. I was
    understanding your hypothetical to mean there was no
    discretion. But in this case, there is. The Secretary has
    repeatedly and explicitly told the officers that even if the
    threshold criteria are met, they are still to exercise
    discretion. And in fact, at the court's request----
        Mr. Marino. Sir, with all due respect, I am not hearing
    that from the officers. When I am hearing from the officers is
    a direct order: Do not detain these individuals. Let them go.
        And again, I am going to go back to the issue. On an
    individual basis, I say yes, there is discretion. But the
    people that are here are here illegally or else the President
    would not have to issue an order saying we are going to defer
    this. So that is a class of people, that is millions of people.
    You are an expert in these areas. From a prosecutor's point of
    view, and even from some defense attorneys' point of view that
    I have spoken with, it goes beyond what was intended concerning
    prosecutorial discretion.
        Another issue that I want to bring up with you concerning
    the way that we operate here. Now I am sure that you know, but
    the media has not been pursuing it, that the House of
    Representatives has passed a Homeland Security bill giving the
    President $1.6 billion more than he asked for, $400 million
    more this year than last year.
        So the only issue I hear from the Administration is that we
    want to shut down Homeland Security. I would beg to differ with
    you, and I think common sense dictates that if you are giving
    more money than the President asked for that would fund
    Homeland Security, it isn't the fact of shutting the Government
    down. It is the fact that the President has made it clear that
    he wants the deferred action and Congress has said no, we are
    not allowing you funds to do that. What say you?
        Mr. Legomsky. Well, on the first point, let me just observe
    that USCIS has many thousands and thousands of adjudicators,
    and if one of them told you that we are not allowed to use any
    judgment in deciding whom to prosecute, that person is directly
    violating the Secretary----
        Mr. Marino. I can clear that up. It hasn't been one of
    them. It has been many. And it has been multistate. And I have
    a little concern about the information I am getting from the
    Administration concerning what I am getting from the frontline
    people.
        Attorney General, do you want to weigh in on this
    prosecutorial discretion?
        Mr. Laxalt. Thank you, Congressman. You know, I think it is
    great to go back directly to this point, because OLA has spoken
    about this. They know that you need a case-by-case basis. And
    they are basically making a mockery of all this by using these
    magic words.
        I don't mean to attack the professor here, since he was
    formerly in this job. But they are stating that they are doing
    this, but there is just no way with this kind of volume they
    are, with the percentages that have been approved.
        While the professor discusses self-selection, as it said in
    Judge Hanen's opinion, of the 5 percent who are not making it
    through, they are not making it through because of procedural
    errors. There are still not individual case-by-case bases. You
    guys have all the authority in the world. That would be the
    next question, is to pull up a bunch of line agents and find
    out whether or not it is true that individual discretion is
    happening. I find it just impossible to believe, but just
    guessing.
        Mr. Marino. I see that my time has expired. I yield back.
    Thank you, Chairman, for fitting me in here.
        Mr. Gowdy. Thank the gentleman from Pennsylvania. The Chair
    will now recognize the gentleman from Florida, Mr. Deutch.
        Mr. Deutch. Thank you, Mr. Chairman.
        Mr. Chairman, in less than 3 days, the Department of
    Homeland Security is going to run out of funding. At that time,
    critical security operations are going to be scaled back and
    others will be shut down. Cyberattacks in North Korea won't
    shut down. The recruitment of more terrorists by ISIS won't
    shut down. And gang violence below our southern border won't
    shut down.
        This Congress is on the verge of forcing over 100,000 DHS
    employees to work without pay and put another 30,000 employees
    on furlough. They are TSA agents and port inspectors, disaster
    relief staff and intelligence experts, Coast Guard members and
    Border Patrol officers.
        My question is, is this how the new Republican Congress
    treats people who report to work every day to protect our
    country? These Americans have mortgages to pay. They have
    children to support. They have homes to keep warm, car tanks to
    fill up, and local businesses to support.
        Homeland Security funding has nearly dried up for one
    simple reason. Some Members of the majority are more concerned
    with pleasing the anti-immigrant fringe than paying the men and
    women who go to work every day protecting the security of our
    Nation.
        They are holding DHS funds hostage. Their demand? That we
    mandate the deportation of thousands of students and young
    people who arrived here illegally as small children. That we
    deport immigrants who have small children who never chose to
    break the law from the only home that they have ever known.
        Now, with little time left until our Homeland Security
    funding expires, this Committee is using precious time on a
    hearing on whether the President's immigration Executive orders
    are constitutional. Since the founding of our Nation, questions
    involving the constitutionality of executive actions have been
    heard and resolved by the judicial branch. And questions of
    whether the President's Executive orders on immigration are
    constitutional are being heard in courts as we speak.
        I happen to believe that the President's Executive orders
    on immigration are constitutional, but I also understand that
    some of my colleagues disagree. I respect that.
        Still, the fact remains that defunding DHS will not advance
    my Republican colleagues' stated goal of nullifying these
    Executive orders. Defunding DHS will not ramp up deportation.
    On the contrary, forcing border agents and immigration court
    officials to work without pay or to go on furlough most likely
    will slow down deportation.
        Now my Republican colleagues want a border security
    enforcement-only approach to immigration policy. Well, guess
    what? That is the policy that has been in place for years, and
    it is not working, even with the record-breaking deportation
    numbers of this Administration.
        It is logistically and financially impossible to locate,
    prosecute, and deport 11 million undocumented immigrants in the
    United States.
        Like other law enforcement agencies, Immigration and
    Customs Enforcement must work with the budget that it is
    handed. That means exercising discretion, choosing which
    deportation should proceed and which should be put on hold, or,
    as the President calls it, deferred.
        Do we deport a member of a gang or a college student who
    arrived here illegally when she was 3? Do we deport the mother
    of an American child or do we try to keep families together?
    These are the questions that Republicans in Congress have
    refused to answer year after year after year with a
    comprehensive immigration reform bill. These are the questions
    that my Republican colleagues left President Obama to answer
    with his November 20 Executive orders on immigration.
        The President's Executive orders don't change the law. They
    are temporary. They simply ensure undocumented immigrants
    living, working, and raising families in our communities that
    they will not be deported before someone with a felony or a
    serious misdemeanor.
        We should be working day and night to keep the Department
    of Homeland Security funded and fully operational instead of
    holding hearings on questions that the courts are in the
    process of answering. The safety of the public and the well-
    being of our communities must be the priority of immigration
    enforcement officials, and I humbly suggest that it should also
    be the priority of this Congress.
        Thank you, Mr. Chairman. I yield back.
        Mr. Gowdy. Thank the gentleman from Florida.
        The Chair will now recognize himself.
        General Laxalt, I want to make one observation before
    Professor Legomsky and I have a conversation about
    prosecutorial discretion. My colleague from New York, Mr.
    Nadler, suggested that you were naive for thinking that the 22
    separate times the President said he lacked the power to do
    what he did, you and I should have realized that that was a
    political comment and not a legal comment. So what I would ask
    you to please consider is requiring a disclaimer to go beneath
    every comment made by an elected official, so we can know going
    forward whether he or she really means it or whether it is just
    for political expediency, because I mistakenly thought the
    chief law enforcement officer for the entire country would mean
    what he said when he was making a legal observation. And it was
    just news to me from Mr. Nadler that all of that was just
    political grandstanding.
