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

                         THE ORIGINAL UNDERSTANDING OF
                            THE ROLE OF CONGRESS AND
                         HOW FAR WE'VE DRIFTED FROM IT

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

                                    HEARING

                                   BEFORE THE

                         EXECUTIVE OVERREACH TASK FORCE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 1, 2016

                                   __________

                               Serial No. 114-61

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          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
    RAUL 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
                                     ------

                         Executive Overreach Task Force

                           STEVE KING, Iowa, Chairman

    F. JAMES SENSENBRENNER, Jr.,         STEVE COHEN, Tennessee
    Wisconsin                            JERROLD NADLER, New York
    DARRELL E. ISSA, California          ZOE LOFGREN, California
    LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
    JIM JORDAN, Ohio                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TED POE, Texas                         Georgia
    JASON CHAFFETZ, Utah                 JUDY CHU, California
    TREY GOWDY, South Carolina           TED DEUTCH, Florida
    RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana
    RON DeSANTIS, Florida                SCOTT PETERS, California
    KEN BUCK, Colorado
    MIKE BISHOP, Michigan

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 MARCH 1, 2016

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve King, a Representative in Congress from the
      State of Iowa, and Chairman, Executive Overreach Task Force....     1
    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Ranking Member, Executive Overreach
      Task Force.....................................................     3
    The Honorable Bob Goodlatte, a Representative in Congress from
      the State of Virginia, and Chairman, Committee on the Judiciary     4
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     5

                                   WITNESSES

    Matthew Spalding, Ph.D. Associate Vice President and Dean of
      Educational Programs Hillsdale College
      Oral Testimony.................................................     7
      Prepared Statement.............................................    10
    Joseph Postell, Assistant Professor of Political Science,
      University of Colorado, Colorado Springs
      Oral Testimony.................................................    31
      Prepared Statement.............................................    33
    James C. Capretta, Visiting Fellow, American Enterprise Institute
      and Senior Fellow, Ethics and Public Policy Center
      Oral Testimony.................................................    45
      Prepared Statement.............................................    47
    Stephen I. Vladeck, Professor of Law, American University
      Washington College of Law
      Oral Testimony.................................................    56
      Prepared Statement.............................................    59

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Darrell E. Issa, a
      Representative in Congress from the State of California, and
      Member, Executive Overreach Task Force.........................    77
    Additional material submitted by the Honorable Darrell E. Issa, a
      Representative in Congress from the State of California, and
      Member, Executive Overreach Task Force.........................    90

     THE ORIGINAL UNDERSTANDING OF THE ROLE OF CONGRESS AND HOW FAR WE'VE
                                DRIFTED FROM IT

                                  ----------

                             TUESDAY, MARCH 1, 2016

                            House of Representatives

                         Executive Overreach Task Force

                           Committee on the Judiciary

                                Washington, DC.

        The Task Force met, pursuant to call, at 10 a.m., in room
    2237, Rayburn House Office Building, the Honorable Steve King
    (Chairman of the Task Force) presiding.
        Present: Representatives King, Goodlatte, Issa, DeSantis,
    Bishop, Cohen, Conyers, Nadler, Johnson, Chu, Deutch, and
    Peters.
        Staff present: (Majority) Paul Taylor, Chief Counsel,
    Executive Overreach Task Force; Zachary Somers, Parliamentarian
    & Chief Counsel, Committee on the Judiciary; Tricia White,
    Clerk; (Minority) James J. Park, Minority Counsel; and Veronica
    Eligan, Professional Staff Member.
        Mr. King. If the Executive Overreach Task Force will come
    to order, and without objection the Chair is authorized to
    declare recess of the Committee at any time. I would start with
    my opening statement.
        I want to thank Chairman Goodlatte for supporting this
    special House Judiciary Committee Task Force on Executive
    Overreach, which will examine the problem of Congress' gradual
    ceding of legislative power to other parts of the Federal
    Government, and the President's taking additional legislative
    powers even beyond that.
        This is much more than a mundane process problem. It is a
    tragic result for individual rights and liberties. Policies
    imposed by Federal agencies are crafted by unelected
    bureaucrats. Because those bureaucrats do not have to answer to
    the American citizens over the course of regular elections,
    they have little understanding of the desires and concerns of
    those Americans. And so they produce policies that, for
    example, make energy more expensive, take people's property
    through Federal regulations, drive down wages through lawless
    amnesty programs, and restrict communications on the Internet.
        The Founders insisted and insisted on keeping policy making
    in the hands of regularly elected congressional representatives
    precisely to avoid these sorts of policy catastrophes. As the
    former historian of the House of Representatives, Robert V.
    Remini has written, ``The Framers of the Constitution were
    absolutely committed to the belief that a representative body
    accountable to its constituents was the surest means of
    protecting liberty and individual rights.''
        So anxious were they to affirm legislative supremacy in the
    new government that they failed to flesh out the executive and
    judicial departments in the Constitution, leaving the task to
    Congress and thereby assuring that the legislature would retain
    control of the structure and authority of both those branches
    of government.
        And within that system of legislative supremacy the House
    of Representatives was to serve a unique role. Alone among all
    Federal institutions the House has consisted solely of those
    duly elected by the people.
        Further, the Constitution grants the House the exclusive
    power to originate all legislation for raising revenue. The
    House of Representatives is the most regularly elected body in
    the Federal Government. In Federalist 39 James Madison wrote,
    ``The House of Representatives is elected immediately by the
    great body of the people. As such the House of Representatives
    will derive its powers from the people of America.''
        In Federalist 52 Madison elaborated, ``As it is essential
    to liberty that the government, in general, should have a
    common interest with the people, so it is particularly
    essential that the House should have an immediate dependence on
    and an intimate sympathy with, the people. Frequent elections
    are unquestionably the only policy by which this dependence and
    sympathy can be effectually secured.'' That is James Madison.
        In this age of hyper-partisanship when more and more
    attention is paid to political results and less and less to
    Constitutional means, we tend to lose sight of why the Founders
    created the system that they did. Focus not on results but on
    process and a separation of powers.
        Under that system of a separation of powers each branch of
    the Federal Government was expected to protect its own
    Constitutional powers such that no single branch accrued power
    it was not allocated by the Constitution. The Founders
    understood that individuals were free in direct proportion to
    each branch of the Federal Government staying strictly within
    its own bounds, and the most important lane was the legislative
    lane; a narrow road of strictly enumerated powers written by a
    Congress consisted of duly elected representatives; with the
    House of Representatives the body most regularly elected, and
    with special powers over the origination of revenue bills in
    the driver's seat.
        But today many legislative and budget powers have been
    ceded to Presidents and the executive branch through statutes
    delegating legislative responsibility to Federal regulatory
    agencies composed of unelected people; and statutes mandating
    automatic and increased spending on certain programs
    administered by the executive branch.
        Other legislative powers have simply been seized by
    Presidents who exercise sheer will to trump the rule of law.
    Whatever the means of the loss of legislative power by Congress
    it is imperative that Congress reclaim it, not simply for its
    own sake, but because without it individual rights and
    liberties cannot flourish as the Founders intended.
        It has long been my view that the Framers of our
    Constitution structured the three branches of government in a
    fashion that, with as bright a lines as they could draw,
    between each three branches of government. Understanding though
    that language could not precisely define the distinctions
    between an Article 1, Article 2, and Article Three authorities
    within the Constitution, but they did rely on human nature and
    they believed that each branch of government would jealously
    protect the powers granted to it in the Constitution, and there
    would be a static tension that would be achieved between the
    three branches of government.
        I believe that has shifted over the years and we are here
    to address this in this Task Force. And, again, I thank
    Chairman Goodlatte for organizing this Task Force. And I would
    recognize the Ranking Member, Mr. Cohen, for his opening
    statement.
        Mr. Cohen. Thank you, Mr. King, and pleased to be serving
    as the Ranking Member of this Committee, the Executive
    Overreach Task Force. I appreciate serving with Mr. Conyers and
    fellow Members of this Committee and being the Chair. Mr. King
    and I share a lot of things in common, that is true. We both
    have the first name Steve. Neither one of us endorse Donald
    Trump. But we believe in the Constitution, we want to have good
    government, and we care about government, and we work together
    on this Committee.
        The Constitution makes clear that all legislative power is
    ``vested'' in the Congress, Article 1. Some of our witnesses
    today take the view that this vesting of legislative power
    means that Congress cannot constitutionally delegate power to
    executive branch agencies, even when it retains ultimate
    authority to determine when and how much power should be
    delegated.
        They ask us to look only at what they define to be the
    founding generation's view of government and the separation of
    powers, and asked us to reach that same conclusion. Telling us
    that much of the intervening 200 plus years is not of any real
    importance in understanding how our Constitution should work.
        Perhaps unsurprisingly they suggest that the Constitution,
    as they claim it was understood by the Framers, may require
    Congress to cut funding for Social Security, Medicare, and
    Medicaid. Maybe coincidentally they argue that the reading of
    the Constitution raises questions about the Constitutionality
    of the Affordable Care Act, which has thus far provided 18
    million Americans with health insurance, ended discrimination
    by insurers against those with pre-existing conditions, and
    allowed 2.3 million young adults under 26 to remain on their
    parent's health insurance, among other benefits.
        Indeed some of our witnesses contend that Congress went
    astray when it began to delegate authority to the executive
    branch to enforce regulations on Wall Street, protect public
    health and the environment, ensure worker's rights, and
    guarantee civil rights. It is not too much of a stretch to say
    that some of our witnesses would like to extend much of the
    20th and 21st century would like see much of that repealed. My
    guess is that they probably lack the votes to achieve such an
    end through the political process. So instead they just turn to
    a Constitutional theory that says we should only look at one
    snapshot of our history and ignore all the rest.
        Why is that that we have agencies that develop regulations?
    As the Supreme Court has recognized Congress' delegation of
    authority to the Executive arises from the practical
    recognition that our society and our economy have become far
    more complex, and problems far more technical than in the late
    18th century, and indeed when the Founders created our Nation.
        Congress had brought principles into statute and leaves it
    to expert agencies to carry out that statute in conformity with
    those principles. It is the Executive that does administer the
    law. In short, Congress retains ultimate legislative authority,
    it can delegate that authority, and it can also rescind or
    limit the scope of that delegation.
        This process has worked well to millions of Americans for a
    wide variety of harms--protect millions of Americans from a
    wide variety of harms, enhance innovation, and economic growth,
    and ensure basic fairness and justice. And it was made possible
    by a broadly written Constitution that was flexible enough to
    accommodate changing times and circumstances.
        That was the true wisdom of the Constitution's Framers to
    create a document and one strong enough to serve as a clear
    framework of government, but also adaptable so as to be
    enduring.
        I look forward to hearing our witnesses' testimony. I yield
    back the balance.
        Mr. King. I thank the gentleman and now I recognize the
    Chairman of the full Committee, Mr. Goodlatte, from Virginia
    for his opening statement.
        Mr. Goodlatte. Thank you, Mr. Chairman. James Madison wrote
    in Federalist No. 47, ``The concentration of executive,
    legislative, and judicial power in the same hands is the very
    definition of tyranny.'' Yet White House Chief of Staff, Denis
    McDonough, recently said, ``Audacious executive actions are
    being crafted to make sure the steps we have taken are ones we
    can lock down, and not be subjected to undoing through Congress
    or otherwise.'' Beyond even those unconstitutional actions the
    President has already taken.
        The Founders would have expected Members of the House of
    Representatives, known as the people's house for its most
    direct connection to the will of the people, to aggressively
    guard their role in the Constitutional legislative process.
    This Task Force will do just that in a manner that educates
    other Members and the public on the dangers to current and
    future generations of the ceding of power away from the
    people's house, and Congress generally.
        In Federalist No. 57 Madison wrote, ``The House of
    Representatives is so constituted as to support in the members
    and habitual recollection of their dependence on the people.
    Before the sentiments impressed on their minds by the mode of
    their elevation can be effaced by the exercise of power, they
    will be compelled to anticipate the moment when their power is
    to cease, when their exercise of it is to be reviewed.''
        Keeping legislative power, and in particular budgeting
    power, close to the will of the people was considered so
    important that the Constitution specifically provides that the
    House of Representatives has the exclusive authority to
    originate revenue bills.
        Indeed regarding budget matters when the first Congress in
    1789 considered the law creating the Treasury Department in the
    executive branch, the bill as originally introduced authorized
    the Secretary of the Treasury to devise and report plans for
    the improvement and management of the revenue. But it was
    feared that even giving the Secretary of the Treasury the
    modest power to report plans implied too much authority for the
    executive branch. And so the bill was amended to authorize the
    Secretary only to prepare plans regarding the management of
    revenue.
        The amended bill also specifically required the Secretary
    to make report and give information to either branch of the
    legislature in person or in writing, as he may be required,
    respecting all matters referred to him by the Senate of House
    of Representatives, or what shall appertain to his office.
        It thereby allowed Congress to request financial
    information directly from the Treasury Secretary bypassing the
    President; and made clear that Congress and not the President
    was the ultimate authority on budget issues.
        But today as our witnesses will elaborate, Congress
    exercises far less control over budget matters than was
    originally intended. Whereas early Congresses specified exactly
    how much money would be spent for how long to build a
    lighthouse or a post road, for example. Many Federal programs
    today enacted by Congresses decades ago are administered by the
    executive branch and funded on an autopilot basis, their
    allocations increasing automatically by statute without the
    need for any periodic review by Congress.
        The threat posed by the ceding of legislative power by
    Congress to this generation and future generations, can often
    be seen abstract in the midst of intense policy debates in an
    historically hyper partisan environment.
        As law Professor David Bernstein has written, ``The authors
    of the Constitution expected that Congress as a whole would be
    motivated to preserve its authority against Presidential
    encroachment.'' The Founders, however, did not anticipate the
    development of our two party system. At any given time around
    half the Members of Congress belong to the same party as the
    President, and do not want to limit their President's
    authority.
        Yet as then Chairman of the House Judiciary Committee
    Democrat John Conyers said under the Presidency of Republican
    George W. Bush, ``I believe it is in all of our interests to
    work together to rein in any excesses of the executive branch,
    whether it is Democratic, Republican, or even Libertarian
    hands.'' I agree with Ranking Member Conyers, and I look
    forward to hearing from all of our witnesses today.
        Mr. King. Thank you, Mr. Chairman. Now I recognize the
    Ranking Member of the full Committee, Mr. Conyers, for his
    opening statement.
        Mr. Conyers. Thank you, Mr. Chairman, and I thank the
    previous speaker for his recollection of our comment at an
    earlier period. Members of the Committee I have expressed from
    time to time the hope that we could work collaboratively in
    some areas of mutual interest; but in particular those
    centering on strengthening Congress' ability to conduct
    oversight of the executive branch. I am hopeful that there is
    room on this Task Force for bipartisan cooperation, as much as
    possible.
        That being said, I also recognize that there will
    inevitably be areas of fundamental philosophical differences
    between the majority and the minority. On some level our
    hearing topic today on the original understanding the role of
    Congress and how far we have drifted from it reflects both
    potential paths for this Task Force.
        To begin with there are indeed policy areas like war powers
    matters where Congress has, to me, failed to assert itself
    sufficiently leaving room for the President to expand his
    unilateral authority.
        As one of our witnesses, Professor Vladeck, will testify in
    greater detail the earliest Congresses understood that inaction
    or indifference by Congress in placing specific limits on a
    President's war making authority, enables and even invites the
    expansion of Presidential power at Congress' expense. Simply
    put, if Congress fails to act to place limits on Presidential
    authority it has little basis to complain about separation of
    powers concerns.
        It is also important to remember that when Congress has
    delimited executive power by statute, there is a difference
    between cases where a President simply ignores such limits and
    cases where a President interprets the broad delegation of
    authority by Congress.
        A President might simply ignore clear statutory limits that
    Congress has placed on his power. President George W. Bush, for
    example, claimed the authority to ignore statutory limitations
    on his exercise of power with regard to national security,
    including prohibitions on torture and warrantless surveillance,
    among other things.
        In other cases Congress has given a broad grant of
    authority to the executive branch for the purpose of
    implementing statutes, and there may be a dispute as to the
    precise scope of that grant of authority. It is important not
    to conflate these situations. The former is far more troubling
    from a separation of powers perspective than the latter.
        Finally, we must ask why it is that Congress has chosen in
    many instances to delegate authority to the executive branch,
    particularly with respect to economic and health and safety
    regulation. In large part this is a reflection of the fact that
    we live in a society that is far more complex than the one that
    existed in the late 1700's.
        As even our witnesses here this morning acknowledge, the
    country and the Congress were far smaller and simpler at that
    time. And the Framers wisely built in some ``flex in the
    joints'' of our Constitution precisely to capture all the
    changes to our society and economy that could not be foreseen
    in the 18th century.
        It is important to remember that even where Congress has
    delegated authority to the executive branch, the power to
    legislate ultimately still resides with Congress. Congress is
    always free to rescind its delegation of authority or to narrow
    the scope of delegation. And so I look forward to an engaging
    discussion with our witnesses and among ourselves, and thank
    all of you for being here. Thank you, Mr. Chairman.
        Mr. King. I thank the dapper gentleman from Michigan for
    his statement.
        And without objection, other Members' opening statements
    will be made a part of the record.
        Let me now introduce our witnesses. Our first witness is
    Matthew Spalding; he is Associate Vice President and Dean of
    Educational Programs, Hillsdale College. Mr. Spalding also
    oversees the operations of the Allen P. Kirby, Jr. Center for
    Constitutional Studies and Citizenship here in Washington, D.C.
        Our next witness is Joseph Postell; he is the Assistant
    Professor of Political Science at the University of Colorado at
    Colorado Springs. Professor Postell is currently completing a
    book titled, ``Bureaucracy in America, The Administrative
    State, and American Constitutionalism.''
        Our third witness is James C. Capretta, visiting fellow at
    the American Enterprise Institute, and senior fellow at the
    Ethics and Policy Center. Mr. Capretta has served as an
    Associate Director at the White House Office of Management and
    Budget, and as a senior health policy and analyst at the U.S.
    Senate Budget Committee, and at the U.S. House Committee on
    Ways and Means.
        Our fourth and final witness is Stephen Vladeck, Professor
    of Law at American University, Washington College of Law, and
    he is teaching in a research focused on Federal jurisdiction,
    Constitutional law, and national security law. We welcome you
    all here today and look forward to your testimony.
        Each of the witnesses' statements will be entered into the
    record in its entirety. I ask that each witness summarize his
    testimony in 5 minutes or less to help you stay within that
    time. There is a timing light in front of you. The light will
    switch from green to yellow indicating you have got 1 minute to
    conclude your testimony. When it turns red it indicates that we
    appreciate it if you have concluded your testimony.
        Before I recognize the witnesses it is the tradition of the
    Subcommittee that they be sworn in so please stand to be sworn
    in. Do you solemnly swear that the testimony that you are about
    to give will be the truth, the whole truth, and nothing but the
    truth, so help you God?
        You may be seated. Let the record reflect that the
    witnesses answered in the affirmative. I now recognize our
    first witness, Mr. Spalding. Mr. Spalding, your 5 minutes.

