[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
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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
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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:]
__________
__________
__________
__________
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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