        So if you can work around the First Amendment limitations
    and require disclaimers, so we really know whether a candidate
    or an officer-holder means what he or she is saying, it would
    be helpful to me. And I would not feel as naive and perhaps you
    wouldn't either for relying on what the President said.
        Now, Professor, what are the limits of the doctrine of
    prosecutorial discretion?
        Mr. Legomsky. Well, the main limits are the ones that I
    laid out in more detail in the written statement, but to
    summarize them briefly, one, the President cannot refuse to
    substantially spend the resources Congress has provided,
    because----
        Mr. Gowdy. So if we fully funded everything he wanted with
    respect to DHS, he could not suspend any deportations?
        Mr. Legomsky. I think that is an unanswered question.
        Mr. Gowdy. Well, that is what you just said.
        Mr. Legomsky. No, I said that was one limit.
        Mr. Gowdy. But I just removed that limit. So if we were to
    fully fund that, he would lack the discretion to not enforce
    that law, correct?
        Mr. Legomsky. Well, I suppose that is theoretically
    possible. It just has never been decided by a court, because it
    would be rare to find a law enforcement agency----
        Mr. Gowdy. Well, what I am trying to get at, Professor, is,
    if your district attorney decided that he or she was not going
    to enforce or prosecute any heroin cases because he or she just
    thought the war on drugs was a lost cause, other than
    elections, what remedy would the legislative branch have if
    they disagreed strenuously with that executive branch
    employee's wholesale refusal to enforce the law? What remedy
    exists for us?
        Mr. Legomsky. The legislature could very specifically
    supersede the decision. There is nothing in the statute that
    specifically supersedes the President's priorities, but the
    legislature could----
        Mr. Gowdy. So you mean the legislative branch could put in
    that statute, the word ``shall.'' You shall prosecute.
        Mr. Legomsky. That would not nearly be enough. We all know
    that in the----
        Mr. Gowdy. Well, what should we put in our DHS funding to
    let the President know? Help us write that bill, Professor.
        Mr. Legomsky. I don't know that I could draft it off the
    top of my head.
        Mr. Gowdy. Well, take a crack at it.
        Mr. Legomsky. Okay, well, Congress could do something
    similar to what it did when it mandated very specific
    priorities. There is language that specifically mandates a
    priority on national security. There is language that----
        Mr. Gowdy. But why does the legislative branch have to pick
    priorities? Why can't we just say we want the law enforced?
        Mr. Legomsky. I was offering one option as to how a statute
    could be drafted.
        Mr. Gowdy. Well, you would agree with me that the ultimate
    remedy is the ballot box, right? If the D.A. is not enforcing
    the law, his or her voters can vote them out, right?
        Mr. Legomsky. Well, yes and no. There are certain instances
    in which plaintiffs have been found to have standing to
    challenge prosecutorial discretion. But I don't see this as
    being one of them.
        Mr. Gowdy. Do you think the consequences of elections might
    have been why the President waited until after the midterms to
    issue his Executive order as opposed to before?
        Mr. Legomsky. Yes and no. I am not sure if it was the
    outcome of the election so much as the desire to avoid the kind
    of political confusion that would result.
        Mr. Gowdy. Well, it is not political confusion, Professor,
    with all due respect. This is legal confusion, because I am
    trying to understand what the limits of prosecutorial
    discretion are.
        There are at least three different categories of law. There
    are certain laws that say you can't do something, like possess
    child pornography. There are certain laws that require you to
    do something, like register for selective service. And then
    there are laws that Congress passes, which require the
    executive branch to do things, for instance, turn in a budget
    by certain date.
        Is your testimony that the executive has the power to use
    prosecutorial discretion in all three categories of law?
        Mr. Legomsky. It would depend on the facts, and it would
    depend on the specifics that----
        Mr. Gowdy. Well, give me a fact pattern where a President
    can refuse to do something that Congress tells him or her to do
    by a certain date? That is not prosecutorial discretion, with
    all due respect, Professor. That is anarchy.
        Mr. Legomsky. I agree with you, Congressman, that Congress,
    if specific enough, could foreclose a particular type of
    exercise of prosecutorial discretion. My only point is that
    they have not done so in this----
        Mr. Gowdy. Well, let me ask you this, because I am out of
    time. Can the President suspend all deportations? And if not,
    why not?
        Mr. Legomsky. I believe not, because that would contravene
    both the Congress and passing the Immigration and Nationality
    Act generally, but----
        Mr. Gowdy. Well, how far can he go? Out of the 11 million,
    if 4 million is okay, can he go up to 8 million?
        Mr. Legomsky. My answer to that question is the same as the
    one I give a little bit earlier. It is impossible to answer
    without the empirical knowledge of whether that would still
    leave him with the ability to substantially spend the resources
    Congress has provided.
        Mr. Gowdy. What I would love, if you can, and again, I am
    out of time, I want you, and maybe it is a suggestion for your
    next law review article, I want to know if Congress fully
    funds--DHS, does the President then lack the discretion citing
    the apportionment of resources to exercise discretion.
        Mr. Legomsky. The question has simply never been answered.
        Mr. Gowdy. Well, I would love for you to take a crack at
    it. In your next law review article, I would love for you to
    take a crack at it, if you would be willing to do so.
        The Chair would now recognize his friend from New York, Mr.
    Jeffries.
        Mr. Jeffries. Thank you, Mr. Chair. Let me also thank the
    Ranking Member of the full Committee for his presence here.
        I want to start with the Attorney General and perhaps
    further explore this question of prosecutorial discretion in
    the context of the President's Executive order. So there are
    approximately, I believe, 11 million undocumented immigrants in
    this country, correct?
        Mr. Laxalt. Correct.
        Mr. Jeffries. And presumably one of the options that some
    in this Congress would like to see, who disagree with the
    President's Executive order, is the deportation of all 11
    million undocumented immigrants, correct? That is amongst the
    range of ideas within this Congress, this Committee. There are
    some presumably who would like to deport all 11 million. Is
    that fair to say?
        Mr. Laxalt. I am not here to represent any of the Members'
    views on this issue, Mr. Congressman.
        Mr. Jeffries. Okay. Do you think that is a reasonable
    solution?
        Mr. Laxalt. You know, we have entered this lawsuit as 26
    attorneys general because we believe there are serious pressing
    constitutional issues at stake. And as I have stated in as many
    ways as I can, for us, this is not about politics and it is not
    the job of the attorney general to wade into this political
    realm, and it is not something I plan on doing.
        Mr. Jeffries. Thanks a lot.
        Now, Congress has never allocated the resources necessary
    to deport all 11 million undocumented immigrants. That is an
    accepted fact. Nobody from the far left to the far right argues
    otherwise. So if the President and the Department of Homeland
    Security lack the ability, because we, Congress, have not given
    him the resources to deport all 11 million undocumented
    immigrants, doesn't the Department of Homeland Security have
    the discretion to prioritize the deportation of some
    undocumented immigrants over the deportation of others?
