[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
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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
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TUESDAY, MARCH 1, 2016
House of Representatives
Executive Overreach Task Force
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 10 a.m., in room
2237, Rayburn House Office Building, the Honorable Steve King
(Chairman of the Task Force) presiding.
Present: Representatives King, Goodlatte, Issa, DeSantis,
Bishop, Cohen, Conyers, Nadler, Johnson, Chu, Deutch, and
Peters.
Staff present: (Majority) Paul Taylor, Chief Counsel,
Executive Overreach Task Force; Zachary Somers, Parliamentarian
& Chief Counsel, Committee on the Judiciary; Tricia White,
Clerk; (Minority) James J. Park, Minority Counsel; and Veronica
Eligan, Professional Staff Member.
Mr. King. If the Executive Overreach Task Force will come
to order, and without objection the Chair is authorized to
declare recess of the Committee at any time. I would start with
my opening statement.
I want to thank Chairman Goodlatte for supporting this
special House Judiciary Committee Task Force on Executive
Overreach, which will examine the problem of Congress' gradual
ceding of legislative power to other parts of the Federal
Government, and the President's taking additional legislative
powers even beyond that.
This is much more than a mundane process problem. It is a
tragic result for individual rights and liberties. Policies
imposed by Federal agencies are crafted by unelected
bureaucrats. Because those bureaucrats do not have to answer to
the American citizens over the course of regular elections,
they have little understanding of the desires and concerns of
those Americans. And so they produce policies that, for
example, make energy more expensive, take people's property
through Federal regulations, drive down wages through lawless
amnesty programs, and restrict communications on the Internet.
The Founders insisted and insisted on keeping policy making
in the hands of regularly elected congressional representatives
precisely to avoid these sorts of policy catastrophes. As the
former historian of the House of Representatives, Robert V.
Remini has written, ``The Framers of the Constitution were
absolutely committed to the belief that a representative body
accountable to its constituents was the surest means of
protecting liberty and individual rights.''
So anxious were they to affirm legislative supremacy in the
new government that they failed to flesh out the executive and
judicial departments in the Constitution, leaving the task to
Congress and thereby assuring that the legislature would retain
control of the structure and authority of both those branches
of government.
And within that system of legislative supremacy the House
of Representatives was to serve a unique role. Alone among all
Federal institutions the House has consisted solely of those
duly elected by the people.
Further, the Constitution grants the House the exclusive
power to originate all legislation for raising revenue. The
House of Representatives is the most regularly elected body in
the Federal Government. In Federalist 39 James Madison wrote,
``The House of Representatives is elected immediately by the
great body of the people. As such the House of Representatives
will derive its powers from the people of America.''
In Federalist 52 Madison elaborated, ``As it is essential
to liberty that the government, in general, should have a
common interest with the people, so it is particularly
essential that the House should have an immediate dependence on
and an intimate sympathy with, the people. Frequent elections
are unquestionably the only policy by which this dependence and
sympathy can be effectually secured.'' That is James Madison.
In this age of hyper-partisanship when more and more
attention is paid to political results and less and less to
Constitutional means, we tend to lose sight of why the Founders
created the system that they did. Focus not on results but on
process and a separation of powers.
Under that system of a separation of powers each branch of
the Federal Government was expected to protect its own
Constitutional powers such that no single branch accrued power
it was not allocated by the Constitution. The Founders
understood that individuals were free in direct proportion to
each branch of the Federal Government staying strictly within
its own bounds, and the most important lane was the legislative
lane; a narrow road of strictly enumerated powers written by a
Congress consisted of duly elected representatives; with the
House of Representatives the body most regularly elected, and
with special powers over the origination of revenue bills in
the driver's seat.
But today many legislative and budget powers have been
ceded to Presidents and the executive branch through statutes
delegating legislative responsibility to Federal regulatory
agencies composed of unelected people; and statutes mandating
automatic and increased spending on certain programs
administered by the executive branch.
Other legislative powers have simply been seized by
Presidents who exercise sheer will to trump the rule of law.
Whatever the means of the loss of legislative power by Congress
it is imperative that Congress reclaim it, not simply for its
own sake, but because without it individual rights and
liberties cannot flourish as the Founders intended.
It has long been my view that the Framers of our
Constitution structured the three branches of government in a
fashion that, with as bright a lines as they could draw,
between each three branches of government. Understanding though
that language could not precisely define the distinctions
between an Article 1, Article 2, and Article Three authorities
within the Constitution, but they did rely on human nature and
they believed that each branch of government would jealously
protect the powers granted to it in the Constitution, and there
would be a static tension that would be achieved between the
three branches of government.
I believe that has shifted over the years and we are here
to address this in this Task Force. And, again, I thank
Chairman Goodlatte for organizing this Task Force. And I would
recognize the Ranking Member, Mr. Cohen, for his opening
statement.
Mr. Cohen. Thank you, Mr. King, and pleased to be serving
as the Ranking Member of this Committee, the Executive
Overreach Task Force. I appreciate serving with Mr. Conyers and
fellow Members of this Committee and being the Chair. Mr. King
and I share a lot of things in common, that is true. We both
have the first name Steve. Neither one of us endorse Donald
Trump. But we believe in the Constitution, we want to have good
government, and we care about government, and we work together
on this Committee.
The Constitution makes clear that all legislative power is
``vested'' in the Congress, Article 1. Some of our witnesses
today take the view that this vesting of legislative power
means that Congress cannot constitutionally delegate power to
executive branch agencies, even when it retains ultimate
authority to determine when and how much power should be
delegated.
They ask us to look only at what they define to be the
founding generation's view of government and the separation of
powers, and asked us to reach that same conclusion. Telling us
that much of the intervening 200 plus years is not of any real
importance in understanding how our Constitution should work.
Perhaps unsurprisingly they suggest that the Constitution,
as they claim it was understood by the Framers, may require
Congress to cut funding for Social Security, Medicare, and
Medicaid. Maybe coincidentally they argue that the reading of
the Constitution raises questions about the Constitutionality
of the Affordable Care Act, which has thus far provided 18
million Americans with health insurance, ended discrimination
by insurers against those with pre-existing conditions, and
allowed 2.3 million young adults under 26 to remain on their
parent's health insurance, among other benefits.
Indeed some of our witnesses contend that Congress went
astray when it began to delegate authority to the executive
branch to enforce regulations on Wall Street, protect public
health and the environment, ensure worker's rights, and
guarantee civil rights. It is not too much of a stretch to say
that some of our witnesses would like to extend much of the
20th and 21st century would like see much of that repealed. My
guess is that they probably lack the votes to achieve such an
end through the political process. So instead they just turn to
a Constitutional theory that says we should only look at one
snapshot of our history and ignore all the rest.
Why is that that we have agencies that develop regulations?
As the Supreme Court has recognized Congress' delegation of
authority to the Executive arises from the practical
recognition that our society and our economy have become far
more complex, and problems far more technical than in the late
18th century, and indeed when the Founders created our Nation.
Congress had brought principles into statute and leaves it
to expert agencies to carry out that statute in conformity with
those principles. It is the Executive that does administer the
law. In short, Congress retains ultimate legislative authority,
it can delegate that authority, and it can also rescind or
limit the scope of that delegation.
This process has worked well to millions of Americans for a
wide variety of harms--protect millions of Americans from a
wide variety of harms, enhance innovation, and economic growth,
and ensure basic fairness and justice. And it was made possible
by a broadly written Constitution that was flexible enough to
accommodate changing times and circumstances.
That was the true wisdom of the Constitution's Framers to
create a document and one strong enough to serve as a clear
framework of government, but also adaptable so as to be
enduring.
I look forward to hearing our witnesses' testimony. I yield
back the balance.
Mr. King. I thank the gentleman and now I recognize the
Chairman of the full Committee, Mr. Goodlatte, from Virginia
for his opening statement.
Mr. Goodlatte. Thank you, Mr. Chairman. James Madison wrote
in Federalist No. 47, ``The concentration of executive,
legislative, and judicial power in the same hands is the very
definition of tyranny.'' Yet White House Chief of Staff, Denis
McDonough, recently said, ``Audacious executive actions are
being crafted to make sure the steps we have taken are ones we
can lock down, and not be subjected to undoing through Congress
or otherwise.'' Beyond even those unconstitutional actions the
President has already taken.
The Founders would have expected Members of the House of
Representatives, known as the people's house for its most
direct connection to the will of the people, to aggressively
guard their role in the Constitutional legislative process.
This Task Force will do just that in a manner that educates
other Members and the public on the dangers to current and
future generations of the ceding of power away from the
people's house, and Congress generally.
In Federalist No. 57 Madison wrote, ``The House of
Representatives is so constituted as to support in the members
and habitual recollection of their dependence on the people.
Before the sentiments impressed on their minds by the mode of
their elevation can be effaced by the exercise of power, they
will be compelled to anticipate the moment when their power is
to cease, when their exercise of it is to be reviewed.''
Keeping legislative power, and in particular budgeting
power, close to the will of the people was considered so
important that the Constitution specifically provides that the
House of Representatives has the exclusive authority to
originate revenue bills.
Indeed regarding budget matters when the first Congress in
1789 considered the law creating the Treasury Department in the
executive branch, the bill as originally introduced authorized
the Secretary of the Treasury to devise and report plans for
the improvement and management of the revenue. But it was
feared that even giving the Secretary of the Treasury the
modest power to report plans implied too much authority for the
executive branch. And so the bill was amended to authorize the
Secretary only to prepare plans regarding the management of
revenue.
The amended bill also specifically required the Secretary
to make report and give information to either branch of the
legislature in person or in writing, as he may be required,
respecting all matters referred to him by the Senate of House
of Representatives, or what shall appertain to his office.
It thereby allowed Congress to request financial
information directly from the Treasury Secretary bypassing the
President; and made clear that Congress and not the President
was the ultimate authority on budget issues.
But today as our witnesses will elaborate, Congress
exercises far less control over budget matters than was
originally intended. Whereas early Congresses specified exactly
how much money would be spent for how long to build a
lighthouse or a post road, for example. Many Federal programs
today enacted by Congresses decades ago are administered by the
executive branch and funded on an autopilot basis, their
allocations increasing automatically by statute without the
need for any periodic review by Congress.
The threat posed by the ceding of legislative power by
Congress to this generation and future generations, can often
be seen abstract in the midst of intense policy debates in an
historically hyper partisan environment.
As law Professor David Bernstein has written, ``The authors
of the Constitution expected that Congress as a whole would be
motivated to preserve its authority against Presidential
encroachment.'' The Founders, however, did not anticipate the
development of our two party system. At any given time around
half the Members of Congress belong to the same party as the
President, and do not want to limit their President's
authority.
Yet as then Chairman of the House Judiciary Committee
Democrat John Conyers said under the Presidency of Republican
George W. Bush, ``I believe it is in all of our interests to
work together to rein in any excesses of the executive branch,
whether it is Democratic, Republican, or even Libertarian
hands.'' I agree with Ranking Member Conyers, and I look
forward to hearing from all of our witnesses today.
Mr. King. Thank you, Mr. Chairman. Now I recognize the
Ranking Member of the full Committee, Mr. Conyers, for his
opening statement.
Mr. Conyers. Thank you, Mr. Chairman, and I thank the
previous speaker for his recollection of our comment at an
earlier period. Members of the Committee I have expressed from
time to time the hope that we could work collaboratively in
some areas of mutual interest; but in particular those
centering on strengthening Congress' ability to conduct
oversight of the executive branch. I am hopeful that there is
room on this Task Force for bipartisan cooperation, as much as
possible.
That being said, I also recognize that there will
inevitably be areas of fundamental philosophical differences
between the majority and the minority. On some level our
hearing topic today on the original understanding the role of
Congress and how far we have drifted from it reflects both
potential paths for this Task Force.
