[House Report 113-376]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-376

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



 
               FAITHFUL EXECUTION OF THE LAW ACT OF 2014

                                _______
                                

 March 7, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3973]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3973) to amend section 530D of title 28, United 
States Code, having considered the same, report favorably 
thereon without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     6
New Budget Authority and Tax Expenditures........................     6
Congressional Budget Office Cost Estimate........................     6
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Performance Goals and Objectives.................................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     7
Dissenting Views.................................................     9

                          Purpose and Summary

    The Faithful Execution of the Law Act amends section 530D, 
title 28, United States Code, in order to require the Attorney 
General of the United States to report to Congress any time a 
Federal official establishes or implements a formal or informal 
policy to refrain from enforcing any provision of Federal law. 
It further requires the Attorney General to report on the 
reason for the establishment or implementation of such a 
policy. These changes to section 530D will increase Executive 
Branch accountability and transparency and help ensure that the 
President takes care that the laws be faithfully executed.

                Background and Need for the Legislation

    Article II, Section 3, of the Constitution declares that 
the President ``shall take Care that the Laws be faithfully 
executed.'' This clause, known as the Take Care Clause, 
requires the President to enforce all constitutionally valid 
Acts of Congress, regardless of his own Administration's view 
of their wisdom or policy. The clause imposes a duty on the 
President; it does not confer a discretionary power. Thus, the 
Take Care Clause is a limit on the Vesting Clause's grant to 
the President of ``the executive power.'' In other words, while 
the Vesting Clause gives the President discretion about how to 
enforce the law, the Take Care Clause provides that he has no 
discretion about whether to do so.
    However, President Obama has failed on numerous occasions 
to enforce Acts of Congress that he disagrees with for policy 
reasons and has stretched his regulatory authority to put in 
place policies that Congress has refused to enact. For 
instance, while Congress is currently debating how to reform 
our immigration laws, the President effectively enacted the 
DREAM Act himself by ordering immigration officials to stop 
enforcing the immigration laws against certain unlawful 
immigrants. When he could not get his preferred changes to the 
No Child Left Behind education law, he unilaterally waived its 
testing accountability provisions. When he objected to the work 
requirements in the bipartisan welfare reform law, he granted 
waivers that are specifically forbidden by the statutory text. 
Instead of working with Congress to amend Federal drug 
enforcement policy, he has instructed prosecutors to stop 
enforcing certain drug laws in certain states and mandatory 
minimum sentences for certain offenses.
    And, most notably, the President has, without statutory 
authorization, waived, suspended, and amended several major 
provisions of his health care law. These unlawful modifications 
to Obamacare include: delaying for 1 year Obamacare's employer 
mandate; instructing States that they are free to ignore the 
law's clear language regarding which existing health care plans 
may be grandfathered; and promulgating an IRS rule that allows 
for the distribution of billions of dollars in Obamacare 
subsidies that Congress never authorized. The House has acted 
to validate retroactively some of the President's unlawful 
Obamacare modifications. However, rather than embrace these 
legislative fixes, the President's response has been to 
threaten to veto the House passed measures.
    The President's far-reaching claims of executive power, if 
left unchecked, will vest the President with broad domestic 
policy authority that the Constitution does not grant him. 
Although President Obama is not the first president to stretch 
his powers beyond their constitutional limits, executive 
overreach has accelerated at an alarming rate under his 
Administration. Indeed, according to testimony received by the 
Committee, ``[w]e are in the midst of a constitutional crisis 
with sweeping implications for our system of government. There 
has been a mass gravitational shift of authority to the 
Executive Branch that threatens the stability and functionality 
of our tripartite system.''\1\
---------------------------------------------------------------------------
    \1\Enforcing the President's Constitutional Duty to Faithfully 
Execute the Laws: Hearing Before the House Committee on the Judiciary, 
113th Cong. (2014) (statement of Jonathan Turley, Professor, George 
Washington University School of Law).
---------------------------------------------------------------------------
    To help prevent executive overreach and require greater 
disclosure when it occurs, on January 29, 2014, Representative 
DeSantis introduced H.R. 3973, the ``Faithful Execution of the 
Law Act.'' This legislation promotes transparency and honesty 
in the Federal Government by forcing greater disclosure of 
Executive Branch policies of non-enforcement of Federal laws. 
The Justice Department is already required by law to report to 
Congress on non-enforcement policies based on the grounds that 
the law in question is unconstitutional.\2\ H.R. 3973 extends 
this duty more broadly and extends the grounds for such reports 
beyond constitutional objections by the Executive Branch.
---------------------------------------------------------------------------
    \2\See 28 U.S.C. Sec. 530D(a).
---------------------------------------------------------------------------
    Currently, when the Department of Justice stops enforcing a 
law on the grounds that it is unconstitutional, the Attorney 
General is required, pursuant to 28 U.S.C. Sec. 530D, to report 
to Congress. Section 530D provides in relevant part:
    The Attorney General shall submit to the Congress a report 
of any instance in which the Attorney General or any officer of 
the Department of Justice establishes or implements a formal or 
informal policy to refrain from enforcing, applying, or 
administering any provision of any Federal statute, rule, 
regulation, program, policy, or other law whose enforcement, 
application, or administration is within the responsibility of 
the Attorney General or such officer on the grounds that such 
provision is unconstitutional.\3\
---------------------------------------------------------------------------
    \3\28 U.S.C. Sec. 530D(a)(1)(i).
---------------------------------------------------------------------------
    The Faithful Execution of the Law Act strengthens this 
provision by requiring the Attorney General to report to 
Congress when any Federal official establishes or implements a 
formal or informal policy to refrain from enforcing a Federal 
law and to provide the reason for the non-enforcement policy, 
regardless of whether it is being done on constitutional or 
policy grounds.
    According to testimony from Professor Jonathan Turley 
regarding H.R. 3973, ``it is hard to see the argument against 
such disclosures. Too often Congress has been informed of major 
changes by leaks to the media.''\4\ Congress should not have to 
rely on media leaks and other unofficial sources to find out 
that the Executive Branch has decided not to enforce Federal 
laws. Congress cannot possibly know the extent of Executive 
Branch non-enforcement of the laws without mandatory disclosure 
of all non-enforcement policies by the person who should be 
fully aware of such policies, namely the Attorney General, the 
nation's chief law enforcement officer.
---------------------------------------------------------------------------
    \4\Turley, supra note 1.
---------------------------------------------------------------------------
    Enactment of H.R. 3973 is essential if Congress is going to 
play an active role in overseeing that the separation of powers 
between the branches is maintained and that the President is 
faithfully executing the laws.