        Mr. Laxalt. Mr. Congressman, the 26 States that have joined
    this case, along with, at least preliminarily, the Federal
    district judge in Texas, believe that there are limits in this
    area, and we have kind of gone over them ad nauseam, but that
    the President has overstepped his constitutional authority to
    take care and execute, and, as we just discussed, failed to do
    case-by-case in almost any way you analyze--in case-by-case
    analysis.
        Mr. Jeffries. No, I appreciate that. I want to move on, but
    let me just make the point that I think should be self-evident.
    If Congress has not given the President the resources to deport
    all 11 million undocumented immigrants, then it seems that the
    Department of Homeland Security should have the ability to
    prioritize the deportation of felons over the deportation of
    families. That is a reasonable approach, since Congress has not
    seen fit to give the Department of Homeland Security the
    ability to simply deport everybody who is in this country on an
    undocumented basis.
        Now in Nevada, the Office of Attorney General is not self-
    funded, correct?
        Mr. Laxalt. I don't understand the question.
        Mr. Jeffries. Your funding is provided by the State
    Legislature, true?
        Mr. Laxalt. Yes, the general fund, yes.
        Mr. Jeffries. So you joined this lawsuit and you made the
    decision to join this lawsuit, I believe on January 26. And you
    announced that decision consistent with your views as it
    relates to the Nevada Constitution. You didn't consult with the
    Governor when you made that decision, correct?
        Mr. Laxalt. Mr. Congressman, I am an independently elected
    attorney general, and it is my job to----
        Mr. Jeffries. I am not arguing that you should have. I just
    want to establish the fact that you didn't. Correct?
        Mr. Laxalt. You know, I----
        Mr. Jeffries. It is a matter of public record. I just want
    to make sure that I am clear and you are clear and the
    Committee is clear. You didn't consult with the Governor.
        Mr. Laxalt. Well, as is in the record, our offices
    certainly communicated about this issue.
        Mr. Jeffries. I appreciate that. If I could enter into the
    record a Wall Street Journal opinion piece, ``Nevada's right
    choice on immigration,'' in support of your position and ask
    unanimous consent to do so. It is a February 2 article.
        Mr. Gowdy. Without objection.
        [The information referred to follows:]

                                   __________
        Mr. Jeffries. It says a very public dispute broke out last
    week when Nevada Attorney General Adam Laxalt went against
    Governor Brian Sandoval's wishes and joined a lawsuit filed by
    25 other States. The two of you are both Republicans who agree
    that the current immigration system is broken and that
    comprehensive reform is necessary, but Mr. Sandoval opposes
    litigation and has suggested that new immigration reform
    legislation is the best way to proceed.
        That is his perspective. I would assume that even though
    the two of you disagree, even though this Republican Governor
    believed that you took unilateral action, would it be
    reasonable based on his disagreement with your actions to
    defund the Office of the Nevada Attorney General?
        Mr. Laxalt. Mr. Congressman, there is no way something like
    that would happen. Obviously, the Attorney General Office is
    the top law enforcement for the entire State. We have many,
    many statutory duties to protect our citizens from law
    enforcement, to consumer fraud. And a lot of this is much ado
    about nothing. The Governor and I work together on many, many
    issues every day. And I am the legal adviser to all of our
    agencies as well as all of our boards and commissions. So, you
    know, this was an unfortunate one issue, but as I said, there
    is no issue with the Governor and me.
        Mr. Jeffries. Thank you. My time has expired, but I hope
    you would also agree, based on that same logic, that even
    though there is a disagreement between the President, Democrats
    in Congress, and congressional Republicans, it would be
    unreasonable, to use your phrase, to defund such an important
    agency, the Department of Homeland Security, simply because of
    a political dispute.
        I yield back.
        Mr. Gowdy. I thank my friend from New York.
        Before I go to the gentleman from Idaho, Mr. Laxalt, I
    would say, I think have any independent attorney general is a
    great idea, something we ought to try on the national level at
    some point.
        With that, Mr. Labrador?
        Mr. Labrador. Thank you, Mr. Chairman. I would like to
    point out that my good friend Mr. Jeffries is comparing apples
    and oranges. There is nobody in Congress who is trying to
    defund Homeland Security except for the Democrats. We actually
    funded fully the Department of Homeland Security, except for
    the President's illegal and unconstitutional actions. It seems
    like my friends on the other side are willing to put 5 million
    illegals ahead of the safety and security of the United States.
        I just want to make that clear, because we passed a bill
    that fully funds--in fact, as was previously stated, not only
    fully funds but funds above the levels that the President asked
    for. We completely funded the Department of Homeland Security.
    The only people that are stopping this funding are Democrats in
    the Senate that are not even willing to listen to an argument
    why we should have this bill passed through Congress.
        So there is nobody here on my side who is trying to defund
    this.
        Mr. Legomsky, I listened to your testimony. I have been
    sitting here the whole time. I understand you are a professor
    of law, and you also were the chief counsel for USCIS. Is that
    correct?
        Mr. Legomsky. Yes.
        Mr. Labrador. Did you ever practice immigration law? Did
    you ever do private practice?
        Mr. Legomsky. No, I did not.
        Mr. Labrador. Okay, I did 14 years of private practice in
    immigration law, and I defended and represented a lot of people
    who were in legal jeopardy in the immigration system.
        What do you think one of the attorneys working for ICE or
    one of the attorneys working at the time for INS would have
    said if I would have gone up to them and said, Mr. Attorney or
    Mrs. Attorney, could you please give me prosecutorial
    discretion because you guys don't have enough funds to enforce
    the law in the United States? What do you think the answer
    would have been to my little office in Idaho?
        Mr. Legomsky. If the only reason were that they don't have
    enough funds, the answer probably would have been no. But, of
    course, the real question is, we don't have enough funds and
    here is why I think my client should be a low priority. In that
    case, I hope a reasonable ICE agent would take that----
        Mr. Labrador. I asked that many times, and you know what
    the answer was every single time? No. Because they never did
    that, because you are confusing what is really happening here.
    And I have been listening to you very clearly.
        You said, your own words were that the there is direct
    criteria, so there is a threshold of criteria. Can you name one
    case that has been put in deportation or removal proceedings,
    just one case that has been put in deportation or removal
    proceedings, that has met the threshold of criteria?
        Mr. Legomsky. I have to answer in two parts, I am afraid.
        Mr. Labrador. Just one case.
        Mr. Legomsky. I understand. But I have to explain.
        Judge Hanen in his order specifically ordered the
    Government to give some examples of cases in which people were
    found to have met the threshold criteria but nonetheless were
    denied----
        Mr. Labrador. Have they provided that information?
        Mr. Legomsky. Yes. That is what I was leading up to.
        Not only did they provide the information but Mr. Neufeld
    in his sworn affidavit offered several specific examples of
    such cases. Nonetheless, Judge Hanen inexplicably said the
    Government has not provided information that the cases----
        Mr. Labrador. Professor Blackman, could you address that
    question?
        Mr. Blackman. So in paragraph 24 of the Neufeld
    declaration, the only examples cited were gang membership, gang
    affiliation, or fraud. The only examples the Department of
    Justice could put forth in defending this policy was gang
    membership or fraud. Those are criteria in zone one. Gang
    membership would make you a high priority for national security
    risk because of your gang membership. And fraud, I don't think
    there is much discretion saying someone committed fraud or was
    dishonest with the tribunal.