To begin with there are indeed policy areas like war powers
matters where Congress has, to me, failed to assert itself
sufficiently leaving room for the President to expand his
unilateral authority.
As one of our witnesses, Professor Vladeck, will testify in
greater detail the earliest Congresses understood that inaction
or indifference by Congress in placing specific limits on a
President's war making authority, enables and even invites the
expansion of Presidential power at Congress' expense. Simply
put, if Congress fails to act to place limits on Presidential
authority it has little basis to complain about separation of
powers concerns.
It is also important to remember that when Congress has
delimited executive power by statute, there is a difference
between cases where a President simply ignores such limits and
cases where a President interprets the broad delegation of
authority by Congress.
A President might simply ignore clear statutory limits that
Congress has placed on his power. President George W. Bush, for
example, claimed the authority to ignore statutory limitations
on his exercise of power with regard to national security,
including prohibitions on torture and warrantless surveillance,
among other things.
In other cases Congress has given a broad grant of
authority to the executive branch for the purpose of
implementing statutes, and there may be a dispute as to the
precise scope of that grant of authority. It is important not
to conflate these situations. The former is far more troubling
from a separation of powers perspective than the latter.
Finally, we must ask why it is that Congress has chosen in
many instances to delegate authority to the executive branch,
particularly with respect to economic and health and safety
regulation. In large part this is a reflection of the fact that
we live in a society that is far more complex than the one that
existed in the late 1700's.
As even our witnesses here this morning acknowledge, the
country and the Congress were far smaller and simpler at that
time. And the Framers wisely built in some ``flex in the
joints'' of our Constitution precisely to capture all the
changes to our society and economy that could not be foreseen
in the 18th century.
It is important to remember that even where Congress has
delegated authority to the executive branch, the power to
legislate ultimately still resides with Congress. Congress is
always free to rescind its delegation of authority or to narrow
the scope of delegation. And so I look forward to an engaging
discussion with our witnesses and among ourselves, and thank
all of you for being here. Thank you, Mr. Chairman.
Mr. King. I thank the dapper gentleman from Michigan for
his statement.
And without objection, other Members' opening statements
will be made a part of the record.
Let me now introduce our witnesses. Our first witness is
Matthew Spalding; he is Associate Vice President and Dean of
Educational Programs, Hillsdale College. Mr. Spalding also
oversees the operations of the Allen P. Kirby, Jr. Center for
Constitutional Studies and Citizenship here in Washington, D.C.
Our next witness is Joseph Postell; he is the Assistant
Professor of Political Science at the University of Colorado at
Colorado Springs. Professor Postell is currently completing a
book titled, ``Bureaucracy in America, The Administrative
State, and American Constitutionalism.''
Our third witness is James C. Capretta, visiting fellow at
the American Enterprise Institute, and senior fellow at the
Ethics and Policy Center. Mr. Capretta has served as an
Associate Director at the White House Office of Management and
Budget, and as a senior health policy and analyst at the U.S.
Senate Budget Committee, and at the U.S. House Committee on
Ways and Means.
Our fourth and final witness is Stephen Vladeck, Professor
of Law at American University, Washington College of Law, and
he is teaching in a research focused on Federal jurisdiction,
Constitutional law, and national security law. We welcome you
all here today and look forward to your testimony.
Each of the witnesses' statements will be entered into the
record in its entirety. I ask that each witness summarize his
testimony in 5 minutes or less to help you stay within that
time. There is a timing light in front of you. The light will
switch from green to yellow indicating you have got 1 minute to
conclude your testimony. When it turns red it indicates that we
appreciate it if you have concluded your testimony.
Before I recognize the witnesses it is the tradition of the
Subcommittee that they be sworn in so please stand to be sworn
in. Do you solemnly swear that the testimony that you are about
to give will be the truth, the whole truth, and nothing but the
truth, so help you God?
You may be seated. Let the record reflect that the
witnesses answered in the affirmative. I now recognize our
first witness, Mr. Spalding. Mr. Spalding, your 5 minutes.
TESTIMONY OF MATTHEW SPALDING, Ph.D. ASSOCIATE VICE PRESIDENT
AND DEAN OF EDUCATIONAL PROGRAMS HILLSDALE COLLEGE
Mr. Spalding. I thank you, Mr. Chairman. My thesis is
actually quite simple. It was Congress, the intended primary
branch of government, by choosing to diminish its
Constitutional powers which enabled the rise of the so-called
imperial Presidency and the temptations of executive overreach
of our day. Likewise Congress has the power to stop the
executive from overwhelming American self-government with
bureaucratic rule should it choose to do so.
In my testimony I discuss the rule of law as it informed
the American Constitution, culminating in absolute centrality
of lawmaking and legislatures. The full implications of which
are seen in the American founding itself, especially the
consent to the government; hence, the importance of Article 1,
which lodges a basic power of government in the legislature and
its ability to make laws.
Its core powers listed in Article 1, utmost of significance
I point to the Power of the Purse, the Appropriations Clause in
Article 1, Section Nine; a limit most notably on executive
action.
And Congress, not the executive, has the authority needed
to carry out additional functions under the necessary and
proper clause. The separation of powers of the defining
structural mechanism by way that this works such that the self-
interests of each branch make it a check on the others, and
they jealously protect their own powers.
This changed with the progressives. They positive a sharp
distinction between politics and what they call administration.
Politics would remain the realm of expressing opinions but the
real decisions in theory, they argued, would--and the details
of government would be handled by administrators in what they
called the administrative state.
The Founders went to great length to preserve consent and
limit government through public institutions and the separation
of powers. The progressives held that the barriers erected by
the Founders had to be removed, or circumvented, to unify and
expand the powers of government. In this new conception
government is administrative and bureaucratic; government must
always evolve and expand. In theory it must remain unlimited.
We have been moving down this path slowly for some time.
The most significant shift, I argue, occurred under the Great
Society when the Federal Government set about creating programs
to manage the whole range of socioeconomic policy. The
expansion of activities led to vast new centralizing authority
in the Federal Government, and a vast expansion of Federal
regulatory authority. It also brought with it what we
conventionally mean by big government, huge workforces, massive
expenditures, extensive debt, and created a new source of
conflict between the executive and the legislative.
At first Congress had the upper hand; Congress had been
creating the bureaucracy to carry out its wishes. But the more
Congress gave away its powers in the form of broad regulatory
authority, the more bureaucrats effectively became the
lawmakers. The rise of the new imperial Presidency, and it
should be shocking but no surprise, as Congress has expanded
the bureaucracy creating programs, delegating authority,
neglecting budgeting; the executive has attained unprecedented
levels of authority. Our executives can command the bureaucracy
to implement new procedures and policies without the
cooperation of Congress by abusing executive discretion, by
exploiting the vagaries of poorly written laws, and now by
willfully neglecting and disregarding the laws which indeed are
clear.
By acting unilaterally without or against the authority of
Congress, the executive not only assumes the duty of
legislative powers without legislative accountability, but also
avoids responsibility for executing the laws legitimately
authorized by Congress. Once it has been established that the
President can govern without Congress and, by extension,
without the law it will prove difficult and perhaps impossible
to prevent future executives from following the same lawless
path.
The only way to reverse the trend of a diminishing
legislature and the continued expansion of the bureaucratic
executive is for Congress to strengthen its Constitutional
muscles. Congress must reassert its legislative authority and
to cease delegating what amounts to power to make laws. If it
allows administrators the discretion to create significant
rules Congress can assert its authority to approve or reject
those rules.
Second, Congress must regain legislative control or is
stays in its labyrinth state bringing consent and responsibly
back through better lawmaking up front and, as a result, better
oversight after the fact. The day to day back and forth of
overseeing the operations of government will do more than
anything else to restore legislative control or it stays
unlimited government.
Third, one place where the power of Congress is not
entirely lost and where there is opportunity for gaining
leverage over an unchecked executive is congress' Power of the
Purse, strategically controlling using the budget process. If
Congress does not act to correct the growing tilt toward
executive bureaucratic power the structure of our republican
government will be fundamentally and, perhaps, permanently
altered.
Congress needs to think strategically and act as a
Constitutional institution. And it must begin doing so
forcefully stating its argument, putting down clear markers,
and drawing enforceable institutional lines before the
inauguration of the next President, whoever that might be, and
regardless of their political party.
Thank you.
[The prepared statement of Mr. Spalding follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. All right thank you, Mr. Spalding. And now I will
recognize Mr. Postell for his testimony.
TESTIMONY OF JOSEPH POSTELL, ASSISTANT PROFESSOR OF POLITICAL
SCIENCE, UNIVERSITY OF COLORADO, COLORADO SPRINGS
Mr. Postell. Thank you very much, Mr. Chairman, and Members
of this Task Force. I am delighted to be here and I appreciate
the opportunity to testify. In my written testimony and in my
brief remarks this morning I am addressing two questions. The
first, how the early Congresses avoided delegating its
legislative power over to the executive. And second, how
Congress structured itself in its early decades in order to
ensure that it, and not the executive, set the legislative
agenda.
Today Congress routinely delegates massive legislative
lawmaking power over to administrative agencies. This is
contrary to the text of the Constitution and it is contrary to
the intentions of the Framers. Some scholars claim that early
Congresses delegated power to the executive and, therefore, it
is perfectly okay for Congress doing so today. The historical
record, however, shows otherwise. Article 1 of the Constitution
states plainly, ``All legislative powers herein granted shall
be vested in a Congress of the United States.'' It does not
give Congress the option in Article 1 to delegate those powers.
It sets up, in other words, a non-delegation principle.
Early Congresses observed this principle very carefully.
The laws they passed were highly detailed, they limited the
discretion of the executive. Congress wrote every detail of the
tariff laws in its first decades, specifying not only the
amounts of the taxation but the products to be taxed. Congress
wrote in very specific detail the routes of the post roads in
the early decades of the Republic.
In the second Congress James Madison, a Member of the
House, said this, ``We must distinguish between the
deliberative functions of the house and the ministerial
functions of the executive powers.'' Legislative
determinations, he insisted, must remain in Congress' hands;
ministerial execution of law is the job of the executive.
But this leads to my second point. Although Congress
avoided delegating its legislative powers in the early decades
of the Republic, the early Congresses ran into a related
problem. The problem was the executive was influencing the
legislative process, setting the agenda for Congress rather
than letting leaders within the Congress set the agenda. Our
first Treasury Secretary, Alexander Hamilton, was by all
accounts the most important legislative policymaker in the
first decade of the Republic.
As President, Thomas Jefferson actually wrote bills to be
sent over to Congress to be passed. This was not appropriate
for a system of separated powers and Congress knew to reverse
this it had to reclaim the authority to set its own agenda.
Congress' solution to the problem was to set up internal
structures of power to provide the necessary leadership within
Congress to allow it to set and implement its own agenda.
Without leadership Congress realized it would succumb to what
is called a collective action problem. That without leaders in
the Congress, Members would cater to their districts back home
rather than working together to pass laws in the national
interest.
Throughout the 19th century Congress modified its internal
procedures and strengthened its leadership in order to provide
the solution to these collective action problems. By 1825 the
House had set up 28 standing Committees to provide it with the
expertise needed to free it from the expertise of the executive
branch.
Later in the 1800's the Speaker was given significant, even
massive, authority to set the legislative agenda and influence
Members to promote that agenda. Most of that authority
centralizing leadership in the Congress has since been
eliminated by progressive reformers.
As a result of its internal leadership that it developed
over the first century of its existence, Congress' ability to
manage its affairs improved dramatically. And not
coincidentally in the 19th century the power of the executive
diminished dramatically. The early experience of the Congress,
therefore, teaches us a second lesson. Without internal
leadership Congress will follow the agenda set by the executive
rather than its own. A Republican form of government is
predicated upon a strong legislative branch to serve as the
place of popular representation. One person in the White House
cannot possibly adequately represent the American people. In
seeking to preserve its role Congress should consult the
lessons of its early experience.