                                Hearings

    The Committee on the Judiciary held 1 day of hearings on 
legislation to enforce the President's constitutional duty to 
faithfully execute the law. Testimony was received from Rep. 
Jim Gerlach (R-PA); Rep. Tom Rice (R-SC); Rep. Diane Black (R-
TN); Rep. Ron DeSantis (R-FL); Jonathan Turley, Professor, 
George Washington University Law School; Christopher Schroeder, 
Professor, Duke University School of Law; and Elizabeth Price 
Foley, Professor, Florida International University College of 
Law.

                        Committee Consideration

    On March 5, 2014, the Committee met in open session and 
ordered the bill H.R. 3973 favorably reported, without 
amendment, by a rollcall vote of 17 to 11, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3973.
    1. An amendment by Mr. Conyers to provide that nothing in 
the Act would limit or affect any action taken by the Attorney 
General or any officer of the Department of Justice or any 
other Federal officer that concerns the foreign affairs of the 
United States. Defeated by a rollcall vote of 11 to 18.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     11      18
------------------------------------------------------------------------

    2. Motion to report H.R. 3973 favorably, without amendment. 
Passed by a rollcall vote of 17 to 11.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Coble (NC).................................      X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................      X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Ms. Farenthold (TX)............................      X
Mr. Holding (NC)...............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Mr. Smith (MO).................................      X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Mr. Scott (VA).................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
                                                ------------------------
    Total......................................     17      11
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    The Committee advises that a Congressional Budget Office 
cost estimate was not available at the time this report was 
printed.