        The only example----
        Mr. Labrador. So are you saying fraud in the application or
    previous fraud?
        Mr. Blackman. Previous fraud for lying on the application,
    lying on a previous application, right? These are the only
    examples the Neufeld declaration brought forth. If these were
    the best examples they have, then there isn't much discretion.
        Mr. Labrador. And those are criteria, especially the fraud
    criteria, that would make you ineligible for any form of relief
    under immigration law.
        Mr. Blackman. Yes. And that has been the Secretary's
    policy. That has nothing to do with case-by-case discretion. So
    if that is the best they can gin up, there is not much there.
    And that was actually in paragraph 24 of the Neufeld
    declaration.
        Mr. Labrador. Okay, let us talk now, you say it is not
    illegal to tell a person we are not going to proceed against
    you, right? That isn't putting you in differed action. And I
    think you have been misleading us a little bit. I don't think
    you are doing it on purpose, because I have really enjoyed your
    testimony. But there is a difference between not deporting
    somebody, not putting somebody in removal proceedings, and
    putting them in deferred action, is there not?
        Mr. Legomsky. Yes, but the difference is that in the latter
    case, you are affirmatively telling them that.
        Mr. Labrador. No, but the reason you are doing it is
    because you want to grant them benefits. That is the main
    difference.
        I had cases where they were put into deferred adjudication,
    and it is because there was some criteria that they met. They
    were either helping the prosecutor, they were helping the local
    police. There was some criteria that they needed to stay in the
    United States so they could be granted affirmative benefits.
    That is why we have deferred adjudication.
        Sometimes immigration chooses not to deport somebody, but
    the reason you put somebody in differed action is to grant them
    a specific benefit.
        That is what this Administration is doing. This
    Administration is deciding not just that we are not going to
    deport people. They are saying we want to put them in a
    criteria that, under the law, they are going to receive
    specific benefits, and they are doing that.
        So could this President say tomorrow that I want every
    person who is here in the United States illegally from Mexico,
    I want to put them in deferred action? Could he say that?
        Mr. Legomsky. My gut instinct is to say that that would be
    very difficult because it would turn on the empirical question
    of whether, after doing so, you are still able to substantially
    spend the resources Congress intended.
        Mr. Labrador. You know, you keep saying that. They can
    always suspend the money. That is the most ridiculous statement
    I have heard. They will always spend the money. The question
    is, does he have the discretion to just pick one category of
    people and say that I am not going to deport you. That has
    never been done in immigration. It was always done on a case-
    by-case basis. And at this point, this President has decided
    not to do it on a case-by-case basis but to categorize groups
    of people and put them into a category that grants them
    benefits. And that is illegal.
        Mr. Gowdy. The gentleman is out of time. The professor may
    answer, if he would like to.
        Mr. Legomsky. Sure. Well, as you know, Congressman,
    especially from representing people in the past, there are lots
    of reasons people have been granted deferred action, including
    a range of humanitarian reasons.
        But as to your last example, where he granted only to
    nationals of Mexico, I would just mention that there are lots
    and lots of cases in which Presidents have granted functionally
    equivalent discretionary relief to people based solely on their
    country of origin. So that would present a close question.
        Mr. Labrador. Based on TPS, and something that the law
    already granted the President the authority to do, so let us
    not make that----
        Mr. Legomsky. It could be defund enforced departure or some
    other remedy.
        Mr. Gowdy. The gentleman is out of time. I thank the
    gentleman from Idaho.
        The Chair will now recognize the gentleman from Illinois,
    and apologize for overlooking him last time. It was
    inadvertent.
        Mr. Gutierrez. I know that, Mr. Chairman. It is good to be
    with you all this afternoon.
        Mr. Chairman, could I have my staff assistant hand out a
    memorandum that was November 4 to all of our witnesses, so they
    have a copy?
        Mr. Gowdy. Yes, sir.
        Mr. Gutierrez. Thanks.
        Ms. Lofgren. While that is being done, can I ask unanimous
    consent to put in the record the declarations of Donald
    Neufeld; the ICE Director, Sarah Saldana; and the CBP
    Commissioner, Mr. Kerlikowske?***
    ---------------------------------------------------------------------------
        ***Note: These submissions are available in the Appendix.
    ---------------------------------------------------------------------------
        Mr. Gowdy. Without objection.
        Mr. Gutierrez. Thank you, Mr. Chairman.
        First of all, I think we should use this document because
    it is a letter written in 1999 signed by Henry Hyde and Lamar
    Smith and Bill McCollum and a series of other outstanding
    Republican Chairmen of this Committee, in which they write to
    Janet Reno, saying you guys have to promulgate some discretion
    here. You haven't done it enough. And you have the ability and
    the right in law to do exactly that, and you haven't done it.
        So I just want to state for the record that not our party,
    but the majority party, has stated and stipulated through this
    memorandum that they believe in discretion, and that the
    Administration should use discretion. And in the memorandum,
    just for the public, it says, ``We write to you because many
    people believe that you have the discretion to alleviate some
    of the hardships, and we wish to solicit your views as to why
    you have been unwilling to exercise such authority in some of
    the cases. In addition, we ask whether your view is that the
    1996 amendments somehow eliminated that discretion.''
        Mr. Collins. Will the gentleman yield?
        Mr. Gutierrez. I can't.
        Mr. Collins. You can't, or not possible, or don't want to?
        Mr. Gutierrez. Not right now. I am in the middle of
    reading----
        Mr. Collins. Well, you are reading a letter----
        Mr. Gowdy. The gentleman from Illinois controls the time.
        Mr. Collins. Will he yield?
        Mr. Gutierrez. I can't. If I could have that time back,
    because I was trying to have a conversation----
        Mr. Collins. Well, I will be happy to give your time back,
    if you put it in proper context. The letter, which----
        Mr. Gowdy. The gentleman from Illinois controls the time.
        Mr. Gutierrez. Why are you so upset? You have three
    witnesses to one already.
        Mr. Collins. Well, because when you left the room the other
    day I talked about----
        Mr. Gowdy. The gentleman from Illinois controls the time.
        Mr. Gutierrez. Even the Attorney General has to laugh at
    that. I mean, it is 3-to-1. It is stacked.
        Mr. Collins. Well, 3-to-2 right now.
        Mr. Gutierrez. Oh, 3-to-2, okay.
        Mr. Gowdy. Just so the gentleman knows, we stopped the
    clock.
        The gentleman from Illinois.
        Mr. Gutierrez. Thank you so much. I came here to try to
    have a conversation, but you see how it gets in here, just
    reading a memorandum signed. It is here. I have entered this
    into the record a dozen times, so everybody should have a copy
    of it by now, and everybody should know I am bringing it up
    each and every time anybody talks about discretion, because it
    is established.
        I mean, Henry Hyde, Illinois, Chairman of the Committee,
    signed this. Lamar Smith, no pushover when it comes to those
    illegal immigrants and how the American Government should treat
    them.
        So it says, ``Indeed, INS General and Regional Counsel have
    taken the position, apparently well-grounded in case law, that
    INS has prosecutorial discretion in the initiation or
    termination of removal proceedings. See attached memorandum.