     TESTIMONY OF MATTHEW SPALDING, Ph.D. ASSOCIATE VICE PRESIDENT
           AND DEAN OF EDUCATIONAL PROGRAMS HILLSDALE COLLEGE

        Mr. Spalding. I thank you, Mr. Chairman. My thesis is
    actually quite simple. It was Congress, the intended primary
    branch of government, by choosing to diminish its
    Constitutional powers which enabled the rise of the so-called
    imperial Presidency and the temptations of executive overreach
    of our day. Likewise Congress has the power to stop the
    executive from overwhelming American self-government with
    bureaucratic rule should it choose to do so.
        In my testimony I discuss the rule of law as it informed
    the American Constitution, culminating in absolute centrality
    of lawmaking and legislatures. The full implications of which
    are seen in the American founding itself, especially the
    consent to the government; hence, the importance of Article 1,
    which lodges a basic power of government in the legislature and
    its ability to make laws.
        Its core powers listed in Article 1, utmost of significance
    I point to the Power of the Purse, the Appropriations Clause in
    Article 1, Section Nine; a limit most notably on executive
    action.
        And Congress, not the executive, has the authority needed
    to carry out additional functions under the necessary and
    proper clause. The separation of powers of the defining
    structural mechanism by way that this works such that the self-
    interests of each branch make it a check on the others, and
    they jealously protect their own powers.
        This changed with the progressives. They positive a sharp
    distinction between politics and what they call administration.
    Politics would remain the realm of expressing opinions but the
    real decisions in theory, they argued, would--and the details
    of government would be handled by administrators in what they
    called the administrative state.
        The Founders went to great length to preserve consent and
    limit government through public institutions and the separation
    of powers. The progressives held that the barriers erected by
    the Founders had to be removed, or circumvented, to unify and
    expand the powers of government. In this new conception
    government is administrative and bureaucratic; government must
    always evolve and expand. In theory it must remain unlimited.
        We have been moving down this path slowly for some time.
    The most significant shift, I argue, occurred under the Great
    Society when the Federal Government set about creating programs
    to manage the whole range of socioeconomic policy. The
    expansion of activities led to vast new centralizing authority
    in the Federal Government, and a vast expansion of Federal
    regulatory authority. It also brought with it what we
    conventionally mean by big government, huge workforces, massive
    expenditures, extensive debt, and created a new source of
    conflict between the executive and the legislative.
        At first Congress had the upper hand; Congress had been
    creating the bureaucracy to carry out its wishes. But the more
    Congress gave away its powers in the form of broad regulatory
    authority, the more bureaucrats effectively became the
    lawmakers. The rise of the new imperial Presidency, and it
    should be shocking but no surprise, as Congress has expanded
    the bureaucracy creating programs, delegating authority,
    neglecting budgeting; the executive has attained unprecedented
    levels of authority. Our executives can command the bureaucracy
    to implement new procedures and policies without the
    cooperation of Congress by abusing executive discretion, by
    exploiting the vagaries of poorly written laws, and now by
    willfully neglecting and disregarding the laws which indeed are
    clear.
        By acting unilaterally without or against the authority of
    Congress, the executive not only assumes the duty of
    legislative powers without legislative accountability, but also
    avoids responsibility for executing the laws legitimately
    authorized by Congress. Once it has been established that the
    President can govern without Congress and, by extension,
    without the law it will prove difficult and perhaps impossible
    to prevent future executives from following the same lawless
    path.
        The only way to reverse the trend of a diminishing
    legislature and the continued expansion of the bureaucratic
    executive is for Congress to strengthen its Constitutional
    muscles. Congress must reassert its legislative authority and
    to cease delegating what amounts to power to make laws. If it
    allows administrators the discretion to create significant
    rules Congress can assert its authority to approve or reject
    those rules.
        Second, Congress must regain legislative control or is
    stays in its labyrinth state bringing consent and responsibly
    back through better lawmaking up front and, as a result, better
    oversight after the fact. The day to day back and forth of
    overseeing the operations of government will do more than
    anything else to restore legislative control or it stays
    unlimited government.
        Third, one place where the power of Congress is not
    entirely lost and where there is opportunity for gaining
    leverage over an unchecked executive is congress' Power of the
    Purse, strategically controlling using the budget process. If
    Congress does not act to correct the growing tilt toward
    executive bureaucratic power the structure of our republican
    government will be fundamentally and, perhaps, permanently
    altered.
        Congress needs to think strategically and act as a
    Constitutional institution. And it must begin doing so
    forcefully stating its argument, putting down clear markers,
    and drawing enforceable institutional lines before the
    inauguration of the next President, whoever that might be, and
    regardless of their political party.
        Thank you.
        [The prepared statement of Mr. Spalding follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. King. All right thank you, Mr. Spalding. And now I will
    recognize Mr. Postell for his testimony.