Members of this Task Force, thank you very much for the
opportunity to present this testimony. And I look forward to
your questions.
[The prepared statement of Mr. Postell follows:]
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__________
Mr. King. Thank you, Mr. Postell, for your testimony. And
the Chair now recognizes Mr. Capretta for his testimony.
TESTIMONY OF JAMES C. CAPRETTA, VISITING FELLOW, AMERICAN
ENTERPRISE INSTITUTE AND SENIOR FELLOW, ETHICS AND PUBLIC
POLICY CENTER
Mr. Capretta. Thank you, Mr. Chairman, and Members of the
Task Force. I am very pleased to be here this morning. I am
very pleased to be here this morning, thank you for inviting
me.
The Power of the Purse is arguably the most important power
granted to Congress in the Constitution. It is what separates
our system of government from many others. The United States
President, unlike a king, cannot decide to withdraw funds from
the Treasury without an appropriation by Congress, no matter
how pressing the purpose. Even in an emergency, such as in the
aftermath of 9/11, Presidents must go to Congress and ask for
the funding.
This Power of the Purse is the primary means by which the
people's elected representatives exert control over the size,
direction, and activities of the Federal Government.
Over recent decades Congress has chosen to steadily dilute
this power by granting to the executive branch permanent, and
oftentimes unlimited or ambiguous, appropriations. This
granting of permanent spending authority, generally for
programs that are called entitlements, has delegated to the
executive branch significant discretion over the terms of this
spending. Moreover because the spending authority is open ended
or indefinite in appropriation terms, Congress has given up
substantial control over the overall size of government, over
total Federal spending, and over deficits and debt.
The list of programs with permanent spending authority in
current law is long. It begins, of course, with the major
entitlement programs but there are many other programs with
permanent spending authority too. Including the Supplemental
Nutrition Assistance Program, the Social Services Block Grant,
some functions of border security and control, portions of
Federal housing assistance, reinsurance and risk corridor
payments to insurance companies under the Affordable Care Act,
and much else.
The spending authority provided by Congress for other
programs are often flexible enough to accommodate substantial
and expensive executive discretion.
For instance, the current administration used its authority
under the SNAP Program to waive the state enforced work
requirements in the program for a number of years. The result
has been a surge in enrollment in the program that is well
above the historical norm, even after taking into account the
soft labor market of recent years.
The provision of permanent and open-ended spending
authority by Congress has resulted in a complete transformation
of the Federal budget; 64 percent of the Federal budget was
devoted to annually appropriated accounts in 1965. By 2015 that
portion of the budget had shrunk to 32 percent, while spending
on mandatory and entitlement programs now takes up more than
three fifths of the entire Federal budget.
It is not a coincidence that as budgetary pressures have
risen the growth of political pressures have built to cut
discretionary appropriations. In recent budget deals it has
been much easier for Congress to apply significant pressure on
discretionary accounts than it is to apply pressure on the
permanently appropriated accounts. And we can see the result of
that in the long-term trend toward lower spending on that
portion of the budget.
It will not be possible to reverse the trend toward
permanent appropriations authority quickly, nor would it be
advisable for Congress to undo such authority in every program.
I am not arguing for that.
For instance, in Social Security it is important to have a
program with some certainty associated with the provision of
retirement benefits. Workers need that to make appropriate
financial plans. But making allowances for the legitimate need
for program certainty need not mean that Congress must cede all
budgetary control to the executive branch. Congress should
consider several steps to reverse current trends and bring more
spending back under the direct control of the House and Senate.
Through the Budget Resolution Congress could consider
imposing limits on what is spent on the non-discretionary
portion of the budget. This would require a change of law
before this could be done. Such a limit would need to be
enforced with some automatic restraints if it were ever to be
breached. And some programs could be accommodated with
exemptions or adjustments, but the basic idea being putting an
overall limit would restore Congress' ability to budget in this
area of the budget that it is not controlling today.
Further, Congress could also begin to reassert its role by
imposing specific limits on certain programs. For instance,
Congress could specify that a program's permanent appropriation
may not grow by more than some rule, such as the rate of
inflation. If the program were projected to grow faster than
that then the executive branch would be required to come back
to the Congress and ask for additional spending authority,
perhaps then triggering some reforms.
The U.S. Constitution gives Congress the sole power to
appropriate funds out of the Treasury. Over many years, for
understandable reasons, Congress has delegated a lot of that
authority now to the executive branch. It's time to begin
reversing that trend. Thank you.
[The prepared statement of Mr. Capretta follows:]
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__________
Mr. King. Thank you for your testimony, Mr. Capretta. And
now I would recognize Mr. Vladeck for his testimony.
TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, AMERICAN
UNIVERSITY WASHINGTON COLLEGE OF LAW
Mr. Vladeck. Great. Thank you, Chairman King, Ranking
Member Cohn, distinguished Members of the Task Force. Although
many have been quick to blame the President for the perceived
drift in the separation of powers, I want to suggest in my
brief remarks today that any such drift is at least as much a
result of legislative torpor. And unwillingness on the part of
Congress to use substantive legislation to better define and
police the authority delegated to the executive branch.
When discussing concerns over executive power the Founders
would have distinguished, and did distinguish as I explain in
more detail in my written statement, between three types of
inter-branch disputes. The first type of inter-branch dispute,
and by far the least significant from a separation of power
standpoint, arises from disagreement between the Congress and
the executive branch over the terms of a statute that the
executive branch is enforcing.
In such cases the issue is not whether the President is
acting unconstitutionally, but rather whether the actions of
executive branch officials are consistent or not with whatever
directives Congress has prescribed. Moreover, the Supreme Court
has typically afforded deference to the executive branch's
reasonable interpretations of ambiguities and the statutes it
is tasked with enforcing, even if the courts or the current
Congress, might read the same text differently.
The second type of inter-branch dispute involves cases in
which the executive branch claims a Constitutional authority to
act in the face of Congressional silence, as Justice Jackson
explained in his celebrated concurring opinion in the Steel
Seizure case. In such circumstances where no statute either
authorizes or specifically limits the President's authority,
``Congressional inertia, indifference, or quiescence may
sometimes, at least as a practical matter, enable if not invite
measures on independent Presidential responsibility.''
The third type of dispute, which poses the gravest threat
to the separation of powers, involves circumstances in which
the President claims the authority to act in defiance of
statutory limits on his authority because, in his view, such
statutes unconstitutionally infringe upon his Constitutional
powers.
As Justice Jackson put it in the Steel seizure case,
``Presidential claim to a power at one so conclusive and
preclusive must be scrutinized, excuse me, scrutinized with
caution, for what is at stake is the equilibrium established by
our Constitutional system.''
I offer this taxonomy to underscore three points that I
believe are central to today's hearing, and to the broader work
of this Task Force. First, in my view most of the areas in
which President Obama has been criticized for overreaching fall
into the first of these categories and, therefore, reduced to
good faith disputes over statutory interpretation and not over
the scope of the President's Constitutional powers.
As a case in point consider the current debate over the
President's legal authority to use military force against ISIL.
The Obama administration has maintained since September of 2014
that apart from isolated and limited acts of self-defense, its
general authority to use such force derives not from Article 2
of the Constitution, but from the AUMF. Even though that
statute, one, says nothing at all about ISIL and, two, only
authorizes force against groups that were responsible for or
assisted in the attacks of 9/11, which occurred before ISIL
even existed.
Some agree with the Obama administration's legal reasoning,
others do not. But even if the executive branch is incorrect in
its interpretation of the AUMF, all that would mean is that the
executive branch is mistaken in its reading of a statute, not
that it is willfully abusing its inherent Constitutional
authority. This is exactly why many, including President Obama
himself, have repeatedly called upon this Congress to pass a
new AUMF for ISIL. Not because they are convinced that the
executive branch is acting unlawfully in using force under the
2001 AUMF, but because such a statute would reassert Congress'
institutional role in war making, and would set the parameters
for the current armed conflict whether or not the President
already has statutory authority for the actions he is
undertaking.
Second, President Obama has not been nearly as aggressive
in claiming the kind of indefeasible executive power that was
routinely invoked during the Bush administration. The authority
to ignore statutes that, among other things, prohibited
torture, limited the government's power to conduct warrantless
surveillance, required statutory authorization for the
detention of U.S. citizens as enemy combatants, and so on. A
common refrain during the Bush administration was that statutes
Congress enacted to limit the President's power were
unconstitutional. We have heard far, far less of that argument
from the White House over the past 7 years and, in my view, for
good reason.
Third, and perhaps most importantly, unlike with respect to
claims of indefeasible power concerns that the President is
overreaching in either of the first two categories I have
described can easily be ameliorated through new legislation
clarifying the scope of an existing delegation, or
circumscribing the President's power to act in the absence of
statutory authority. In Federalist 51, James Madison famously
explained that for our system of separated powers to function
ambition must be made to counteract ambition. I could not agree
more. But to date the 114th Congress has enacted 126 public
laws, fewer than half the total of what was previously the most
unproductive Congress in American history, the 112th, which
passed 283. By contrast the 80th Congress, which President
Truman famously derided as the ``Do Nothing Congress,'' enacted
906 public laws.
Reasonable minds can and will surely will disagree about
the merits of President Obama's policy ambitions and statutory
interpretations, in these areas and others. What cannot be said
is that this Congress has been uniquely reluctant to counteract
or otherwise mitigate those ambitions through substantive
legislation.
What this underscores, in my view, is that any contemporary
drift from the historical balance between the branches has been
at least as much a result of Congressional inability or
unwillingness to do the hard work of legislation as it has been
the result of Presidential aggressiveness, and has already made
solution not in hearings like this one, but in new substantive
legislation that would more directly vindicate Congress'
institutional and Constitutional role.
Thank you for your time and I look forward to your
questions.
[The prepared statement of Mr. Vladeck follows:]
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__________
Mr. King. Thank you for your testimony, Mr. Vladeck. I
thank all the witnesses for your testimony. We will now proceed
under the 5-minute rule with questions. And I will begin and
direct my first question to Mr. Spalding.
Mr. Spalding, I noticed in your testimony that you
referenced the 1688 Glorious Revolution and the establishment
of a legislative supremacy over the monarch. Could you
elaborate on that if that is the foundation by which our
Founding Fathers looked to when they wrote Article 1 in the
Constitution?
Mr. Spalding. Thank you for the question. The importance of
the Glorious Revolution to the American Revolution is high. The
long establishment of the rule of law through British
Constitution culminates in the Glorious Revolution, which could
only go so far. It established legislative supremacy. Having
said that that legislative supremacy used by Parliament against
the Americans of the colonies was objectionable to them.
The American Founders perfected this question by
constructing a Constitution of three coequal branch, the
legislative being first. But with the power that we have talked
about and the various checks on it, and the executive and the
judiciary to the separation of power system.
Mr. King. So in other words, that was what the Founding
Fathers--one of the things they looked at when they said they
need to have a method to restrain an over exuberant legislative
branch that might have been all powerful. It helped them bring
that to the balance of the three powers--branches of
government.
Mr. Spalding. And they did so by having a written
Constitution, which was the main difference between the
Glorious Revolution and the American Revolution.
Mr. King. Indeed and thank you. And then so I also wanted
to pose another question to you, Mr. Spalding. And that is that
do you believe that our Founding Fathers imagined that there
would be an executive that would threaten to veto any
legislation that did not include all of his appropriations that
he demanded in it? And in vetoing that legislation would bring
about a government shutdown. What did you imagine our Founding
Fathers thought would happen if an executive took that kind of
a step, which we have seen in the last couple of years
frequently?
Mr. Spalding. Well the first thing to point out is the
history of executive vetoes were to be used rarely; only if
there were serious objections mostly having to do with
Constitutional disagreements with Congress. The President has
the right to choose however he wants to veto. But the idea of
using a Constitutional power like the veto as a way to
essentially leverage Congress to pass full budgets, I do not
think they probably could have imagined that. But the main
thing they could not have imagined is the massive shifting of a
power within the separation of powers to the executive branch.