    Furthermore, a number of press reports indicate that the INS
    has already employed this discretion. Optimally, removal
    proceedings should be initiated or terminated only upon
    specific instructions from authorized INS officials, issued in
    accordance with agency guidelines. However, the INS apparently
    has not yet promulgated such guidelines.''
        So let us make it clear, it is well-established in the law,
    unlike other parts of the Federal Government, that there is
    discretion when it comes to the application of the law in
    immigration law.
        And the attorney general, I have a definition here of
    politician. Are you a politician? I have Webster's. Are you a
    politician?
        Mr. Laxalt. I am an elected representative, yes.
        Mr. Gutierrez. You are a politician, right? I will find it,
    it will say elected representative. I just want to get that in
    there. You run for public office. So I can find you other
    definitions of politicians.
        So just that we are clear, you are in the politics
    business, right? And that is what you do and that is how you
    earn a living.
        So I just came here to say, look, the Supreme Court is
    going to answer this for us all. That is why we are a Nation of
    laws, right? And we all know where this is going. I am not a
    lawyer, but I happen to know this is going to go to the Fifth
    Circuit.
        They picked the most conservative judge they could possibly
    find to hear this case. They didn't come to Illinois with this
    case, right? They didn't go to New York. They didn't even go to
    Nevada to pick the case. No, they went and they found the judge
    who had already--not him but in his district. So they went to
    Southern Texas.
        So, look, this is going to be decided. But I just wanted to
    make it clear, because there seems to be some confusion, Mr.
    Chairman. People keep saying that what the President did was
    unconstitutional. And the former attorney general and now
    Governor, another politician in Texas, who was the attorney
    general, tweeted it is unconstitutional. Any of you read the
    decision, anybody read the decision and he said it was
    unconstitutional? Nope. Yet you have the Governor of the State
    of Texas, a former attorney general, saying it is
    unconstitutional.
        You see the parameters were dealing in. We are dealing in
    political parameters on what should be an issue about how it is
    we deal with an immigration system.
        I just want to go back to my colleagues who spoke earlier.
    The fact is, 4 percent, many of my colleagues like to argue the
    following, ``Well, why don't you just round up all the
    criminals and deport them?'' Because we only provide sufficient
    money for 4 percent. Let me repeat that: We only provide--and
    no one has ever come here to suggest that we should provide any
    more money. So it is always about the criminals and always in
    this context.
        And even my friend, I am sorry he went, he said, oh,
    Mexico. Why are we always talking about Mexico? Why did that
    Federal judge only describe the border? What happened to the
    border at LAX? What happened to the one at O'Hare? What about
    the one in New York City, Kennedy? All of those are points of
    entries in which millions and millions of undocumented
    immigrants have come into this country, documented and have
    overstayed, and are part of the 11 million, and, therefore, can
    be provided relief under the President's order.
        So my only point to you is, you are not going to deport 11
    million people. This is a political case. It will be judged on
    its merits in the Supreme Court.
        And I will just and with this, because the Chairman--Mr.
    Chairman, I want to find a solution to the problem, not keeping
    having hearings here where the four distinguished jurists who
    all know a lot about the law are not going to decide the case.
    So why don't we find a solution to the problem of our broken
    immigration system, so that we can provide solutions to people,
    because I am sure most of us would agree we should go after
    gangbangers, we should go after drug dealers, rapists, and
    murderers, and not people trying to raise their families in the
    United States that are caught up in a broken immigration
    system.
        And lastly, this is a very perilous place for my friends in
    the majority, because you have 5 million American citizen
    children who are never going to forget for generations how it
    was you treated their mom and their dad, how it was you treated
    their mom and their dad, and if you treated them in a cruel
    manner.
        That is the community. We are not a community in which the
    undocumented and the documented live in a caste society. No,
    you know what? Fourth of July, we are having hotdogs and
    hamburgers, and on Thanksgiving, we are having turkey all
    together, with our papers and without.
        Mr. Gowdy. I am trying to treat my friend from Illinois in
    a good way.
        Mr. Gutierrez. You have been so generous, and I apologize.
        Mr. Gowdy. No, you do not need to apologize. I thank the
    gentleman from Illinois.
        The Chair would now recognize the gentleman from Texas, the
    former U.S. Attorney, Mr. Ratcliffe.
        Mr. Ratcliffe. Thank you, Mr. Chairman. I would like to
    yield my time to the gentleman from South Carolina, Mr.
    Collins.
        Mr. Gowdy. I think he is from Georgia.
        Mr. Ratcliffe. Is there a difference?
        Mr. Gowdy. We kicked him out of South Carolina several
    years ago. He has warrants outstanding. He is from Georgia now.
        Mr. Collins. I just wanted to clarify again, and we did
    this last time. It is Groundhog Day. Here we go again.
        The letter spoken of, which I went through this about a
    month or so ago, was dealing with legal permanent residents. It
    was not dealing in this discretion of illegal or crossing--it
    was not dealing in this issue. So basically to take a letter at
    the time when things were taken out of a 1996 legislative
    reform in dealing with this, let us at least be fair with the
    letter. And to come up here and to use a letter, and take
    people who are no longer in this body, who no longer can defend
    themselves, and even some who happen to be here and just not on
    this Committee, to say that is just wrong.
        I believe the gentleman from Illinois has a good heart. I
    just believe he is dead wrong on many things dealing with this.
    This is one though, let us at least have an honest discussion
    about this. Let us not at least throw in names so you can make
    yourself basically appear an argument that is not there. This
    is what is wrong right now with this. This is what is wrong
    with this argument. This is what is wrong the American people
    to get.
        And I appreciate the gentleman yielding. And with that, I
    yield.
        Mr. Ratcliffe. I thank the gentleman. I am not sure if my
    faux pas offended South Carolinians or Georgians, but my
    apologies to both.
        Mr. Collins. Probably equally.
        Mr. Ratcliffe. I thank all the witnesses for being here
    today. I enjoyed reading your testimony and hearing some of it.
        Professor Legomsky, it is very clear to me that you
    obviously think the President's November 20 Executive order was
    constitutional. But it also appears to me that while you think
    the President's action was lawful, from reading the tone and
    tenor of your testimony and your articles, it also seems to me
    that you want him to be right.
        Mr. Legomsky. I do. I believe in what he is doing and think
    he is taking sensible actions. So yes, I confess to that.
        Mr. Ratcliffe. So do you consider yourself an advocate for
    the rights of people who are in this country illegally?
        Mr. Legomsky. I consider myself an advocate for the legal
    rights of all people, whether they are here illegally or not.
    Everyone has certain rights.
        Mr. Ratcliffe. Okay, so people who come across our borders
    without permission, are they here illegally?
        Mr. Legomsky. Yes.
        Mr. Ratcliffe. Okay. Is there reason that you never refer
    to them as illegal aliens or folks who are here illegally?
        Mr. Legomsky. Yes. I have referred, on occasion, to people
    who are here illegally, but I don't like the phrase ``illegal
    alien'' because I don't like the idea that the word ``illegal''
    would be used to describe a person. They have acted illegally.