     TESTIMONY OF JOSEPH POSTELL, ASSISTANT PROFESSOR OF POLITICAL
           SCIENCE, UNIVERSITY OF COLORADO, COLORADO SPRINGS

        Mr. Postell. Thank you very much, Mr. Chairman, and Members
    of this Task Force. I am delighted to be here and I appreciate
    the opportunity to testify. In my written testimony and in my
    brief remarks this morning I am addressing two questions. The
    first, how the early Congresses avoided delegating its
    legislative power over to the executive. And second, how
    Congress structured itself in its early decades in order to
    ensure that it, and not the executive, set the legislative
    agenda.
        Today Congress routinely delegates massive legislative
    lawmaking power over to administrative agencies. This is
    contrary to the text of the Constitution and it is contrary to
    the intentions of the Framers. Some scholars claim that early
    Congresses delegated power to the executive and, therefore, it
    is perfectly okay for Congress doing so today. The historical
    record, however, shows otherwise. Article 1 of the Constitution
    states plainly, ``All legislative powers herein granted shall
    be vested in a Congress of the United States.'' It does not
    give Congress the option in Article 1 to delegate those powers.
    It sets up, in other words, a non-delegation principle.
        Early Congresses observed this principle very carefully.
    The laws they passed were highly detailed, they limited the
    discretion of the executive. Congress wrote every detail of the
    tariff laws in its first decades, specifying not only the
    amounts of the taxation but the products to be taxed. Congress
    wrote in very specific detail the routes of the post roads in
    the early decades of the Republic.
        In the second Congress James Madison, a Member of the
    House, said this, ``We must distinguish between the
    deliberative functions of the house and the ministerial
    functions of the executive powers.'' Legislative
    determinations, he insisted, must remain in Congress' hands;
    ministerial execution of law is the job of the executive.
        But this leads to my second point. Although Congress
    avoided delegating its legislative powers in the early decades
    of the Republic, the early Congresses ran into a related
    problem. The problem was the executive was influencing the
    legislative process, setting the agenda for Congress rather
    than letting leaders within the Congress set the agenda. Our
    first Treasury Secretary, Alexander Hamilton, was by all
    accounts the most important legislative policymaker in the
    first decade of the Republic.
        As President, Thomas Jefferson actually wrote bills to be
    sent over to Congress to be passed. This was not appropriate
    for a system of separated powers and Congress knew to reverse
    this it had to reclaim the authority to set its own agenda.
    Congress' solution to the problem was to set up internal
    structures of power to provide the necessary leadership within
    Congress to allow it to set and implement its own agenda.
    Without leadership Congress realized it would succumb to what
    is called a collective action problem. That without leaders in
    the Congress, Members would cater to their districts back home
    rather than working together to pass laws in the national
    interest.
        Throughout the 19th century Congress modified its internal
    procedures and strengthened its leadership in order to provide
    the solution to these collective action problems. By 1825 the
    House had set up 28 standing Committees to provide it with the
    expertise needed to free it from the expertise of the executive
    branch.
        Later in the 1800's the Speaker was given significant, even
    massive, authority to set the legislative agenda and influence
    Members to promote that agenda. Most of that authority
    centralizing leadership in the Congress has since been
    eliminated by progressive reformers.
        As a result of its internal leadership that it developed
    over the first century of its existence, Congress' ability to
    manage its affairs improved dramatically. And not
    coincidentally in the 19th century the power of the executive
    diminished dramatically. The early experience of the Congress,
    therefore, teaches us a second lesson. Without internal
    leadership Congress will follow the agenda set by the executive
    rather than its own. A Republican form of government is
    predicated upon a strong legislative branch to serve as the
    place of popular representation. One person in the White House
    cannot possibly adequately represent the American people. In
    seeking to preserve its role Congress should consult the
    lessons of its early experience.
        Members of this Task Force, thank you very much for the
    opportunity to present this testimony. And I look forward to
    your questions.
        [The prepared statement of Mr. Postell follows:]

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                                   __________

        Mr. King. Thank you, Mr. Postell, for your testimony. And
    the Chair now recognizes Mr. Capretta for his testimony.

       TESTIMONY OF JAMES C. CAPRETTA, VISITING FELLOW, AMERICAN
       ENTERPRISE INSTITUTE AND SENIOR FELLOW, ETHICS AND PUBLIC
                             POLICY CENTER

        Mr. Capretta. Thank you, Mr. Chairman, and Members of the
    Task Force. I am very pleased to be here this morning. I am
    very pleased to be here this morning, thank you for inviting
    me.
        The Power of the Purse is arguably the most important power
    granted to Congress in the Constitution. It is what separates
    our system of government from many others. The United States
    President, unlike a king, cannot decide to withdraw funds from
    the Treasury without an appropriation by Congress, no matter
    how pressing the purpose. Even in an emergency, such as in the
    aftermath of 9/11, Presidents must go to Congress and ask for
    the funding.
        This Power of the Purse is the primary means by which the
    people's elected representatives exert control over the size,
    direction, and activities of the Federal Government.
        Over recent decades Congress has chosen to steadily dilute
    this power by granting to the executive branch permanent, and
    oftentimes unlimited or ambiguous, appropriations. This
    granting of permanent spending authority, generally for
    programs that are called entitlements, has delegated to the
    executive branch significant discretion over the terms of this
    spending. Moreover because the spending authority is open ended
    or indefinite in appropriation terms, Congress has given up
    substantial control over the overall size of government, over
    total Federal spending, and over deficits and debt.
        The list of programs with permanent spending authority in
    current law is long. It begins, of course, with the major
    entitlement programs but there are many other programs with
    permanent spending authority too. Including the Supplemental
    Nutrition Assistance Program, the Social Services Block Grant,
    some functions of border security and control, portions of
    Federal housing assistance, reinsurance and risk corridor
    payments to insurance companies under the Affordable Care Act,
    and much else.
        The spending authority provided by Congress for other
    programs are often flexible enough to accommodate substantial
    and expensive executive discretion.
        For instance, the current administration used its authority
    under the SNAP Program to waive the state enforced work
    requirements in the program for a number of years. The result
    has been a surge in enrollment in the program that is well
    above the historical norm, even after taking into account the
    soft labor market of recent years.
        The provision of permanent and open-ended spending
    authority by Congress has resulted in a complete transformation
    of the Federal budget; 64 percent of the Federal budget was
    devoted to annually appropriated accounts in 1965. By 2015 that
    portion of the budget had shrunk to 32 percent, while spending
    on mandatory and entitlement programs now takes up more than
    three fifths of the entire Federal budget.
        It is not a coincidence that as budgetary pressures have
    risen the growth of political pressures have built to cut
    discretionary appropriations. In recent budget deals it has
    been much easier for Congress to apply significant pressure on
    discretionary accounts than it is to apply pressure on the
    permanently appropriated accounts. And we can see the result of
    that in the long-term trend toward lower spending on that
    portion of the budget.
        It will not be possible to reverse the trend toward
    permanent appropriations authority quickly, nor would it be
    advisable for Congress to undo such authority in every program.
    I am not arguing for that.
        For instance, in Social Security it is important to have a
    program with some certainty associated with the provision of
    retirement benefits. Workers need that to make appropriate
    financial plans. But making allowances for the legitimate need
    for program certainty need not mean that Congress must cede all
    budgetary control to the executive branch. Congress should
    consider several steps to reverse current trends and bring more
    spending back under the direct control of the House and Senate.
        Through the Budget Resolution Congress could consider
    imposing limits on what is spent on the non-discretionary
    portion of the budget. This would require a change of law
    before this could be done. Such a limit would need to be
    enforced with some automatic restraints if it were ever to be
    breached. And some programs could be accommodated with
    exemptions or adjustments, but the basic idea being putting an
    overall limit would restore Congress' ability to budget in this
    area of the budget that it is not controlling today.
        Further, Congress could also begin to reassert its role by
    imposing specific limits on certain programs. For instance,
    Congress could specify that a program's permanent appropriation
    may not grow by more than some rule, such as the rate of
    inflation. If the program were projected to grow faster than
    that then the executive branch would be required to come back
    to the Congress and ask for additional spending authority,
    perhaps then triggering some reforms.
        The U.S. Constitution gives Congress the sole power to
    appropriate funds out of the Treasury. Over many years, for
    understandable reasons, Congress has delegated a lot of that
    authority now to the executive branch. It's time to begin
    reversing that trend. Thank you.
        [The prepared statement of Mr. Capretta follows:]

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                                   __________

        Mr. King. Thank you for your testimony, Mr. Capretta. And
    now I would recognize Mr. Vladeck for his testimony.

      TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
                  UNIVERSITY WASHINGTON COLLEGE OF LAW

        Mr. Vladeck. Great. Thank you, Chairman King, Ranking
    Member Cohn, distinguished Members of the Task Force. Although
    many have been quick to blame the President for the perceived
    drift in the separation of powers, I want to suggest in my
    brief remarks today that any such drift is at least as much a
    result of legislative torpor. And unwillingness on the part of
    Congress to use substantive legislation to better define and
    police the authority delegated to the executive branch.
        When discussing concerns over executive power the Founders
    would have distinguished, and did distinguish as I explain in
    more detail in my written statement, between three types of
    inter-branch disputes. The first type of inter-branch dispute,
    and by far the least significant from a separation of power
    standpoint, arises from disagreement between the Congress and
    the executive branch over the terms of a statute that the
    executive branch is enforcing.
        In such cases the issue is not whether the President is
    acting unconstitutionally, but rather whether the actions of
    executive branch officials are consistent or not with whatever
    directives Congress has prescribed. Moreover, the Supreme Court
    has typically afforded deference to the executive branch's
    reasonable interpretations of ambiguities and the statutes it
    is tasked with enforcing, even if the courts or the current
    Congress, might read the same text differently.
        The second type of inter-branch dispute involves cases in
    which the executive branch claims a Constitutional authority to
    act in the face of Congressional silence, as Justice Jackson
    explained in his celebrated concurring opinion in the Steel
    Seizure case. In such circumstances where no statute either
    authorizes or specifically limits the President's authority,
    ``Congressional inertia, indifference, or quiescence may
    sometimes, at least as a practical matter, enable if not invite
    measures on independent Presidential responsibility.''
        The third type of dispute, which poses the gravest threat
    to the separation of powers, involves circumstances in which
    the President claims the authority to act in defiance of
    statutory limits on his authority because, in his view, such
    statutes unconstitutionally infringe upon his Constitutional
    powers.
        As Justice Jackson put it in the Steel seizure case,
    ``Presidential claim to a power at one so conclusive and
    preclusive must be scrutinized, excuse me, scrutinized with
    caution, for what is at stake is the equilibrium established by
    our Constitutional system.''
        I offer this taxonomy to underscore three points that I
    believe are central to today's hearing, and to the broader work
    of this Task Force. First, in my view most of the areas in
    which President Obama has been criticized for overreaching fall
    into the first of these categories and, therefore, reduced to
    good faith disputes over statutory interpretation and not over
    the scope of the President's Constitutional powers.
        As a case in point consider the current debate over the
    President's legal authority to use military force against ISIL.
    The Obama administration has maintained since September of 2014
    that apart from isolated and limited acts of self-defense, its
    general authority to use such force derives not from Article 2
    of the Constitution, but from the AUMF. Even though that
    statute, one, says nothing at all about ISIL and, two, only
    authorizes force against groups that were responsible for or
    assisted in the attacks of 9/11, which occurred before ISIL
    even existed.
        Some agree with the Obama administration's legal reasoning,
    others do not. But even if the executive branch is incorrect in
    its interpretation of the AUMF, all that would mean is that the
    executive branch is mistaken in its reading of a statute, not
    that it is willfully abusing its inherent Constitutional
    authority. This is exactly why many, including President Obama
    himself, have repeatedly called upon this Congress to pass a
    new AUMF for ISIL. Not because they are convinced that the
    executive branch is acting unlawfully in using force under the
    2001 AUMF, but because such a statute would reassert Congress'
    institutional role in war making, and would set the parameters
    for the current armed conflict whether or not the President
    already has statutory authority for the actions he is
    undertaking.
        Second, President Obama has not been nearly as aggressive
    in claiming the kind of indefeasible executive power that was
    routinely invoked during the Bush administration. The authority
    to ignore statutes that, among other things, prohibited
    torture, limited the government's power to conduct warrantless
    surveillance, required statutory authorization for the
    detention of U.S. citizens as enemy combatants, and so on. A
    common refrain during the Bush administration was that statutes
    Congress enacted to limit the President's power were
    unconstitutional. We have heard far, far less of that argument
    from the White House over the past 7 years and, in my view, for
    good reason.
        Third, and perhaps most importantly, unlike with respect to
    claims of indefeasible power concerns that the President is
    overreaching in either of the first two categories I have
    described can easily be ameliorated through new legislation
    clarifying the scope of an existing delegation, or
    circumscribing the President's power to act in the absence of
    statutory authority. In Federalist 51, James Madison famously
    explained that for our system of separated powers to function
    ambition must be made to counteract ambition. I could not agree
    more. But to date the 114th Congress has enacted 126 public
    laws, fewer than half the total of what was previously the most
    unproductive Congress in American history, the 112th, which
    passed 283. By contrast the 80th Congress, which President
    Truman famously derided as the ``Do Nothing Congress,'' enacted
    906 public laws.
        Reasonable minds can and will surely will disagree about
    the merits of President Obama's policy ambitions and statutory
    interpretations, in these areas and others. What cannot be said
    is that this Congress has been uniquely reluctant to counteract
    or otherwise mitigate those ambitions through substantive
    legislation.
        What this underscores, in my view, is that any contemporary
    drift from the historical balance between the branches has been
    at least as much a result of Congressional inability or
    unwillingness to do the hard work of legislation as it has been
    the result of Presidential aggressiveness, and has already made
    solution not in hearings like this one, but in new substantive
    legislation that would more directly vindicate Congress'
    institutional and Constitutional role.
        Thank you for your time and I look forward to your
    questions.
        [The prepared statement of Mr. Vladeck follows:]

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                                   __________

