[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


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      Available via the World Wide Web: http://judiciary.house.gov
      
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
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:]
    
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  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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