    They have entered illegally. I have no objection to that. But
    the phrase ``illegal alien'' offends many people because you
    are defining an entire person by one act.
        Mr. Ratcliffe. So to the Chairman's prior question, as I
    heard your testimony, is the issue here really a constitutional
    one or is it a budgetary issue? In other words, if we remove
    the limited resources question and issue, does this all go
    away, in your opinion?
        Mr. Legomsky. I think that is a very thoughtful question,
    and it does tie in with a thoughtful question that Mr. Gowdy
    had asked earlier. I don't think you can separate the two.
        Whether this is constitutional depends on whether the
    President has a justification for choosing the priorities that
    he has. And one of the factors that has informed those
    priorities is the reality of limited funds.
        Mr. Ratcliffe. Professor, I think I know your thoughts on
    Judge Hanen's issuing the injunction. I think it is very clear.
    But I missed some your testimony. Have you opined on whether or
    not you think the Administration has violated the APA?
        Mr. Legomsky. I have. I do not believe they have violated
    the APA, and my basic reason, which I can state succinctly, is
    that the only argument made for why the APA notice and comment
    procedures might be thought to apply would be that they didn't
    really involve the exercise of discretion. And for all the
    reasons given in my written testimony, I think there is simply
    no factual support in the record for that conclusion.
        Mr. Ratcliffe. Okay, what your written testimony that was
    provided doesn't address is the Government's response in
    seeking a stay to the injunction. Do you agree that the
    Government is on solid legal footing there?
        Mr. Legomsky. I am sorry, do you mean in requesting a stay?
        Mr. Ratcliffe. Yes.
        Mr. Legomsky. I do. A stay is a discretionary judgment, but
    certain factors inform it, one of which is how likely you are
    to succeed on the merits, how much damage would there be to
    either side if the stay is not granted, and so on.
        I think reasonable minds can disagree about the stay. My
    own view is that it would make sense to grant it.
        Mr. Ratcliffe. Well, can you explain to me, Professor, from
    your perspective, how our Federal Government is irreparably
    harmed by not conferring benefits on what they refer to as
    third parties, what I would refer to as folks who are in this
    country illegally? Can you explain to me how the Government
    would be irreparably harmed?
        Mr. Legomsky. In the stay motion, the Government asserted
    two different harms. One harm is simply to the Government's
    authority granted by Congress to establish national immigration
    enforcement policies and priorities. The other harm, which is
    much more tangible, though, is that at this point the
    Government has already invested resources in hiring
    adjudicators, leasing physical space, and so on, that will be
    eventually recouped by the revenue that comes in from the
    request. But if that were to be shut down, then this money
    would be wasted. And in the meantime, the Government does have
    to continue its preparations, if it is to resume this on
    schedule.
        Mr. Ratcliffe. Well, so the Government asserts, to your
    point, ``When these harms are weighed against the financial
    injuries claimed by the plaintiffs, the balance of hardships
    tips decidedly in favor of the stay.'' I hear you saying that
    you agree with the Government's assertion, in that respect.
        Mr. Gowdy. The gentleman from Texas is out of time, but you
    can answer the question as succinctly as you can, Professor.
        Mr. Legomsky. Sure. I strongly disagree with the idea that
    Texas is going to lose even one penny because of this for
    several reasons.
        First of all, they never allege that they are going to have
    to hire a single additional person to process these driver's
    licenses. It is the marginal additional costs, not the average
    amortized cost that should count.
        Secondly, they don't----
        Mr. Ratcliffe. Wait a minute. In fairness, Professor, all
    of these folks, if they were allowed to stay under the
    President's Executive order, they could apply for Texas
    driver's licenses.
        Mr. Legomsky. Yes.
        Mr. Ratcliffe. And each of those would come at a cost to
    the State of Texas of $130 per license times hundreds of
    thousands of folks in the State illegally.
        Mr. Legomsky. Well, two things. The first point----
        Mr. Gowdy. Say them as quickly as you can. I am already 2
    minutes over, okay?
        Mr. Legomsky. Okay, sorry. I will go to the second point.
    The second point is that while Texas, to its credit, offsets
    that cost by the revenues it would receive from the
    applications, it still comes out to a negative, if that is all
    you take into account. What they don't take into account is
    what so many empirical studies have now demonstrated, which is
    that their tax revenues will increase dramatically as a result
    of DAPA and DACA. There has even been a study that specifically
    finds the same thing to be true for the State of Texas. So they
    will gain financially quite a bit from this.
        The third thing is that if you adopted this theory of
    standing, just think for a moment of what it would lead to. If
    the mere fact that, when a Federal benefit is granted, someone
    could then apply for a State benefit were enough to confer
    standing, then every time USCIS grants anything to anyone, the
    State of which that person is a resident could then come in and
    say we have standing to challenge that. Surely, that is not
    what the standing doctrine was designed to accomplish.
        Mr. Gowdy. Thank the gentleman from Texas.
        The Chair will now recognize the gentleman from Michigan,
    Mr. Bishop.
        Mr. Bishop. Thank you, Mr. Chair.
        First of all, I want to thank all of the witnesses. It has
    been a very enlightening hearing. So thank you all for being
    here today.
        We have had several exchanges from Members regarding this
    idea of prosecutorial discretion. As a former prosecutor
    myself, I understand and appreciate the need for prosecutorial
    discretion when it comes to ensuring justice. That is the role
    of the prosecutor.
        However, what I do not understand, in this context, is how
    this remedy that has been created, deferred action, exceeds
    what we now know as prosecutorial discretion. And in fact,
    Professor Foley, you indicated that the President's immigration
    order is unconstitutional for three reasons, and this was the
    second reason, and that was the creation of the remedy deferred
    action. Can you expound on that and tell me how it is different
    from ordinary prosecutorial discretion?
        Ms. Foley. Yes. It is a really great question because
    deferred action is something that Congress has authorized in
    specific statutes for specific populations in the past. So
    there are some statutes out there that say X, Y, or Z is
    entitled to deferred action. Now normally when something like
    that happens, if a court looks at the grant of deferred action
    in another area, let us say A, B, or C, the court would say,
    well, the fact that Congress clearly knows that deferred action
    exists and has granted it for X, Y, and Z necessarily implies
    that they don't intend to grant it for A, B, and C. So that is
    point one.
        The other thing is that deferred action has been granted
    administratively, not by Congress in statute, but by the
    executive branch on several occasions in the past. My written
    statement elaborates on four instances that the OLC relied upon
    in blessing the constitutionality of the President's action.
        For every single one of those, except for the widower or
    widow one that President Obama took in 2009, all three of them
    involved a situation where Congress had already passed a
    statute that gave this group legal status. And deferred action
    was given administratively as a bridge until they could achieve
    the processing of that status.
        So in those situations, you can see that granting
    administrative deferred action is perfectly consonant with
    congressional will.
        Now the widow or widower one I don't think was legal,
    frankly, because that was granted at a time when the applicable
    statute did not grant that kind of deferred action to widows or
    widowers. In fact, several months later, after that
    administrative deferred action was granted, then Congress
    amended its statute. But at the time the grant of deferred
    action was taken, that statute did not exist. And, therefore, I
    don't think you can say it was consonant with congressional
    will.