The fact is that that forces the Congress, in addition to
its inability to pass its appropriations bills, into massive
omnibus bills at the last moment which, in turn, give the
executive massive amounts of authority to threaten the veto.
Mr. King. Thank you, Mr. Spalding. I would like to turn
then to Mr. Postell. And your testimony included Article 1 as
not set up; you called it a non-delegation principle in Article
1. So take this non-delegation principle to its extreme for us.
Does that mean clawing back a lot of the things that are in the
executive branch? Does that mean clawing back the rulemaking
authority? Does that mean reaching into the EPA and bringing
the operations out of there with the exception of the
enforcement and field operations into the control of Congress?
How do you envision this at its, say, taking it to the logical
extreme?
Mr. Postell. Yeah, I think that it largely entails some of
the things you are describing, which means not the abolition of
any of these programs, not the abolition of any of these
regulations, not the abolition of any of these agencies; but
rather transferring certain authorities that have been given to
those agencies back into the legislative branch.
So, for instance, Congress set up multiple departments and
multiple agencies from the very beginning. But those agencies
and those departments were executive or administrative, which
meant they had powers such as investigation, prosecution, and
enforcement. But they were not lawmaking entities because that
was fundamentally the job of Congress.
So the rules that bind conduct have to be made by the
legislative branch, otherwise we are not in a representative
democracy anymore.
Mr. King. Could a Congress, then, establish enforcement
forces to carry out such actions?
Mr. Postell. I think so, yes.
Mr. King. That would be my conclusion from listening to
this. I wanted to take it to that level because this Committee
and this Task Force, I believe, wants to look at the full
breadth of this so that we can come at what is a reason
judgment of the people, and we want to restore the power to the
people in the end.
So I just quickly, Mr. Capretta, the tools that Congress
has to enforce today against an executive branch how long is
that list and what are they?
Mr. Capretta. The tools to restrain executive spending
authority you mean?
Mr. King. To restrain an executive branch, an over
exuberant executive branch, that might be operating outside the
Constitution.
Mr. Capretta. Well I think the budgetary powers should be
restrained, so I would look at the list of programs that have
permanent spending authority now. And some of that has been
done by Congress, most--I mean that has been done by Congress.
So I would not put it necessarily in a Constitutional question.
But many statutes have delegated the spending authority to the
Congress.
I think it has just become a pattern and a practice over
many, many years. And it was done originally for programs that
had a benefit associated with it and people wanted some
certainty. But it has gone well beyond that to a lot of
discretionary programs that are now getting mandatory funding,
including agencies of government. I would target those first.
Mr. King. Thank you, Mr. Capretta. My time has expired and
now recognize the gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chair. Mr. Spalding, you
responded to the Chairman's question about how you thought the
Founding Fathers would have looked at the President who vetoed
a bill because he did not agree with all the appropriations. So
you can kind of go back and envision what the Founding Fathers
were thinking, I guess. What do you think the Founding Fathers
who had a three-fifths clause for slaves in it would have
thought about an African-American President? Women voting? Or
Blacks and Whites eating together?
Mr. Spalding. I think you are--sorry, I think you are
correct in questioning the ability to envision what the
Founders thought. I think you are absolutely right with that.
We constructed it as best we can. I think the point of the
three-fifths clause, given that that was introduced by
abolitionists at the convention, was a move against slavery,
was their intention, and that is what Frederick Douglas
thought. So I think the intention on that one is actually
pretty clear.
I think your point you are getting at, however, is correct
which is that meanings of these things do change, and the
Constitution and the intentions of the Founders should not be
so rigid as they do not allow those changes. But my point is
that that is where Congress especially comes in. Congress has
the necessary and appropriate clause. Congress has those
implied powers to make those adjustments. And it is within the
legislative branch where those things are best solved not, in
my opinion, by an executive who is unitary or a judiciary which
makes binary decisions. That is what lawmaking means.
Mr. Cohen. Not to get off on a tangent but yeah the
abolitionists were for three fifths so that they would not get
full population----
Mr. Spalding. The South wanted one for one, which means
they their selves would get more representation in Congress and
the establishment object to that.
Mr. Cohen. Both sides took as a given that slavery was
something that was appropriate proper and not to be
challenged----
Mr. Spalding. That is right. If you read the transcripts of
the convention, including Madison's writings in the Federalist
papers, there was a lot of objection to slavery in the
Constitution and the compromise----
Mr. Cohen. But it lost. The compromise--the Constitution
did not outlaw slavery.
Mr. Spalding. It made compromise with institution but set
it on its road to ultimate extinction, which was Lincoln's
position. It was a compromise in principle; that was, Frederick
Douglas argues, not pro-slavery. So now it ensures the
historical record is clear.
Mr. Cohen. You in your testimony describe the 1960's and
1970's as an era which gave birth to big government, because
during that time the Federal Government assumed responsibility
of the well-being of every American. Can you tell me what you
believe the Framers would have thought--you have told us what
you thought about maybe slavery, but what would they have
thought about civil rights legislation that prohibits racial
discrimination in public accommodations? And do you think civil
rights laws, legislation of this nature, which the Supreme
Court has upheld as a exercise in congressional powers under
the Commerce Clause, comport with what you contend the Framers'
views were of limited government?
Mr. Spalding. I think the crucial point here, again, is
that in the 1960's and 70's you saw--you did see a ramping up
in change of the nature of what government was actually doing
as a practical matter. The content of those things civil
rights, environmental law, education I am not here to debate. I
think the Federal Government's being involved in civil rights
is a monumental important move in American government, and in
American society that would have been agreeable to the American
Founders, on the same grounds that I answered my previous
question.
But that did change the operational nature of our
government. And it changed it such that it introduced a new
form of governing, which the progressives call the
administrative state, which we are trying to grapple with
today. And that changed the nature between the legislative and
executive competition such that I think today we have an
executive with a--with having been delegated a lot of power by
Congress, and a large apparatus underneath that executive.
Whether they are Republican or Democrat has a lot of leeway to
do things with or without specific congressional legislative
authority, using discretion, using--looking at poorly written
laws, and now seemingly to get away with the ability to
directly act against something that was clearly stated in the
law.
Mr. Cohen. The simple fact that we refer to the founders of
our country as they were, as the Founding Fathers, negates over
half of the population because they could have been founding
mothers. But the fathers put the mothers in a second rate class
just as they did Black individuals, just as the people who
could not afford to pay property tax did not own property. The
fact is the Constitution, which has gone on for many years and
is a great document, was not written by infallible human
beings. It was written by people White male property owners who
were the elite, who wanted a society that protected their
interests, and did it well.
This country has changed much and Jefferson even wrote
about Constitutions should not be seen as never changing. That
they should not be like a child in clothes that the child then
grows out of and needs new clothes. You need to change as the
times change. The process of amending the Constitution is very
burdensome, and sometimes the legislature to see that the
society which has evolved is properly taken care of has to give
and delegate to the executive authority to carry out laws when
the Congress is not here and for the larger government that
exists with the difficulties that expire today.
I yield back my time.
Mr. King. Thanks gentleman from Tennessee. And recognize
the Chairman of the full Committee from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you very much, Mr. Chairman. Mr.
Spalding, the issue is not whether or not the Constitution
should not be changed over time, the issue is who changes it
and how is it done, is that not right?
Mr. Spalding. That is correct. And to go back to this point
the Founders were not infallible but they created a framework,
we call the Constitution in its structure, which has served us
well to this day. It is precisely the responsibility of
Congress as the legislative branch closest to consent and----
Mr. Goodlatte. And Congress----
Mr. Spalding [continuing]. To make those adjustments.
Mr. Goodlatte. Right and Congress, by two-thirds votes in
the House and the Senate, passed the 13th Amendment, which
ended slavery; and Congress by two-thirds votes in the House
and the Senate. And, by the way, then going to the states for
ratification by three quarters of the state legislatures in
each case extended the right of citizenship to people who had
previously been slaves. And Congress, by virtue of the 19th
Amendment, extended the right to vote to women, all of which
properly should have been done.
We would probably agree with the gentleman from Tennessee
that these took too long to occur. They were wrong in the first
place. But the Constitution itself was created with a device to
make those changes. Does the Constitution give the President of
the United States the authority to make those changes without
the consent of the people through their elected representatives
or without seeking to have the Constitution changed?
Mr. Spalding. No, absolutely not. Nor does it give that
power to the judiciary. Those two institutions, especially
executive, are there for particular purposes to act in light of
legislative action through the lawmaking process. That is why
precisely Congress is the first branch and it is the primary
branch as intended by the Founders.
Mr. Goodlatte. Is there anything in Professor Vladeck's
testimony that you would like to respond to?
Mr. Spalding. Well I think it is interesting the extent to
which there is actually a lot of agreement here in a certain
way. The difference being that he thinks it is a good thing
whereas I would probably think it is a bad thing. When the
executive does not have authority he is not free to act as he
chooses. There is a lot of ambiguity in the laws how they are
written, there is--they are interpretive debates.
But short of that the executives cannot do whatever they
want. I would strongly encourage this Task Force to actually
flesh out his three types of distinctions between--of executive
actions and focusing on those that are the most problematic in
here.
Mr. Vladeck. Well, I am in agreement with that.
Mr. Goodlatte. And point of fact we are always going to
have differences of interpretation of laws, and even of the
Constitution itself between the executive branch, the
legislative branch, and the judicial branch. But what we are
about here is recognizing that over time, for a variety of
reasons, the growth of the size of the Federal bureaucracy, the
transfer of power by the Congress to that bureaucracy by
passing laws that contain with them massive regulations, and
other actions taken by the Congress, the Congress' powers are
diminished.
The Congress is the body of the three most close to the
people because all of us are directly are elected by the
people. And the House very sensitive because every 2 years we
are up for re-election. Only two people in the entire multi-
million person executive branch are elected by the people, the
President and the Vice President. And no one on the United
States Supreme Court is directly elected by the people.
So the issue before this Task Force is to determine how
best to restore those powers to the United States Congress, not
whether there are not going to be differences of opinion; sure
they are. But what ways can the Congress assert itself to make
sure that when it recognizes that it passed laws that are being
misinterpreted by a President, that they are able to restore
their authority.
Mr. Spalding. That is why looking at this process, we refer
to it as a separation of powers, is so crucially important, not
as a legal technical matter on this or that specific thing, but
as a general matter. This body should act as Constitutional
institution in reclaiming those powers. And that should be true
whether it is a Democratic Congress, a Republican Congress, and
a Democratic President, or a Republican President. If you do
not have that back and forth you have no check, and if you have
no check, you have nothing to prevent the executive or the
judiciary from doing as they wish and going forward.
Mr. Goodlatte. Let me briefly go to Mr. Postell and Mr.
Capretta and ask you what do you think are the best reforms for
us to consider that would restore the role of Congress as
originally understood?
Mr. Postell. Well, I think, as I tried to suggest in my
written and oral testimony, that Congress needs more leadership
from within the Congress in order to ensure that it is not
following leadership outside of the Congress.
Mr. Goodlatte. Mr. Capretta?
Mr. Capretta. I would get a list of--pardon me. I would get
a list of all the programs that have now gotten permanent
spending authority, and especially the--outside the major
entitlements, which I do not think will be changed. And look at
those that have some spending authority that does not require
them to come back to the Congress on a regular basis and review
those as--to see if they are appropriately getting that funding
or not, and change the statute and require those--many of those
programs to get annual funding from the Congress.
Mr. Goodlatte. Thank you very much. Thank you, Mr.
Chairman.
Mr. King. Gentleman returns his time and the Chair will now
recognize the Ranking Member of the full Committee from
Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. Let me ask Professor
Vladeck to respond to some of the responses that we have heard
from your fellow witnesses.