                    Duplication of Federal Programs

    No provision of H.R. 3973 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 3973 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3973, will increase Executive Branch accountability and 
transparency and help ensure the that President takes care that 
the laws be faithfully executed.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 3973 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title.
    Section 1 provides for the short title of the legislation, 
the ``Faithful Execution of the Law Act.''
Section 2. Amendment to Section 530D of Title 28, United States Code.
    Section 2 makes two changes to 28 U.S.C. Sec. 530D. First, 
it expands the reporting requirements to cover non-enforcement 
policies of any ``Federal officer.'' Section 530D currently 
requires the Attorney General to report to Congress on non-
enforcement policies adopted by the Attorney General and any 
other official at the Department of Justice. Second, it expands 
which non-enforcement policies are covered by the law. 
Currently, section 530D only requires reports to be made when a 
non-enforcement policy is adopted on the grounds that a Federal 
law is unconstitutional. Section 2 requires a report whenever a 
policy of not enforcing Federal law is established or 
implemented regardless of the reason.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE

TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE

           *       *       *       *       *       *       *


PART II--DEPARTMENT OF JUSTICE

           *       *       *       *       *       *       *


CHAPTER 31--THE ATTORNEY GENERAL

           *       *       *       *       *       *       *


Sec. 530D. Report on enforcement of laws

    (a) Report.--
            (1) In general.--The Attorney General shall submit 
        to the Congress a report of any instance in which the 
        Attorney General or any officer of the Department of 
        Justice--
                    (A) or any other Federal officer 
                establishes or implements a formal or informal 
                policy to refrain--
                            (i) from enforcing, applying, or 
                        administering any provision of any 
                        Federal statute, rule, regulation, 
                        program, policy, or other law whose 
                        enforcement, application, or 
                        administration is within the 
                        responsibility of the Attorney General 
                        or such officer [on the grounds that 
                        such provision is unconstitutional] and 
                        state the grounds for such policy; or

           *       *       *       *       *       *       *

                            Dissenting Views

                              INTRODUCTION

    H.R. 3973, the ``Faithful Execution of the Law Act of 
2014,'' would require the Attorney General to report to 
Congress any instance when any Federal officer establishes or 
implements a formal or informal policy to refrain from 
enforcing, applying, or administering any Federal law as well 
as to state the grounds underlying such a non-enforcement 
policy. It does this by expanding 28 U.S.C. Sec. 530D(a)(1)(A), 
which currently only requires the Attorney General to report to 
Congress any instance when the Attorney General or other 
Justice Department officer establishes or implements a non-
enforcement policy on the grounds that the relevant provision 
of law is unconstitutional.
    The burdensome mandate that H.R. 3973 would impose on the 
Attorney General will not only result in confusion and drain 
already-limited law enforcement resources, but would also 
present separation-of-powers concerns when applied in certain 
circumstances, such as the conduct of foreign policy. H.R. 3973 
would require the Attorney General to oversee all Federal 
officers and would require him to determine in every instance 
when they prioritize enforcement of some classes of cases over 
others, whether such exercises of discretion constitute a 
``policy'' of non-enforcement. It is also very troubling that 
there was absolutely no deliberative process concerning this 
bill as there was neither a legislative hearing nor a 
Subcommittee markup of the bill.
    Simply put, this bill is a thoroughly flawed solution in 
search of an imaginary problem. Over the course of two House 
Judiciary Committee oversight hearings on the issue of whether 
President Barack Obama has failed to faithfully execute the 
laws,\1\ the bill's proponents failed to identify a single 
credible example of such failure. It is clear that the bill's 
proponents have confused constitutional violations with the 
President's legitimate exercise of enforcement discretion, 
which not only is well within his authority but is, in fact, 
required by the United States Constitution's command that he 
``take care'' to ``faithfully'' execute the laws.
---------------------------------------------------------------------------
    \1\Enforcing the President's Constitutional Duty to Faithfully 
Execute the Laws: Hearing Before the H. Comm. on the Judiciary, 113th 
Cong. (2014) [hereinafter ``Enforcing Constitutional Duty Hearing'']; 
President's Constitutional Duty to Faithfully Execute the Laws: Hearing 
Before the H. Comm. on the Judiciary, 113th Cong. (2013) [hereinafter 
``Faithfully Execute Hearing''].
---------------------------------------------------------------------------
    For these reasons and others explained in greater detail 
below, we must dissent from the Committee report on this bill 
and urge our colleagues to oppose it.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    Section 1. Short Title. Section 1 sets forth the short 
title of the bill as the ``Faithful Execution of the Law Act of 
2014.''
    Section 2. Amendment to Section 530D of Title 28, United 
States Code. Section 2 amends 28 U.S.C. Sec. 530D(a)(1)(A). In 
pertinent part, section 530D requires the Attorney General to 
report to Congress any instance when the Attorney General or 
other Justice Department officer establishes or implements a 
formal or informal policy to refrain from enforcing, applying, 
or administering any Federal law on the grounds that such 
provision is unconstitutional.\2\ H.R. 3973 amends this 
reporting requirement to require the Attorney General to make 
such a report: (1) when a Justice Department official ``or any 
other federal officer'' establishes or implements a non-
enforcement policy; and (2) requires that the report state the 
grounds, not limited to unconstitutionality, underlying any 
policy of non-enforcement.
---------------------------------------------------------------------------
    \2\28 U.S.C. Sec. 530D(a)(1)(A) provides:

(1) In general.--The Attorney General shall submit to the Congress a 
report of any instance in which the Attorney General or any officer of 
the Department of Justice--
      (A) establishes or implements a formal or informal policy 
      to refrain-
          G(i) from enforcing, applying, or administering any 
      provision of any Federal statute, rule, regulation, 
      program, policy, or other law whose enforcement, 
      application, or administration is within the responsibility 
      of the Attorney General or such officer on the grounds that 
      such provision is unconstitutional; or

          G(ii) within any judicial jurisdiction of or within the 
      United States, from adhering to, enforcing, applying, or 
      complying with, any standing rule of decision (binding upon 
      courts of, or inferior to those of, that jurisdiction) 
      established by a final decision of any court of, or 
      superior to those of, that jurisdiction, respecting the 
      interpretation, construction, or application of the 
      Constitution, any statute, rule, regulation, program, 
      policy, or other law whose enforcement, application, or 
      administration is within the responsibility of the Attorney 
      General or such officer.

                               BACKGROUND

    Article II, section 3 of the United States Constitution 
states, among other things, that the President ``shall take 
Care that the Laws be faithfully executed.''\3\ In interpreting 
the ``take care'' clause, courts have employed two lines of 
reasoning that superficially may seem to be in tension at first 
blush. One line of decisions holds that the President is 
obligated to implement and enforce statutes as written by 
Congress and that the President has no authority to disregard 
such statutes.\4\ A second line of decisions, however, makes 
clear that, in implementing his charge to take care that the 
laws be faithfully executed, the President and the executive 
branch that he heads have the authority, and, indeed, the duty 
not to enforce a law in some instances because he has the 
discretion to determine how a law is enforced or implemented in 
light of enforcement priorities and limited resources, among 
many potential factors. As the Supreme Court has stated, ``an 
agency's decision not to prosecute or enforce, whether through 
civil or criminal process, is a decision generally committed to 
an agency's absolute discretion.''\5\
---------------------------------------------------------------------------
    \3\U.S. Const. art. II, Sec. 3.
    \4\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); 
Kendall v. U.S., 37 U.S. (12 Pet.) 524 (1838).
    \5\Heckler v. Chaney, 470 U.S. 821, 831 (1985).
---------------------------------------------------------------------------
    Regarding enforcement discretion, the Supreme Court has 
made clear the ``take care'' clause requires the President to 
exercise discretion, noting that decisions not to enforce have 
``long been regarded as the special province of the Executive 
Branch, inasmuch as it is the Executive who is charged by the 
Constitution to `take Care that the Laws be faithfully 
executed.'''\6\ As to delays in implementing statutes, 
executive branch administrative agencies routinely miss 
rulemaking deadlines set by Congress in statutes and no court 
has thus far held that such decisions by themselves constitute 
constitutional violations. Notably, no court has ever 
invalidated an agency's exercise of prosecutorial or 
administrative discretion on the grounds that it violated the 
``take care'' clause.\7\
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    \6\Id. at 832.
    \7\Kate M. Manuel & Todd Garvey, Prosecutorial Discretion in 
Immigration Enforcement: Legal Issues, Congressional Research Service 
Report for Congress, Dec. 27, 2013, at 17 [hereinafter ``CRS 
Immigration Report''] (``no court appears to have invalidated a policy 
of non-enforcement founded upon prosecutorial discretion on the grounds 
that the policy violated the Take Care Clause, and one Federal 
appellate court has opined that real or perceived inadequate 
enforcement does not constitute a reviewable abdication of duty'') 
(quoting Texas v. United States, 106 F.3d 661, 667 5th Cir. (1997)) 
(internal marks omitted).
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                        CONCERNS WITH H.R. 3973

