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

       EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART I)_HEALTH CARE AND
                                  IMMIGRATION

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

                                    HEARING

                                   BEFORE THE

                         EXECUTIVE OVERREACH TASK FORCE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 15, 2016

                                   __________

                               Serial No. 114-63

                                   __________

             Printed for the use of the Committee on the Judiciary

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

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                           COMMITTEE ON THE JUDICIARY

                       BOB GOODLATTE, Virginia, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        JERROLD NADLER, New York
    LAMAR S. SMITH, Texas                ZOE LOFGREN, California
    STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
    DARRELL E. ISSA, California          STEVE COHEN, Tennessee
    J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
    STEVE KING, Iowa                       Georgia
    TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
    LOUIE GOHMERT, Texas                 JUDY CHU, California
    JIM JORDAN, Ohio                     TED DEUTCH, Florida
    TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
    JASON CHAFFETZ, Utah                 KAREN BASS, California
    TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
    TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
    RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
    BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
    DOUG COLLINS, Georgia                SCOTT PETERS, California
    RON DeSANTIS, Florida
    MIMI WALTERS, California
    KEN BUCK, Colorado
    JOHN RATCLIFFE, Texas
    DAVE TROTT, Michigan
    MIKE BISHOP, Michigan

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

                         Executive Overreach Task Force

                           STEVE KING, Iowa, Chairman

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

                         Paul B. Taylor, Chief Counsel

                        James J. Park, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 MARCH 15, 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     5
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     7

                                   WITNESSES

    Elizabeth P. Papez, Partner, Winston & Strawn LLP
      Oral Testimony.................................................    14
      Prepared Statement.............................................    17
    Josh Blackman, Associate Professor of Law, South Texas College of
      Law, Houston
      Oral Testimony.................................................    24
      Prepared Statement.............................................    26
    Simon Lazarus, Senior Counsel, Constitutional Accountability
      Center
      Oral Testimony.................................................    31
      Prepared Statement.............................................    33
    Elizabeth H. Slattery, Legal Fellow, Edwin Meese III Center for
      Legal and Judicial Studies, The Heritage Foundation
      Oral Testimony.................................................    56
      Prepared Statement.............................................    58

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared statement of the Honorable Sheila Jackson Lee, a
      Representative in Congress from the State of Texas, and Member,
      Executive Overreach Task Force.................................     9
    Additional material submitted by the Honorable Sheila Jackson
      Lee, a Representative in Congress from the State of Texas, and
      Member, Executive Overreach Task Force....................97
                           deg.OFFICIAL HEARING RECORD
              Unprinted Material Submitted for the Hearing Record

    Supplemental material submitted by Josh Blackman, Associate Professor
        of Law, South Texas College of Law, Houston. This material is
        available at the Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104663

    Material submitted by the Honorable Zoe Lofgren, a Representative in
        Congress from the State of California, and Member, Executive
        Overreach Task Force. This material is available at the
        Subcommittee and can also be accessed at:

        http://docs.house.gov/Committee/Calendar/
    ByEvent.aspx?EventID=104663

       EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART I)--HEALTH CARE AND
                                  IMMIGRATION

                                  ----------

                            TUESDAY, MARCH 15, 2016

                            House of Representatives

                         Executive Overreach Task Force

                           Committee on the Judiciary

                                Washington, DC.

        The Task Force met, pursuant to call, at 10:08 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Steve
    King (Chairman of the Task Force) presiding.
        Present: Representatives King, Goodlatte, Issa, Gohmert,
    Jordan, Poe, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen,
    Conyers, Lofgren, Jackson Lee, Johnson, Chu, and Peters.
        Staff Present: (Majority) Paul Taylor, Chief Counsel;
    Tricia White, Clerk; Zachary Somers, Parliamentarian & General
    Counsel, Committee on the Judiciary; (Minority) James J. Park,
    Minority Counsel; Gary Merson, Counsel; and Rosalind Jackson,
    Professional Staff Member.
        Mr. King. The Executive Overreach Task Force will come to
    order. And without objection, the Chair is authorized to
    declare a recess of the Task Force at any time. I'll recognize
    myself for an opening statement.
        At our first Task Force hearing, we explored how Congress
    itself, over the past many decades, has acted--or not acted--in
    ways that have tended to cede its legislative power to the
    executive branch. It's contrary to our Founders' original
    intentions as well. Our hearing today focuses on examples in
    which the President has exercised sheer will to wrest
    legislative authority from Congress.
        President Obama's actions in planning to grant amnesty and
    work permits to millions of illegal immigrants, without
    congressional authorization, and in unilaterally extending
    statutory ObamaCare deadlines and spending unappropriated funds
    to pay subsidies to health insurers, are two case studies in
    the modern abuse of domestic executive power.
        While the President has defined constitutional powers in
    foreign and military affairs, he does not have any legislative
    power under the Constitution. It's not outside his power to
    veto legislation presented to him.
        Consequently, Presidential abuses of power in domestic
    affairs are particularly grave threats to the individual
    liberty protected by the Constitution. I'll focus on the
    example of immigration in my remarks.
        Beginning on March 2, 2011, the Obama administration began
    a series of memos that have radically transformed immigration
    law without a single vote from Congress. March 2 was the first
    of what were called the Morton memos.
        I recall reading the Morton memos, and I recall its
    discussion and hearing here with Janet Napolitano. I remember
    her description of prosecutorial discretion. And I recall that
    they said in some of the memos on an individual basis only, but
    repeated something like seven times in one memo. But President
    Obama's theory that prosecutorial discretion, which always
    previously was applicable only on a case-by-case basis, could
    be categorical in application. In other words, by groups.
        I successfully offered an appropriations amendment to block
    funding of the Morton memos on June 7, 2012. But not to be
    deterred, the President went further, 8 days later, on June 15,
    2012, with the creation of the Deferred Action for Childhood
    Arrivals, or known as DACA.
        DACA took an even more radical step for the Obama
    administration's destruction of the traditional understanding
    of prosecutorial discretion. With DACA, the President claimed
    prosecutorial discretion not only was categorically applicable,
    but further, there should be benefits conferred.
        Prosecutorial discretion was always understood to be both
    individualized, on a case-by-case basis, and simply a decision
    to not act. DACA completely changed that with an entire program
    created to process people for positive benefits as opposed to
    simply refraining from action by the government. I also offered
    a successful amendment to strip funds from DACA and the Morton
    memos on June 5, 2013.
        In November of 2014, President Obama unilaterally and
    unconstitutionally created a program that would suspend
    immigration laws for potentially over 5 million people who are
    in this country illegally. The President could have urged
    Congress to enact a statute to create such a program under law,
    but he did not do so. Even when his party controlled both
    houses of Congress, he did not do so. And despite claiming the
    situation is urgent, the President didn't act unilaterally
    until November 20, 2014.
        Whether or not the President delayed action until November
    of 2014 for political reasons, he knew the actions he
    ultimately did take are unconstitutional. In particular, the
    President said publicly, and I quote: ``What I have been able
    to do is make a legal argument, which is that, given the
    resources we have, what we can do is then carve out the DREAM
    Act folks, but if we start broadening that to DACA, for
    example, then essentially I would be ignoring the law in a way
    that I think would be very difficult to defend it legally.''
        Putting aside the legality of the President's unilateral
    action regarding DREAM Act folks, clearly, the President's
    statement regarding the illegality of expanding on that program
    was true then, and it is true today. As The Washington Post's
    own Fact Checker wrote recently, referring to the very same
    quote: ``It's clear from the interviews that the President was
    being asked about specific actions that ended deportations of a
    subset of illegal immigrants,'' which is precisely the type of
    action he took in November. And as The Washington Post's Fact
    Checker concluded: ``Previously, the President said that was
    not possible, using evocative language that he is not a king or
    the emperor. Apparently, he has changed his mind.''
        And, indeed, a week after he announced his immigration law
    suspension program, President Obama announced in his own words:
    ``The fact that I just took an action to change the law.'' I
    think that took place in Chicago.
        The President claims the concept of prosecutorial
    discretion allows him to permit at least 5 million people who
    are here illegally to cut in line, to stay here under
    suspension of the immigration laws by bypassing the legal
    process that's being used by millions of people, and with great
    financial expense to them under the law.
        That number, 5 million people, is staggering, and under its
    weight the concept of prosecutorial discretion, which is
    intended to encompass individual, case-by-case determinations,
    flattens to nothing. The 5 million people for whom President
    Obama wanted the immigration law suspended, plus the 600,000 or
    so provided amnesty under DACA, constitute nearly 50 percent of
    the size of the entire unauthorized immigrant population in the
    United States.
        Further, the number of people for whom the immigration laws
    would be unilaterally suspended by the President's actions is
    larger than the roughly 4.2 million people today who are family
    members of U.S. citizens and permanent residents who have paid
    thousands of dollars for approved green card petitions and who
    are currently waiting for their green cards to become
    available.
        Under the President's unilateral action, more people would
    be allowed to essentially cut in line for work authorization
    than are currently--and legally--waiting in line for such
    authorization, because the resources that would normally be
    devoted to processing legal applicants would be diverted to
    processing illegal applicants. That's a shocking abuse of
    executive power.
        I look forward to hearing from all of our witnesses here
    today. And I recognize the Ranking Member of the Task Force,
    Mr. Cohen from Tennessee, for his opening statement.
        Mr. Cohen. Thank you, Mr. Chair.
        During today's hearing, we will hear a lot of heated claims
    about President Barack Obama's supposed disrespect for the
    Constitution and the separation of powers. We will probably
    hear a little bit in response about the disrespect that
    President Obama has suffered ever since he's been elected. We
    will hear that the Administration's decisions regarding the
    implementation of certain provisions of the Affordable Care
    Act, the Patient Protection Act, and institute deferred action
    programs for certain undocumented immigrants, amounted to a
    usurpation of Congress' legislative authority and a failure to
    meet the constitutional obligation to take care to faithfully
    execute the law.
        We have been hearing these same arguments on both of these
    issues for quite a while. Indeed, they are of a piece with the
    longstanding attempt to paint this President's actions, in
    particular, as somehow illegitimate.
        This has been a problem with Presidents elected from
    Illinois for years. The previous President elected from
    Illinois, Abraham Lincoln, was immediately questioned by the
    Southern States, and they then decided to leave the country
    because of his election and the fact that he was against
    slavery, and they called him a Black Republican. Now, 150 years
    later, we got a Black Democrat President, and we've had the
    same visceral response to a President from Illinois.
        It's regrettable. And I regret to inform the critics that
    neither the facts nor the laws support their positions that
    these hearings are based upon. In the case of both the
    Administration's executive actions implementing the Affordable
    Care Act and its deferred action programs, the Administration
    was simply exercising the broad enforcement authority that we
    in Congress delegated to the executive branch by statute,
    authority that Congress could always curtail if it chose to.
        For instance, with respect to delaying implementing the
    ACA's employer mandate, section 7805(a) of the Internal Revenue
    Code grants the Treasury Department broad administrative
    authority to grant transitional relief to phase in major new
    tax provisions.
        Such reasonable delays in implementation are routine,
    particularly when a complex new law like the ACA is being
    implemented. Indeed, the George W. Bush administration relied
    on such authority to postpone implementation of a provision of
    a Medicare-related law in 2003.
        Similarly, Congress granted the executive branch broad
    enforcement authority with respect to immigration matters
    involving the authority to set enforcement priorities in light
    of limited resources. Specifically, the Immigration and
    Nationality Act gives the executive branch broad authority to
    issue regulations and instructions to carry out such other acts
    as deemed necessary for enforcing that statute.
        Additionally, the Homeland Security Act directs the
    Secretary of Homeland Security to establish national
    immigration enforcement policies and priorities. The
    Administration's deferred action programs represent just such a
    prioritization of enforcement resources, concentrating those
    resources toward the removal of violent felons over the removal
    of law-abiding people.
        History reinforces the fact that the broad exercise of
    enforcement discretion in the immigration context is
    longstanding and legal, and it's logical. You don't just willy-
    nilly act on people. You take the ones that are the most
    harmful potentially to the society and you prioritize.
        Indeed, the Reagan and George H. W. Bush administrations
    pursued a deferred deportation policy for the spouses and
    children of certain unauthorized immigrants who could qualify
    for legalized status. This Reagan-Bush policy, moreover,
    arguably was similar in scale to the Obama administration's
    deferred action programs, and all three of those Presidents
    acted using their intellect and not a lottery system.
        The fact is the Constitution has little to do with the
    debate we're having today. It's the President that we presently
    have and the Mitch McConnell rule of saying doing all we can
    from day one to defeat him that has to do with this debate
    today.
        The arguments arise from the fact that opponents of the
    Administration's actions simply have not had and do not have
    the votes to overturn these programs through the political
    process, so they attempt to turn political and policy disputes
    into constitutional crises. It won't work.
        The Supreme Court has already upheld the Affordable Care
    Act against constitutional and other legal challenges, in NFIB
    v. Sebelius and King v. Burwell, and has rightly declined to
    consider a challenge based on the origination clause. And I
    believe it will similarly uphold the Administration's deferred
    action programs this term in U.S. v. Texas. We will see.
        Political and policy disagreements over health care and
    immigration are one thing. The Administration, however, acted
    well within its authority and in doing so faithfully executed
    the law. And at least as far as the Constitution is concerned,
    that is where today's debate should end. And the President was
    not born in Kenya.
        Thank you.
        Mr. King. The gentleman's time has expired.
        And I now recognize the gentleman, the Chairman of the full
    Committee, Mr. Goodlatte, for his opening statement.
        Mr. Goodlatte. Thank you, Chairman King, for convening the
    second hearing of the Task Force on Executive Overreach. The
    topic today includes recent case studies of the abuse of
    executive power, and I'll focus my remarks on the President's
    recent actions regarding the implementation of his own
    ObamaCare law.
        The witness invited by the minority to the Task Force last
    meeting based his testimony around the proposition that the
    most pernicious violations of the separation of powers involve
    a President's ``inappropriate claim of indefeasible power where
    even the most unambiguous legislative mandates may go
    unenforced.''
        With that in mind, consider that in the ObamaCare statute
    Congress provided for clear statutory deadlines for compliance,
    including this one regarding the mandates the statute imposes
    on employers: ``The amendments made by this section shall apply
    to months beginning after December 31, 2013.'' Few provisions
    in statutory law could be clearer than a decline citing a date
    on the calendar.
        Yet the current Administration has unilaterally sought to
    rewrite the law, not by working with the people's duly elected
    representatives, but in the following ways. Through blog posts
    which stated the Administration's unilateral removal of
    penalties for employers who would otherwise be required to
    provide insurance coverage for their employees. Through
    regulatory fact sheets which create an entirely new category of
    businesses and exempts them from their responsibility under the
    law. And through letters which specifically cite the fact that
    people are having their health insurance terminated under
    ObamaCare in violation of the President's promise that if you
    like your healthcare plan, you can keep it, and then claimed to
    suspend the law's insurance requirements to a date uncertain.
        One letter alone suspended the application of eight key
    provisions of ObamaCare, namely, those requiring fair health
    insurance premiums, guaranteeing the availability of coverage,
    guaranteeing renewable coverage, prohibiting exclusions for
    preexisting conditions, prohibiting discrimination based on
    health status, and many others.
        And why was this done? To delay the terrible consequences
    of ObamaCare until after the next election.
        As this headline from the Hill newspaper announced, ``New
    ObamaCare delay to help midterm Dems. Move will avoid
    cancellation wave before election day.'' And as The Washington
    Post described the situation: ``White House delayed enacting
    rules ahead of 2012 election to avoid controversy.''
        The liberal Washington Post also weighed in on the subject,
    stating in a board editorial: ``The administration is
    unilaterally making distinctions between large businesses and
    medium ones. The latter group, which will get hardest hit and
    scream loudest when the employer mandate kicks in, will be
    treated more leniently. The law is also explicit that the
    government should be enforcing penalties already; that's the
    plainest interpretation of Congress' intent. The administration
    shouldn't dismiss that without exceptionally good reason. Fear
    of a midterm shellacking doesn't qualify as good reason,'' said
    the Washington Post editorial board.
        University of Michigan Law Professor Nicholas Bagley, who
    generally supports ObamaCare, wrote in the New England Journal
    of Medicine that the Administration had encouraged ``a large
    portion of the regulated population to violate a statute in the
    service of broader policy goals,'' and had adopted a theory
    that would, ``mark a major shift of constitutional power away
    from Congress, which makes the laws, and toward the President,
    who is supposed to enforce them.''
        As one of our witnesses today will more fully explain, this
    Administration has even unconstitutionally used Federal funds
    that were not appropriated by Congress to subsidize insurance
    companies. The Administration requested such appropriations,
    which were denied by Congress, yet the Administration used the
    unappropriated funds anyway, willfully, unilaterally, and
    unconstitutionally.
        I was one of the authors of the House resolution
    authorizing a lawsuit on behalf of the House itself against the
    Administration for the abuse of executive power in the
    implementation of ObamaCare. And last year, a Federal judge
    held the following: ``Neither the President nor his officers
    can authorize appropriations. The assent of the House of
    Representatives is required before any public moneys are spent.
    Congress' power of the purse is the ultimate check on the
    otherwise unbounded power of the executive. The genius of our
    Framers was to limit the executive's power by a valid
    reservation of congressional control over funds in the
    Treasury.''
        Disregard for that reservation works a grievous harm on the
    House, which is deprived of its rightful and necessary place
    under our Constitution. The House has standing to redress that
    injury in Federal court.
        As that case proceeds, the House has an independent duty to
    pursue other responses to be executive overreach that are
    within its legislative powers. And to that end, I look forward
    to hearing from all of our witnesses today.
        Thank you, Mr. Chairman. I yield back.
        Mr. King. I thank the gentleman.
        And I now yield to the venerable gentleman from Michigan,
    the Ranking Member of the full Committee, Mr. Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        I want to welcome all of our witnesses and look forward to
    their testimony.
        Today's Executive Overreach Task Force hearing examines
    whether President Obama has violated the Constitution with
    respect to his authority to enforce the Affordable Care Act and
    the immigration laws. These are both issues that the full
    Committee has repeatedly considered in the past, and it's clear
    to me that the President has not violated any constitutional
    limitations on the exercise of his executive authority as to
    either of these areas.
        To begin with, the Deferred Action for Parents of Americans
    and expanded Deferred Action for Childhood Arrivals immigration
    programs are clearly lawful exercises of executive discretion.
        Now, Presidents from both parties, including George H.W.
    Bush and Ronald Reagan, routinely have used similar deferred
    deportation policies to promote family unity in our immigration
    system. These programs are commonsense solutions to our broken
    immigration system that has divided families for decades and
    subjected many to harsh immigration enforcement policies.
        The Deferred Action for Parents of Americans and expanded
    Deferred Action for Childhood Arrival programs are not only
    appropriate, but perfectly lawful. Prominent legal scholars,
    including liberal professors, such as Lawrence Tribe, and
    conservative professors, such as Eric Posner, concur that these
    programs represent a lawful exercise of the President's
    executive authority.
        Moreover, Supreme Court Chief Justice Roberts and Justice
    Anthony Kennedy have previously held that the executive branch
    retains broad discretion in immigration proceedings, and this
    is a principal feature of the removal system. This discretion
    permits the executive branch, through the Department of
    Homeland Security, to set priorities, and, accordingly, the
    agency has chosen to focus its enforcement efforts on those
    with serious criminal convictions instead of focusing on
    hardworking immigrants who simply lack documentation.
        Although oral argument before the Supreme Court in the
    United States v. Texas is scheduled for next month, I fully
    expect the Court, in keeping with prior precedent, will uphold
    the Administration's immigration programs.
        And we must note that the principal reason why these
    programs are necessary is because this Congress has repeatedly
    failed to take any action to fix our Nation's broken
    immigration system. Rather than addressing this problem, the
    majority has chosen to focus only on legislative initiatives
    aimed at deporting DREAMers and the parents of United States
    citizen children, as well as denying basic protections to
    children fleeing violence and persecution.
        I sincerely hope this Congress can move forward toward
    repairing our broken immigration system instead of blaming this
    President for taking lawful actions that were well within his
    executive authority.
        Finally, with respect to the Affordable Care Act, the
    majority in the House has on more than 60, 6-0, occasions,
    voted to repeal this law, but to no avail. So their assertion
    that it is an unconstitutional exercise of the President's
    executive power should come as no surprise.
        Specifically, the act's opponents claim that the
    Administration, by providing transitional relief to large
    employers that do not provide health insurance for their
    employees by authorizing subsidies, usurped Congress'
    responsibility under Article I of the Constitution and violated
    the Constitution's take care clause. Yet, as Simon Lazarus, the
    minority witness, has previously explained, the
    Administration's actions in implementing the Affordable Care
    Act's complex statutory scheme were well within his statutory
    authority and consonant with the President's obligation to
    faithfully execute the law.
        Clearly, we should be able to have legitimate policy
    differences without making unfounded accusations. There is
    substantial precedent supporting the President's actions in
    health care and immigration.
        And I look forward to hearing the witnesses' testimony, and
    I thank the Chair.
        Mr. King. I thank the gentleman for his statement.
        Without objection, other Members' opening statements will
    be made a part of the record.
        [The prepared statement of Ms. Jackson Lee follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                       __________
        Mr. King. Now I would like to introduce the witnesses.
        Our first witness is Elizabeth Papez, a partner at the
    Washington, D.C., law firm of Winston & Strawn and a former
    deputy assistant attorney general. Our second witness is Josh
    Blackman, an associate professor of law at South Texas College
    of Law/Houston. Our third witness is Simon Lazarus, senior
    counsel at the Constitutional Accountability Center. And our
    fourth witness is Elizabeth Slattery, a legal fellow at the
    Heritage Foundation's Edwin Meese III Center for Legal and
    Judicial Studies.
        We welcome you all here today and look forward to your
    testimony.
        Each witness' written statements will be entered into the
    record in its entirety. I ask that each witness summarize his
    or her 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 that you have 1
    minute to conclude your testimony. When the light turns red, it
    indicates that the witness' 5 minutes have expired, and we hope
    you are summed up at that point.
        Before I recognize the witnesses, it's a tradition of the
    Task Force that they be sworn in. So please stand to be sworn,
    witnesses.
        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 you help God?
        You may be seated. Let the record reflect that the
    witnesses answered in the affirmative.
        I now recognize our first witness, Ms. Papez.
        Ms. Papez, you're recognized for 5 minutes. Please turn on
    your microphone.