        Mr. King. Thank you for your testimony, Mr. Vladeck. I
    thank all the witnesses for your testimony. We will now proceed
    under the 5-minute rule with questions. And I will begin and
    direct my first question to Mr. Spalding.
        Mr. Spalding, I noticed in your testimony that you
    referenced the 1688 Glorious Revolution and the establishment
    of a legislative supremacy over the monarch. Could you
    elaborate on that if that is the foundation by which our
    Founding Fathers looked to when they wrote Article 1 in the
    Constitution?
        Mr. Spalding. Thank you for the question. The importance of
    the Glorious Revolution to the American Revolution is high. The
    long establishment of the rule of law through British
    Constitution culminates in the Glorious Revolution, which could
    only go so far. It established legislative supremacy. Having
    said that that legislative supremacy used by Parliament against
    the Americans of the colonies was objectionable to them.
        The American Founders perfected this question by
    constructing a Constitution of three coequal branch, the
    legislative being first. But with the power that we have talked
    about and the various checks on it, and the executive and the
    judiciary to the separation of power system.
        Mr. King. So in other words, that was what the Founding
    Fathers--one of the things they looked at when they said they
    need to have a method to restrain an over exuberant legislative
    branch that might have been all powerful. It helped them bring
    that to the balance of the three powers--branches of
    government.
        Mr. Spalding. And they did so by having a written
    Constitution, which was the main difference between the
    Glorious Revolution and the American Revolution.
        Mr. King. Indeed and thank you. And then so I also wanted
    to pose another question to you, Mr. Spalding. And that is that
    do you believe that our Founding Fathers imagined that there
    would be an executive that would threaten to veto any
    legislation that did not include all of his appropriations that
    he demanded in it? And in vetoing that legislation would bring
    about a government shutdown. What did you imagine our Founding
    Fathers thought would happen if an executive took that kind of
    a step, which we have seen in the last couple of years
    frequently?
        Mr. Spalding. Well the first thing to point out is the
    history of executive vetoes were to be used rarely; only if
    there were serious objections mostly having to do with
    Constitutional disagreements with Congress. The President has
    the right to choose however he wants to veto. But the idea of
    using a Constitutional power like the veto as a way to
    essentially leverage Congress to pass full budgets, I do not
    think they probably could have imagined that. But the main
    thing they could not have imagined is the massive shifting of a
    power within the separation of powers to the executive branch.
        The fact is that that forces the Congress, in addition to
    its inability to pass its appropriations bills, into massive
    omnibus bills at the last moment which, in turn, give the
    executive massive amounts of authority to threaten the veto.
        Mr. King. Thank you, Mr. Spalding. I would like to turn
    then to Mr. Postell. And your testimony included Article 1 as
    not set up; you called it a non-delegation principle in Article
    1. So take this non-delegation principle to its extreme for us.
    Does that mean clawing back a lot of the things that are in the
    executive branch? Does that mean clawing back the rulemaking
    authority? Does that mean reaching into the EPA and bringing
    the operations out of there with the exception of the
    enforcement and field operations into the control of Congress?
    How do you envision this at its, say, taking it to the logical
    extreme?
        Mr. Postell. Yeah, I think that it largely entails some of
    the things you are describing, which means not the abolition of
    any of these programs, not the abolition of any of these
    regulations, not the abolition of any of these agencies; but
    rather transferring certain authorities that have been given to
    those agencies back into the legislative branch.
        So, for instance, Congress set up multiple departments and
    multiple agencies from the very beginning. But those agencies
    and those departments were executive or administrative, which
    meant they had powers such as investigation, prosecution, and
    enforcement. But they were not lawmaking entities because that
    was fundamentally the job of Congress.
        So the rules that bind conduct have to be made by the
    legislative branch, otherwise we are not in a representative
    democracy anymore.
        Mr. King. Could a Congress, then, establish enforcement
    forces to carry out such actions?
        Mr. Postell. I think so, yes.
        Mr. King. That would be my conclusion from listening to
    this. I wanted to take it to that level because this Committee
    and this Task Force, I believe, wants to look at the full
    breadth of this so that we can come at what is a reason
    judgment of the people, and we want to restore the power to the
    people in the end.
        So I just quickly, Mr. Capretta, the tools that Congress
    has to enforce today against an executive branch how long is
    that list and what are they?
        Mr. Capretta. The tools to restrain executive spending
    authority you mean?
        Mr. King. To restrain an executive branch, an over
    exuberant executive branch, that might be operating outside the
    Constitution.
        Mr. Capretta. Well I think the budgetary powers should be
    restrained, so I would look at the list of programs that have
    permanent spending authority now. And some of that has been
    done by Congress, most--I mean that has been done by Congress.
    So I would not put it necessarily in a Constitutional question.
    But many statutes have delegated the spending authority to the
    Congress.
        I think it has just become a pattern and a practice over
    many, many years. And it was done originally for programs that
    had a benefit associated with it and people wanted some
    certainty. But it has gone well beyond that to a lot of
    discretionary programs that are now getting mandatory funding,
    including agencies of government. I would target those first.
        Mr. King. Thank you, Mr. Capretta. My time has expired and
    now recognize the gentleman from Tennessee.
        Mr. Cohen. Thank you, Mr. Chair. Mr. Spalding, you
    responded to the Chairman's question about how you thought the
    Founding Fathers would have looked at the President who vetoed
    a bill because he did not agree with all the appropriations. So
    you can kind of go back and envision what the Founding Fathers
    were thinking, I guess. What do you think the Founding Fathers
    who had a three-fifths clause for slaves in it would have
    thought about an African-American President? Women voting? Or
    Blacks and Whites eating together?
        Mr. Spalding. I think you are--sorry, I think you are
    correct in questioning the ability to envision what the
    Founders thought. I think you are absolutely right with that.
    We constructed it as best we can. I think the point of the
    three-fifths clause, given that that was introduced by
    abolitionists at the convention, was a move against slavery,
    was their intention, and that is what Frederick Douglas
    thought. So I think the intention on that one is actually
    pretty clear.
        I think your point you are getting at, however, is correct
    which is that meanings of these things do change, and the
    Constitution and the intentions of the Founders should not be
    so rigid as they do not allow those changes. But my point is
    that that is where Congress especially comes in. Congress has
    the necessary and appropriate clause. Congress has those
    implied powers to make those adjustments. And it is within the
    legislative branch where those things are best solved not, in
    my opinion, by an executive who is unitary or a judiciary which
    makes binary decisions. That is what lawmaking means.
        Mr. Cohen. Not to get off on a tangent but yeah the
    abolitionists were for three fifths so that they would not get
    full population----
        Mr. Spalding. The South wanted one for one, which means
    they their selves would get more representation in Congress and
    the establishment object to that.
        Mr. Cohen. Both sides took as a given that slavery was
    something that was appropriate proper and not to be
    challenged----
        Mr. Spalding. That is right. If you read the transcripts of
    the convention, including Madison's writings in the Federalist
    papers, there was a lot of objection to slavery in the
    Constitution and the compromise----
        Mr. Cohen. But it lost. The compromise--the Constitution
    did not outlaw slavery.
        Mr. Spalding. It made compromise with institution but set
    it on its road to ultimate extinction, which was Lincoln's
    position. It was a compromise in principle; that was, Frederick
    Douglas argues, not pro-slavery. So now it ensures the
    historical record is clear.
        Mr. Cohen. You in your testimony describe the 1960's and
    1970's as an era which gave birth to big government, because
    during that time the Federal Government assumed responsibility
    of the well-being of every American. Can you tell me what you
    believe the Framers would have thought--you have told us what
    you thought about maybe slavery, but what would they have
    thought about civil rights legislation that prohibits racial
    discrimination in public accommodations? And do you think civil
    rights laws, legislation of this nature, which the Supreme
    Court has upheld as a exercise in congressional powers under
    the Commerce Clause, comport with what you contend the Framers'
    views were of limited government?
        Mr. Spalding. I think the crucial point here, again, is
    that in the 1960's and 70's you saw--you did see a ramping up
    in change of the nature of what government was actually doing
    as a practical matter. The content of those things civil
    rights, environmental law, education I am not here to debate. I
    think the Federal Government's being involved in civil rights
    is a monumental important move in American government, and in
    American society that would have been agreeable to the American
    Founders, on the same grounds that I answered my previous
    question.
        But that did change the operational nature of our
    government. And it changed it such that it introduced a new
    form of governing, which the progressives call the
    administrative state, which we are trying to grapple with
    today. And that changed the nature between the legislative and
    executive competition such that I think today we have an
    executive with a--with having been delegated a lot of power by
    Congress, and a large apparatus underneath that executive.
    Whether they are Republican or Democrat has a lot of leeway to
    do things with or without specific congressional legislative
    authority, using discretion, using--looking at poorly written
    laws, and now seemingly to get away with the ability to
    directly act against something that was clearly stated in the
    law.
        Mr. Cohen. The simple fact that we refer to the founders of
    our country as they were, as the Founding Fathers, negates over
    half of the population because they could have been founding
    mothers. But the fathers put the mothers in a second rate class
    just as they did Black individuals, just as the people who
    could not afford to pay property tax did not own property. The
    fact is the Constitution, which has gone on for many years and
    is a great document, was not written by infallible human
    beings. It was written by people White male property owners who
    were the elite, who wanted a society that protected their
    interests, and did it well.
        This country has changed much and Jefferson even wrote
    about Constitutions should not be seen as never changing. That
    they should not be like a child in clothes that the child then
    grows out of and needs new clothes. You need to change as the
    times change. The process of amending the Constitution is very
    burdensome, and sometimes the legislature to see that the
    society which has evolved is properly taken care of has to give
    and delegate to the executive authority to carry out laws when
    the Congress is not here and for the larger government that
    exists with the difficulties that expire today.
        I yield back my time.
        Mr. King. Thanks gentleman from Tennessee. And recognize
    the Chairman of the full Committee from Virginia, Mr.
    Goodlatte.
        Mr. Goodlatte. Thank you very much, Mr. Chairman. Mr.
    Spalding, the issue is not whether or not the Constitution
    should not be changed over time, the issue is who changes it
    and how is it done, is that not right?
        Mr. Spalding. That is correct. And to go back to this point
    the Founders were not infallible but they created a framework,
    we call the Constitution in its structure, which has served us
    well to this day. It is precisely the responsibility of
    Congress as the legislative branch closest to consent and----
        Mr. Goodlatte. And Congress----