         I. H.R. 3973 IS A FUNDAMENTALLY FLAWED SOLUTION TO A 
                          NON-EXISTENT PROBLEM

    An initial problem with H.R. 3973 is that it is based on 
the false premise that President Obama has failed in his duty 
to take care that he faithfully execute the laws. Over the 
course of two House Judiciary Committee oversight hearings on 
the ``take care'' clause, H.R. 3973's proponents sought to 
portray certain actions of President Obama as examples of his 
failure to execute the law. They cited, for example, the 
President's Deferred Action for Childhood Arrivals (DACA) 
program, which temporarily defers removal of certain young 
adults who were brought into the country as young children.\8\ 
In addition, they cited several decisions by the Administration 
to delay or clarify the implementation of certain provisions of 
the Patient Protection and Affordable Care Act (ACA) as 
examples of the President's failure to faithfully execute the 
laws.\9\ Finally, they alleged that the Justice Department's 
revised charging guidelines for certain non-violent, low-level 
drug offenders amounted to a failure to enforce the law.\10\ 
The modified charging guidelines direct prosecutors to charge 
certain low-level, nonviolent drug offenders with offenses that 
do not trigger mandatory minimum sentences.\11\
---------------------------------------------------------------------------
    \8\See generally Enforcing Constitutional Duty Hearing; Faithfully 
Execute Hearing.
    \9\Id.
    \10\See Enforcing Constitutional Duty Hearing.
    \11\Attorney General Eric H. Holder, Jr., Annual Meeting of the 
American Bar Association's House of Delegates, Aug. 12, 2013, http://
www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.
---------------------------------------------------------------------------
    Rather than being examples of constitutional violations, 
however, these examples merely illustrate the President's 
exercise of enforcement discretion in light of limited 
available resources, which is not only within the President's 
constitutional authority, but is required by the ``take care'' 
clause. For instance, the decisions to delay the employer 
mandates and to allow the renewal of otherwise non-ACA-
compliant health insurance plans for a temporary time period 
were attempts to phase-in implementation of the ACA and were 
not an attempt to prevent implementation. Moreover, the 
provision of subsidies for those in Federal exchanges was 
consistent with the text, history, and purpose of the ACA. It 
would defy common sense to suggest that the President would act 
to undermine his signature legislative accomplishment.
    In response to questions regarding the Administration's 
legal authority for delaying implementation, the Treasury 
Department explained that this delay ``is an exercise of the 
Treasury Department's longstanding administrative authority to 
grant transition relief when implementing legislation like the 
ACA. Administrative authority is granted by section 7805(a) of 
the Internal Revenue Code.''\12\ Section 7805(a) provides that 
``the Secretary [of the Treasury] shall prescribe all needful 
rules and regulations for the enforcement of this title.''\13\
---------------------------------------------------------------------------
    \12\Letter from Mark J. Mazur, Assistant Secretary for Tax Policy, 
U.S. Department of the Treasury to Chairman Fred Upton, et al., at 2 
(July 9, 2013), available at http://democrats.energycommerce.house.gov/
sites/default/files/documents/Upton-Treasury-ACA-2013-7-9.pdf) 
[hereinafter ``Mazur Letter''].
    \13\26 U.S.C. Sec. 7805 (2014).
---------------------------------------------------------------------------
    As the Treasury Department further explained, ``[t]his 
authority has been used to postpone the application of new 
legislation on a number of prior occasions across 
Administrations.''\14\ The Department provided several past 