Mr. Vladeck. Sure. I mean, I guess I just have two brief
points. The first is I think you have heard a lot of consensus
that the best solution is legislation. Right, that the best
solution to Congress reclaiming its institutional role is for
Congress to legislate more often and more aggressively. And
with regard to Chairman King's point about the veto, it is
worth stressing that President Obama has vetoed nine bills in
his tenure. If that keeps up, that will be the fewest by a two-
term President since James Monroe.
So, it is not exactly like this is a President who has been
over aggressive in wielding the veto pen. Whether or not we
might agree or disagree about the terms and the reasons for
vetoing.
Briefly, on the founding era, sort of understanding the
delegation, I think it is a bit of an overstatement to suggest
that Congress never delegated power to the President in the
early years.
One of the areas of my expertise is the use of the
military. And if you look at the early statutes regarding the
use of the military in domestic emergencies, they were full of
delegations to the President to decide for himself when an
emergency had arisen to decide how best to respond to the
emergency. To figure out which forces to use and let me suggest
to the Task Force, this was for a good reason. At the founding,
Congress was out of session for most of the year, right.
Congress was a part-time concern. And so, when, as in the case
of the whiskey rebellion, you had domestic disturbances that
arose when Congress was out of session. There has to be
delegations of authority to the President, less to be unable to
respond and to protect the public order.
So, Mr. Conyers, I think my basic response is that I think
there is a lot of common cause among the panelists that the
real solution here is legislation. We might disagree about
which legislation we would put first. For example, I might
prioritize an AUMF for ISIL over some of the other bills that
my fellow witnesses might prioritize. But I do not think the
history is clearly as against the current constitutional
structure as some of the questions have suggested.
Mr. Conyers. Let me just ask in your written testimony, you
discussed the difference between the feasible and indefeasible
executive power. Now, why, in your view is a separation of
powers violation based on the misuse of defeasible power less
pernicious than an inappropriate claim of indefeasible power by
the executive branch?
Mr. Vladeck. Sure. I mean, I think that the basic answer
for that is again, the role of Congress. If the President is
asserting defeasible power in the way Congress disputes.
Congress can pass legislation to ring it in and the President's
own theory would require that he defer to the statute.
Indefeasible power in contrast is the President's claim over
the authority to not be bound by a statute. In that case,
nothing Congress does can move the ball. The only thing that
can happen is the courts could strike it down.
And I think this is what we saw, for example, in the early
Supreme Court case I reference in my testimony, Little v.
Barreme, where Chief Justice Marshall went out of his way to
say the reason why a particular naval capture during the Quasi-
War with France was unlawful was because Congress had
legislated. Had Congress not legislated, the President might
have had more power.
So, that is why I think there is a lot more concern in an
indefeasible case because in that context, the President is
effectively disabling Congress from acting, as opposed to just
waiting for Congress to act.
Mr. Conyers. Do any of your three fellow witnesses want to
add to the comments that were made by Professor Vladeck? Both
of you, okay.
Mr. Spalding. Again, I was struck by the amount of
agreement, but we should see the striking disagreement here.
The claim is not made that Congress cannot, under any
circumstances, delegate authority. The question is what amounts
of that authority and under what circumstances. There are
clearly differences, but I think the point is that at some
point, which I assert occurs sometime in the '60's or '70's, we
have crossed a Rubicon such that the amount of delegation
across the board in different areas, now with different
agencies giving them their own ability to raise their own
money, has effectively created a circumstance where the
lawmaking power has been delegated over to those in a way that
I find objectionable, both in terms of violation of separation
of powers and broadly it is a violation of the Constitution.
Mr. Postell. As Professor Vladeck suggested that the
historical record is not as conclusive as I suggested in my
testimony. He notes the existence of legislation early in
American history where Congress said, ``When such and such an
event occurs, X will happen and the President gets to decide
whether the event has occurred.''
That is what we call contingent legislation. All
legislation is contingent legislation. That is not a delegation
of legislative power. It is a delegation to say, ``When X
happens, then the law is triggered and the executive gets to
act.'' So, I would not point to those examples as illustrations
of legislative delegations of legislative power.
Mr. Conyers. Could I ask if Professor Vladeck has any
closing comment?
Mr. Vladeck. And I just--I dispute the notion that
everything changed in the 1960's. The first major
administrative agency was created by Congress in 1887. That is
the Interstate Commerce Commission. The Federal Government,
gets a massively more expansive during the Second World War
than modern administrative state is first upheld by the Supreme
Court in 1932. So, I do not think we can look at the '60's as
the moment where things went off the rails. If we really think
that Congress has abdicated its constitutional responsibility
by giving all this power to the administrative state, that is
perfectly fine, but if that happened, it happened in 1887 and
has been going ever since.
Mr. Conyers. I thank the Chairman.
Mr. King. The gentleman yields back the balance of his
time. The Chair would now recognize the gentleman from
California, Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. I think I agree with
Professor Vladeck. 1887 probably is when the Founding Fathers
were gone and forgotten and we, Congress, deciding that it was
a lot of work and summers were hot here, decided that, ``Well,
what the heck? Let them do it. We still got the power of the
purse.''
Since before I came to Congress, I think all but two people
on the dance probably--people still thought they could shut
down the government by not funding and everything would be
taken care because, of course, the executive would capitulate.
We know that not to be true. It is the most impotent power we
have, apparently, is the power of the purse. Proven by the
impotency of those who shut down the government and then panic
when, what a surprise, the government shuts down.
I am going to take a little different tact and Mr.
Chairman, I ask unanimous consent that a sample of the 17
letters I sent on December 13, 2012 be placed on the record.
This particular one is addressed to Attorney General Eric
Holder.
Mr. King. Without objection, so ordered.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. Thank you. During a different part of my service,
my job was oversight, and overreach, mismanagement, abuse of
power is the primary jurisdiction of Congress through oversight
to determine. Now, this particular letter, I will use and I am
going to ask each of you a couple of questions related to it.
This one happens to make a point that there is a rampant
problem within the government that government officials at high
and not so high level are failing to comply with the Federal
Records Act and circumventing the requirement that their emails
and other communications be kept under the Federal Records Act.
Now, that includes, Secretary Hillary Clinton, we now know
at an abusive level. She simply had none and left the
government with 100 percent of those documents. It included one
of the key figures in Solyndra, a fellow named Jonathan Silver
who wrote and this was included in the letter to the attorney
general as an example of something we should be careful about.
In his email, he said, ``Do not ever send an email on DOE email
with a personal email address. That makes it subpoenable.''
In fact, a person who has never been punished, went out of
his way to advise others how to circumvent the oversight of
Congress by eliminating the very existence of the documents
that would be necessary.
Now, December 13, 2012 is interesting only in that I asked
17 Cabinet level officers about the private use of email. One
of them was Secretary Clinton, who, of course, did not answer.
And her successor, Secretary Kerry, answered erroneously, not
admitting that obviously his predecessor had used it widely and
left with all of them.
Oddly enough, Eric Holder also did not respond during his
tenure and later responded essentially in the negative. We now
know that Eric Holder actually emailed from his personal email,
oh, sorry. Email--was aware of the personal emails, but in his
case, another part of this was, I asked if you were using any
pseudonyms because that also had been a tendency over at EPA
and he did not mention that he used Kareem Abdul Jabbar's true
name as his false email. Damned if know. There you go, thank
you, John.
So, my question to each of you and I am going to get to
professor too is, since the Congress appears not to have the
tools to hold them accountable, is not the most important thing
we do to build the tools to hold these executive branch
officials accountable up to and including the ability to get a
quick redress in the courts.
And I will close with this and then I want each of your
answers, Brian Terry was murdered in Arizona in 2010. In
January 2011, this Congress was lied to about the Fast and the
Furious. As of today, we are still in the court. Have not even
gotten to appeal the judge's ruling to get the documents
related to it. It that acceptable and should not this
Committee's primary remedy for this to get an expedited ability
to get to the courts, so that if, in fact, Professor Vladeck is
right, and these are just misunderstandings and disagreement,
that, in fact, they can be arbitrated fairly. Mr. Spalding?
Mr. Spalding. Thank you, Mr. Issa. I agree with your
overall point about rebuilding the tools. And I also agree with
your point about the subpoena power and being able to get a
quick decision from the judiciary. I think you are right about
that, so yes, but I would say as a general matter, I do not
think Congress' powers to purse are impotent. I think there are
some great possibilities.
So, I would include in terms of rebuilding the tools also,
rebuilding your day-to-day tools, which is going to give you
control over the executive, so that you do oversight before, in
the early writing of legislation. That will make your oversight
later much easier. Mr. Postell, quickly because I did kind of
use all the time.
Mr. King. Okay, Mr. Capretta.
Mr. Capretta. I would just agree with Matthew on the power
of the purse that done right--if it is just all or nothing. If
you just try to shut down the entire Federal Government, of
course, that becomes a cataclysm, but I think if the Congress
starts to reassert its role in limits on individual
appropriations across the board and reassert that in the
appropriations process, agency-by-agency, program-by-program,
so that those programs do not have as much discretion and they
have to come back to the Congress more regularly, you will get
more control.
Mr. Vladeck. I will just say very briefly, I am a big fan
of Judge Bates' 2008 ruling in House Committee of the Judiciary
v. Miers, which I----
Mr. King. So am I. As a matter of fact, I hope Mr. Conyers
is still a fan of that since it was in his favor.
Mr. Vladeck. But just to be clear, just to amplify briefly,
if I may. I think the reason why that opinion makes so much
sense is because at that point litigation had become the last
tool to avoid potentially holding a member of the executive
branch in contempt unnecessarily, and so I think there are
remedies that can be exhausted within this body before
resorting to the courts and this is exactly what Judge Bates
understood in that ruling.
Mr. Issa. Mr. Conyers, I know my time is expired, but is
that your recollection that you went to court rather than
holding someone in contempt? Was it not that you held them in
contempt and that gave you the ability to go to the court. I
just want to make sure we make the record straight and that was
your action.
Mr. Conyers. I believe that is correct.
Mr. Issa. Thank you, thank you Mr.----
Mr. Conyers. Can we hear Mr.--Professor Vladeck's comments
on that because he was vigorously shaking his head.
Mr. King. The gentleman's time has expired, however the
Chair would recognize the gentleman from New York for his 5
minutes.
Mr. Issa. Before that we hear Professor Vladeck's comments
on that last thing too. Of course, Mr. Chairman.
Mr. Vladeck. All I would say is if I recall correctly, the
posture of that case was a declaratory judgment action by the
Judiciary Committee to litigate Ms. Miers claim of executive
privilege in anticipation of whether she could be held in
contempt. So, we had not yet been held in contempt when the
declaratory judgment action was brought.
Mr. King. The gentleman's time has now finally expired and
we recognize the gentleman from New York for his 5 minutes.
Mr. Nadler. Thank you. I appreciate that clarification. Let
me ask first, Professor--oh, what is it? Capretta. You testify
about Congress' permanent appropriate to things like Social
Security and Medicare and various other things. This is a bad
thing because we give up our power.
Now my first question was, so in other words, you think we
should abolish Social Security and Medicare and Medicaid. But
then you said, ``No, you would not suggest that, but we ought
to bring these programs under control by programmatic limits by
additional spending control, et cetera.'' But what you are
saying is and tell me why I am wrong in this, is that the only
way for Congress to avoid what you see as the evil in these
permanent appropriations, as you put them, is to put automatic
clauses into effect that would have the effect of cutting
Social Security automatically, or cutting Medicare
automatically, unless Congress from time-to-time stepped in to
change that.
Mr. Capretta. Congress could have a lot of different ways
of going about this. I would start with the list of programs
that have mandatory spending authority goes well beyond the big
three, which I would put Medicare and Medicaid and Social
Security into that category. There are many other programs that
have it.