        Now once Congress passed that statute, then it is game
    over. And in fact, at that point, the Administration receded
    from its administrative grant of deferred action and just said
    it is none of our business anymore. Congress has legislated it.
        And that is all working correctly, right? So we will never
    know whether that was legal or not, because it got mooted out
    by subsequent statute.
        Mr. Bishop. Thank you very much.
        Professor Blackman, is this something that you can comment
    on as well?
        Mr. Blackman. Yes, absolutely. So the Office of Legal
    Counsel memorandum posed the key question: Is the President
    acting consonant with congressional policy? And the key aspect
    of consonance the President has to look at whether Congress has
    acquiesced to it. As Professor Foley noted, there are several
    instances in the past where Congress has acquiesced to this.
        But in each case for those deferred actions, it serves as a
    temporary bridge where there was some lawful status, something
    happened, and then something else happened, right? So to give
    you a good example, in 2005 when Hurricane Katrina hit the
    Gulf, you had a lot of students who were studying at
    universities. Their schools were shut down. They lost their
    status. They were foreigners.
        So the President said I will give you 4 months to enroll at
    another university. If you take that time to enroll at another
    university, you will not be deported in that time.
        In my mind, that is a good example of deferred action.
    Someone had some status. Something bad happened, like Hurricane
    Katrina. And then they lost it, and then you give it back to
    them later. What is happening here is that there is no prospect
    of success.
        So DAPA beneficiaries will not get anything after a 3-year
    period is up. Nothing. The only way that they can get a visa if
    perhaps their child turns 21 in the interim and perhaps they
    have a 10-year bar on return to the country and that is waived.
    There is no opportunity for the DAPA beneficiaries to get any
    relief.
        This is not really a tunnel. It is more of a bridge to go
    through the law. I think that makes it inconsistent with the
    congressional policy and, therefore, a violation of the ``take
    care'' clause of the Constitution.
        Mr. Bishop. Thank you very much.
        Mr. Gowdy. Thank the gentleman from Michigan.
        The Chair would now recognize the gentleman from Iowa, Mr.
    King.
        Mr. King. Thank you, Mr. Chairman. I thank all the
    witnesses for your perseverance here today, too. This is a
    relatively long hearing for us, and I picked up a lot sitting
    here listening.
        I wanted to make a point here, and then move on to a
    broader one, and that is this. Some years ago, I went through
    an exercise of what Congress is obligated to do under Article
    III. This has to go back to about 1802, when there were a
    couple Federal districts that were abolished by Congress, court
    districts. I read through all of that debate, and so I began to
    ask this question. What we are obligated to do under Article
    III is produce a Supreme Court of the United States. And we
    could conceivably abolish all of the Federal districts and the
    only thing left would be the Supreme Court. And the only
    obligation we have there, since it calls for a Chief Justice,
    is to have a Chief Justice. But we don't have to fund the
    building or his staff. He could be at his own card table with
    his own candle. That is what Congress is obligated to do.
        So I would suggest that Article III is pretty limited, if
    Congress decides to assert its power and authority over it. If
    nothing else, the workload would stack up on Chief Justice
    Roberts. So that was just an exercise in constitutional
    discussion, more or less kind of metaphysics.
        So I just went down through Article II. Since the President
    is usurping Article I authority, what does the President of the
    United States have under Article II? I went through a number of
    these things here.
        He is the Commander in Chief of the Armed Forces. Congress
    forms the Armed Forces. They may not exist, at least
    theoretically.
        He may require an opinion of the principal officers of each
    executive department. He may, but there may not be departments
    for him to require an opinion of.
        Then he shall have power to grant pardons and reprieves,
    and he has, with the advice and consent of the Senate, treaties
    and appointments, but then he is subject to the authority of
    the United States Congress.
        So in the end, the question comes down to, what enumerated
    powers does the President have independent of congressional
    approval? That turns out to be six.
        He may pardon.
        He shall deliver the state of the union. If it is not an
    address, it might be in a letter, as it was under the early
    Presidents. So he could send a letter to Congress and meet that
    requirement.
        He shall recommend legislation. Well, he does that without
    having to be prompted very much.
        He may convene Congress. He may adjourn, but so may
    Congress adjourn, so that is really not a power that is
    effective.
        He shall receive ambassadors and ministers. That means that
    the President then shall be the head of state and conduct the
    functions of a head of state, at least diplomatically.
        And the last one is this wonderful one, ``He shall take
    Care that the Laws be faithfully executed.''
        So when you look through that, the only two that have any
    power really at all is the power to pardon, which could be
    significant under certain circumstances, but the power and the
    obligation ``to take Care that the Laws be faithfully
    executed.''
        And I don't know that I have heard an argument as to how
    the President might be doing that under the circumstances we
    are discussing here today. Not only that, not only is he
    violating his own oath of office, it is very, very clear that
    he has said, ``I am not going to enforce the laws that I don't
    want to enforce. And by the way, Congress, I am going to
    recommend legislation to you, and if you don't pass that
    legislation, then I am going to implement it by my executive
    edict,'' not always Executive order, executive edict. ``And I
    am going to take care that the laws that I don't want to be
    executed are not, including the section that requires that
    those who were interdicted by law enforcement and immigration
    be placed into removal proceedings,'' shall be placed into
    removal proceedings. And we have a President who says they
    shall not. And he has ordered his executive branch to violate
    laws.
        And by the way, some of this is not in litigation in the
    court case we are talking about over the November 20 edicts,
    but it is under litigation in the Crane v. Johnson case that
    was filed a couple years ago, Crane v. Napolitano.
        So I would just ask this question, and that is, what if
    Congress decided to usurp Presidential authority? What if
    President decided, ``The President is not doing his job. He is
    not keeping his oath. Why don't we form a justice department
    and fund a justice department and direct and order a justice
    department?''
        I would ask first the question of Professor Foley. If
    Congress decided to do that, we could enforce these laws. What
    would be the consequence of such a thing?
        Ms. Foley. It is a great question. I posed this before, the
    last time I testified before the Committee on the President's
    action with regard to Obamacare and delaying the employer
    mandate. The hypothetical I posed was what if the Speaker of
    the House decided he wanted to appoint himself Commander in
    Chief? But it is the same idea, right?
        Article II can supposedly usurp Article I, but Article I
    can't usurp Article II? It doesn't work either way. I mean,
    neither one is constitutional.
        The point about this being prosecutorial discretion, just
    ask yourself, everybody I think on this panel agrees that the
    $6 million legal question on prosecutorial discretion is, is
    what the President doing consonant with congressional will,
    because you get to control your statutes and he has to
    faithfully execute them under the Constitution? So is what he
    is doing consonant with what you want and what you have
    directed, pursuant to the INA? I think the answer is patently
    that it is not consonant with congressional will.
        And just as a thought experiment, again, ask yourself this:
    Why didn't previous Presidents think they had the authority to
    do this? If this was so politically palatable for such a long
    period of time, the last 30 or 40 years, why didn't President
    Clinton do it? Why didn't President Carter do it? The reason
    they didn't do it is because no President thought they had the
    authority to do this because they didn't think Congress had
    authorized it under the INA, which explains why the President
    went around 20-plus times and said he didn't have the legal
    authority to do this.