        Mr. Spalding [continuing]. To make those adjustments.
        Mr. Goodlatte. Right and Congress, by two-thirds votes in
    the House and the Senate, passed the 13th Amendment, which
    ended slavery; and Congress by two-thirds votes in the House
    and the Senate. And, by the way, then going to the states for
    ratification by three quarters of the state legislatures in
    each case extended the right of citizenship to people who had
    previously been slaves. And Congress, by virtue of the 19th
    Amendment, extended the right to vote to women, all of which
    properly should have been done.
        We would probably agree with the gentleman from Tennessee
    that these took too long to occur. They were wrong in the first
    place. But the Constitution itself was created with a device to
    make those changes. Does the Constitution give the President of
    the United States the authority to make those changes without
    the consent of the people through their elected representatives
    or without seeking to have the Constitution changed?
        Mr. Spalding. No, absolutely not. Nor does it give that
    power to the judiciary. Those two institutions, especially
    executive, are there for particular purposes to act in light of
    legislative action through the lawmaking process. That is why
    precisely Congress is the first branch and it is the primary
    branch as intended by the Founders.
        Mr. Goodlatte. Is there anything in Professor Vladeck's
    testimony that you would like to respond to?
        Mr. Spalding. Well I think it is interesting the extent to
    which there is actually a lot of agreement here in a certain
    way. The difference being that he thinks it is a good thing
    whereas I would probably think it is a bad thing. When the
    executive does not have authority he is not free to act as he
    chooses. There is a lot of ambiguity in the laws how they are
    written, there is--they are interpretive debates.
        But short of that the executives cannot do whatever they
    want. I would strongly encourage this Task Force to actually
    flesh out his three types of distinctions between--of executive
    actions and focusing on those that are the most problematic in
    here.
        Mr. Vladeck. Well, I am in agreement with that.
        Mr. Goodlatte. And point of fact we are always going to
    have differences of interpretation of laws, and even of the
    Constitution itself between the executive branch, the
    legislative branch, and the judicial branch. But what we are
    about here is recognizing that over time, for a variety of
    reasons, the growth of the size of the Federal bureaucracy, the
    transfer of power by the Congress to that bureaucracy by
    passing laws that contain with them massive regulations, and
    other actions taken by the Congress, the Congress' powers are
    diminished.
        The Congress is the body of the three most close to the
    people because all of us are directly are elected by the
    people. And the House very sensitive because every 2 years we
    are up for re-election. Only two people in the entire multi-
    million person executive branch are elected by the people, the
    President and the Vice President. And no one on the United
    States Supreme Court is directly elected by the people.
        So the issue before this Task Force is to determine how
    best to restore those powers to the United States Congress, not
    whether there are not going to be differences of opinion; sure
    they are. But what ways can the Congress assert itself to make
    sure that when it recognizes that it passed laws that are being
    misinterpreted by a President, that they are able to restore
    their authority.
        Mr. Spalding. That is why looking at this process, we refer
    to it as a separation of powers, is so crucially important, not
    as a legal technical matter on this or that specific thing, but
    as a general matter. This body should act as Constitutional
    institution in reclaiming those powers. And that should be true
    whether it is a Democratic Congress, a Republican Congress, and
    a Democratic President, or a Republican President. If you do
    not have that back and forth you have no check, and if you have
    no check, you have nothing to prevent the executive or the
    judiciary from doing as they wish and going forward.
        Mr. Goodlatte. Let me briefly go to Mr. Postell and Mr.
    Capretta and ask you what do you think are the best reforms for
    us to consider that would restore the role of Congress as
    originally understood?
        Mr. Postell. Well, I think, as I tried to suggest in my
    written and oral testimony, that Congress needs more leadership
    from within the Congress in order to ensure that it is not
    following leadership outside of the Congress.
        Mr. Goodlatte. Mr. Capretta?
        Mr. Capretta. I would get a list of--pardon me. I would get
    a list of all the programs that have now gotten permanent
    spending authority, and especially the--outside the major
    entitlements, which I do not think will be changed. And look at
    those that have some spending authority that does not require
    them to come back to the Congress on a regular basis and review
    those as--to see if they are appropriately getting that funding
    or not, and change the statute and require those--many of those
    programs to get annual funding from the Congress.
        Mr. Goodlatte. Thank you very much. Thank you, Mr.
    Chairman.
        Mr. King. Gentleman returns his time and the Chair will now
    recognize the Ranking Member of the full Committee from
    Michigan, Mr. Conyers.
        Mr. Conyers. Thank you, Mr. Chairman. Let me ask Professor
    Vladeck to respond to some of the responses that we have heard
    from your fellow witnesses.
        Mr. Vladeck. Sure. I mean, I guess I just have two brief
    points. The first is I think you have heard a lot of consensus
    that the best solution is legislation. Right, that the best
    solution to Congress reclaiming its institutional role is for
    Congress to legislate more often and more aggressively. And
    with regard to Chairman King's point about the veto, it is
    worth stressing that President Obama has vetoed nine bills in
    his tenure. If that keeps up, that will be the fewest by a two-
    term President since James Monroe.
        So, it is not exactly like this is a President who has been
    over aggressive in wielding the veto pen. Whether or not we
    might agree or disagree about the terms and the reasons for
    vetoing.
        Briefly, on the founding era, sort of understanding the
    delegation, I think it is a bit of an overstatement to suggest
    that Congress never delegated power to the President in the
    early years.
        One of the areas of my expertise is the use of the
    military. And if you look at the early statutes regarding the
    use of the military in domestic emergencies, they were full of
    delegations to the President to decide for himself when an
    emergency had arisen to decide how best to respond to the
    emergency. To figure out which forces to use and let me suggest
    to the Task Force, this was for a good reason. At the founding,
    Congress was out of session for most of the year, right.
    Congress was a part-time concern. And so, when, as in the case
    of the whiskey rebellion, you had domestic disturbances that
    arose when Congress was out of session. There has to be
    delegations of authority to the President, less to be unable to
    respond and to protect the public order.
        So, Mr. Conyers, I think my basic response is that I think
    there is a lot of common cause among the panelists that the
    real solution here is legislation. We might disagree about
    which legislation we would put first. For example, I might
    prioritize an AUMF for ISIL over some of the other bills that
    my fellow witnesses might prioritize. But I do not think the
    history is clearly as against the current constitutional
    structure as some of the questions have suggested.
        Mr. Conyers. Let me just ask in your written testimony, you
    discussed the difference between the feasible and indefeasible
    executive power. Now, why, in your view is a separation of
    powers violation based on the misuse of defeasible power less
    pernicious than an inappropriate claim of indefeasible power by
    the executive branch?
        Mr. Vladeck. Sure. I mean, I think that the basic answer
    for that is again, the role of Congress. If the President is
    asserting defeasible power in the way Congress disputes.
    Congress can pass legislation to ring it in and the President's
    own theory would require that he defer to the statute.
    Indefeasible power in contrast is the President's claim over
    the authority to not be bound by a statute. In that case,
    nothing Congress does can move the ball. The only thing that
    can happen is the courts could strike it down.
        And I think this is what we saw, for example, in the early
    Supreme Court case I reference in my testimony, Little v.
    Barreme, where Chief Justice Marshall went out of his way to
    say the reason why a particular naval capture during the Quasi-
    War with France was unlawful was because Congress had
    legislated. Had Congress not legislated, the President might
    have had more power.
        So, that is why I think there is a lot more concern in an
    indefeasible case because in that context, the President is
    effectively disabling Congress from acting, as opposed to just
    waiting for Congress to act.
        Mr. Conyers. Do any of your three fellow witnesses want to
    add to the comments that were made by Professor Vladeck? Both
    of you, okay.
        Mr. Spalding. Again, I was struck by the amount of
    agreement, but we should see the striking disagreement here.
    The claim is not made that Congress cannot, under any
    circumstances, delegate authority. The question is what amounts
    of that authority and under what circumstances. There are
    clearly differences, but I think the point is that at some
    point, which I assert occurs sometime in the '60's or '70's, we
    have crossed a Rubicon such that the amount of delegation
    across the board in different areas, now with different
    agencies giving them their own ability to raise their own
    money, has effectively created a circumstance where the
    lawmaking power has been delegated over to those in a way that
    I find objectionable, both in terms of violation of separation
    of powers and broadly it is a violation of the Constitution.
        Mr. Postell. As Professor Vladeck suggested that the
    historical record is not as conclusive as I suggested in my
    testimony. He notes the existence of legislation early in
    American history where Congress said, ``When such and such an
    event occurs, X will happen and the President gets to decide
    whether the event has occurred.''
        That is what we call contingent legislation. All
    legislation is contingent legislation. That is not a delegation
    of legislative power. It is a delegation to say, ``When X
    happens, then the law is triggered and the executive gets to
    act.'' So, I would not point to those examples as illustrations
    of legislative delegations of legislative power.
        Mr. Conyers. Could I ask if Professor Vladeck has any
    closing comment?
        Mr. Vladeck. And I just--I dispute the notion that
    everything changed in the 1960's. The first major
    administrative agency was created by Congress in 1887. That is
    the Interstate Commerce Commission. The Federal Government,
    gets a massively more expansive during the Second World War
    than modern administrative state is first upheld by the Supreme
    Court in 1932. So, I do not think we can look at the '60's as
    the moment where things went off the rails. If we really think
    that Congress has abdicated its constitutional responsibility
    by giving all this power to the administrative state, that is
    perfectly fine, but if that happened, it happened in 1887 and
    has been going ever since.
        Mr. Conyers. I thank the Chairman.
        Mr. King. The gentleman yields back the balance of his
    time. The Chair would now recognize the gentleman from
    California, Mr. Issa.
        Mr. Issa. Thank you, Mr. Chairman. I think I agree with
    Professor Vladeck. 1887 probably is when the Founding Fathers
    were gone and forgotten and we, Congress, deciding that it was
    a lot of work and summers were hot here, decided that, ``Well,
    what the heck? Let them do it. We still got the power of the
    purse.''
        Since before I came to Congress, I think all but two people
    on the dance probably--people still thought they could shut
    down the government by not funding and everything would be
    taken care because, of course, the executive would capitulate.
    We know that not to be true. It is the most impotent power we
    have, apparently, is the power of the purse. Proven by the
    impotency of those who shut down the government and then panic
    when, what a surprise, the government shuts down.
        I am going to take a little different tact and Mr.
    Chairman, I ask unanimous consent that a sample of the 17
    letters I sent on December 13, 2012 be placed on the record.
    This particular one is addressed to Attorney General Eric
    Holder.
        Mr. King. Without objection, so ordered.
        [The information referred to follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

