[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

                               __________

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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:]
    
    
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    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*]
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printed in this hearing record but is on file with the Subcommittee and 
can be accessed at:

      http://docs.house.gov/Committee/Calendar/
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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.]