For instance, let me give you an example. There is an
administrative agency in the Department of Health and Human
Services, called the Centers for Medicare--Medicare and
Medicaid Innovation.
Mr. Nadler. Administers to Medicare.
Mr. Capretta. No, this part of HHS does not administer
Medicare per se. What they do is run a series of demonstration
programs to test new approaches to organizing and paying for
medical care under both Medicare and Medicaid. It is a
demonstration part of the Medicare program and Medicaid as
well. It gets a $10 billion appropriation every 10 years in
perpetuity. So, every 10 years, it is going to get $10 billion
automatically from the Treasury and does not ever have to come
back to the Congress again. It is in the----
Mr. Nadler. Except in 10 years.
Mr. Capretta. It continues indefinitely and on a permanent
basis. And then the funding can then be used to test any number
of different things, which they can then take nationwide and
implement both Medicare and Medicaid. Really open-ended
authority to change drastically how the program is run. I think
it is delegated way too much authority to this one agency. So,
I would----
Mr. Nadler. You do not argue that it is unconstitutional,
you argue that it is wrong as a matter of policy.
Mr. Capretta. Right and just for the record, I am not a
professor and I am not a lawyer so, you know, my ability to
comment on this constitutional aspect is very, very--you can
take it as an amateur, so I am not going to, but I think it is
a statutory----
Mr. Nadler. Professor Vladeck, we have heard about the
impermissible--the basic subject of the hearing seems to be the
impermissible delegation of powers by Congress. Does adherence
to separation of powers require that the Congress not delegate
rule-making authority to the executive branch? And obviously,
can you think of Supreme Court jurisprudence--any Supreme Court
jurisprudence that supports this--what I would characterize as
an extreme view of the Constitution?
Mr. Vladeck. I can, but it is 80-years old. Right, so there
was for a time, a period where the Supreme Court recognized
something called the Non-delegation Doctrine that died in 1937.
There was a case a couple of years ago where----
Mr. Nadler. Now, is the switch in time that saved nine?
Mr. Vladeck. Among other amendments, it happened in 1937.
There was a case a couple of years ago where the parties tried
to get the Supreme Court to reassert the Non-delegation
Doctrine and the court politely declined. I think partly
because it is very hard to figure out where the line would be
if one were to have a judicially enforceable Non-delegation
Doctrine between what Congress may and what Congress may not
allow----
Mr. Nadler. Let me ask--thank you. Let me ask Mr. Spalding,
I think. Do you think that as part of this Non-delegation
Doctrine, for instance, Congress has delegated and it has been
somewhat controversial? We have delegated powers to the EPA and
we have said that, ``Thou shalt prohibit or regulate toxic
chemicals in the air.''
Do you think it would be practical or the better practice
for Congress to say in each case well, CO2 can be six points
per million and nitrous oxide, seven points per million and
when we discover some new chemical that comes out of
manufacturing something else that may be poisonous, Congress
must act on that, the EPA cannot say that is noxious.
Mr. Spalding. The point I am making is not that the
delegation argument as understood by the courts, which gave up
on it back in 1930 is somehow to be revived. I think the court
should rethink that. I am making more practical argument when
it comes to Congress. Congress is a co-equal branch of
government that----
Mr. Nadler. Yes, but my question is are you saying that--
you are saying that we have and not just you, but I mean, the
general political thing here is a lot of people say Congress
has delegated too much power and they have focused in, for
example, on the EPA and others too, my question is, would it be
practical or right to require Congress, or even if not right,
is it mandated by the Constitution to require Congress to say,
``Okay, every time a manufacturing process introduces a new
chemical into the atmosphere,'' Congress must--it is okay until
Congress comes along and says, ``That chemical cannot be
introduced into the atmosphere or that chemical can only be
introduced at six parts per trillion.''
Do we have the expertise or could we possibly develop the
expertise to do that? Or is there something wrong with saying
to the EPA, ``You make such determinations. We are telling you
generally keep poisons out of the atmosphere.''
Mr. Spalding. I think the Constitution does mandate
Congress to keep control of the lawmaking process.
Mr. Nadler. And so, your answer is yes.
Mr. Spalding. And the details of which are to be returned
by Congress as to how far to go.
Mr. Nadler. So, your answer to me is yes.
Mr. Spalding. If you look at all the places it has done, it
has gone way too far.
Mr. Nadler. So, your answer to me is yes. Congress would
have to say how much--which chemicals and how many parts per
trillion are okay in the atmosphere until----
Mr. Spalding. No.
Mr. Nadler. Why not? Where would you go on?
Mr. Spalding. I think the problem now is that there is--the
line is not, ``Do not do nothing. You can do everything.'' The
line is somewhere in the middle and Congress should have done a
better job at determining that.
Mr. Nadler. Okay, so you think we have not done a good
enough job. Last question, Professor Vladeck, Mr. Spalding
asserts that there is no doubt that there is something
qualitatively different to how this President is using and
abusing his powers. Do you agree with his statement that there
is something different about the current administration's use
of rulemaking authority or exercise of executive authority and
if so, can you explain what that something is?
Mr. King. The gentleman's time has expired, the witness
will be allowed to answer the question briefly.
Mr. Nadler. Thank you.
Mr. Vladeck. Thank you, Mr. Chairman. All I would say very
briefly is I think that if there is a difference, it is only
because of the paucity of legislation, which has left the
President with, I think, a lot more areas where there is less
legislative direction. Otherwise, I do not think it is a
difference in degree or kind.
Mr. Nadler. Thank you.
Mr. King. Thanks the witness. The gentleman's time has
expired. The Chair recognizes the gentleman from Florida, Mr.
DeSantis for his 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman. I am listening. I
hear some of the witnesses talking about having three co-equal
branches of government and I--as I look at the Constitution and
read, you know, the Federalist Papers, it seems to me that we
have three separate competing branches of government. I do not
know that it is right to say that the Founders believed that
they would be equal.
I mean, for example, Madison said that the legislative
authority would be the predominant branch and Hamilton said,
``The courts were by far the weakest of the three branches.''
And so, Mr. Spalding, am I wrong to say that, you know, we do
have, you know, demarcations of legislative, executive and
judiciary authority, but they are competing branches. But the
Founders did not necessarily think the courts would be equal to
the legislative power.
Mr. Spalding. I agree with you. That is right. The
distinction I would make is that when it comes to exercising
their constitutional responsibilities, each branch should carry
out its constitutional responsibilities according to its work.
So the court does it in terms of cases of controversy that come
before it. The executive does it in executing the law and
Congress, which is the primary branch of government by
intention, must do it by legislating.
So, in that sense, they have different responsibilities and
they compete on those. But all three are taken an oath to
uphold the Constitution and act according to its dictates.
Mr. DeSantis. And so, I mean, in just looking at how the
branches are exercising authority now in terms of--there is
certainly, I do not think anyone could say that they are
exercising equal authority. I mean, I think the executive is by
far the most powerful because you have all the executive powers
that are in Article 2 of the Constitution, but then you have
mostly--most of the lawmaking or policymaking is done in the
executive branch now. I mean, is that accurate?
Mr. Spalding. It is approximate, I would say that is yes.
The Congress has given over many of its broad authority to make
laws, to officers that fall under Article 2 who pass what fall
into--are laws. When you look at the amount of regulations and
the extent of regulations and the effect on most people's day-
to-day lives, those are the laws. This is why most Americans,
when they want to get regulatory relief, they do not come here
as much anymore. They go to the executive branch. They know
where the bread is buttered in this institution.
Mr. DeSantis. Or they come to us and ask us to write
letters begging the executive branch to not add that to do.
That is an idea which is probably not the----
Mr. Spalding. I mean, we can argue ad infinitum as to
minute details and judicial points and this, that and the
other, but as a practical matter, I would argue that patent the
obvious where laws are made in this country nowadays.
Mr. DeSantis. Is there historical precedent we talk about
this particular administration seems to me one of the things
they seemed to have done is go back to statutes that have been
on the books for decades and usher in really significant new
policy changes that have a really significant effect. I mean,
across the energy sector, financial services, all these other
things. Is that out of the ordinary or has that been done in
modern American history to that extent?
Mr. Spalding. I think the Founders recognized very clearly
the ambition would be a driving force in American politics. You
can go back to Richard Nixon who appointed the first czar,
right. Presidents will always to try to find ways to get around
the laws of Congress. It is not this particular President,
although this particular President has figured out a way to do
it actually quite well. And he is doing it very creatively and
it just so happens you have now a coincidence between the
intentions of a bureaucratic body, which is driving toward a
certain policy outcome and executive who actually is in
agreement with that. That, coming together, I think is a new
circumstance.
Having said that, a Republican President will come in and
will feel a lot of those same pressures to use those
authorities they are given to assume and go after their policy
objectives, which is why I think Congress, right now, should be
thinking all this through in a sort of--in terms of asserting
its authority regardless of who the next President is.
Mr. DeSantis. Sometimes the press will report or say, ``Oh,
you know, in this case we are probably going to assert a claim
about the Obama administration.'' But he has issued less
executive orders than these other Presidents. I mean, the
number of executive actions, is that a good measure to just
tell us whether----
Mr. Spalding. I am not sure it is the number going back to
the point about the veto. He has not actually done that many
vetoes. It is not the number of things. It is the intention and
what is being done with these powers that amounts to
essentially driving a legislative agenda without the authority
of Congress. That is the violation.
Mr. DeSantis. I mean, you could do a dozen executive
actions before breakfast if they are within Article II or
authorized by statute. Then, that is just a decision the
President is making. The issue is, is there executive authority
that goes outside the Article 2 powers, correct?
Mr. Spalding. That is correct.
Mr. DeSantis. Thank you. I yield back. I think I am out,
but whatever is remaining.
Mr. Issa. For the 10 seconds left, Mr. Conyers, colloquy,
do you recall the vote on the floor of contempt during the
issue over firing the nine U.S. attorneys? My staff has
reiterated that there was a contempt vote on the floor. You
might remember that Mr. Boehner and a number of Republicans
walked out during that one.
Does that refresh your memory? It is a small point, but it
is one in which I think it is important that it was not a--it
was not an arbitrated Bates decision. They got to Bates because
you bought to the floor a contempt which passed, if you recall.
Mr. Conyers. Where is this leading?
Mr. Issa. Well, I would just like the record clear,
Professor Vladeck seems to want to talk about the Bates'
decision being some sort of declaratory judgment that was
arbitrary. We do not have the authority to get to the court
except through that contempt vote. That was your means for
getting it. And it is extreme and it happened to take very
little time compared to other ones, but it did take some time.
Mr. Conyers. You agree with that, do you not, Mr. Vladeck?
Mr. Vladeck. What I was trying to suggest perhaps in-
artfully to accomplish my study is just that the lawsuit was a
declaratory judgment action. In the past, when the House had
held an individual member in contempt, it was that member's, or
it was that person's, or that witness' appeal that came rise to
judicial review. In this case, it was----
Mr. Issa. In this case, the U.S. attorney refused to
prosecute and Chairman Conyers then had to go and ask the court
to allow him a civil remedy and it took about a year for Bates
to make a decision that we had that authority. And it was
landmarked because it is the only way that we get any authority
right now because we have no explicit statutory authority, but
it was in fact, the hubris of President George W. Bush, not
only saying he could fire them, but that he would not send
Harriet Miers and then when held in contempt, told the U.S.
Attorney through the Attorney General not to comply with an act
of Congress.
So, I think it is important when I talk about some
impotence of our authority and the need for more that we admit
that even with the extraordinary issue that Chairman Conyers
did, we ultimately still took more than a year and the case
came to a settlement only because George W. Bush was leaving
office and did not want to leave it to a successor.
Mr. Vladeck. And also----
Mr. King. The gentleman from Florida's time has expired and
he has departed the room or he would reclaim his time and so,
we will now recognize the gentleman from Georgia, Mr. Johnson,
for his 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman. Mr. Spalding, is it
not true that the delegation of legislative power to the
executive branch has been effectuated by allowing the use of
executive orders by the President? Would you agree to that?