      Mr. Issa. Thank you. During a different part of my service,
    my job was oversight, and overreach, mismanagement, abuse of
    power is the primary jurisdiction of Congress through oversight
    to determine. Now, this particular letter, I will use and I am
    going to ask each of you a couple of questions related to it.
    This one happens to make a point that there is a rampant
    problem within the government that government officials at high
    and not so high level are failing to comply with the Federal
    Records Act and circumventing the requirement that their emails
    and other communications be kept under the Federal Records Act.
        Now, that includes, Secretary Hillary Clinton, we now know
    at an abusive level. She simply had none and left the
    government with 100 percent of those documents. It included one
    of the key figures in Solyndra, a fellow named Jonathan Silver
    who wrote and this was included in the letter to the attorney
    general as an example of something we should be careful about.
    In his email, he said, ``Do not ever send an email on DOE email
    with a personal email address. That makes it subpoenable.''
        In fact, a person who has never been punished, went out of
    his way to advise others how to circumvent the oversight of
    Congress by eliminating the very existence of the documents
    that would be necessary.
        Now, December 13, 2012 is interesting only in that I asked
    17 Cabinet level officers about the private use of email. One
    of them was Secretary Clinton, who, of course, did not answer.
    And her successor, Secretary Kerry, answered erroneously, not
    admitting that obviously his predecessor had used it widely and
    left with all of them.
        Oddly enough, Eric Holder also did not respond during his
    tenure and later responded essentially in the negative. We now
    know that Eric Holder actually emailed from his personal email,
    oh, sorry. Email--was aware of the personal emails, but in his
    case, another part of this was, I asked if you were using any
    pseudonyms because that also had been a tendency over at EPA
    and he did not mention that he used Kareem Abdul Jabbar's true
    name as his false email. Damned if know. There you go, thank
    you, John.
        So, my question to each of you and I am going to get to
    professor too is, since the Congress appears not to have the
    tools to hold them accountable, is not the most important thing
    we do to build the tools to hold these executive branch
    officials accountable up to and including the ability to get a
    quick redress in the courts.
        And I will close with this and then I want each of your
    answers, Brian Terry was murdered in Arizona in 2010. In
    January 2011, this Congress was lied to about the Fast and the
    Furious. As of today, we are still in the court. Have not even
    gotten to appeal the judge's ruling to get the documents
    related to it. It that acceptable and should not this
    Committee's primary remedy for this to get an expedited ability
    to get to the courts, so that if, in fact, Professor Vladeck is
    right, and these are just misunderstandings and disagreement,
    that, in fact, they can be arbitrated fairly. Mr. Spalding?
        Mr. Spalding. Thank you, Mr. Issa. I agree with your
    overall point about rebuilding the tools. And I also agree with
    your point about the subpoena power and being able to get a
    quick decision from the judiciary. I think you are right about
    that, so yes, but I would say as a general matter, I do not
    think Congress' powers to purse are impotent. I think there are
    some great possibilities.
        So, I would include in terms of rebuilding the tools also,
    rebuilding your day-to-day tools, which is going to give you
    control over the executive, so that you do oversight before, in
    the early writing of legislation. That will make your oversight
    later much easier. Mr. Postell, quickly because I did kind of
    use all the time.
        Mr. King. Okay, Mr. Capretta.
        Mr. Capretta. I would just agree with Matthew on the power
    of the purse that done right--if it is just all or nothing. If
    you just try to shut down the entire Federal Government, of
    course, that becomes a cataclysm, but I think if the Congress
    starts to reassert its role in limits on individual
    appropriations across the board and reassert that in the
    appropriations process, agency-by-agency, program-by-program,
    so that those programs do not have as much discretion and they
    have to come back to the Congress more regularly, you will get
    more control.
        Mr. Vladeck. I will just say very briefly, I am a big fan
    of Judge Bates' 2008 ruling in House Committee of the Judiciary
    v. Miers, which I----
        Mr. King. So am I. As a matter of fact, I hope Mr. Conyers
    is still a fan of that since it was in his favor.
        Mr. Vladeck. But just to be clear, just to amplify briefly,
    if I may. I think the reason why that opinion makes so much
    sense is because at that point litigation had become the last
    tool to avoid potentially holding a member of the executive
    branch in contempt unnecessarily, and so I think there are
    remedies that can be exhausted within this body before
    resorting to the courts and this is exactly what Judge Bates
    understood in that ruling.
        Mr. Issa. Mr. Conyers, I know my time is expired, but is
    that your recollection that you went to court rather than
    holding someone in contempt? Was it not that you held them in
    contempt and that gave you the ability to go to the court. I
    just want to make sure we make the record straight and that was
    your action.
        Mr. Conyers. I believe that is correct.
        Mr. Issa. Thank you, thank you Mr.----
        Mr. Conyers. Can we hear Mr.--Professor Vladeck's comments
    on that because he was vigorously shaking his head.
        Mr. King. The gentleman's time has expired, however the
    Chair would recognize the gentleman from New York for his 5
    minutes.
        Mr. Issa. Before that we hear Professor Vladeck's comments
    on that last thing too. Of course, Mr. Chairman.
        Mr. Vladeck. All I would say is if I recall correctly, the
    posture of that case was a declaratory judgment action by the
    Judiciary Committee to litigate Ms. Miers claim of executive
    privilege in anticipation of whether she could be held in
    contempt. So, we had not yet been held in contempt when the
    declaratory judgment action was brought.
        Mr. King. The gentleman's time has now finally expired and
    we recognize the gentleman from New York for his 5 minutes.
        Mr. Nadler. Thank you. I appreciate that clarification. Let
    me ask first, Professor--oh, what is it? Capretta. You testify
    about Congress' permanent appropriate to things like Social
    Security and Medicare and various other things. This is a bad
    thing because we give up our power.
        Now my first question was, so in other words, you think we
    should abolish Social Security and Medicare and Medicaid. But
    then you said, ``No, you would not suggest that, but we ought
    to bring these programs under control by programmatic limits by
    additional spending control, et cetera.'' But what you are
    saying is and tell me why I am wrong in this, is that the only
    way for Congress to avoid what you see as the evil in these
    permanent appropriations, as you put them, is to put automatic
    clauses into effect that would have the effect of cutting
    Social Security automatically, or cutting Medicare
    automatically, unless Congress from time-to-time stepped in to
    change that.
        Mr. Capretta. Congress could have a lot of different ways
    of going about this. I would start with the list of programs
    that have mandatory spending authority goes well beyond the big
    three, which I would put Medicare and Medicaid and Social
    Security into that category. There are many other programs that
    have it.
        For instance, let me give you an example. There is an
    administrative agency in the Department of Health and Human
    Services, called the Centers for Medicare--Medicare and
    Medicaid Innovation.
        Mr. Nadler. Administers to Medicare.
        Mr. Capretta. No, this part of HHS does not administer
    Medicare per se. What they do is run a series of demonstration
    programs to test new approaches to organizing and paying for
    medical care under both Medicare and Medicaid. It is a
    demonstration part of the Medicare program and Medicaid as
    well. It gets a $10 billion appropriation every 10 years in
    perpetuity. So, every 10 years, it is going to get $10 billion
    automatically from the Treasury and does not ever have to come
    back to the Congress again. It is in the----
        Mr. Nadler. Except in 10 years.
        Mr. Capretta. It continues indefinitely and on a permanent
    basis. And then the funding can then be used to test any number
    of different things, which they can then take nationwide and
    implement both Medicare and Medicaid. Really open-ended
    authority to change drastically how the program is run. I think
    it is delegated way too much authority to this one agency. So,
    I would----
        Mr. Nadler. You do not argue that it is unconstitutional,
    you argue that it is wrong as a matter of policy.
        Mr. Capretta. Right and just for the record, I am not a
    professor and I am not a lawyer so, you know, my ability to
    comment on this constitutional aspect is very, very--you can
    take it as an amateur, so I am not going to, but I think it is
    a statutory----
        Mr. Nadler. Professor Vladeck, we have heard about the
    impermissible--the basic subject of the hearing seems to be the
    impermissible delegation of powers by Congress. Does adherence
    to separation of powers require that the Congress not delegate
    rule-making authority to the executive branch? And obviously,
    can you think of Supreme Court jurisprudence--any Supreme Court
    jurisprudence that supports this--what I would characterize as
    an extreme view of the Constitution?
        Mr. Vladeck. I can, but it is 80-years old. Right, so there
    was for a time, a period where the Supreme Court recognized
    something called the Non-delegation Doctrine that died in 1937.
    There was a case a couple of years ago where----
        Mr. Nadler. Now, is the switch in time that saved nine?
        Mr. Vladeck. Among other amendments, it happened in 1937.
    There was a case a couple of years ago where the parties tried
    to get the Supreme Court to reassert the Non-delegation
    Doctrine and the court politely declined. I think partly
    because it is very hard to figure out where the line would be
    if one were to have a judicially enforceable Non-delegation
    Doctrine between what Congress may and what Congress may not
    allow----
        Mr. Nadler. Let me ask--thank you. Let me ask Mr. Spalding,
    I think. Do you think that as part of this Non-delegation
    Doctrine, for instance, Congress has delegated and it has been
    somewhat controversial? We have delegated powers to the EPA and
    we have said that, ``Thou shalt prohibit or regulate toxic
    chemicals in the air.''
        Do you think it would be practical or the better practice
    for Congress to say in each case well, CO2 can be six points
    per million and nitrous oxide, seven points per million and
    when we discover some new chemical that comes out of
    manufacturing something else that may be poisonous, Congress
    must act on that, the EPA cannot say that is noxious.
        Mr. Spalding. The point I am making is not that the
    delegation argument as understood by the courts, which gave up
    on it back in 1930 is somehow to be revived. I think the court
    should rethink that. I am making more practical argument when
    it comes to Congress. Congress is a co-equal branch of
    government that----
        Mr. Nadler. Yes, but my question is are you saying that--
    you are saying that we have and not just you, but I mean, the
    general political thing here is a lot of people say Congress
    has delegated too much power and they have focused in, for
    example, on the EPA and others too, my question is, would it be
    practical or right to require Congress, or even if not right,
    is it mandated by the Constitution to require Congress to say,
    ``Okay, every time a manufacturing process introduces a new
    chemical into the atmosphere,'' Congress must--it is okay until
    Congress comes along and says, ``That chemical cannot be
    introduced into the atmosphere or that chemical can only be
    introduced at six parts per trillion.''
        Do we have the expertise or could we possibly develop the
    expertise to do that? Or is there something wrong with saying
    to the EPA, ``You make such determinations. We are telling you
    generally keep poisons out of the atmosphere.''
        Mr. Spalding. I think the Constitution does mandate
    Congress to keep control of the lawmaking process.
        Mr. Nadler. And so, your answer is yes.
        Mr. Spalding. And the details of which are to be returned
    by Congress as to how far to go.
        Mr. Nadler. So, your answer to me is yes.
        Mr. Spalding. If you look at all the places it has done, it
    has gone way too far.
        Mr. Nadler. So, your answer to me is yes. Congress would
    have to say how much--which chemicals and how many parts per
    trillion are okay in the atmosphere until----
        Mr. Spalding. No.
        Mr. Nadler. Why not? Where would you go on?
        Mr. Spalding. I think the problem now is that there is--the
    line is not, ``Do not do nothing. You can do everything.'' The
    line is somewhere in the middle and Congress should have done a
    better job at determining that.
        Mr. Nadler. Okay, so you think we have not done a good
    enough job. Last question, Professor Vladeck, Mr. Spalding
    asserts that there is no doubt that there is something
    qualitatively different to how this President is using and
    abusing his powers. Do you agree with his statement that there
    is something different about the current administration's use
    of rulemaking authority or exercise of executive authority and
    if so, can you explain what that something is?
        Mr. King. The gentleman's time has expired, the witness
    will be allowed to answer the question briefly.
        Mr. Nadler. Thank you.