               TESTIMONY OF ELIZABETH P. PAPEZ, PARTNER,
                          WINSTON & STRAWN LLP

        Ms. Papez. Thank you, Mr. Chairman, Mr. Ranking Member,
    Members and staff. I appreciate the opportunity to be here
    today to discuss executive implementation of Federal
    legislation, notably the Affordable Care Act, or ACA.
        Executive action is obviously necessary to administer
    complex statutes, but it presents special challenges where
    agencies have to implement unfunded programs over time. In such
    cases, agencies can be tempted to depart from statutory
    mandates in order to address changing political or economic
    circumstances.
        The ACA is a prime example of such legislation, and its
    implementation has been the subject of significant legal and
    policy debates since its passage 6 years ago. My comments this
    morning concern the governance issues underlying these debates
    that this Task Force has resolved to study. These issues
    transcend particular programs and Administrations, and as
    Chairman Goodlatte observed just last month, ``are not partisan
    issues but rather American issues that touch the very core of
    our system of government.''
        When one branch of government oversteps its bounds to
    address perceived failings by another branch, it upsets the
    system of checks and balances that protects our democratic
    system. These upsets have real consequences for the millions of
    people and trillions of dollars affected by executive
    implementation of Federal law, and the issues they raise in the
    ACA context require special attention, because they could have
    important consequences for future governments and programs that
    have nothing to do with health care. The few examples I'll
    touch on this morning illustrate the point.
        The ACA provisions on employer coverage, cost-sharing
    subsidies, and premium tax credits present economic and
    practical challenges that have prompted agencies to second-
    guess appropriations and legislative decisions that the
    Constitution commits to the Congress. The executive's employer
    coverage regulations revise express statutory deadlines and
    participation requirements, the Treasury's cost-sharing
    regulations use money appropriated for specific tax credits to
    pay for cost-sharing subsidies Congress expressly refused to
    fund. And IRS regulations say that premium tax credits
    expressly directed at insurance exchanges ``established by a
    State'' may be used for insurance on exchanges not
    ``established by a State.''
        The executive branch has obviously defended these actions
    as lawful efforts to implement the act in the face of
    unforeseen circumstances and a divided Supreme Court has now
    upheld some of these efforts. But these developments do not
    resolve the problems this Task Force has identified, and its
    commitment to avoiding agency overreach in statutory
    implementations is an important step toward protecting our
    constitutional system of checks and balances not just in the
    healthcare and immigration context we're discussing here today,
    but also in future areas that will rely on today's programs as
    precedent.
        In the interest of time, I'll refer the Task Force and the
    hearing to my written testimony on the specifics of some of
    these case studies or examples of executive implementation. I'd
    be happy to answer questions.
        The one thing that is common to all three examples is that
    we see the executive branch taking steps to try to implement a
    statute in the face of circumstances that the statute itself
    did not envision and that are not impossible to address. One
    way of addressing them would be for the executive branch to
    come back to Congress for initiatives that, if they are indeed
    common sense and are indeed in the spirit or purpose of the
    law, should be addressed by the legislature.
        The disagreement over having to do that, I think,
    illustrates that the Constitution is indeed at stake and that
    we are in the midst of a time where the two branches have to
    reconcile political differences because the courts cannot
    resolve them all. These principles go back to the Declaration
    of Independence, which recognized the danger of concentrating
    power in a single person or body, and our Constitution answered
    this concern with a division of government authority that is
    often described as the essential basis of a free system of
    government.
        The scope and importance of ACA's healthcare initiative can
    tempt and has tempted government action beyond certain of these
    limits, particularly in the face of changing economic and
    political circumstances. But it is precisely when the stakes
    are high and stakeholders may believe that the end justifies
    the means that the Constitution and laws must serve as a check
    on government action.
        These checks, again, cannot be enforced by Federal courts
    alone, and where the political branches cannot work together to
    enforce them Congress can and should exercise its legislative,
    spending, and oversight powers to avoid the issues that have
    arisen in ACA's implementation to date. New statutes or
    amendments can minimize the extent to which Federal programs
    are unfunded or depend on State actions beyond Federal control.
    Congress can expressly limit appropriations in ways that the
    Supreme Court and other courts have said they will uphold in
    the future. And Congress can use its oversight authority to
    monitor agency implementation of statutes and consider whether
    further legislative or appropriations action is necessary under
    particular mandates.
        Thank you again for the opportunity to address these
    important issues.
        [The prepared statement of Ms. Papez follows:]

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                   __________
        Mr. King. Thank you, Ms. Papez.
        I now recognize Mr. Blackman.