Mr. Spalding. In the sense that the delegation have become
more and more complicated?
Mr. Johnson. Well, no, I am just saying generally speaking,
it is because Congress has not challenged the use of executive
orders that the use of executive orders has resulted in the
delegation of legislative power to the executive branch. Is
that----
Mr. Spalding. Well, there are different ways in which the
President can claim authority to issue an executive order as he
carries out the law.
Mr. Johnson. I am just talking in terms of executive
orders. That is one of the ways that the legislative branch
improperly delegates its authority to the executive branch.
Mr. Spalding. By delegating more authority to the executive
branch, the executive has more room and more authority to issue
executive orders, yes.
Mr. Johnson. And that is what has happened with President
Obama. As you say, this President does it quite well. Is that
correct?
Mr. Spalding. In some cases, when he is given legislation
that allows for broad interpretations or different
interpretations easily enough, that gives him more ability to
issue a broader executive order. The sheet amount of----
Mr. Johnson. Do you believe that this President has abused
the executive order?
Mr. Spalding. No, I think the answer is yes, but I would
divide it as in different categories.
Mr. Johnson. Let me ask you this then, since you believe
the President has abused his executive order authority if there
be any. Do you happen to know how many executive orders this
President has issued during his 7 years in office?
Mr. Spalding. Formal number, no.
Mr. Johnson. Do you know how many President George Walker
Bush issued during his 8 years?
Mr. Spalding. I would assume probably as many or more.
Mr. Johnson. Why would you assume more?
Mr. Spalding. Because the way that the executive carries
out, executes the law is by using executive orders. That is how
he instructs the body of people under him to do things.
Mr. Johnson. So, you believe that George Bush was a greater
abuser of the executive order than President Obama?
Mr. Spalding. The sheet number of executive orders does not
necessarily equal abuse or non-abuse. It is just the use of it.
It is a legitimate activity of the President to issue an
executive order. Nothing wrong with it per se.
Mr. Johnson. Would it surprise you to know that Reagan
issued more executive orders than George W. Bush?
Mr. Spalding. No.
Mr. Johnson. It would not surprise you? Why not?
Mr. Spalding. Especially in a two-term President, they are
going to issue a lot of executive orders. The issuance of an
executive order is a perfectly legitimate activity.
Mr. Johnson. Well, now President Obama is a two-term
President who has issued fewer executive orders than President
Reagan during his 8 years in. Is that surprising to you?
Mr. Spalding. No, it is what the executive order covers,
what is looking to----
Mr. Johnson. Well, let me ask you, what executive orders
has President Obama issued that are far more expansive than
those--any of those that say, Ronald Reagan issued?
Mr. Spalding. I think the question is if an executive order
is issued----
Mr. Johnson. Can you answer that question?
Mr. Spalding. I am trying to. I would agree with the
professor at the other end and I would divide it into different
categories. I think when the, you know, some executive orders
are very straightforward----
Mr. Johnson. My time is running out. Let me ask you this
question. Do you believe that when President Lincoln issued the
executive order on January 1, 1963, that is, excuse me, 1863
known as the Emancipation Proclamation, was it a user patient
of legislative authority?
Mr. Spalding. No. Because Lincoln made it very clear he was
acting under his authority during a civil war.
Mr. Johnson. How about when H.W. Bush and Reagan issued
executive orders extending amnesty to family members not
covered under the 1986 Immigration Law. Was that a user patient
of legislative authority and executive overreach?
Mr. Spalding. I would have to go back and look at the
particulars, but the President does have certain abilities to
give legal forgiveness.
Mr. Johnson. Well, what I have noticed from you is that
Republicans are okay with the use of executive orders, but
President Obama is not and with that I will yield back.
Mr. Issa. Mr. Chairman, I would ask you to have his
consent.
Mr. King. Without objection.
Mr. Issa. Well, the unanimous consent--unanimous is on
putting in the record from the Cornell Library, a very
definitive document by Josh Chafetz; it is on executive branch
contempt of Congress, which covers the Harriet Miers case.
Mr. King. Without objection, the documents will be entered
into the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. King. Thank you, Mr. Issa. The Chair would now
recognize the gentleman from Michigan, Mr. Bishop.
Mr. Bishop. Thank you Mr. Chair. Thank you to those of you
who have spent the time with us today. Very interesting
subject. I do think I do want to start by building on what my
colleague from Georgia was alluding to with regard to executive
orders and ask Mr. Spalding are executive orders the only way
that the executive can infringe upon the powers of Congress?
And so, it really is not the best judge. The number of
executive orders is not the best judge of whether or not an
executive has infringed upon the role of Congress. There are
other ways.
Mr. Spalding. Yeah, I think if you look at the totality of
all of their actions.
Mr. Bishop. Yeah, departments, administrative agencies.
Mr. Spalding. Appointments--how they deal with their
departments, how they conduct their activities, how they
exercise and deal with treaties--all of the above. I think we
are in an unusual situation which we are taking a step back, as
I understand it and looking at this from an institutional point
of view. And I think Congress looking at it, both in terms of
previous administrations and this administration. I do not
think it is necessarily tied to a Democrat or Republican, in my
opinion. There has been over time a rising activity in the
executive branch, large in my opinion because of the amount of
authority they have been given to use their capacities.
Executive orders being a great example of that, to direct that
bureaucracy for their own political purposes.
On the one hand, that is perfectly natural in a political
system. An executive will do that, but from a separation of
powers point of view, that leads me to conclude that the real
law-making authority that should be controlling those decisions
and the executive executing those policies has been moved away
from toward a different form of governing.
Mr. Bishop. Thank you very much and I would commend you on
this, what I think is the bible of constitutional scholar
information and this book that you wrote, We Still Hold These
Truths, is just an excellent, I think intro into these issues
and review of these issues. So, thank you for doing that. I
want--would like to ask Mr. Capretta, if I could, Mr. Vladeck
suggested that the best solution to this situation to--is to
pass a law which would ameliorate the passing of executive
orders or whatever issues are that Congress could resolve this
all by passing a law. Is that practical in today's world? Do
you view that as a solution to what we are seeing today in the
overreach?
Mr. Capretta. I do largely agree with the point, which is
that I think much of the concern that has been expressed this
morning has to do with things that were passed in previous
laws. And so, you are probably going to have to do some of the
hard work of going back into those previous laws and say, ``Did
we go too far in delegation of some interpretative authority
and including spending authority?''
Mr. Bishop. There are many bills in Congress right now
addressing these issues.
Mr. Capretta. Yes.
Mr. Bishop. There is a practical problem here in that those
laws have to be signed by the very executive that we are
attempting to address his constitutional authority. I mean, I
do not know how we can get the executive to--in states, we have
a different state legislation. We have a thing called, the
Committee on Administrative Rules, Joint Committee on
Administrative Rules and the role of that entity is to bring
any rules that are promulgated by departments or un-elected
bodies to this--in front of this Committee. And they can decide
whether or not it is an appropriate solution.
In Congress, strangely enough, we just do not have that
power to do that. We cannot stop a rule promulgated by a rogue
committee or an agency that has decided to go off on a
different course. And frankly, it may not even matter whether
or not they are going in a direction that is good for the
environment in which they are regulating. What can we do in
this environment so that we can capture--recapture that power
in Congress?
Mr. Capretta. This is very complicated, but look, if you
put everything one big bill at the end of the year with
everything all in it, you lose a lot of leverage because then
you will shut down the government if that one bill goes down
and so, I think part of the problem is to begin to take these
on piecemeal, one at a time, in smaller bites and the President
cannot--certainly can veto lots of things if he wants to, but
he cannot veto everything.
And so, you know, Rome was not built in a day and so, you
are going to have to assert your authority one-by-one, issue-
by-issue and win the argument. This program should have a
limitation. It is reasonable to impose one. It is okay to do
that. Congress will be here if you want to get more money, you
come back to us. Asking for that type of authority across the
board in a lot of programs, it is going to be hard to argue
against it.
Mr. Bishop. Thank you. I yield back.
Mr. King. The gentleman yields back. The Chair will now
recognize the gentleman from Florida, Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman. I want to just go back
and focus on comments that we have heard in various ways
throughout this hearing. The responsibility of Congress to make
adjustments, the leadership of Congress, the role that Congress
plays and I want to just focus on a couple of areas where the
President has taken executive action and I have not heard a lot
about it, so--but I thought I would throw it on the table.
When the Senate--oh and I learned, Mr. Chairman, I have
learned a couple of things today also, that one, that the--that
we should be grateful for the three branch clause in the
Constitution that it was in fact strongly anti-slavery and
respectful of equal rights of everyone and second, that we do
not have three co-equal branches of government.
And I do not know if my college in central Florida was
sending a message to our current President or this being Super
Tuesday was perhaps sending a message to the leading Republican
candidate for President. Time will tell on that. But I have to
ask if you look at immigration, an area where the President has
received from many on this Committee harsh attacks and you go
back the actions in the Senate and the passage of the Rubio
Schumer legislation that provided a path to citizenship that
made massive investments in border security that was the
product of compromise and then you look at what has happened in
the House and this fundamental question when it is the House's
responsibility, Congress' responsibility to act.
And you see that in this House and in this Committee in
particular, there have been no efforts to craft any sort--first
of all, no efforts either in this Committee or bi-House
leadership to bring up that bipartisan legislation from the
Senate and give us a chance to debate it, amend it and perhaps
address this serious issue.
And so, when the President took his--issued his deferred
action for childhood arrivals, which, of course, was aimed for
undocumented immigrants who entered the country before their
16th birthday and before June 2007 to get this renewal work
permit and exemption from deportation and then that was
extended, of course, when the President expanded that to
parents of U.S. citizens and legal permanent residents. We know
that Congress does not authorize enough funds to DHS to deport
11 million people. And it is a big discussion in our debate.
Again, leading Republican candidate thinks it is exactly
what we ought to do. So, it seems to be catching on. We will
have plenty of time to debate that, but we do not do it. So, of
course, there are going to be decisions made by the executive
branch on how to allocate those funds that Congress provides.
And why would it not be within the discretion of the
President, in this case, to allocate those funds in a way,
since Congress refuses to act, utterly refuses to act. Why
would it not be in the discretion of the President to take
action to recognize that perhaps since we have limited funds
that Congress is giving us, why not use those limited funds to
go after criminals and those who pose a danger to our society,
instead of tearing families apart, taking kids who came here,
who know no other country as their home, other than the United
States and deporting them? That is one issue.
Second issue I would touch on if the issue of guns and gun
violence. Now, Congress, I agree has a responsibility to that
and I if I had a nickel for every time in this--in our
Judiciary Committee that we were told that there is no reason
to take action because there are plenty of laws on the books,
well, I would--I think I would have sufficient funds to address
many of the problems that we face in our society because that
is all we hear over and over. And yet, in this case, you have a
law from 1968 that prohibited anyone other than licensed gun
dealers to engage in the business of dealing firearms, a
loophole that we have been trying to close that Congress has
refused to take up.
By the way, as an aside, I point out, refused to take up a
single piece of gun safety legislation since New Town. Despite
the ongoing moments of silence to take place in the House week
after week after week, when there is another mass shooting.
And so, Congress refused to act and the President took
executive action to clarify what the private sale of guns are.
And to help close that loophole and the President did it
because Congress failed to act. I do not understand how that
has been characterized as overreach when the fundamental issue
here, whether it is on immigration or on guns, or on protecting
our environment or a whole host of other issues that when
Congress, as we have heard over and over and over this morning
has a responsibility to act.
Well, when Congress fails to act and there is a necessity
to use and enforce and interpret existing law and that is what
the President does, it strikes me that it is exactly what the
President ought to do. Unfortunately, I am out of time. I yield
back.