        By the way, the Supreme Court has said as much. There is a
    case called Utility Air Regulatory Group v. EPA, involving
    EPA's carbon tailoring rule that was decided last summer. In
    that case, the Supreme Court basically said, look, one of the
    reasons why the carbon tailoring rule violates separation of
    powers, and it did violate separation of powers, is because the
    EPA is promulgating a regulation that flies in the face of
    years of understanding of what the Clean Air Act was thought to
    give the authority to the EPA to do as a regulatory matter.
        It is the same thing here, the same form of construction of
    Congress' will should take place in this case.
        Mr. King. In the end, and in conclusion, Mr. Chairman, it
    is the people who decide the division between the three
    branches of government. And I think they need to declare war on
    the enemies of the Constitution.
        Mr. Gowdy. The gentleman from Ohio yields back his time.
        The gentleman from Florida, Mr. DeSantis, is recognized.
        Mr. DeSantis. Thank you, Mr. Chairman.
        Professor Legomsky, I just want to make sure I have it
    right. Obama's statements 22 times that he said he didn't have
    the authority, you are saying that he just meant that he didn't
    have the authority to suspend all deportations. Is that
    accurate?
        Mr. Legomsky. I think he went further than that. He said
    his authority is limited. He didn't have the authority to
    suspend all deportations.
        Mr. DeSantis. Right, but you deny that he has disclaimed
    the authority to do what he did in November, correct?
        Mr. Legomsky. Right.
        Mr. DeSantis. I think that that is at variance with the
    facts.
        February 14, 2013, the President of the United States, ``I
    am not the emperor of the United States. My job is to execute
    the laws that are passed. Congress right now has not changed
    what I consider to be broken immigration system. What that
    means is that we have certain obligations to enforce the laws
    that are in place, even if we think that, in many cases, the
    results may be tragic here. We have kind of stretched our
    administrative flexibility as much as we can.''
        September 17, 2013, he said, ``What we can do is then carve
    out the DREAM folks saying young people who have basically
    grown up here as Americans that we should welcome. But if we
    start broadening that, then essentially I would be ignoring the
    law in a way that I think would be very difficult to defend
    legally, so that is not an option. What I have said is that
    there is a path to get there, and that is through Congress.''
        So those are instances not where he is saying he can't
    suspend everything. He is specifically saying he has reached
    his administrative limit, that he has reached the limit of what
    he can do. And these are in response to questions that
    specifically wanted to address some of the classes of people
    that he has now addressed with this latest executive action.
        So to say, as you characterize it, is completely at
    variance with the facts. And I think it really undermines your
    credibility.
        Let me talk about the political statements versus legal
    statements.
        Professor Blackman, I think you correctly point out in your
    testimony that this is not just all about the courts. Congress
    has a role there. The powers we have are political powers and
    political checks. So when the President is out saying these
    things, the idea that he is making political statements that
    don't matter--when he vetoed the Keystone pipeline, he didn't
    go to court to do that. He took a political action based on the
    power he had an Article II of the Constitution. And you cited
    James Madison in Federalist 51. Madison, is this not correct,
    in a later Federalist Paper said the power of the purse is
    Congress' most powerful check, correct?
        Mr. Blackman. Yes, that is right.
        Mr. DeSantis. So Madison envisioned, if an executive branch
    is acting a certain way, Congress could always simply remove
    the funds so that the executive could not continue with the
    actions, right?
        Mr. Blackman. That is right.
        Mr. DeSantis. So that is perfectly legitimate that Congress
    would restrict funding, if they believe their powers have been
    infringed upon.
        Mr. Blackman. Yes.
        Mr. DeSantis. Do you also think that the advise and consent
    power that the Senate has is a legitimate check on Presidential
    overreach? In other words, if the President is putting someone
    in a position who has pledged to continue conduct that we think
    infringes on our authority, the Senators could use that as a
    legitimate reason to deny someone appointment?
        Mr. Blackman. It is, and just 6 months ago, the Supreme
    Court rebuked the Administration for making illegal recess
    appointments in the Noel Canning decision. So this is a part of
    a very long trend of when the Congress is gridlocked and they
    will not get along, the President finds ways of bypassing it.
        Mr. DeSantis. And the courts do have a role, but it is a
    limited role to cases and controversies. And isn't it the case
    that there are going to be disputes between executive and
    legislative branches that may not give rise to a case of
    controversy, and thus not be ripe for adjudication in the
    courts?
        Mr. Blackman. That is right.
        Mr. DeSantis. So if you expect the courts to do everything,
    well, then we are leaving a lot of authority out there that
    will essentially be uncontested if Congress isn't willing to
    act.
        Professor Foley, you mentioned that the key issue is if the
    executive actions are consonant with the underlying law. Isn't
    it the case that the underlying law prohibits people who are
    here illegally from having unlawful employment in the country?
        Ms. Foley. Yes. In fact, the only way that this group, the
    DACA/DAPA recipients are granted work authorization, is because
    the Obama administration has decided to unilaterally grant them
    deferred action, which, again, that remedy, deferred action, is
    a remedy that Congress hasn't statutorily specified for this
    population.
        Mr. DeSantis. And the statute trumps administrative action
    or executive memos or anything like that. So you have Congress
    that said very clearly prohibition on employment. Now the
    President is issuing 5 million work permits. So to me, that is
    absolutely in conflict with what Congress has said.
        Let me ask you this, in terms of somebody who could be
    harmed by this, if the President issues these work permits and
    the background is that people who are here illegally are
    actually exempt from Obamacare's employer mandate, meaning if I
    am an American citizen applying for a job, somebody here has
    one of these work permits, they go and we have the same skills,
    we qualify for the same wage, the person who is here illegally,
    actually, will be cheaper for the business to hire, because
    they don't have to provide Obamacare. They would have to
    provide it for a U.S. citizen.
        So in that instance, would a U.S. citizen potentially have
    an ability to bring a lawsuit challenging that?
        Ms. Foley. I think it is possible, although I have to
    confess, in terms of standing, what the affected U.S. citizen
    would have to establish is but for the ACA nongrant of
    eligibility.
        Mr. DeSantis. Let us assume the employer just said, ``Yes,
    look, I would have hired you, but I am saving $3,000 here. I
    mean, I have to do that.''
        Ms. Foley. Yes. I think it is possible. I think if you have
    the right facts and circumstances with an affidavit filed by
    the employer that but for he would have hired the U.S. citizen,
    I think you could establish standing.
        Mr. DeSantis. My time is up. I yield back.
        Mr. Gowdy. I thank the gentleman from Florida, on behalf of
    all of us.
        This concludes today's hearing. We want to thank our four
    panelists for your collegiality with the Members of the
    Committee and your collegiality with one another. It has been
    very educational. I felt like we were back in law school, so
    most of us will be waiting on our C- grades later on this
    afternoon. Maybe not DeSantis or Zoe, but the rest of us will
    be.
        So, without objection, all Members will have 5 legislative
    days to submit additional written questions for the witnesses
    or additional materials for the record.
        With that, our thanks again to each of you. And we are
    adjourned.

        [Whereupon, at 1:32 p.m., the Committee was adjourned.]

                                A P P E N D I X

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