     TESTIMONY OF JOSH BLACKMAN, ASSOCIATE PROFESSOR OF LAW, SOUTH
                     TEXAS COLLEGE OF LAW, HOUSTON

        Mr. Blackman. Thank you. Mr. Chairman, Mr. Ranking Member,
    and Members of the Committee. My name is Josh Blackman. I'm a
    constitutional law professor at the South Texas College of Law
    in Houston, Texas.
        I am honored for the opportunity to testify today about
    executive overreach and the Constitution, an area I have
    studied very closely. I am the author of ``Unraveled:
    Obamacare, Executive Power, and Religious Liberty'' from
    Cambridge University Press. I have published several articles
    on the constitutionality of DAPA. As well, I have filed several
    Supreme Court briefs with Cato Institute on immigration and
    ObamaCare.
        In my brief time, I wish to make three points concerning
    the President and how he has seized upon congressional gridlock
    to aggrandize the executive's power. Rather than focusing on
    whether these actions are constitutional, which Ms. Papez and
    Ms. Slattery have ably covered, I want to highlight the
    relationship between Congress and the President that gave rise
    to these actions.
        First, after Congress rejected the President's immigration
    agenda, he took unilateral executive action to grant lawful
    presence to millions of aliens and accomplished the very sort
    of reforms that Congress rejected.
        Second, even where bipartisan consensus emerged to minimize
    the harmful effects of the Affordable Care Act, the President
    has modified the law's mandates.
        Finally, I will sound an alarm: executive lawmaking poses
    an encroaching threat to the separation of powers and rule of
    law and that Congress, and not just the Court across the
    street, must take steps to halt.
        So let's start with ObamaCare. In what has become a
    troubling pattern of abuse, the executive branch has modified
    the law's mandates, the individual mandate and the employer
    mandate. What makes these alterations particularly harmful is
    that bipartisan support existed to amend the ACA to ameliorate
    these mandates. However, the President has rejected the
    legislative process through a series of memoranda, regulations,
    and even blog posts. Executive officials have remade the law in
    their own image.
        The ACA's employer mandate was supposed to go into effect
    on January 1, 2014. On July 2, 2013, in a blog post titled,
    fittingly, ``Continuing to Implement the ACA in a Careful and
    Thoughtful Manner,'' the Obama administration nonchalantly
    suspended the employer mandate till 2015. I have called this
    process regulation by blog post.
        What makes this unilateral delay all the more remarkable is
    that 2 weeks after the blog post, this House passed the
    ``Authority for Mandate Delay Act.'' The two-page bipartisan
    bill would have delayed the implementation of the mandate until
    2015. This is precisely what the blog post accomplished, except
    it had the backing of the legislative branch. In response to
    this bill, which would have given him the authority to take
    action, what did the President do? He issued a veto threat.
        A similar pattern played out with respect to the ACA's
    individual mandate. In 2013, as millions of Americans received
    cancellation notices, a bipartisan consensus emerged that the
    mandate had to be delayed to help people who liked their plans
    to keep them. In October, Senator Landrieu introduced a bill
    that would grandfathered all active plans that were valid in
    2013. On November 15, this House passed a similar bill on a
    bipartisan basis, 261-157. Once again, the President issued a
    veto threat to the House bill. He said that it would ``sabotage
    the healthcare law.'' This body cannot sabotage a law. All this
    body can do is change the law.
        On November 15, 1 hour before the House voted on this bill,
    the President announced what became known as the administrative
    fix. The fix allowed people to keep their plans. Ironically,
    the exact bill that he threatened to veto accomplished the same
    thing as his executive action. The President enacted through
    executive action what this Congress was willing and able to do
    in a rare instance of bipartisan agreement.
        Let's move on to immigration. Much like with the ACA, for
    immigration the Presidenthas transformed congressional defeat
    into executive action. In June 2014, the House announced that
    they would not bring for a vote the Gang of Eight bill, the
    comprehensive immigration reform bill. Okay? Within hours of
    learning that the Senate bill was dead, the President announced
    he would act alone. He said, ``I take executive action only
    when we have a serious problem, a serious issue, and Congress
    chooses to do nothing. I will fix as much of our immigration
    system as I can on my own, without Congress.''
        On November 20, after the elections, he revealed DAPA. Like
    the mythical Phoenix, DAPA arose from the ashes of
    congressional defeat, and DAPA, again, accomplished several of
    the key objectives of a bill that Congress voted down. The
    pattern has become all too clear. First, Congress passes a
    statute. Second, the statute is inconsistent with the
    President's evolving policy preferences. And third, the
    Administration modifies or suspends enforcement of the law to
    achieve results inconsistent with what Congress designed.
        During the hearing today, I hope to discuss steps Congress
    and the President can take to remedy these serious threats to
    our separation of powers. Thank you. I welcome your questions.
    And beware of the Ides of March.
        [The prepared statement of Mr. Blackman follows*]
    ---------------------------------------------------------------------------
        *Note: Supplemental material submitted by this witness is not
    printed in this hearing record but is on file with the Subcommittee and
    can be accessed at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104663.

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                       __________
        Mr. King. Thank you, Mr. Blackman.
        And I recognize now Mr. Lazarus for his testimony.

      TESTIMONY OF SIMON LAZARUS, SENIOR COUNSEL, CONSTITUTIONAL
                         ACCOUNTABILITY CENTER

        Mr. Lazarus. Thank you, Mr. Chairman, Ranking Member
    Cohen----
        Mr. King. Mic.
        Mr. Lazarus. I just said thanks to everyone. And thanks to
    my friend Professor Blackman for warning about the Ides of
    March.
        I am senior counsel of the Constitutional Accountability
    Center. CAC, as we are called, has filed amicus curiae briefs
    in the Supreme Court, in the lower Federal courts in two cases
    concerning the Affordable Care Act in which we have represented
    leading Democratic Members of the House and the Senate. And in
    Texas' challenge to the Administration's DAPA immigration
    initiative, CAC is representing a bipartisan group of former
    Members of the House and the Senate who served while provisions
    of the immigration laws that figure in that case were adopted.
        Respectfully, but regrettably, I must observe, as borne out
    by the Supreme Court's rejection of last year's King v. Burwell
    challenge, these claims that we are hearing of wayward
    executive conduct import the Constitution and law into what
    are, in reality, political and policy debates. They twist or
    simply ignore the text and manifest purpose of pertinent
    statutes and of the Constitution's take care clause and they
    contradict the consistent practice of all modern Presidencies,
    Republican and Democratic, to responsibly implement complex
    laws like the ACA and the immigration statutes. Thus,
    exercising Presidential judgment in carrying laws into
    execution is what the Constitution requires and what the
    Framers expected of the President.
        So I will take the two areas that we're considering today
    in the order in which they emerged as major issues, health
    first and immigration second. And I'm going to have to
    obviously be very generally, don't have a lot of time. Perhaps
    questions will bring out, give me an opportunity to go into
    greater detail.
        The ACA-related claim which has garnered the most attention
    has been the theory that the ACA barred tax credits to help
    purchase insurance in the 34 States using Federally Facilitated
    Marketplace exchanges for their residents. As explained by the
    four conservative Justices who dissented from the Supreme
    Court's 2012 decision to uphold the ACA's individual mandate,
    the exchanges without the subsidies would not operate as
    Congress intended and they may not operate at all.
        But last year, in June of 2015, the Supreme Court rejected
    ACA opponents' gutting interpretation. The Court agreed with
    the Administration that the opponents improperly ripped an
    isolated four-word phrase out of context. Writing for a six-
    Justice majority, Chief Justice Roberts held that, ``A fairer
    reading of legislation demands a fair understanding of the
    legislative plan.'' It is implausible, he ruled, that Congress
    meant the act to operate in a way that would cause that plan to
    fail.
        Now, this is a very significant decision, which my
    copanelists want to ignore, skip over.
        And I do want to make a point, Ms. Papez, that this was not
    a decision deferring to the agency's interpretation. Chief
    Justice Roberts and the Court very expressly said this was such
    a significant decision that they would not defer under the
    Chevron doctrine. This was an interpretation of the act that is
    the Court's own interpretation and it is its approach to
    interpreting the act that will govern in other cases.
        As my copanelist, Ms. Slattery, quite appropriately noted,
    it will apply to other cases, probably including the
    immigration case.
        So I want to note four things about that. First, we ought
    to note the chasm between the rhetoric about the
    Administration's alleged lawlessness and what the relevant law
    actually was and is, as the Supreme Court decisively held. That
    chasm should engender a certain degree of skepticism when we
    hear other over-the-top cries that the Administration is
    trampling on the Constitution.
        Second, I think we should note a point that Ms. Slattery
    made in an article she wrote the day the decision came down
    that the kind of conservatives who brought that lawsuit brought
    it not because they were worried that it was being improperly
    implemented, but precisely because they wanted to block its
    implementation. This was a result at the top of their political
    agenda, but not properly a matter for the courts, as the
    Supreme Court's bipartisan majority quite plainly recognized.
        And actually I've heard similar sentiments coming from my
    copanelists here, that these are policy and political disputes,
    Congress ought to try to do something about them and work with
    the Administration, they don't belong in the courts. And that's
    what Chief Justice Roberts made clear in that case, and I have
    every confidence that the same approach will govern the Court's
    response to the effort to turn into a legal and constitutional
    case what is really a policy and political dispute about
    immigration policy.
        And I'll stop there. Sorry that I ran over a little bit.
    And perhaps we can pay some more attention to these details
    when we get questions.
        [The prepared statement of Mr. Lazarus follows:]

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                        __________
        Mr. King. Thank you, Mr. Lazarus.
        And I now recognize Ms. Slattery for her testimony.

     TESTIMONY OF ELIZABETH H. SLATTERY, LEGAL FELLOW, EDWIN MEESE
        III CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE
                               FOUNDATION

        Ms. Slattery. I'd like to thank Chairman King, Ranking
    Member Cohen, and the other Members of the Task Force for the
    opportunity to discuss the Obama administration's unilateral
    actions. I would like to make three points this morning.
        First, the President's constitutional duty to take care
    that the laws be faithfully executed is just that, a duty, and
    not an independent source of power. This duty includes
    complying with statutory mandates, enforcing laws and
    regulations, which includes prosecuting lawbreakers, and
    defending the validity of laws in court.
        The take care clause does not allow the President to
    effectively amend or repeal existing laws through non-
    enforcement or creative interpretations. The Constitution does
    not vest lawmaking authority in the President.
        For example, President Harry Truman seized the Nation's
    steel mills to prevent strikes during the Korean war, and this
    was right after Congress considered and rejected giving the
    President this very authority by statute. The Supreme Court
    ruled this seizure was unconstitutional. Likewise, the Court
    has said that allowing the President to ignore statutory
    mandates would clothe him ``with a power to control the
    legislation of Congress.''
        Second, there is no question that the President and
    executive branch officials appointed by him have considerable
    discretion in how they execute the law, but that is not a blank
    check to effectively change the law through under-enforcement.
    Prosecutorial discretion is a necessary part of the President's
    duty to enforce the law, given the large body of laws and
    regulations on the books today.
        Simply put, it would be impossible for the executive branch
    to prosecute every single lawbreaker of every law. For example,
    the government has only passively enforced the draft, and when
    a draft-dodging young man challenged his conviction on
    selective prosecution grounds, the Supreme Court ruled in favor
    of the government, because it ``retains broad discretion as to
    whom to prosecute.''
        However, this does not mean the President can effectively
    nullify or change a law by under-enforcement. And that is where
    the Obama administration's deferred action policies for illegal
    immigrants differ from the draft situation. In the case of DACA
    and DAPA, Congress considered but never passed bills that would
    make similar changes.
        An additional problem with these programs is that on top of
    not enforcing the law, the Administration would confer benefits
    through these programs, and this is clearly beyond the scope of
    prosecutorial discretion. As the Supreme Court has explained,
    the President's duty to execute the law ``gives a governmental
    authority that reaches so far as there is law.''
        That is the situation we are dealing with today. President
    Obama is asserting an authority that reaches beyond where there
    is law.
        My third and final point is that Congress, rather than the
    courts, is the branch of government best suited to solve this
    problem. It's inevitable that each branch of government will
    seek to expand its authority. That is why checks and balances
    were built into the constitutional design, making ambition
    counteract ambition, as James Madison explained in the
    Federalist Papers.
        Members of Congress have the tools to resist the
    President's intrusion into the legislative sphere through
    appropriations, oversight hearings, and even impeachment
    proceedings. Senators have the additional tool of providing
    advice and consent on judicial and executive branch
    nominations.
        Even when the action taken by Congress is not directly
    related to the President's overreach, it can be very effective.
    For example, Senator Robert Byrd once held up 5,000 military
    promotions because President Reagan made recess appointments
    without consulting the Senate first.
        All Members of Congress, regardless of their party, should
    work to safeguard their prerogatives. It may be tempting for
    the next Republican President to copy President Obama's example
    and refuse to enforce laws that Republicans may not like. But
    for the sake of our liberties, Congress should encourage the
    current and future Presidents to comply with the limits placed
    on executive power. Otherwise, we will become a government of
    men rather than one of laws, as intended by our Founding
    Fathers.
        Thank you, and I look forward to your questions.
        [The prepared statement of Ms. Slattery follows:]