        Mr. Vladeck. Thank you, Mr. Chairman. All I would say very
    briefly is I think that if there is a difference, it is only
    because of the paucity of legislation, which has left the
    President with, I think, a lot more areas where there is less
    legislative direction. Otherwise, I do not think it is a
    difference in degree or kind.
        Mr. Nadler. Thank you.
        Mr. King. Thanks the witness. The gentleman's time has
    expired. The Chair recognizes the gentleman from Florida, Mr.
    DeSantis for his 5 minutes.
        Mr. DeSantis. Thank you, Mr. Chairman. I am listening. I
    hear some of the witnesses talking about having three co-equal
    branches of government and I--as I look at the Constitution and
    read, you know, the Federalist Papers, it seems to me that we
    have three separate competing branches of government. I do not
    know that it is right to say that the Founders believed that
    they would be equal.
        I mean, for example, Madison said that the legislative
    authority would be the predominant branch and Hamilton said,
    ``The courts were by far the weakest of the three branches.''
    And so, Mr. Spalding, am I wrong to say that, you know, we do
    have, you know, demarcations of legislative, executive and
    judiciary authority, but they are competing branches. But the
    Founders did not necessarily think the courts would be equal to
    the legislative power.
        Mr. Spalding. I agree with you. That is right. The
    distinction I would make is that when it comes to exercising
    their constitutional responsibilities, each branch should carry
    out its constitutional responsibilities according to its work.
    So the court does it in terms of cases of controversy that come
    before it. The executive does it in executing the law and
    Congress, which is the primary branch of government by
    intention, must do it by legislating.
        So, in that sense, they have different responsibilities and
    they compete on those. But all three are taken an oath to
    uphold the Constitution and act according to its dictates.
        Mr. DeSantis. And so, I mean, in just looking at how the
    branches are exercising authority now in terms of--there is
    certainly, I do not think anyone could say that they are
    exercising equal authority. I mean, I think the executive is by
    far the most powerful because you have all the executive powers
    that are in Article 2 of the Constitution, but then you have
    mostly--most of the lawmaking or policymaking is done in the
    executive branch now. I mean, is that accurate?
        Mr. Spalding. It is approximate, I would say that is yes.
    The Congress has given over many of its broad authority to make
    laws, to officers that fall under Article 2 who pass what fall
    into--are laws. When you look at the amount of regulations and
    the extent of regulations and the effect on most people's day-
    to-day lives, those are the laws. This is why most Americans,
    when they want to get regulatory relief, they do not come here
    as much anymore. They go to the executive branch. They know
    where the bread is buttered in this institution.
        Mr. DeSantis. Or they come to us and ask us to write
    letters begging the executive branch to not add that to do.
    That is an idea which is probably not the----
        Mr. Spalding. I mean, we can argue ad infinitum as to
    minute details and judicial points and this, that and the
    other, but as a practical matter, I would argue that patent the
    obvious where laws are made in this country nowadays.
        Mr. DeSantis. Is there historical precedent we talk about
    this particular administration seems to me one of the things
    they seemed to have done is go back to statutes that have been
    on the books for decades and usher in really significant new
    policy changes that have a really significant effect. I mean,
    across the energy sector, financial services, all these other
    things. Is that out of the ordinary or has that been done in
    modern American history to that extent?
        Mr. Spalding. I think the Founders recognized very clearly
    the ambition would be a driving force in American politics. You
    can go back to Richard Nixon who appointed the first czar,
    right. Presidents will always to try to find ways to get around
    the laws of Congress. It is not this particular President,
    although this particular President has figured out a way to do
    it actually quite well. And he is doing it very creatively and
    it just so happens you have now a coincidence between the
    intentions of a bureaucratic body, which is driving toward a
    certain policy outcome and executive who actually is in
    agreement with that. That, coming together, I think is a new
    circumstance.
        Having said that, a Republican President will come in and
    will feel a lot of those same pressures to use those
    authorities they are given to assume and go after their policy
    objectives, which is why I think Congress, right now, should be
    thinking all this through in a sort of--in terms of asserting
    its authority regardless of who the next President is.
        Mr. DeSantis. Sometimes the press will report or say, ``Oh,
    you know, in this case we are probably going to assert a claim
    about the Obama administration.'' But he has issued less
    executive orders than these other Presidents. I mean, the
    number of executive actions, is that a good measure to just
    tell us whether----
        Mr. Spalding. I am not sure it is the number going back to
    the point about the veto. He has not actually done that many
    vetoes. It is not the number of things. It is the intention and
    what is being done with these powers that amounts to
    essentially driving a legislative agenda without the authority
    of Congress. That is the violation.
        Mr. DeSantis. I mean, you could do a dozen executive
    actions before breakfast if they are within Article II or
    authorized by statute. Then, that is just a decision the
    President is making. The issue is, is there executive authority
    that goes outside the Article 2 powers, correct?
        Mr. Spalding. That is correct.
        Mr. DeSantis. Thank you. I yield back. I think I am out,
    but whatever is remaining.
        Mr. Issa. For the 10 seconds left, Mr. Conyers, colloquy,
    do you recall the vote on the floor of contempt during the
    issue over firing the nine U.S. attorneys? My staff has
    reiterated that there was a contempt vote on the floor. You
    might remember that Mr. Boehner and a number of Republicans
    walked out during that one.
        Does that refresh your memory? It is a small point, but it
    is one in which I think it is important that it was not a--it
    was not an arbitrated Bates decision. They got to Bates because
    you bought to the floor a contempt which passed, if you recall.
        Mr. Conyers. Where is this leading?
        Mr. Issa. Well, I would just like the record clear,
    Professor Vladeck seems to want to talk about the Bates'
    decision being some sort of declaratory judgment that was
    arbitrary. We do not have the authority to get to the court
    except through that contempt vote. That was your means for
    getting it. And it is extreme and it happened to take very
    little time compared to other ones, but it did take some time.
        Mr. Conyers. You agree with that, do you not, Mr. Vladeck?
        Mr. Vladeck. What I was trying to suggest perhaps in-
    artfully to accomplish my study is just that the lawsuit was a
    declaratory judgment action. In the past, when the House had
    held an individual member in contempt, it was that member's, or
    it was that person's, or that witness' appeal that came rise to
    judicial review. In this case, it was----
        Mr. Issa. In this case, the U.S. attorney refused to
    prosecute and Chairman Conyers then had to go and ask the court
    to allow him a civil remedy and it took about a year for Bates
    to make a decision that we had that authority. And it was
    landmarked because it is the only way that we get any authority
    right now because we have no explicit statutory authority, but
    it was in fact, the hubris of President George W. Bush, not
    only saying he could fire them, but that he would not send
    Harriet Miers and then when held in contempt, told the U.S.
    Attorney through the Attorney General not to comply with an act
    of Congress.
        So, I think it is important when I talk about some
    impotence of our authority and the need for more that we admit
    that even with the extraordinary issue that Chairman Conyers
    did, we ultimately still took more than a year and the case
    came to a settlement only because George W. Bush was leaving
    office and did not want to leave it to a successor.
        Mr. Vladeck. And also----
        Mr. King. The gentleman from Florida's time has expired and
    he has departed the room or he would reclaim his time and so,
    we will now recognize the gentleman from Georgia, Mr. Johnson,
    for his 5 minutes.
        Mr. Johnson. Thank you, Mr. Chairman. Mr. Spalding, is it
    not true that the delegation of legislative power to the
    executive branch has been effectuated by allowing the use of
    executive orders by the President? Would you agree to that?
        Mr. Spalding. In the sense that the delegation have become
    more and more complicated?
        Mr. Johnson. Well, no, I am just saying generally speaking,
    it is because Congress has not challenged the use of executive
    orders that the use of executive orders has resulted in the
    delegation of legislative power to the executive branch. Is
    that----
        Mr. Spalding. Well, there are different ways in which the
    President can claim authority to issue an executive order as he
    carries out the law.
        Mr. Johnson. I am just talking in terms of executive
    orders. That is one of the ways that the legislative branch
    improperly delegates its authority to the executive branch.
        Mr. Spalding. By delegating more authority to the executive
    branch, the executive has more room and more authority to issue
    executive orders, yes.
        Mr. Johnson. And that is what has happened with President
    Obama. As you say, this President does it quite well. Is that
    correct?
        Mr. Spalding. In some cases, when he is given legislation
    that allows for broad interpretations or different
    interpretations easily enough, that gives him more ability to
    issue a broader executive order. The sheet amount of----
        Mr. Johnson. Do you believe that this President has abused
    the executive order?
        Mr. Spalding. No, I think the answer is yes, but I would
    divide it as in different categories.
        Mr. Johnson. Let me ask you this then, since you believe
    the President has abused his executive order authority if there
    be any. Do you happen to know how many executive orders this
    President has issued during his 7 years in office?
        Mr. Spalding. Formal number, no.
        Mr. Johnson. Do you know how many President George Walker
    Bush issued during his 8 years?
        Mr. Spalding. I would assume probably as many or more.
        Mr. Johnson. Why would you assume more?
        Mr. Spalding. Because the way that the executive carries
    out, executes the law is by using executive orders. That is how
    he instructs the body of people under him to do things.
        Mr. Johnson. So, you believe that George Bush was a greater
    abuser of the executive order than President Obama?
        Mr. Spalding. The sheet number of executive orders does not
    necessarily equal abuse or non-abuse. It is just the use of it.
    It is a legitimate activity of the President to issue an
    executive order. Nothing wrong with it per se.
        Mr. Johnson. Would it surprise you to know that Reagan
    issued more executive orders than George W. Bush?
        Mr. Spalding. No.
        Mr. Johnson. It would not surprise you? Why not?
        Mr. Spalding. Especially in a two-term President, they are
    going to issue a lot of executive orders. The issuance of an
    executive order is a perfectly legitimate activity.
        Mr. Johnson. Well, now President Obama is a two-term
    President who has issued fewer executive orders than President
    Reagan during his 8 years in. Is that surprising to you?
        Mr. Spalding. No, it is what the executive order covers,
    what is looking to----
        Mr. Johnson. Well, let me ask you, what executive orders
    has President Obama issued that are far more expansive than
    those--any of those that say, Ronald Reagan issued?
        Mr. Spalding. I think the question is if an executive order
    is issued----
        Mr. Johnson. Can you answer that question?
        Mr. Spalding. I am trying to. I would agree with the
    professor at the other end and I would divide it into different
    categories. I think when the, you know, some executive orders
    are very straightforward----
        Mr. Johnson. My time is running out. Let me ask you this
    question. Do you believe that when President Lincoln issued the
    executive order on January 1, 1963, that is, excuse me, 1863
    known as the Emancipation Proclamation, was it a user patient
    of legislative authority?
        Mr. Spalding. No. Because Lincoln made it very clear he was
    acting under his authority during a civil war.
        Mr. Johnson. How about when H.W. Bush and Reagan issued
    executive orders extending amnesty to family members not
    covered under the 1986 Immigration Law. Was that a user patient
    of legislative authority and executive overreach?
        Mr. Spalding. I would have to go back and look at the
    particulars, but the President does have certain abilities to
    give legal forgiveness.
        Mr. Johnson. Well, what I have noticed from you is that
    Republicans are okay with the use of executive orders, but
    President Obama is not and with that I will yield back.
        Mr. Issa. Mr. Chairman, I would ask you to have his
    consent.
        Mr. King. Without objection.
        Mr. Issa. Well, the unanimous consent--unanimous is on
    putting in the record from the Cornell Library, a very
    definitive document by Josh Chafetz; it is on executive branch
    contempt of Congress, which covers the Harriet Miers case.
        Mr. King. Without objection, the documents will be entered
    into the record.
        [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     __________