Mr. King. The gentleman's time has expired. The hearing, no
question, the Chair would recognize the gentleman from Texas,
Mr. Poe.
Mr. Poe. Thank the Chairman. Thank you gentlemen for being
here. It is interesting that my friends on the other side like
to use the same excuse that I heard as a judge down in Texas. I
would have a person come to court charged with theft and
occasionally, they would say, ``Well, judge, everybody steals
in Texas. Give me a break.'' And the defense being, ``Well,
other people do it, so let me go.''
And, you know, I am a little a tired of hearing if George
Bush did it, so it is okay for the President to do it. This
issue is not about who does it. It is what position violates
the Constitution in overreach.
Now, we can go all the way back to Andrew Jackson if you
want to. Some historians think that his invasion into Spanish
territory of Florida to kill the Seminoles who were raiding my
friend, Mr. Johnson's now home state of Georgia, that executive
action was illegal because the President did not get authority
from Congress.
Andrew Jackson also, when Texas was a country, in some
states still is, to Morris, Texas, independent state, in case
you are wondering, gentlemen, 180 years. Texas is an
independent country, took Congress forever to decide whether or
not to recognize Texas as a country. Andrew Jackson said,
``Sure, I recognize them. They are an independent country.''
And there was debate about whether or not that was legal or
not.
So, executive overreach has been debated a long time. And
in my opinion, Congress just sits back and lets it happen. All
of you--you probably memorize the Constitution and the way I
read it, the Article 1, Section I, the first word--the first
word is all, ``All legislative powers are granted shall be
vested in Congress of the United States.'' It does not say,
``All legislative powers are granted and vested in Congress of
the United States unless Congress fails to act, then the
President can pass his own legislation.''
There is no exception clause. It is the word all. Famers,
Madison, probably had a good reason for putting the first word
in the first article, all, all legislative power. The question
has been Congress sometimes does not use its authority. Does
that give the President the authority to say, ``Okay, I am
going to make my own rules?'' Probably not.
I mean, historically, the way I understand the Constitution
was written, Article 1 deals with the legislative branch of
government because it was supposed to be the most powerful.
Then Article 2 deals with the executive branch and the Article
3 deals with the judiciary, which was really supposed to be the
weakest branch of government.
I think as a practical matter today, in 2016 the judiciary
is the strongest branch of government because they make laws
too. And then you got the President and you got the legislative
branch, which basically is very weak because we do not do a
lot.
And we have brought some of this on ourselves because when
the lawmaking authority comes around, we decide to make some
bureaucracy to enforce that law. Some of those bureaucracies
are legislative. Some of those are done by the administration.
We tell them to go out and make that law happen and then we
criticize the bureaucrats for doing the job that we told them
to do because we will not do it.
So, I say all that to say, is this--do you agree, Mr.
Postell, I will ask you this question, do you agree or not?
Failure of Congress to act and failure to act really is an
action. Failure to deal with gun violence is an action by
Congress. They have made their decision. We have made our
decision. But is there an exception clause in the Constitution
that gives the executive the right to go ahead and go it his
way. Like Burger King, have it your way because those
legislators, those Members of Congress, they do not act.
Mr. Postell. There is nothing in Article 2 of the
Constitution that gives the President the power to make law and
that is because of the reasons you have just indicated. Article
1 gives all of the legislative powers to Congress. So, any
excuse that relies upon Congress' inaction cannot be used to
justify the granting of a new power, the assuming of a new
power by the President. So, if Congress does not act, there is
no law to execute.
Mr. Poe. Even if the action by the President is a good
idea.
Mr. Postell. Yeah, I think it is important to separate
results and policy from process. And a lot of the comments this
morning in conversation is centered around, if you insist upon
this sort of process, you might jeopardize the kind of results
we want. But good process is important in and of itself.
Especially a process that says we are going to rule ourselves
throughout own elected representatives in the legislative
branch.
So, regardless of the outcomes we produce, it would be a
good idea to preserve the principle that our elected
representatives makes the law.
Mr. Poe. Thank you, Mr. Chairman, I yield back.
Mr. King. The gentleman yields back and the Chair would now
recognize the gentlelady from California, Ms. Chu.
Ms. Chu. Oh, Professor Vladeck, in your testimony, you
state that some forms of executive action are appropriate when
Congress is silent or vague on the matter. In recent years, has
Congress through its inaction created an environment that
necessitates unilateral executive action and can you give us
examples that stand out in your mind?
Mr. Vladeck. Sure. I mean, I think we will probably
disagree among all of us in this room about which are the best
cases, but, you know, I think the ISIL example that I reference
in my testimony is actually a very powerful one. When Congress
enacted the UMF in 2001, it did not even know that Al Qaeda was
responsible for the September 11th attack, so it left up to the
President to determine who was responsible.
This administration is now claiming that, that statute
enacted on September 14, 2001, somehow covers the use of
military force in countries far afield of Afghanistan, against
groups completely unconnected to Al Qaeda. And I think that is
a very powerful example of where the absence of subsequent
legislation has all but invited both this President and his
predecessor to actually take this pre-existing statute and run
with it in ways the original justices of that statute probably
would have been very surprised to see.
Ms. Chu. And under what constitutional authority does the
President to have act in cases such as that?
Mr. Vladeck. Well, in that case, I mean, I think the
problem there is that, that is an issue where the President is
arguing that he has delegate statutory authority. And so, my
colleagues who think that authority cannot be delegated in the
first place have a bit of an easier time because they say, of
course, that delegation was impermissible in the first place.
I, instead, am left to say I do not believe that is a fair
reading of the statute and then it comes down to a disagreement
between me and, for example, administration lawyers about what
a particular statute means. That is the kind of disagreement
that we see all the time. It is one that this body could fix
very easily by just passing a new statute.
Ms. Chu. Now, in instances where Congress perceives that
the executive branch is overstepped its authority, what can
Congress do to restore the balance of power?
Mr. Vladeck. Sure, as I say in my testimony, I think in
most of the cases we are talking about, new legislation would
do most of the work. The only time where I do not think
legislation would be effective in scaling back the kinds of
Presidential excesses that some have criticized, is where the
President is claiming the authority to defy acts of Congress
and to not be bound by acts of Congress.
And frankly, we have seen very little of that argument over
the past 7 years. So, I think in other context, in all of the
circumstances, new legislation could do a lot of the work.
Ms. Chu. And how would you respond to the critics that
argued that the President would simply veto any attempts by
Congress to redress executive overreach?
Mr. Vladeck. Sure, I mean I think there are two responses.
I think the first is, this President has not used the veto pen
that often. As I mentioned earlier, he has vetoed the fewest
bills of a two-term President since James Monroe, so in 200
years, but second, if there came a point where the President
was using his veto powers in a way that was not just to achieve
partisan policy outcomes, but actually was jeopardizing the
institutional role of Congress, it would be my fervent hope
that Members across the aisle and form a super-majority to
override the veto, there is a long history in this country of
Congress overriding vetoes on areas where I believe the
President was acting unconstitutionally.
Ms. Chu. Now, there are witnesses that argue that by
creating a permanent appropriations for programs such as Social
Security, Medicare and Medicaid, Congress has seated too much
power to the executive branch. What are the benefits of
creating permanent appropriations for certain safety net
programs like these?
Mr. Vladeck. Sure and I think there are a number of
benefits. I think first and foremost, it provides stability to
those programs. That they are not dependent on the annual
budget process in ways that I think other programs are often
held up in the balance at the last minute.
Second, I think it allows Congress to actually not spend so
much time in the nitty-gritty of whether X amount of money
should be appropriated for Y medical procedure under Medicare,
for example. You know, so I think the time it frees from
Congress, the stability it creates for the program, the ability
to allow the executive branch to use its expertise to figure
out how best to implement these programs, I think are all
benefits of such standing appropriations.
Ms. Chu. Many of our witnesses are arguing that the
Constitution precludes Congress from delegating its rulemaking
authority to the executive branch to carry out the will of
Congress. Is it unconstitutional for Congress to ask obtaining
assistance from the other branches to execute Congress' will?
If so, what are the examples?
Mr. Vladeck. I mean, frankly, I think this is where some of
the other witnesses might differ. I do not think the
Constitution includes a non-delegation principle and I think I
am with the Supreme Court which has not recognized one since
1936. So, you know, I think Congress cannot arrogate the power
of the other branches.
Congress cannot commandeer the other branches, but do far
as this is a cooperative enterprise, I do think Congress has a
role, a very powerful role that I think it has just stopped
exercising as frequently in involving the other branches,
especially the executive branch in the implementation of
Federal policy.
Ms. Chu. And what is the standard that Congress must follow
in enlisting the executive branch's assistance?
Ms. Vladeck. I mean, the basic rule of the Supreme Court as
given, as long as there is any intelligible principle to govern
the delegation. So, as long as there is some reasoned basis on
which the executive branch is exercising the power delegated to
it, that is somehow related to the underlying statute is
permissible. You know, we can sit around and debate whether
there should be a stronger connection, whether there should be
a more tighter rule. I guess, you know, insofar as our
differences are primarily about policy, I do not think that
rises to the level of a separation of powers problem.
Ms. Chu. Thank you. I yield back.
Mr. King. The gentlelady's time has expired. The Chair
recognizes the gentleman from California, Mr. Peters.
Mr. Peters. Thank you, Mr. Chairman. I appreciate the
hearing and the chance to hear from the witnesses. It has been
very illuminating. And what struck me in all the testimony that
there was an agreement that this is really not a Task Force on
Executive Overreach as much as it is on legislative under-
reach. As every single one of the witnesses agrees that
Congress could, if we decided to, take a hand and correct this
imbalance.
I heard, you know, legislative tort, inertia, indifference,
quiescence, inability, unwillingness, and delegation. These are
all things that Congress is responsible for doing and we can
do. So, at the conclusion of this hearing, I am left with the
impression that probably what we should do is get back to work
on legislation. Legislation from the House of Representatives
with which the Senate would agreement the President might sign.
We have not taken up the authorization for use of military
force. There was a lot of human cry about whether President
Obama should have the power to take care of this. I am willing
to take that up. The Congress has not been willing to take
about it. We had an immigration reform bill in the Senate in
2013, which got 69 votes.
Immigration is one of the areas in which the President has
been active and has been criticized for being so active. But we
did not even get a vote on that in the House of
Representatives. That was a bipartisan immigration bill. We
could have taken that up right here, maybe amended it, but we
were prevented from that vote on the House floor.
There is a regulatory reform provision that came through
the House. It has no chance of passing this--through this--the
President's signature. I got an idea that we could achieve some
of the same objectives with the President's cooperation. Tax
reform is something in which actually, I agree with many of my
Republican colleagues on some of the tax policy issues.
Chairman Camp, when he was Chairman of Ways and Means
issued a plan to start working on that. Speaker Boehner killed
it the next day. So, we are not going to talk about it. Really,
what we have here is, as a witness has suggested, is a failure
of Congress, not something to criticize President Obama about.
And, you know, sometimes, I think it is a little bit like me
asking myself, ``Why is my hair not combed?'' It is because I
did not comb it. We have all the power we need to take care of
this.
Mr. Capretta said on the issues on entitlement spending or
social insurance that we should take those statutes and amend
them. And that is something we have the power to do. I think
Mr. Postell said, ``What we needed is more leadership within
Congress.'' Well, I am ready for that and I think what we could
do probably rather than have hearings about what Congress is
not doing, we should just get about the business of doing
Congressional work and with that I yield back.
Mr. King. The gentleman yields back. This concludes today's
hearing. Thanks to all of our witnesses for attending. Without
objection, all Members will have 5 legislative days to submit
additional written questions for the witnesses or additional
materials for the record.
I thank the witnesses and I thank the Members of the
audience. This hearing is adjourned.
[Whereupon, at 12 p.m., the Task Force was adjourned.]
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