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                                   __________
        Mr. King. Thank you, Ms. Slattery, for your testimony.
        And I thank all the witnesses for your testimony.
        We'll now proceed under the 5-minute rule with questions.
    And I'll begin by recognizing myself for 5 minutes.
        And I'd turn, first, to Ms. Papez. Could Congress, in
    thinking about the Federal exchanges that were wished for by
    the Obama administration, conferred by the Supreme Court, could
    Congress discipline that by simply blocking funding to the
    Federal exchanges through an appropriations process?
        Ms. Papez. I certainly think that's one way that this body
    could do that, presuming the legislative solution didn't work
    in the first place as the Supreme Court, I guess, concluded the
    opinion. By the way, I have it here, the King v. Burwell
    majority opinion, in response to Mr. Lazarus.
        I don't know about the deference point. I mean, the Court
    does, at page 8, cite the Chevron doctrine, the Constitution
    underlies that, all the way through the end of the opinion
    Marbury v. Madison. And the Court concludes that the text is
    ambiguous, which is something the dissent obviously debates,
    and then it says that it's resting its opinion on what Congress
    meant or what the Court thinks Congress meant.
        And I think that's the issue. I think the first line
    response should be hopefully the legislation is clear enough.
    In this case, some would argue it was. And if it isn't, then
    perhaps appropriations is the next step or an amendment to make
    clear what apparently some other branches found unclear.
        Mr. King. Well, am I just imagining a happier world that a
    Supreme Court would have looked at the plain language in the
    Affordable Care Act and realized it was missing three words--
    ``or Federal Government''--and wrote a decision that it doesn't
    include the--it doesn't lawfully allow the Federal Government
    to establish an exchange, and then simply send it back to
    Congress for the discretion of Congress to decide whether or
    not to act?
        Ms. Papez. It's interesting you raise that point. So the
    Court did obviously purport to look at the text. It concluded
    the text was ambiguous, which is what then allowed it to go on
    and say: Well, let's decide what we think Congress really had
    in mind.
        Interestingly, to your point, the Court in that analysis
    relied on the prospect of State, you know, death spirals and
    asked the Solicitor General. Justice Scalia, actually, the late
    Justice Scalia asked this question. He said: Why couldn't this
    work exactly as you said, it could go back to the Congress. And
    the Solicitor General candidly said: I don't think we could get
    it done that way. So this was an example of sort of a
    Realpolitik invading the court, although the opinion doesn't
    quite read that way, obviously.
        Mr. King. It just seems to be, and it causes me to think
    about this, if the Supreme Court's involved in deep policy
    effect deliberations and then configuring decisions so it
    brings about their preferred policy result, I wonder if this
    Congress could just simply make our own ruling on the
    Constitution and ignore the court.
        But I won't ask you to answer that question. I'd instead
    turn to Mr. Blackman.
        Because I wanted to dig a little deeper into your statement
    about the narrative of the Congress that was prepared to mirror
    the wish of the President, who said he would veto the bill if
    it got to his desk, but within an hour of the time that that
    might have happened then issued his executive edict, which was
    a verbatim copy of what was on the way to the desk as a proper
    legislative act of Congress. How would you interpret that?
        Mr. Blackman. So what's stunning about the Affordable Care
    Act is how the law has been amended by executive action. It's
    indeed the case that this body considered laws that would have
    delayed the employer mandate. This body has considered laws
    that delayed the individual mandate. And rather than working
    with Congress, the President said: I will veto them.
        Now, I'll give the President some credit. The reason why he
    did that was he was afraid that various amendments would be
    attached saying: Okay, if you delay the individual mandate,
    repeal the Medical Device Tax, repeal that, repeal that.
        That's part of the process, right? You don't get everything
    you want. So rather than risk the law being amended by the duly
    enacted process, the President said: I'm going to veto that,
    and, oh, by the way, I'm going to issue an executive action
    that does exactly that, and, by the way, this relieves Senators
    of taking a difficult vote.
        Because the President takes these actions, it relieves the
    Congress of actually engaging in this process, and this is
    actually very deleterious to the rule of law, because now
    Congress is not even part of it. Yes, Congress has voted to
    repeal the ACA 60-odd times, but there were provisions that
    would have been actually modified to the benefit of Americans,
    and because of that, the President disregarded this process.
        Mr. King. There were some times that we wanted to help him
    with it on both sides of the aisle, and in this case, I took
    the President's actions to mean him saying: I am the executive
    and the legislative branch of government, and you, Congress,
    don't be sticking your nose in the legislative portion that the
    President wanted to conduct.
        And so I'd just turn to Mr. Lazarus, and quickly, please,
    the same question that I asked Ms. Papez. Why didn't the
    Supreme Court just read the ACA plainly and clearly and sent it
    back to this Congress say: If you want to have Federal
    exchanges, you're going to have to add the language to the
    bill.
        Mr. Lazarus. I'm very pleased to have an opportunity to
    answer that question. The challengers in that case focused
    entirely on one four-word phrase, which you quoted. What the
    Supreme Court said, and in agreement with the Administration,
    is, yes, we have to look at what the text of the statute says,
    but we have to look at the text of the whole statute. We
    construe statutes, not individual words or phrases.
        And when we look at the overall text of the statute, there
    are many provisions which make it clear that you couldn't
    construe that one four-word phrase in a way that would make the
    entire statute fail.
        What the Chief Justice said--and I think it's very
    important, because, again, it's an approach, it was adopted as
    an interpretation by the Court, and it will apply to other
    cases--in every case we must respect the role of the
    legislature and take care--take care--not to undo what it has
    done. Congress passed the Affordable Care Act to improve health
    insurance markets, not to destroy them. If at all possible, we
    must interpret the act in a way that is consistent with the
    former and avoids the latter.
        Mr. King. Thank you, Mr. Lazarus.
        Mr. Lazarus. That's the approach that the Court took. It's
    not ignoring the act, it's actually reading the act as a whole.
        Mr. King. Thank you.
        The Chair now recognizes the Ranking Member from Tennessee,
    Mr. Cohen.
        Mr. Cohen. Thank you, Mr. Chair.
        Mr. Lazarus, how have the actions of this President and
    President Bush, Reagan differed as far as constitutional reach
    taking?
        Mr. Lazarus. Well, again, I think that if you look, if you
    peel back the allegations of lawlessness and so forth and you
    look at the actual record, you really see that the President's
    implementation of the ACA and his implementation of the
    immigration laws exercises discretion in ways that all previous
    Administrations have done and have been upheld by the courts in
    so doing.
        I might point out, Chairman Goodlatte, if you look at
    exactly the same issue of the New England Journal of Medicine
    from which you quoted one article, there is an article by
    myself and Professor Tim Jost which explains how, in detail,
    what the Administration did to phase in the employer mandate is
    indistinguishable from what President Bush did to phase in the
    prescription drug benefit. His HHS Secretary, Bush's HHS
    Secretary said delaying the employer mandate was wise and
    explained why they had had to do the same thing.
        The same thing has happened with respect to environmental
    laws. The Clinton administration had to delay implementation of
    a whole lot of statutory deadlines. It has to be done
    sometimes. And exercising that kind of judgment is really what
    the Constitution expects of the President.
        And the same thing is true in the immigration law context.
    The precedents are even clearer. And President Bush actually
    conferred the equivalent of deferred action on 40 percent of
    then undocumented persons in the United States, which is the
    same percentage that's affected by DAPA. So we're really
    talking here about practices that have been going on and have
    been endorsed by Congress for decades.
        Mr. Cohen. We know that consistency is the hobgoblin of
    small minds and we don't want to be considered that. But were
    there congressional hearings over the actions of President Bush
    or President Reagan on the immigration policies that they used?
        Mr. Lazarus. Well, the Reagan administration, for example,
    adopted an important regulation that recognized work
    authorization, which is one of the things that people are
    complaining about with respect to DAPA. That was adopted. Yes,
    it was adopted with proper notice and comment proceedings
    administratively. And then it was subsequently endorsed in a
    statute in 1986 by the Immigration Reform and Control Act, I
    believe it is.
        So there really was a dialogue. There's always been a
    dialogue between Congress and Administrations over immigration
    policy. It's been ongoing, and Administrations have exercised
    discretion. Sometimes that discretion has been endorsed
    subsequently.
        I do want to point out one thing. I attached a letter to my
    testimony, which was sent in 1999, it was signed by 28 Members
    of Congress, including four distinguished gentlemen whose
    portraits are on the walls above us, Congressman Sensenbrenner,
    former Chairman Smith, former Chairman Conyers, and former
    Chairman Henry Hyde. This letter recommended to Attorney
    General Reno and INS Commissioner Meissner that the INS adopt
    guidelines for the use of prosecutorial discretion in removal
    proceedings in order to promote consistency in individual
    removal decisions.
        And I have to point out, Chairman King, that discretion
    does not mean every individual enforcement official gets to do
    whatever they want to do. Discretion is conferred on the
    President and on the department head. And when they decide that
    the best way to implement something requires at least
    presumptive respect for certain guidelines, and they make that
    transparent in writing those guidelines out, that's exactly
    what your predecessors and some of you in person recommended
    and quite properly so.
        Mr. Cohen. Thank you. And I yield back what I don't have.
        Mr. King. I thank the gentleman from Tennessee and
    recognize the Chairman of the full Committee, Mr. Goodlatte.
        Mr. Goodlatte. Thank you, Mr. Chairman.
        Mr. Blackman, let's follow up on the discussion we just
    had. If a President can unilaterally suspend immigration laws
    for at least 4 million people by using the discretion that's
    almost always granted of prosecutorial discretion, meaning the
    hard case, the tough case you have discretion about whether or
    not to pursue that case, if that can be taken to swallow up the
    law by granting prosecutorial discretion and suspension of the
    laws for 4 million people, what limiting principle could stop
    the President from granting, for example, capital gains tax
    amnesty to the almost 3 million households who make more than
    $250,000 a year?
        Mr. Blackman. So this is the million-dollar question that
    the government does not like answering--what is the limiting
    principle? The short answer is there is none, right? If the
    argument is, ``Due to Congress' lack of resources I can't
    enforce every action and I'm going to simply prioritize,'' the
    President can say, ``instead of going after capital gains tax,
    I'm going to go after people who don't file tax returns at all,
    I can't go after everyone, this is a category of people that I
    don't deem particularly dangerous, much worse is people who
    don't file any returns,'' there isn't.
        Indeed, the Attorney General's argument with respect to
    deferred action for immigration doesn't have much of a limiting
    principle. The fact that the President chose people without
    criminal backgrounds and people who are generally upstanding
    human beings is nice, but that doesn't have to be the answer.
    What we effectively have here is a very dangerous slippery
    slope.
        And if I may respond to a point my friend Mr. Lazarus made,
    this is a job for Congress. When I'm writing briefs I'll make
    argument with the courts, but, fortunately, here I am today
    talking to Congress. This body needs to reassert itself in the
    separation of powers. And if it actually views the President
    taking these actions, they should do something about it.
        The mere fact that past Presidents have done stuff and
    Congress didn't object does not make it constitutional, right?
    This is like when your kid starts jumping up and down on the
    bed and you say, ``Stop it, stop it, stop it,'' and he says,
    ``Well, Daddy, I've done this before,'' right? That doesn't
    necessarily make it right. Past practice is helpful but it does
    not by itself render it constitutional. And I think this body
    has a duty to try and reinsert itself.
        Mr. Goodlatte. So the correct answer is, if the President
    says, ``Well, I don't know what the limit of prosecutorial
    discretion is, I think it could include 4 or 5 million
    people,'' the response of the Court at the case that's now on
    its doorstep and the Court has said, ``We want to also look at
    the question,'' they asked the parties to brief the question of
    what the take care clause provision means to this case, the
    response of the Court should be, ``If you're not sure what that
    limit is, you shouldn't come to us, the United States Supreme
    Court, you should go to the United States Congress, because the
    Congress under Article I writes the laws. And if you're
    uncertain about the limit of that law, you should go back to
    Congress for direction on that, not come to the Court.'' Is
    that----
        Mr. Blackman. Absolutely. Yes, sir. I mean, in the
    ObamaCare case in 2012, which the government won, they could
    not identify a limiting principle in the commerce power. And
    the court said, ``You know what? If you won't draw a line,
    we'll draw it for you.'' I will be very pleased if the Court
    takes up the take care issue and actually writes about this,
    because, indeed, the President has not seen fit to have any
    sort of line of what he can and cannot accomplish through
    prosecutorial discretion.
        Mr. Goodlatte. So, Ms. Papez, taking a step back from that
    individual case, what do you think are the best reforms for us
    on this Task Force to consider that would restore the role of
    Congress as originally understood?
        Ms. Papez. Well, you know, again, it's a hard question. I
    think there are several tools at the legislature's disposal
    that, you know, could be brought to bear in light of some of
    the recent court decisions.
        I think something like the ACA illustrates the difficulty.
    I would imagine there are many in Congress who thought that the
    provision that the Supreme Court found ambiguous was indeed
    clear. So I think part of the job is going to be looking at
    some of these decisions and saying, ``What can we do
    differently going forward as a legislative matter, number
    one?''
        But the second piece is the power of the purse, right, and
    the spending power. I think that's an area where there is
    really no debate. Both sides of the aisle would agree that that
    power is constitutionally vested in the Congress. And so making