      Mr. King. Thank you, Mr. Issa. The Chair would now
    recognize the gentleman from Michigan, Mr. Bishop.
        Mr. Bishop. Thank you Mr. Chair. Thank you to those of you
    who have spent the time with us today. Very interesting
    subject. I do think I do want to start by building on what my
    colleague from Georgia was alluding to with regard to executive
    orders and ask Mr. Spalding are executive orders the only way
    that the executive can infringe upon the powers of Congress?
    And so, it really is not the best judge. The number of
    executive orders is not the best judge of whether or not an
    executive has infringed upon the role of Congress. There are
    other ways.
        Mr. Spalding. Yeah, I think if you look at the totality of
    all of their actions.
        Mr. Bishop. Yeah, departments, administrative agencies.
        Mr. Spalding. Appointments--how they deal with their
    departments, how they conduct their activities, how they
    exercise and deal with treaties--all of the above. I think we
    are in an unusual situation which we are taking a step back, as
    I understand it and looking at this from an institutional point
    of view. And I think Congress looking at it, both in terms of
    previous administrations and this administration. I do not
    think it is necessarily tied to a Democrat or Republican, in my
    opinion. There has been over time a rising activity in the
    executive branch, large in my opinion because of the amount of
    authority they have been given to use their capacities.
    Executive orders being a great example of that, to direct that
    bureaucracy for their own political purposes.
        On the one hand, that is perfectly natural in a political
    system. An executive will do that, but from a separation of
    powers point of view, that leads me to conclude that the real
    law-making authority that should be controlling those decisions
    and the executive executing those policies has been moved away
    from toward a different form of governing.
        Mr. Bishop. Thank you very much and I would commend you on
    this, what I think is the bible of constitutional scholar
    information and this book that you wrote, We Still Hold These
    Truths, is just an excellent, I think intro into these issues
    and review of these issues. So, thank you for doing that. I
    want--would like to ask Mr. Capretta, if I could, Mr. Vladeck
    suggested that the best solution to this situation to--is to
    pass a law which would ameliorate the passing of executive
    orders or whatever issues are that Congress could resolve this
    all by passing a law. Is that practical in today's world? Do
    you view that as a solution to what we are seeing today in the
    overreach?
        Mr. Capretta. I do largely agree with the point, which is
    that I think much of the concern that has been expressed this
    morning has to do with things that were passed in previous
    laws. And so, you are probably going to have to do some of the
    hard work of going back into those previous laws and say, ``Did
    we go too far in delegation of some interpretative authority
    and including spending authority?''
        Mr. Bishop. There are many bills in Congress right now
    addressing these issues.
        Mr. Capretta. Yes.
        Mr. Bishop. There is a practical problem here in that those
    laws have to be signed by the very executive that we are
    attempting to address his constitutional authority. I mean, I
    do not know how we can get the executive to--in states, we have
    a different state legislation. We have a thing called, the
    Committee on Administrative Rules, Joint Committee on
    Administrative Rules and the role of that entity is to bring
    any rules that are promulgated by departments or un-elected
    bodies to this--in front of this Committee. And they can decide
    whether or not it is an appropriate solution.
        In Congress, strangely enough, we just do not have that
    power to do that. We cannot stop a rule promulgated by a rogue
    committee or an agency that has decided to go off on a
    different course. And frankly, it may not even matter whether
    or not they are going in a direction that is good for the
    environment in which they are regulating. What can we do in
    this environment so that we can capture--recapture that power
    in Congress?
        Mr. Capretta. This is very complicated, but look, if you
    put everything one big bill at the end of the year with
    everything all in it, you lose a lot of leverage because then
    you will shut down the government if that one bill goes down
    and so, I think part of the problem is to begin to take these
    on piecemeal, one at a time, in smaller bites and the President
    cannot--certainly can veto lots of things if he wants to, but
    he cannot veto everything.
        And so, you know, Rome was not built in a day and so, you
    are going to have to assert your authority one-by-one, issue-
    by-issue and win the argument. This program should have a
    limitation. It is reasonable to impose one. It is okay to do
    that. Congress will be here if you want to get more money, you
    come back to us. Asking for that type of authority across the
    board in a lot of programs, it is going to be hard to argue
    against it.
        Mr. Bishop. Thank you. I yield back.
        Mr. King. The gentleman yields back. The Chair will now
    recognize the gentleman from Florida, Mr. Deutch.
        Mr. Deutch. Thank you, Mr. Chairman. I want to just go back
    and focus on comments that we have heard in various ways
    throughout this hearing. The responsibility of Congress to make
    adjustments, the leadership of Congress, the role that Congress
    plays and I want to just focus on a couple of areas where the
    President has taken executive action and I have not heard a lot
    about it, so--but I thought I would throw it on the table.
        When the Senate--oh and I learned, Mr. Chairman, I have
    learned a couple of things today also, that one, that the--that
    we should be grateful for the three branch clause in the
    Constitution that it was in fact strongly anti-slavery and
    respectful of equal rights of everyone and second, that we do
    not have three co-equal branches of government.
        And I do not know if my college in central Florida was
    sending a message to our current President or this being Super
    Tuesday was perhaps sending a message to the leading Republican
    candidate for President. Time will tell on that. But I have to
    ask if you look at immigration, an area where the President has
    received from many on this Committee harsh attacks and you go
    back the actions in the Senate and the passage of the Rubio
    Schumer legislation that provided a path to citizenship that
    made massive investments in border security that was the
    product of compromise and then you look at what has happened in
    the House and this fundamental question when it is the House's
    responsibility, Congress' responsibility to act.
        And you see that in this House and in this Committee in
    particular, there have been no efforts to craft any sort--first
    of all, no efforts either in this Committee or bi-House
    leadership to bring up that bipartisan legislation from the
    Senate and give us a chance to debate it, amend it and perhaps
    address this serious issue.
        And so, when the President took his--issued his deferred
    action for childhood arrivals, which, of course, was aimed for
    undocumented immigrants who entered the country before their
    16th birthday and before June 2007 to get this renewal work
    permit and exemption from deportation and then that was
    extended, of course, when the President expanded that to
    parents of U.S. citizens and legal permanent residents. We know
    that Congress does not authorize enough funds to DHS to deport
    11 million people. And it is a big discussion in our debate.
        Again, leading Republican candidate thinks it is exactly
    what we ought to do. So, it seems to be catching on. We will
    have plenty of time to debate that, but we do not do it. So, of
    course, there are going to be decisions made by the executive
    branch on how to allocate those funds that Congress provides.
        And why would it not be within the discretion of the
    President, in this case, to allocate those funds in a way,
    since Congress refuses to act, utterly refuses to act. Why
    would it not be in the discretion of the President to take
    action to recognize that perhaps since we have limited funds
    that Congress is giving us, why not use those limited funds to
    go after criminals and those who pose a danger to our society,
    instead of tearing families apart, taking kids who came here,
    who know no other country as their home, other than the United
    States and deporting them? That is one issue.
        Second issue I would touch on if the issue of guns and gun
    violence. Now, Congress, I agree has a responsibility to that
    and I if I had a nickel for every time in this--in our
    Judiciary Committee that we were told that there is no reason
    to take action because there are plenty of laws on the books,
    well, I would--I think I would have sufficient funds to address
    many of the problems that we face in our society because that
    is all we hear over and over. And yet, in this case, you have a
    law from 1968 that prohibited anyone other than licensed gun
    dealers to engage in the business of dealing firearms, a
    loophole that we have been trying to close that Congress has
    refused to take up.
        By the way, as an aside, I point out, refused to take up a
    single piece of gun safety legislation since New Town. Despite
    the ongoing moments of silence to take place in the House week
    after week after week, when there is another mass shooting.
        And so, Congress refused to act and the President took
    executive action to clarify what the private sale of guns are.
    And to help close that loophole and the President did it
    because Congress failed to act. I do not understand how that
    has been characterized as overreach when the fundamental issue
    here, whether it is on immigration or on guns, or on protecting
    our environment or a whole host of other issues that when
    Congress, as we have heard over and over and over this morning
    has a responsibility to act.
        Well, when Congress fails to act and there is a necessity
    to use and enforce and interpret existing law and that is what
    the President does, it strikes me that it is exactly what the
    President ought to do. Unfortunately, I am out of time. I yield
    back.
        Mr. King. The gentleman's time has expired. The hearing, no
    question, the Chair would recognize the gentleman from Texas,
    Mr. Poe.
        Mr. Poe. Thank the Chairman. Thank you gentlemen for being
    here. It is interesting that my friends on the other side like
    to use the same excuse that I heard as a judge down in Texas. I
    would have a person come to court charged with theft and
    occasionally, they would say, ``Well, judge, everybody steals
    in Texas. Give me a break.'' And the defense being, ``Well,
    other people do it, so let me go.''
        And, you know, I am a little a tired of hearing if George
    Bush did it, so it is okay for the President to do it. This
    issue is not about who does it. It is what position violates
    the Constitution in overreach.
        Now, we can go all the way back to Andrew Jackson if you
    want to. Some historians think that his invasion into Spanish
    territory of Florida to kill the Seminoles who were raiding my
    friend, Mr. Johnson's now home state of Georgia, that executive
    action was illegal because the President did not get authority
    from Congress.
        Andrew Jackson also, when Texas was a country, in some
    states still is, to Morris, Texas, independent state, in case
    you are wondering, gentlemen, 180 years. Texas is an
    independent country, took Congress forever to decide whether or
    not to recognize Texas as a country. Andrew Jackson said,
    ``Sure, I recognize them. They are an independent country.''
    And there was debate about whether or not that was legal or
    not.
        So, executive overreach has been debated a long time. And
    in my opinion, Congress just sits back and lets it happen. All
    of you--you probably memorize the Constitution and the way I
    read it, the Article 1, Section I, the first word--the first
    word is all, ``All legislative powers are granted shall be
    vested in Congress of the United States.'' It does not say,
    ``All legislative powers are granted and vested in Congress of
    the United States unless Congress fails to act, then the
    President can pass his own legislation.''
        There is no exception clause. It is the word all. Famers,
    Madison, probably had a good reason for putting the first word
    in the first article, all, all legislative power. The question
    has been Congress sometimes does not use its authority. Does
    that give the President the authority to say, ``Okay, I am
    going to make my own rules?'' Probably not.
        I mean, historically, the way I understand the Constitution
    was written, Article 1 deals with the legislative branch of
    government because it was supposed to be the most powerful.
    Then Article 2 deals with the executive branch and the Article
    3 deals with the judiciary, which was really supposed to be the
    weakest branch of government.
        I think as a practical matter today, in 2016 the judiciary
    is the strongest branch of government because they make laws
    too. And then you got the President and you got the legislative
    branch, which basically is very weak because we do not do a
    lot.
        And we have brought some of this on ourselves because when
    the lawmaking authority comes around, we decide to make some
    bureaucracy to enforce that law. Some of those bureaucracies
    are legislative. Some of those are done by the administration.
    We tell them to go out and make that law happen and then we
    criticize the bureaucrats for doing the job that we told them
    to do because we will not do it.
        So, I say all that to say, is this--do you agree, Mr.
    Postell, I will ask you this question, do you agree or not?
    Failure of Congress to act and failure to act really is an
    action. Failure to deal with gun violence is an action by
    Congress. They have made their decision. We have made our
    decision. But is there an exception clause in the Constitution
    that gives the executive the right to go ahead and go it his
    way. Like Burger King, have it your way because those
    legislators, those Members of Congress, they do not act.
        Mr. Postell. There is nothing in Article 2 of the
    Constitution that gives the President the power to make law and
    that is because of the reasons you have just indicated. Article
    1 gives all of the legislative powers to Congress. So, any
    excuse that relies upon Congress' inaction cannot be used to
    justify the granting of a new power, the assuming of a new
    power by the President. So, if Congress does not act, there is
    no law to execute.
        Mr. Poe. Even if the action by the President is a good
    idea.
        Mr. Postell. Yeah, I think it is important to separate
    results and policy from process. And a lot of the comments this
    morning in conversation is centered around, if you insist upon
    this sort of process, you might jeopardize the kind of results
    we want. But good process is important in and of itself.
    Especially a process that says we are going to rule ourselves
    throughout own elected representatives in the legislative
    branch.
        So, regardless of the outcomes we produce, it would be a
    good idea to preserve the principle that our elected
    representatives makes the law.
        Mr. Poe. Thank you, Mr. Chairman, I yield back.
        Mr. King. The gentleman yields back and the Chair would now
    recognize the gentlelady from California, Ms. Chu.
        Ms. Chu. Oh, Professor Vladeck, in your testimony, you
    state that some forms of executive action are appropriate when
    Congress is silent or vague on the matter. In recent years, has
    Congress through its inaction created an environment that
    necessitates unilateral executive action and can you give us
    examples that stand out in your mind?
        Mr. Vladeck. Sure. I mean, I think we will probably
    disagree among all of us in this room about which are the best
    cases, but, you know, I think the ISIL example that I reference
    in my testimony is actually a very powerful one. When Congress
    enacted the UMF in 2001, it did not even know that Al Qaeda was
    responsible for the September 11th attack, so it left up to the
    President to determine who was responsible.
        This administration is now claiming that, that statute
    enacted on September 14, 2001, somehow covers the use of
    military force in countries far afield of Afghanistan, against
    groups completely unconnected to Al Qaeda. And I think that is
    a very powerful example of where the absence of subsequent
    legislation has all but invited both this President and his
    predecessor to actually take this pre-existing statute and run
    with it in ways the original justices of that statute probably
    would have been very surprised to see.
        Ms. Chu. And under what constitutional authority does the
    President to have act in cases such as that?
        Mr. Vladeck. Well, in that case, I mean, I think the
    problem there is that, that is an issue where the President is
    arguing that he has delegate statutory authority. And so, my
    colleagues who think that authority cannot be delegated in the
    first place have a bit of an easier time because they say, of
    course, that delegation was impermissible in the first place.
        I, instead, am left to say I do not believe that is a fair
    reading of the statute and then it comes down to a disagreement
    between me and, for example, administration lawyers about what
    a particular statute means. That is the kind of disagreement
    that we see all the time. It is one that this body could fix
    very easily by just passing a new statute.
        Ms. Chu. Now, in instances where Congress perceives that
    the executive branch is overstepped its authority, what can
    Congress do to restore the balance of power?
        Mr. Vladeck. Sure, as I say in my testimony, I think in
    most of the cases we are talking about, new legislation would
    do most of the work. The only time where I do not think
    legislation would be effective in scaling back the kinds of
    Presidential excesses that some have criticized, is where the
    President is claiming the authority to defy acts of Congress
    and to not be bound by acts of Congress.
        And frankly, we have seen very little of that argument over
    the past 7 years. So, I think in other context, in all of the
    circumstances, new legislation could do a lot of the work.
        Ms. Chu. And how would you respond to the critics that
    argued that the President would simply veto any attempts by
    Congress to redress executive overreach?
        Mr. Vladeck. Sure, I mean I think there are two responses.
    I think the first is, this President has not used the veto pen
    that often. As I mentioned earlier, he has vetoed the fewest
    bills of a two-term President since James Monroe, so in 200
    years, but second, if there came a point where the President
    was using his veto powers in a way that was not just to achieve
    partisan policy outcomes, but actually was jeopardizing the
    institutional role of Congress, it would be my fervent hope
    that Members across the aisle and form a super-majority to
    override the veto, there is a long history in this country of
    Congress overriding vetoes on areas where I believe the
    President was acting unconstitutionally.
        Ms. Chu. Now, there are witnesses that argue that by
    creating a permanent appropriations for programs such as Social
    Security, Medicare and Medicaid, Congress has seated too much
    power to the executive branch. What are the benefits of
    creating permanent appropriations for certain safety net
    programs like these?
        Mr. Vladeck. Sure and I think there are a number of
    benefits. I think first and foremost, it provides stability to
    those programs. That they are not dependent on the annual
    budget process in ways that I think other programs are often
    held up in the balance at the last minute.
        Second, I think it allows Congress to actually not spend so
    much time in the nitty-gritty of whether X amount of money
    should be appropriated for Y medical procedure under Medicare,
    for example. You know, so I think the time it frees from
    Congress, the stability it creates for the program, the ability
    to allow the executive branch to use its expertise to figure
    out how best to implement these programs, I think are all
    benefits of such standing appropriations.
        Ms. Chu. Many of our witnesses are arguing that the
    Constitution precludes Congress from delegating its rulemaking
    authority to the executive branch to carry out the will of
    Congress. Is it unconstitutional for Congress to ask obtaining
    assistance from the other branches to execute Congress' will?
    If so, what are the examples?
        Mr. Vladeck. I mean, frankly, I think this is where some of
    the other witnesses might differ. I do not think the
    Constitution includes a non-delegation principle and I think I
    am with the Supreme Court which has not recognized one since
    1936. So, you know, I think Congress cannot arrogate the power
    of the other branches.
        Congress cannot commandeer the other branches, but do far
    as this is a cooperative enterprise, I do think Congress has a
    role, a very powerful role that I think it has just stopped
    exercising as frequently in involving the other branches,
    especially the executive branch in the implementation of
    Federal policy.
        Ms. Chu. And what is the standard that Congress must follow
    in enlisting the executive branch's assistance?
        Ms. Vladeck. I mean, the basic rule of the Supreme Court as
    given, as long as there is any intelligible principle to govern
    the delegation. So, as long as there is some reasoned basis on
    which the executive branch is exercising the power delegated to
    it, that is somehow related to the underlying statute is
    permissible. You know, we can sit around and debate whether
    there should be a stronger connection, whether there should be
    a more tighter rule. I guess, you know, insofar as our
    differences are primarily about policy, I do not think that
    rises to the level of a separation of powers problem.
        Ms. Chu. Thank you. I yield back.
        Mr. King. The gentlelady's time has expired. The Chair
    recognizes the gentleman from California, Mr. Peters.
        Mr. Peters. Thank you, Mr. Chairman. I appreciate the
    hearing and the chance to hear from the witnesses. It has been
    very illuminating. And what struck me in all the testimony that
    there was an agreement that this is really not a Task Force on
    Executive Overreach as much as it is on legislative under-
    reach. As every single one of the witnesses agrees that
    Congress could, if we decided to, take a hand and correct this
    imbalance.
        I heard, you know, legislative tort, inertia, indifference,
    quiescence, inability, unwillingness, and delegation. These are
    all things that Congress is responsible for doing and we can
    do. So, at the conclusion of this hearing, I am left with the
    impression that probably what we should do is get back to work
    on legislation. Legislation from the House of Representatives
    with which the Senate would agreement the President might sign.
        We have not taken up the authorization for use of military
    force. There was a lot of human cry about whether President
    Obama should have the power to take care of this. I am willing
    to take that up. The Congress has not been willing to take
    about it. We had an immigration reform bill in the Senate in
    2013, which got 69 votes.
        Immigration is one of the areas in which the President has
    been active and has been criticized for being so active. But we
    did not even get a vote on that in the House of
    Representatives. That was a bipartisan immigration bill. We
    could have taken that up right here, maybe amended it, but we
    were prevented from that vote on the House floor.
        There is a regulatory reform provision that came through
    the House. It has no chance of passing this--through this--the
    President's signature. I got an idea that we could achieve some
    of the same objectives with the President's cooperation. Tax
    reform is something in which actually, I agree with many of my
    Republican colleagues on some of the tax policy issues.
        Chairman Camp, when he was Chairman of Ways and Means
    issued a plan to start working on that. Speaker Boehner killed
    it the next day. So, we are not going to talk about it. Really,
    what we have here is, as a witness has suggested, is a failure
    of Congress, not something to criticize President Obama about.
    And, you know, sometimes, I think it is a little bit like me
    asking myself, ``Why is my hair not combed?'' It is because I
    did not comb it. We have all the power we need to take care of
    this.
        Mr. Capretta said on the issues on entitlement spending or
    social insurance that we should take those statutes and amend
    them. And that is something we have the power to do. I think
    Mr. Postell said, ``What we needed is more leadership within
    Congress.'' Well, I am ready for that and I think what we could
    do probably rather than have hearings about what Congress is
    not doing, we should just get about the business of doing
    Congressional work and with that I yield back.
        Mr. King. The gentleman yields back. This concludes today's
    hearing. Thanks to all of our witnesses for attending. Without
    objection, all Members will have 5 legislative days to submit
    additional written questions for the witnesses or additional
    materials for the record.
        I thank the witnesses and I thank the Members of the
    audience. This hearing is adjourned.
        [Whereupon, at 12 p.m., the Task Force was adjourned.]

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