    appropriations very clear and using the oversight process to
    discipline executive branch spending and budgetary decisions is
    another powerful way to do it. Because, again, if there is a
    debate about how the legislation, what it means or how it was
    written, and there is not going to be a process of coming back
    to the legislature to revise the statute, the one way that I
    think Congress can and perhaps should compel that is with the
    power of the purse.
        Mr. Goodlatte. Thank you.
        Ms. Slattery, do you want to comment on that as well?
        Mr. Lazarus. Thank you for the opportunity.
        Mr. Goodlatte. I think I said Ms. Slattery. Thank you.
        Mr. Lazarus. Oh, I'm sorry. Okay.
        Ms. Slattery. I would say an important first step is
    changing the culture in Congress by holding hearings like this
    one, getting out of the habit of delegating broad amounts of
    authority to unaccountable agencies, by not pinning their hopes
    on the courts to resolve problems with the executive branch,
    and using the tools that Ms. Papez also mentioned.
        Mr. Goodlatte. Thank you very much.
        Thank you, Mr. Chairman.
        Mr. King. The Chairman returns his time.
        And now I recognize the Ranking Member of the full
    Committee for his 5 minutes, Mr. Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        Mr. Lazarus, can we get your view on prosecutorial
    discretion?
        Mr. Lazarus. Yes, you can. And also I apologize once again
    for misinterpreting who was being asked the question by
    Chairman Goodlatte.
        I think the question was asked, what are the limits on
    prosecutorial discretion and is the Obama administration
    setting examples where there are no limits? And the answer to
    that is, no, there are limits.
        I would want to point out that in the immigration area
    Congress has given the executive branch a great deal of
    discretion. And so that already is a limiting principle, the
    amount of discretion that the executive branch has and has
    traditionally had in immigration, which may be partly
    constitutionally based, but it is largely statutory, and you
    have done it.
        I should just say, in the Homeland Security Act of 2002,
    which many of you must have voted for, you, Congress, directed
    the Secretary of DHS to establish national immigration
    enforcement policies and priorities. There it is, that's his
    responsibility.
        So I think there's a lot of agreement here actually that
    these issues we are debating are really mainly issues that
    belong in the political arena and belong between the President,
    the executive branch and Congress, and not in the courts. If
    Congress thinks that that grant of discretion is too broad,
    then Congress has the ability to try to do something about
    that, and you can do it.
        So the fact that the President has a huge amount of
    discretion in the immigration area does not necessarily mean
    that the same degree of discretion exists in other areas. And,
    again, in the ACA area what we have is phasing in, not
    suspending or refusing to enforce. All Administrations have to
    do this because it is not always possible to comply with
    effective dates.
        So I think that the concerns about not only that the
    Administration is acting lawlessly, but is setting precedents
    about abusing discretion that are worrisome, I don't think that
    that's true, but I do think that it is something for Congress
    and the executive branch to work out and not something to dump
    in the courts.
        Mr. Conyers. Now, some of the critics have said that the
    President's oral comments urging Congress to pass comprehensive
    immigration reform means that he himself may not believe that
    DACA and DAPA are legal. Do you think the President may have
    contradicted himself, as his critics assert?
        Mr. Lazarus. Well, I think that what happened is that the
    President was hopeful that Congress would adopt comprehensive
    immigration reform. After all, the Senate passed it, and, after
    all, people felt that if the Senate bill ever got on the floor
    of the House, it would also pass the House. So there was reason
    to be encouraging that result.
        When he figured out that this was not going to happen,
    because then Speaker Boehner told him it was not going to
    happen, he ordered an extensive legal review of what authority
    he did have. I think that was the exactly responsible thing for
    him to do, it is exactly what is contemplated when the
    Constitution directs him to take care that the laws are
    faithfully executed.
        And as a result of that long, I think it was like 9-month
    analysis that resulted in a very careful memorandum from the
    Office of Legal Counsel and Justice, he decided that he had the
    authority to do what he did in DACA and DAPA. And as I said, I
    believe that what he did is clearly within his discretion, very
    much in line with what previous Republican as well as
    Democratic administrations have done, and will be upheld by the
    Court.
        Mr. Conyers. Let me ask you this quickly about the strict
    conditions as to who qualifies for a green card and that the
    President effectively nullifies congressional decisions by
    granting a legal status without Congress acting. Are his
    critics right in saying that he's being in some ways out of
    line or contradicting himself when he can act in this way?
        Mr. King. The gentleman's time has expired. The witness
    will be allowed to answer the question.
        Mr. Lazarus. The answer is no. DAPA does not confer legal
    status, it does not confer amnesty. It provides for deferred
    action for people who are not going to be removed in any event,
    and everyone knows that, the courts have all acknowledged that.
    So it is a very different thing. It doesn't contradict what
    Congress wouldn't do. It acts in a very limited way basically
    to codify temporarily what was going to be the reality on the
    ground anyway.
        Mr. Conyers. Thank you, Mr. Chairman.
        Mr. King. The gentleman returns his time.
        The Chair now recognizes the gentlemen from Texas, Mr.
    Gohmert.
        Mr. Gohmert. Thank you.
        I think we just heard one of our problems. Mr. Lazarus,
    when you say all acknowledge that, that's simply not true; and
    I'm one who does not acknowledge that. And we have people
    running for President, who are doing well, who have not
    acknowledged what you said.
        And when you say that the President was told that the law
    was not going to be passed by Speaker Boehner, then he decided
    to see how far he could go basically. And it appears what was
    not written in the memos is that basically, Mr. President, you
    can do just about anything because Harry Reid's got your back
    in the Senate. So, even though the House is going to rise up
    and try to enforce existing law as it is, Harry Reid will not
    let them enforce the law as it is, so you can pretty much get
    away with whatever you want to do.
        And I think that when the book is written about the rise
    and fall of the freest, greatest country--with more
    opportunity, least imperialistic--testimony in this hearing
    could be very helpful as your statement talking about the
    President, he decided he had authority to do what he did.
        That is what happens when, as Ben Franklin said, you know,
    giving you a republic if you can keep it. You can only keep it
    if the top leaders are kept in check with checks and balances.
    But when the top leaders feel there are things they can do and
    not be stopped, they have authority, basically because they
    won't be stopped, then that is when the checks and balances
    break down.
        Now, Ms. Papez, you were mentioned by Mr. Lazarus, and your
    demeanor, your countenance appeared to change. I mean, I used
    to be a judge. I have watched lawyers' appearance. Did you have
    a response that you have not made to what he said when your
    name was invoked?
        Ms. Papez. I think we agree on a lot of things. The one
    point that did jump out about Mr. Lazarus' testimony, it is in
    the written statement too, is that he has on page 14 of his
    paper a statement that says: Where is the Constitution in all
    of this? And his answer is it's nowhere. I think we do disagree
    on that. I think it is everywhere. I think you see it in the
    court decisions we've been talking about. And I think you see
    it in this hearing, and I think both sides have acknowledged
    that. So that's the one place I think we might part company a
    bit.
        Mr. Gohmert. Alright.
        And, Ms. Slattery, you mentioned Mr. Lazarus' statement
    giving credit for your sense of humor. Could I ask you to
    elaborate on what you meant by your sense of humor when you
    talked about a terrible, horrible, no good, very bad day for
    conservatives who pinned their hopes on blocking ObamaCare on
    the Supreme Court?
        Ms. Slattery. Sure, I'm happy to. That was a blog response
    for the Heritage Foundation the day that the King v. Burwell
    decision came out. And I would just like to respond to what Mr.
    Lazarus said.
        Mr. Gohmert. Please, please.
        Ms. Slattery. Yes. Essentially, I think he's characterizing
    the lawsuit as something that's nakedly partisan, but I think
    even Chief Justice Roberts acknowledged that the challengers
    had good statutory arguments and, in fact, theirs were better
    if you look at the plain text of statute. But the Court, the
    majority, unfortunately, chose to look at the aspirations of
    what they thought Congress wanted rather than the law that
    Congress actually passed.
        Mr. Gohmert. Well, any time you have any Justice--and
    particularly in this case the Chief Justice--who writes around
    page 14 or 15 of his decision that Congress knows best whether
    something is a tax or a penalty and it is only imposed if
    conduct occurs that Congress does not want to happen, or in
    this case they don't buy an insurance policy that Congress
    wants them to buy, clearly it is a penalty. It is not a tax,
    because if it were a tax, the Anti-Injunction Act would apply,
    the plaintiff would not have standing, and we would not have
    jurisdiction. So, it is clearly a penalty, and it is not a tax.
    And since it is a penalty and not a tax, we have jurisdiction,
    plaintiff has standing, and we can go on to consider the
    merits.
        And then 40, 50 pages later, that same judge that's smarter
    than this, loses his intellectual integrity by saying clearly
    this is a tax, and that's why it needs to be saved. And, yes,
    we lawyers know we can play games and say it can be one thing
    under one law and a different thing under another, but the
    Supreme Court lost its integrity. And this is the way you lose
    a republic that Ben Franklin and his friends gave us.
        I yield back.
        Mr. King. The gentleman yields back.
        The Chair would now recognize the gentlelady from
    California, Ms. Lofgren.
        Ms. Lofgren. Thank you, Mr. Chairman.
        I think sometimes the rhetoric we hear about the
    President's immigration actions is a bit overheated and that's
    unfortunate, because I think it confuses the public about
    what's actually occurred. And I hear some of the things that
    are being said around the country, and even in Congress. And I
    think if you don't like what's happened, look in the mirror,
    because if you take a look how much money we've appropriated
    every year, it's less than would be necessary to remove
    everybody who is undocumented in the country. In fact, we
    appropriate about less than 4 percent of what would be
    necessary to remove every person who lacks lawful status in the
    country.
        And as you've mentioned, Mr. Lazarus, we have repeatedly
    delegated to the Administration the obligation to prioritize
    who should be removed in light of the fact that we have failed
    to appropriate funds sufficient to remove everyone. In 1952, we
    authorized the executive to establish such regulations, issue
    such instructions, perform such other acts as he deems
    necessary for carrying out his authority. And as you've
    mentioned in 2002, when we adopted the Homeland Security Act,
    we explicitly charged the Secretary of Homeland Security with
    the obligation to ``establish national immigration enforcement
    policies and priorities.''
        Now, when you put the appropriations level together with
    the explicit obligation to the Secretary to figure out what to
    do, it's pretty clear, if you don't like what's happening, look
    in the mirror. It's what we asked him to do.
        Now, some have said that the work authorization is a
    problem. Well, once again, look in the mirror. When President
    Reagan was President in 1981, they codified the rule, providing
    the administrative practice granting work authorization to
    people who had received deferred action. And in IRCA, 1986,
    Congress explicitly recognized the authority of the Attorney
    General and now the Secretary of Homeland Security to do
    exactly that.
        So I guess my question to you, Mr. Lazarus, is, is this an
    unlawful delegation to the Administration? Has Congress
    unlawfully delegated this?
        Mr. Lazarus. I think we're pretty far past the days when
    the Supreme Court is brandishing the nondelegation doctrine
    about it. That's about 100 years out of date.
        No, it is not an unlawful delegation. It's
        a perfectly sensible delegation and it's one that's been
    working for many years. And as I said, it's been an ongoing
    dialogue between Congress and the immigration enforcement
    authorities as to how this should be used. And as I also
    pointed out, a dialogue in which a very significant
    contribution was made by Members of this Committee and other
    Members of Congress in 1999.
        Ms. Lofgren. Right.
        May I ask you another question? Now, ordinarily the
    Administrative Procedures Act does not require rulemaking when
    you take discretionary actions. If it did, every time the
    Attorney General decided not to prosecute a particular person
    you'd have to do 90-days of rulemaking. Do you think these
    discretionary actions required rulemaking under the
    Administrative Procedures Act?
        Mr. Lazarus. I certainly do not. The Fifth Circuit decision
    that the Justice Department is appealing to the Supreme Court
    that held that the Administrative Procedure Act required DAPA
    to be done through a notice and comment rulemaking made that
    point based on an allegation that the DAPA guidelines were
    binding--binding, I guess, on the public.
        Ms. Lofgren. Right.
        Mr. Lazarus. They certainly are not--and that the
    references that are replete throughout the DAPA memoranda that
    individual officials retain case-by-case discretion to apply
    the guidelines but also to look at other factors in the public
    interest, were pretextual. Now, this was before it had even
    been put into effect.
        Ms. Lofgren. Right. Mr. Lazarus----
        Mr. Lazarus. It is really an outrageous interference with
    executive authority, I think.
        Ms. Lofgren. It would change the presidency forever, I
    think.
        I just want to close with this. I'd like unanimous consent
    to put page 16 of the Committee report from August 28, 1985,
    into the record. And here's what the Committee said: ``It's the
    intent of the committee that the families of legalized aliens
    will obtain no special petitioning rights by virtue of the
    legalization. They will be required to wait in line in the same
    manner as the immediate family members of other new
    residents.''
        Following that, President Reagan decided to grant amnesty,
    if you will, to the family members who had been specifically
    excluded by the legislation and he did so by a grant of
    deferred action. It was about 40 percent of the population, the
    same general percentage as what we're talking about today, and
    also provided work authorization.
        With that, I would yield back. And I ask unanimous consent
    to put this in the record.
        Mr. King. The unanimous consent request has been accepted.
    Without objection, it will be entered into the record.**
    ---------------------------------------------------------------------------
        **Note: The material submitted by Ms. Lofgren is not printed in
    this hearing record but is on file with the Subcommittee. Also, see
    Lofgren submission at:

          http://docs.house.gov/Committee/Calendar/
          ByEvent.aspx?EventID=104663.
        The Chair will now recognize the gentleman from Idaho, Mr.
    Labrador.
        Mr. Labrador. Thank you, Mr. Chairman. And that was
    Reagan's worst mistake as a President. So I think we wouldn't
    have the problem that we have today if Reagan had not done
    that. And I think if he were here today he would say the same
    thing.
        So thank you, Mr. Chairman.
        Thank you to the witnesses for being here today.
        This Task Force is engaged in very important work and I'm
    encouraged by the discussion. I wish we would broaden it just a
    little bit, because I think, Mr. Lazarus, you and I may agree
    on something. I think Congress has failed to be specific in
    what the executive should do and should not do.
        I disagree with your interpretation of prosecutorial
    discretion, but I completely agree that sometimes Congress has
    punted and has given the executive too much authority. And I
    think it's pure laziness. It's just we don't want to write
    precise laws, so we write these broad laws and then we give the
    executive all this power, all this authority.
        And I hope that we get to that issue some time in this Task
    Force, because we're going to fight all day about whether the
    President did something right or wrong pertaining to
    immigration and pertaining to the health care law. But we can
    agree that, if we were more precise in our writing and we were
    more precise in our orders to the executive and our guidelines
    to the executive, we wouldn't be giving all this prosecutorial
    discretion, all this discretion to all these individuals.
        Now, I ran for Congress after actually seeing President
    Bush's flagrant examples of overreach in some of his signing
    statements. So as a Republican, I was dumbfounded and it was
    abhorrent to me that the President was not following. And many
    of my friends on the left, they were with me, they actually
    disagreed with President Bush and they looked at what he did as
    something that was taking away from the power and authority
    that Congress has.
        It shocks me every single time we have one of these
    hearings and I don't hear a single Democrat go after the
    President for his executive overreach. And it actually saddens
    me because I thought we were more honest than that. And I have
    been upset with my own party when we have done it, and it
    really saddens me to never hear one single Democrat, not one,
    say, ``You know what? Maybe we should reconsider the executive
    overreach of this President.''
        They are okay when it is their goose that is being cooked,
    but they are not okay when it is our goose. When we are getting
    what we want, they are not okay with it. But they seem to be
    okay with it when they're getting what they want.
        And what that means is that there is no real respect for
    the powers and authorities that we have here in Congress. There
    is no real respect for the Article I authority that we have
    been given, it really is just a political football, that when
    Republicans are doing it, then we're going to defend it, when
    Democrats are doing it, they are going to defend it. And I hope
    we get beyond that.
        With the constant contradictions between current law and
    executive actions, it is not surprising that immigration
    enforcement is weak. Moreover, this continued overreach
    provides a concerning precedent for future Administrations to
    act. Imagine what a President Trump is going to do with the
    precedent that this President has set forth. He's already told
    us that Congress doesn't work. He's already told us that he
    doesn't need Congress to act. Imagine what he would do.
        And I want to see--I hope that they are consistent when a
    President Trump does the same thing that a President Obama does
    and that they actually say it's okay because they have
    prosecutorial discretion. I know they won't be consistent, but
    I hope that they can be consistent with this.
        Mr. Blackman, do you believe that there is a difference
    between prosecutorial discretion and the President's executive
    action on immigration?
        Mr. Blackman. Yes, sir, absolutely.
        With respect to prosecutorial discretion, on a case-by-case
    basis the President can make a decision on the merits of
    whether someone is warranting this treatment.
        What DACA and DAPA do is set a classwide basis. For example
    with DACA, nearly 97 percent of the people who are eligible and
    applied got it. The government could not identify a single
    case, not one, where a person was denied for discretionary
    reasons. To this day they still can't deny one.
        This it is not prosecutorial discretion. This is an
    exercise of a categorical blanking, a categorical suspension of
    the law to an entire class of people.
        Mr. Labrador. Should this or any other Administration
    unilaterally decide which immigration violations are a priority
    for enforcement and which are not?
        Mr. Blackman. There is no problem with a prioritization,
    let me make this point clear. Texas has never challenged a
    prioritization. What they have challenged is the decision to
    categorically grant work authorization between an entire class
    of people who really are contrary to the will of Congress. The
    President--this Congress considered the DREAM Act. Congress
    said no. And the President decided these people are still
    warranting of this treatment.
        Mr. Labrador. All right. Thank you. I yield back.
        Mr. King. The gentleman returns his time.
        The Chair would now recognize the gentlelady from Texas,
    Ms. Jackson Lee.
        Ms. Jackson Lee. Mr. Chairman, thank you so very much.
        Thank you to the witnesses.
        Although I will ask for a moment of silence in the full
    Committee, I did not want the first Judiciary Committee that I
    was attending to not go without mentioning the tragic loss of
    Tiffany Joslyn, that many of you know was the deputy chief
    counsel of the Judiciary Committee on the Democratic side, in a
    tragic car accident 1 week ago Sunday, that lost the only two
    children of her family, of her mother and stepmother. That is,
    she and her brother were lost in the accident at the same time.
        I hope that when we convene as a full Committee--I will not
    be here tomorrow, I will be attending her wake services--that
    we'll have an opportunity for a moment of silence.
        Thank you, Mr. Chairman, for allowing me to make mention of
    that.
        Let me proceed with the questions to the witnesses and let
    me thank you for those. It is obvious that we have much to
    agree on in this Committee and we have much to disagree on. I'd
    offer to say that as we proceeded in this Committee of
    Executive Overreach, and I'm very glad to be on it, I still
    think that majority has failed to reach out or obtain any
    direct information or witnesses from the affected health care
    exchanges or immigration agency tasked with implementing the
    program.
        We know the Supreme Court has already ruled on the
    constitutionality of the Affordable Care Act and the issues for
    today are now established law. So let me proceed. In addition,
    it is well to acknowledge that the executive orders regarding
    DAPA have been stayed, but as we know, when the Affordable Care
    Act and aspects of it were litigated it was found to be
    unconstitutional.
        The staying of this district court action does not mean
    that we have yet fully litigated the President's authority. So
    that would be my line of questioning.
        I know that there is also a district court proceeding where
    one aspect of it was found that the Congress did not have
    standing and the other aspect dealing with the appropriations
    part--and I'm saying this to you, Mr. Lazarus--was found to
    have--the Congress was found to have standing. And I'm not
    going ask you about those court cases, but I'm just suggesting
    that there is a whole list of litigation pursuing the executive
    authority of the President or, might I say, the constitutional
    authority of the President.
        Let me offer to say to you, Mr. Lazarus, I'm going to offer
    something that's far afield, but hopefully will lead me into my
    questions as my time runs. I'm reminded of history, and during
    the Civil War the fugitive slave law was still the law of the
    land. Lincoln chose not or did not care to enforce this law.
    Would it be your position that Lincoln's actions would be
    unconstitutional?
        Mr. Lazarus. It certainly wouldn't be. And I think that all
    Justice Departments in all Administrations and scholars
    generally agree that a President has an independent obligation
    to evaluate the constitutionality of laws. At least in a case
    where an Administration conscientiously and carefully makes a
    determination that they cannot defend the constitutionality of
    a law, they have an obligation to do that.
        Obviously, the Civil War is a rather exceptional set of
    circumstances, and actions that President Lincoln took to make
    it possible to prosecute the war, such as that one, might not
    be a precedent for taking similar actions under peaceful
    circumstances. But Presidents have that obligation, and as
    several people here have said, the Congress has an obligation.
        Ms. Jackson Lee. It is similar. Let me get two other
    questions. It is similar. And I thank you for that.
        Let me quickly ask a question on DACA and DAPA. The
    President's critics have tried to score political points by
    quoting some of his oral arguments and comments and that he's
    contradicted himself. The President's critics have argued that
    he's abdicated his duty to enforce our immigration laws.
    Looking at removal rates under his Administration and legal
    precedent on abdication of immigration enforcement, are his
    critics correct?
        And as I understand, the legislation allowed some--the
    latitude in discretion, I'd appreciate that, in the enforcement
    aspect of immigration laws.
        Lastly, if I could quickly get in, Mr. Chairman, a question
    about the Affordable Care Act. In Mr. Blackman's testimony he
    alleges that implementing, the administrator made a variety of
    suggestions for statutory effective date. Does the executive
    branch have the authority to provide transitional relief when
    implementing legislation, ACA?
        Two questions--if I could quickly, Mr. Chairman, be yielded
    to--for you to answer, one on the immigration latitude and one
    on transitional implementation latitude under Affordable Care
    Act.
        Professor.
        Mr. Lazarus. On the immigration point, real quickly, I'd
    just like to point out that very prominent conservative legal
    scholars, prominent as scholars and as conservatives, who my
    copanelists are very familiar with, acknowledge that the
    executive branch has exceptional latitude to determine
    priorities and to exercise discretion in the case of
    immigration.
        One of those is Jonathan Adler, who is a very prominent
    professor who all of us here know very well and respect a great
    deal, and who was actually a main architect of the King v.
    Burwell challenge. But he wrote on the Volokh Conspiracy, which
    is a leading conservative blog, basically expressing great
    skepticism about the legal challenge to DAPA, as did Ilya
    Somin, who is an another very prominent conservative and very
    fine professor. Both of them just acknowledge that immigration
    is special and has special discretion.
        As far as phasing in is concerned of the Affordable Care
    Act, I don't know what else there is to say. Most of the
    adjustments that my friend Professor Blackman is objecting to
    are history. I mean they've already happened. They were done on
    a temporary basis. They're old news.
        And the big news is that the Affordable Care Act is being
    implemented very successfully. Tens of millions of people now
    have access to health care who didn't have it before. As the
    Hospital Corporation of America said in its amicus curiae brief
    in King v. Burwell, the Administration is implementing the
    Affordable Care Act as Congress intended and it is having
    effects that give more access and also make it possible for
    providers like the Hospital Corporation----
        Mr. King. The gentlelady's time has expired.
        Mr. Lazarus. So in any event, that, I think, is the answer.
        Ms. Jackson Lee. I thank you.
        Mr. King. I think the gentlelady.
        And the Chair would recognize the esteemed gentlemen from
    South Carolina, Mr. Gowdy.
        Mr. Gowdy. Thank you, Mr. Chairman.
        Ms. Slattery, I listened carefully as Professor Lazarus was
    asked the limits of prosecutorial discretion and I did hear him
    make a series of arguments about statutory construction. I did
    not hear him address the constitutional implications of
    prosecutorial discretion and what limits, if any, may exist. So
    I thought I might take my chances with you.
        Can you tell me what are the limits, if any, on this thing
    my friends on the other side call prosecutorial discretion?
        Ms. Slattery. Well, I don't think there are any hard and
    fast limits, you know, set in the Constitution, of course, not
    many that have--much guidance that has come from the Supreme
    Court on this. But certainly as one of my copanelists
    mentioned, prosecutorial discretion does not allow the
    President to exempt entire classes of individuals, it shouldn't
    allow that. That should be at a minimum outside of the scope of
    that discretion.
        Mr. Gowdy. Do you think the power emanates from his ability
    to pardon after the fact? What's the constitutional origin of
    prosecutorial discretion?
        Ms. Slattery. I think it's inherent in his duty to take
    care that the laws be faithfully executed, you know, it says
    faithful--take care to faithfully execute the laws. It doesn't
    just say shall execute all laws. So it is inherent,
    particularly given the scope of----
        Mr. Gowdy. But if I accept that theory, take care that the
    laws be faithfully executed, the use of the article, or the
    word ``faithfully'' seems to minimize the duty to take care
    that the law be executed. If I were to accept that theory, then
    ``faithfully'' is a limiter. And I view it differently. I view
    it as more of an exclamation point that we really, really mean
    that your job is to make sure that the laws are executed.
        I want to ask you about this fact pattern. Are you familiar
    with the case Zadvydas? Are you familiar with that case in the
    immigration context?
        Ms. Slattery. No, I'm not.
        Mr. Gowdy. Well, I'm going to butcher this, but I am going
    to give it a try anyway. And I'm sure one of the professors
    will do like they did in the past and correct me if my factual
    summary is wrong.
        Zadvydas is a Supreme Court case where the government
    cannot indefinitely detain convicted criminals who have
    finished serving their time but the host country will not take
    them back.
        So think about the worst host country you can. Let's think
    about what used to be Somalia. We have someone from Somalia who
    commits, let's say, murder in the United States and he or she
    serves the sentence and they are supposed to be removed, but
    Somalia won't take them back. So guess what happens? They're
    released. They can't gain lawful entry into the country, but
    we're going to release them into the very same country that
    they couldn't gain lawful entry into because the Supreme Court,
    in a 5-4 decision, doesn't think you ought to be able to
    indefinitely detain criminal aliens who have finished their
    sentence.
        You with me so far factually?
        Ms. Slattery. Yes.
        Mr. Gowdy. All right. What if a President King, God forbid,
    but what if a President King were to decide that he doesn't
    like that law?
        Mr. Issa. All in favor of God forbid.
        Mr. Gowdy. He doesn't like that law so he is going to not
    prosecute anyone in the penal system for false imprisonment,
    for violation of 1983, he really thinks you ought to be
    indefinitely detained and not released back on the innocent
    public? Can we do that if Republicans were to somehow retake
    the White House? Can we decide we're not going to enforce that
    law?
        Ms. Slattery. I think that's certainly a tough situation,
    and I would hope that the President would work with Congress to
    change the law.
        Mr. Gowdy. Well, that was the Supreme Court that did it and
    they're tough to work with. You got to wait till one of them
    retires.
        Ms. Slattery. That is certainly a difficult situation, and
    I'm certainly not ratifying or endorsing what President Obama
    has done. And I think that clearly his interpretation of
    prosecutorial discretion is very broad.
        Mr. Gowdy. It's a little closer to anarchy than it is
    prosecutorial discretion. And I don't say that to be
    hyperbolic. The reality is this. Today it's immigration laws--
    actually, it's not just immigration laws, it's also mandatory
    minimums in drug cases, it's the so-called Affordable Care Act.
    Tomorrow it might be election laws, it might be discrimination
    laws, it might be some other category of law that he's waited a
    couple of years for Congress to act on, but Congress has not
    acted in the time period that he thinks that they should, so
    he's just going to do it summarily.
        I'll just caution--I know I'm out of time, Mr. Chairman--
    but I'll just caution my friends, you may like the use of
    prosecutorial discretion today; you will really not like it at
    some point. So this notion that we're going to conflate the
    episodic use of discretion to not prosecute a case with the
    wholesale announcing ahead of time that we're not going to
    prosecute certain broad categories of cases, I promise you
    there will be come a day where you cry out for the law to be
    executed and I hope I live long enough to see it.
        I will yield back to the Chairman.
        Mr. King. I thank the gentleman from South Carolina.
        I now recognize the gentlelady from California, Ms. Chu.
        Ms. Chu. Mr. Lazarus, I support the President's proposal to
    and decision to expand DACA and to expand the program to DAPA.
    When implemented these actions would mean that families could
    stay together and immigrants could continue to work and
    contribute to our economy with dignity without the fear of
    deportation.
        And the reaction from the community is strong as well. In
    fact, in an immigrant workshop that I had in LA, I had the
    opportunity to meet remarkable people like Andrea, who was a
    graduate from her high school, at the top of her class, the
    first member in her family to attend college. And as a DACA
    recipient, Andrea can work toward her dream of becoming a
    teacher. Because of people like Andrea, it was even more
    heartbreaking when the courts prevented DAPA and the expanded
    DACA program to go into effect.
        Now, Mr. Lazarus, the majority wants us to believe that
    there is no difference between Andrea and a hardened criminal.
    Under what authority does the executive branch have to
    prioritize the removal of criminals over children and their
    families?
        Mr. Lazarus. Well, that's very good, and obviously we all
    understand that there is a difference between the person with
    whom you were talking and a hardened criminal, and the law does
    too. And so the fact that the President in DAPA has simply
    codified that difference is only reflecting a practice that was
    a sensible and appropriate practice and had to be engaged in
    because, as several people have pointed out, Congress has not
    appropriated anywhere remotely enough funds to deport every
    undocumented person.
        And I just want to mention, since it's been said that the
    President is somehow making all these things up, on the point
    that you raised, the House report accompanying a relatively
    recent DHS appropriations bill specifically instructed DHS not
    to ``simply round up as many illegal immigrants as possible,
    but to ensure that the government's huge investments in
    immigration enforcement are producing a maximum return in
    actually making our country safer.''
        So the DAPA priorities are just what Congress has directed
    and endorsed and quite appropriately so.
        And I also want to make another point, although Congressman
    Gowdy is no longer here. Several people have said that there's
    a difference between case-by-case discretion and singling out
    classes of people for discretionary and it isn't amnesty, it is
    temporary nonremoval.
        When Congress passes a law, as it did in the Homeland
    Security Act, directing the Department to establish priority--
    enforcement policies and priorities, it is telling the
    Administration it is your responsibility to establish
    priorities. Priorities, Professor Blackman, means you've got to
    identify groups of people who get priority enforcement and who
    do not get priority enforcement. So that's where that authority
    comes from.
        Ms. Chu. And let me follow up on that case-by-case issue.
    Of course Judge Hanen halted the expansion of DACA and the DAPA
    program because he believed that the original DACA applications
    were not being adjudicated on a case-by-case basis and other
    programs' guidance instructs USCIS officers to use their
    discretion and make decisions on a case-by-case basis. And the
    fact that there was a 95 percent approval rate, he says, says
    that--he said that they weren't actually reviewing the case
    individually.
        Why do you think applications have been approved at a 95
    percent rate? And does this mean that the cases were not being
    adjudicated on a case-by-case basis?
        Mr. Lazarus. Well, I think it's been pointed out by a
    number of experts that the way DACA set distinctions between
    those who would be eligible and who would not be eligible,
    people who thought that they might not be determined to be
    eligible were not going to apply. Because once they have
    applied they are now known to DHS. So everybody who applies for
    deferred action under either DACA or DAPA is taking a huge
    personal risk and therefore they are going to be very cautious
    about applying.
        My understanding, I'm not really an immigration policy
    expert, but my understanding is that the bar was so high in
    DACA that it is perfectly expectable that everybody who did
    apply or most people who did apply would qualify and that may
    not be true under DAPA, from what I understand.
        Ms. Chu. Thank you. I yield back.
        Mr. King. The gentlelady yields back.
        The Chair now recognizes the gentleman from Michigan, Mr.
    Bishop.
        Mr. Bishop. Thank you, Mr. Chairman.
        And thank you to the panel for being here today.
        Before I was elected to Congress I had the opportunity to
    practice law. And as a part of that practice I taught a class
    at the local law school, third-year-level class that really
    looked back on legislative process and the historical precedent
    of legislative process.
        I gave the students one responsibility when they first
    started and that was to explain the role of each branch of
    government and then to give me the derivation of that power for
    each one of those branches. Where did they get their power
    from? And the rest of the class was spent on that process, of
    Article I and Article II in particular.
        But I now look back having now been serving in Congress now
    for my first term, I feel like I should go back and round them
    all up and reteach the class, because I have completely missed
    the mark on what legislative process is all about, especially
    in Congress. And I have never seen so many acronyms, so many
    boards, so many delegations of nondelegable power ever. And it
    concerns me that we have a situation where the tail is now
    wagging the dog and it leaves Congress powerless.
        I want to raise to your attention, we just were talking
    about immigration, let me take you to another issue altogether.
    This is one that illustrates my concerns. The Independent
    Payment Advisory Board, or the IPAB, is a new executive branch
    agency created by the President's healthcare law. The law
    empowers the Board of 15 unelected officials with the authority
    to reduce Medicare coverage for seniors. Unless overturned by a
    supermajority of Congress, the recommended cuts dictated by
    this Board will become law.
        Bipartisan concerns have been raised regarding several
    aspects of this board. While the proponents claim that
    beneficiaries will be held harmless from the Board's decisions,
    how can the IPAB impose sharp cuts to providers without any
    adverse impact on their patients?
        Furthermore, according to Medicare's former chief actuary,
    Richard Foster, the healthcare law will pay doctors less than
    half of what their services cost at the end of the decade and
    down to 33 percent in the decade ahead. Foster also warns that
    these cuts are driving Medicare providers out of business and
    resulting in harsh disruptions in quality and access for
    seniors.
        We can all agree that Medicare does need to be put on a
    budget, there is no question about that, to save the program in
    the long run, but it should not be done by a group of
    unelected, unaccountable bureaucrats which have the ability to
    endanger the beneficiary for which the program was intended to
    benefit.
        I don't know who to address this to. This is one of those
    questions that could take the whole time because I just don't
    understand how I can get an adequate answer on this.
        But, Ms. Slattery, given their unprecedented new power over
    Medicare, to whom are the 15 bureaucrats accountable? Because I
    know it is not to us.
        Ms. Slattery. That's an excellent question and it really
    turns the Founder' intent on its head. They vested the
    lawmaking power in Congress because Members of Congress would
    be closest to the people, and the people could express their
    displeasure with bills that are passed either by complaining to
    their Members or voting them out. So this Board is certainly a
    problem from that perspective, and it's my understanding that
    there is currently at least one lawsuit pending in the courts
    to challenge its constitutionality.
        Mr. Bishop. Indeed. Thank you.
        Mr. Blackman, I have a question for you too. You can answer
    that question as well, but I'm wondering if you can tell me
    whether or not this power is delegable in the first place.
        Mr. Blackman. So, unfortunately, the lawsuit was dismissed
    because it wasn't ripe against the IPAB. The court said it
    hasn't gone into effect yet, so come back later.
        The broader question is one of delegation. This is one
    that's been raised many times. The take care clause, take care
    that laws as faithfully executed, that means the executive has
    the executive power, not the legislative power. And to the
    extent that the President's exercising legislative powers or to
    the extent that Congress is delegating away its legislative
    powers is a serious breach of the separation of powers which
    this body must take steps to remedy lest they give up their
    constitutional prerogatives.
        Mr. Bishop. Anybody else want to chime in on that subject?
        I thank you for your time. It's a big subject. I appreciate
    your input. Thank you.
        Mr. King. The gentleman yields back.
        The Chair now recognizes the gentleman from California, Mr.
    Peters.
        Mr. Peters. Thank you so much.
        I appreciate the witnesses here. I guess just to follow up
    on my colleague's comment about the President's healthcare law,
    the President's healthcare law was passed by Congress. And
    actually the particular thing you referenced, the gentleman
    referenced, is not one of my favorite aspects of it, but it was
    explicitly passed by Congress. So Congress decided under the
    President's signature to give up this power. You can't blame
    the President, I think, for that. That was the Congress' act.
        Mr. Bishop. Will the gentleman yield?
        Mr. Peters. No, I only have 5 minutes. I have to ask about
    something else.
        Mr. Bishop. Well, you are not being honest with that
    statement, and if you are going to say that, you ought to give
    me----
        Mr. Peters. All right, I'll yield. Go ahead.
        Mr. Bishop. I was not saying--first of all, I was not here
    when that law was passed.
        Mr. Peters. Nor was I.
        Mr. Bishop. And I was merely suggesting that this was, in
    fact, something that was not delegable, and I want to find in
    the law where we do delegate that power. The fact that it was
    delegated does not mean it was authorized by law. In fact, it
    was not.
        Mr. Peters. Reclaiming my time. I guess that I would, with
    respect, suggest that that's a question for the Court to
    answer. But I wanted to make the point that it was Congress
    that explicitly voted on this, that was not something that the
    President did, and that was my only point.
        The American Action Forum estimates it would take 20 years
    and cost between $400 and $600 billion to deport all the people
    who are here without documentation.
        Mr. Lazarus, do you think there's a duty by Congress to
    appropriate that much money to enforce this law?
        Mr. Lazarus. Congressman, I'm sorry. I didn't quite
    understand the question.
        Mr. Peters. Do we have a duty to appropriate all the money
    it would take to deport all these people who are here, as some
    say, illegally?
        Mr. Lazarus. No, I certainly don't think so.
        Mr. Peters. Right. So the answer is kind of obvious. What
    we do is we--I think we--if Ms. Lofgren's previous comments are
    right, 4 percent, about $1.2 billion----
        Mr. Lazarus. Probably high, actually.
        Mr. Peters. What we do is we tell the President, here's the
    amount of money that we want to--you know, we don't want to
    spend more on deporting these people than we do on
    transportation, for instance. We are going to give you $1.2
    billion. You figure out the best way to enforce the law given
    that budget. Isn't that what we do?
        Mr. Lazarus. Yes, but I also think--that is true, but it's
    not as if the President makes up what the enforcement
    priorities are going to be out of thin air.
        Mr. Peters. Right.
        Mr. Lazarus. The priorities that are reflected in DAPA are
    commonsense priorities. They've been developed over decades.
    They've been developed, as I said, in a dialogue that's ongoing
    between Congress and the immigration enforcement officials and
    the Department, and they are sensible priorities. Nobody really
    disputes them. I think a number of Members have already said
    that.
        So saying that the President is running around making
    things up and so forth and exercising huge amounts of
    untrammeled discretion just is really not accurate.
        Mr. Peters. Right.
        Mr. Lazarus. These are commonsense priorities. Congress has
    said, as you just said, we're going to give you this much
    money, we want you to figure out what the priorities are, but
    we're going to give you a lot of guidance as to what we think
    they should be.
        Mr. Peters. Right. And then also someone used the term
    looking in the mirror. I would just say that in 2013 the Senate
    passed a bill 68-32, with significant bipartisan support, not
    just one or two people, not just eight people, as someone
    referred to the Gang of Eight, that included a lot of things
    that would deal with the immigration law, give Congress the
    chance to deal with it.
        The Senate passed it. We never even got a vote on it. So
    all of us may have different views about what the right answer
    was. We never even took it up in this House of Representatives.
    We were not allowed even to talk about it. And yet we sit here
    and complain that the President has taken on too much power.
        That would have provided a 13-year path to citizenship, if
    you were in the U.S. before 2012, had no felony, had a job,
    paid a $500 fine, application fees, all back taxes, would have
    provided a legislative pathway to citizenship for DREAMers if
    you were in the U.S. before 16, high school degree, had been in
    the U.S. for 5 years.
        E-Verify, which is something that a lot of folks have been
    calling on to make sure that we are getting enforcement. Would
    have allowed a greater number of H-1B visas for highly skilled
    workers, which a lot of us agree on. And it would provide
    substantial border security, $46 billion in improvements,
    38,000 border security agents on the Mexico border, a 17,000
    increase, 350 miles of new fencing, new technology cameras,
    ground sensors, radiation detectors, drones, helicopters, and
    electronic exit checking at air and seaports.
        All of this was before us as a legislature. And if we want
    to know what the problem is, it's not down the street. It's in
    the halls of the United States Congress.
        I yield back.
        Mr. King. The gentleman returns his time.
        The Chair would now recognize the patient gentleman from
    California, Mr. Issa.
        Mr. Issa. Thank you, Mr. Chairman. And I apologize for not
    being here at the opening bell. I was sitting next to Chief
    Justice Roberts for my twice-a-year opportunity to talk about
    the organization of the courts and the like. So you were my
    second choice, trust you.
        But this has been a very, very interesting dialogue, and I
    think I've been here for most of it and enjoyed it, and it's
    caused me to perhaps change slightly the questions I'm going to
    ask.
        And, Professor Blackman, let me ask you a question, because
    you and Mr. Lazarus have had quite a good time agreeing to
    disagree, but I think there's two interesting points. Justice
    Roberts, siding in the majority--oh, by the way, when you teach
    law, do you teach that Justices are partisans, that one's a
    Republican, one's a Democrat?
        Mr. Blackman. I do not, sir.
        Mr. Issa. So Mr. Lazarus' claim that it was bipartisan
    would be a little inconsistent, perhaps, with what most law
    schools are taught about Justices and Federal judges, that
    regardless of who appoints them, they are truly nonpartisan
    once they get to the court. And we certainly have proof
    historically that who appoints you doesn't necessarily dictate
    how you vote.
        So I just want to make that clear, because I know Mr.
    Lazarus didn't mean any disrespect from it. But we are a very
    partisan group here, and every 2 years we're reminded. As a
    matter of fact, today we're seeing one of the Gang of Eight
    have a very different outcome in Florida in the Presidential
    primary than we would have otherwise have seen, undoubtedly, if
    he hadn't helped authored the piece of legislation that didn't
    go anywhere in the House.
        But I want to get back to that original intent. Justice
    Roberts, in good order, believed that what he was doing is
    looking at the full statute and the intent. And I was here for
    that, and I voted no. Those who were here and voted yes
    clearly, I believe, wanted the provision that they now have. So
    even though they talked about it, said they didn't, they wanted
    it.
        So Justice Roberts has, in fact, in siding with the
    majority, given them what Democrats wanted in the Affordable
    Care Act, which was somehow, some way, they would fund
    everything.
        And so my question to you is, if that's the case--two-part
    question for your future law students--one is, if we take that,
    does that mean that language doesn't have any particular matter
    as long as we knew what they were trying to achieve? In other
    words, what the politics of the majority were versus what they
    actually are able to get their own members to agree to? And let
    me--okay. And then I'll follow up.
        Mr. Blackman. Yes, sir. My students are on spring break
    right now, but they'll be listening to this question next week.
        So the short answer is the Chief Justice's decision rewards
    a lazy Congress, is a phrase we've used very often. If Congress
    doesn't want to call it a tax because it's unpopular, call it a
    penalty and we'll uphold it as a tax. If Congress doesn't want
    to take time to read a 3,000-page bill and they omit a few
    words here and there, don't worry about it, we'll save you on
    the back end.
        One of the themes of our discussion today is how when the
    courts back up a lazy Congress, it encourages Congress to be
    lazier. This body can be more vigorous, not lazier.
        Mr. Issa. Now, let's go through the same thinking, though.
    In that same piece of legislation, Members of the majority who
    were pro-life had a bargain that abortion not be mandated by
    this act in the funding of abortion. Bart Stupak and others
    clearly had agreed to that. But the Court apparently did not
    agree with, if you will, the minority of the majority--agreed
    with the minority of the majority, rather than the majority of
    the majority in this case. In other words, the compromise
    necessary to get that legislation did include an exclusion of
    abortion.
        The President immediately began mandating abortion payment
    in the healthcare portion of the--you know, you have to pay for
    prescriptions--but the Court went the other way.
        So how do you--and maybe, Ms. Slattery, you would be
    helpful in this--how do you reconcile that the same Court,
    looking at the same majority and the same majority intent,
    allowed an abuse of the words of it in one case but not in
    another case?
        Ms. Slattery. You know, that's a difficult question and----
        Mr. Issa. Because we're here to talk about overreach, and
    in both cases, the President got something--was getting
    something that he didn't have in the letter of the law, but the
    Court ruled completely differently in two cases related to the
    same law.
        Ms. Slattery. It highlights the problem of Congress and the
    President, rather than trying to settle these disputes outside
    of court, leaving it up to the determination of nine Justices,
    or eight Justices as we currently have.
        And I would say I agree with the Court's decision in the
    Hobby----
        Mr. Issa. Hobby Lobby.
        Ms. Slattery [continuing]. The Hobby Lobby case that you
    referred to, which was a 5-4 decision, and I disagree with the
    King v. Burwell, the more recent decision. You know, it's hard
    to reconcile how a particular Justice votes in any particular
    case.
        Mr. Issa. Okay.
        Mr. Chairman, I would presume I could have a little more
    time, sort of my own second round? Would that be okay?
        Mr. King. I hear no objections.
        Mr. Issa. Thank you.
        Well, I want to move now to another case. And, Mr. Lazarus,
    I'm going to also want to let you in on this one, and you can
    comment on the other one if you'd like.
        In the case of former Federal worker Lois Lerner, after
    multiple Committees evaluated the Administration's use of the
    IRS to essentially stop conservative groups on and before the
    2012 election and the abuse thereof, the Ways and Means
    Committee, the Committee of jurisdiction over the IRS, referred
    to the U.S. Attorney's Office a criminal prosecution. And in
    that criminal prosecution, I think pursuant to 18 U.S.C. it
    said that the U.S. Attorney for the District of Columbia shall
    present to the grand jury.
        What part of discretion or cost analysis allowed the U.S.
    Attorney, upon orders directly or indirectly of the President,
    to simply disobey it and return a letter that said: We think it
    was mismanagement; therefore, we shall not do what the law says
    we shall do.
        Mr. Lazarus. Thank you. First of all, I would just like to
    acknowledge a fair criticism of my bipartisan characterization.
    Judges and Justices certainly shouldn't think of themselves in
    partisan terms, and most of them most of the time certainly do
    not do so. Chief Justice Roberts has expressly stated his
    concern about the polarization of the political branches
    spilling over and affecting the Court. So you were right, I
    shouldn't have said that, and I didn't mean it.
        Now, with respect to your question about prosecutorial
    discretion in the IRS----
        Mr. Issa. In the criminal referral by the Ways and Means
    Committee pursuant to the law.
        Mr. Lazarus. You know, this is not a subject in which I--
    it's not just that I'm not an expert, it's that I barely know
    very much about it at all and you know a great deal. So I
    really, you know, don't want to say anything really about the
    facts in that case.
        The question of prosecutorial discretion that you were
    raising, I think is a legitimate legal question, and there may
    be other members of the panel who know more about this than I
    do. If Congress orders the executive branch, the Justice
    Department, to actually prosecute a case, I would think--and,
    again, I'm not really an expert here--I would think that that
    actually does raise a question about congressional encroaching
    on inherent constitutional executive branch authority to make
    those kinds of decisions in the end by itself. I'm not saying I
    know the answer to it, but----
        Mr. Issa. Well, let me follow up with that, because right
    here, sitting almost where you're sitting, the former Attorney
    General, Eric Holder, sat and said to me--actually, it was last
    Congress, I was sitting over there--and he said: I wear two
    hats. And it's an interesting point, because he wears one hat,
    which is he's a political appointee serving at the pleasure of
    the President, and that makes him a partisan Democrat, clearly.
    But he also wears the hat of the law, the highest law
    enforcement official, which is really not an executive branch
    position. That position is much more one that belongs as the
    input to the third branch of government.
        So under current law, whether it's constitutional or not,
    we have given ourselves the ability to take to the court
    certain things. One of them, by the way, is impeachment. We
    have a process, obviously, and we can remove anyone in the
    executive branch--well, almost anyone--and we have that. And,
    of course, we can demand that the court hear it.
        Under the law, there's no prohibition on Congress bringing
    to the court a case. As a matter of fact, it's constitutionally
    provided for in the case of impeachment. For decades, we have
    had the ability--actually, I think many, many decades--the
    ability to refer a criminal prosecution with that statute that
    says: and shall present to the grand jury.
        Now, we don't say shall present with all of his powers and
    best case. You know, we presume that the U.S. Attorney shall
    present it in a reasonable fashion to a grand jury.
        We, I believe--and I'd like Professor Blackman and others
    comment in closing--I believe that, in fact, that maintains a
    separation of power, that although we're insisting that it be
    presented as we would say, that you must prosecute a certain
    category 100 percent, which we would have the ability to do,
    discretion is not something that the executive branch gets.
    It's something that they may have, if there's ambiguity or
    limited resources.
        In this case, they had all the resources to prosecute Lois
    Lerner. They had a grand jury. And they didn't say anything
    except that they thought they shouldn't do it in spite of the
    fact that the statute--and they didn't object to the
    constitutionality. They simply decided that--and this is why
    it's here at Overreach. If the Administration, as Chairman
    Gowdy said, if the Administration decides that they shall not
    prosecute in the case of DACA, but they also shall not
    prosecute in the case of a statutory referral under a law that
    says, shall present to the grand jury, then what tool do we
    have left if, in fact, appropriation is ignored, because they
    do something without appropriated money, and that they don't
    just have discretion to not prosecute criminal aliens, but in
    this case they choose not to prosecute a statutory referral
    that says, shall?
        So I listened for this whole time, and I heard the
    immigration issue endlessly, but I want to juxtapose it on a
    statute that says, shall, and they choose not to.
        Mr. Chairman, you've been very patient, but I'd appreciate
    anyone who would want to answer.
        Mr. King. Yes. The gentleman's time is deemed expired, but
    the witness will be allowed to briefly and concisely respond.
        Mr. Blackman. Respectfully, sir, I have no knowledge on
    this issue, so I will pass. Thank you, sir.
        Mr. King. That's concise.
        Hearing from no other witnesses, the gentleman from
    California returns his time.
        This concludes today's--the gentlelady from Texas is
    recognized.
        Ms. Jackson Lee. Thank you.
        I will not pretend to answer the gentleman's question, but
    I do think it lays on the table a moment for the minority to be
    able to respond. And I would only just say this. I brought up
    to Mr. Lazarus, and this is going to be pithy and concise, the
    fugitive slave law, and I would make the point that it
    represented sort of a blanket exemption. And the relevance of
    that, of course, to DACA and DAPA is that large classes of
    cases were exempted. So when the executive order is deemed
    unconstitutional, there's precedent that you can have an
    executive order that is widespread based upon interpretation,
    statutory and/or constitutional.
        With that, however, let me indicate that I'd like to put
    into the record, Mr. Chairman, your courtesy, The Atlantic,
    ``John Roberts Calls a Strike,'' and ask unanimous consent to
    put it into the record.
        Mr. King. The gentlelady has been recognized for a
    unanimous consent request. Hearing no objection, so ordered.
        [The information referred to follows:]

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                     __________
        Ms. Jackson Lee. Thank you so very much.
        Mr. King. The gentlelady returns her time.
        This concludes today's hearing.
        Thanks to all the witnesses for attending. Without
    objection, all Members will have 5 legislative days to submit
    additional questions for the witnesses or additional materials
    for the record.
        I thank the witnesses, the Members, and the audience. This
    hearing is adjourned.
        [Whereupon, at 12:17 p.m., the Task Force was adjourned.]