examples where it had delayed or waived a statutory 
requirement, including its decision during the George W. Bush 
Administration to delay implementation of standards return 
preparers must follow to avoid penalties under the Small 
Business Work Opportunity Act of 2007 until 2008 despite the 
fact that Congress made those changes effective as of May 25, 
2007.\15\
---------------------------------------------------------------------------
    \14\Mazur Letter at 2.
    \15\Id.
---------------------------------------------------------------------------
    Allowing flexibility in the implementation of a new 
program, even where the statute mandates a specific deadline, 
is neither unusual nor a constitutional violation. Such 
flexibility is integral to the President's duty to ``take 
care'' that he ``faithfully'' execute laws. The exercise of 
enforcement discretion is a traditional power of the executive. 
As Duke University Law School Professor Christopher Schroeder 
testified before the Committee, ``Discretionary choices are 
unavoidable features in executing almost all laws.''\16\ He 
further testified that the ``priority setting decisions 
necessitated by budget constraints necessarily affect how the 
laws are being executed at any point in time, not whether they 
are being executed.''\17\ He also noted that such discretionary 
enforcement decisions were routine and were too numerous to 
count.\18\
---------------------------------------------------------------------------
    \16\Enforcing Constitutional Duty Hearing (statement of Christopher 
H. Schroeder, Charles S. Murphy Professor of Law and Professor of 
Public Policy Studies, Duke University, at 3) [hereinafter ``Schroeder 
statement''].
    \17\Id. at 6 (emphases in original).
    \18\Id.
---------------------------------------------------------------------------
    With respect to the Administration's implementation of 
DACA, and its immigration-related enforcement decisions more 
generally, the exercise of discretion in immigration 
enforcement is squarely within the President's authority. The 
Supreme Court has consistently held that the exercise of such 
discretion is a function of the President's powers under the 
``take care'' clause and has reiterated this principle in the 
immigration enforcement context as recently as 2012 in its 
decision in Arizona v. United States.\19\ As both 
Representative Luis Gutierrez (D-IL) and Professor Schroeder 
pointed out during the second hearing on the ``take care'' 
clause, DACA is not a case where the President has decided 
simply to not enforce the law for an entire class of 
people.\20\ Although the policy applies broadly, immigration 
authorities must still make particular decisions regarding 
removal of an individual on a case-by-case basis to ensure that 
the individual meets DACA's qualifications.
---------------------------------------------------------------------------
    \19\132 S. Ct. 2492 (2012). The Court relied upon the ``broad 
discretion'' exercised by Federal immigration officials, including 
``whether it makes sense to pursue removal at all,'' in striking down 
almost all of Arizona's sweeping anti-immigrant law (SB 1070). Id. at 
2499. Because Arizona's law could result in ``unnecessary harassment of 
some aliens (for instance, a veteran, college student, or someone 
assisting with a criminal investigation) whom Federal officials 
determine should not be removed,'' the Court concluded that the law 
``violates the principle that the removal process is entrusted to the 
discretion of the Federal Government.'' Id. at 2506.
    \20\Enforcing Constitutional Duty Hearing.
---------------------------------------------------------------------------
    Immigration officials may exercise enforcement discretion 
in individual cases or ``prosecutorial discretion may be more 
formalized and generalized through agency regulations or 
procedures.''\21\ In fact, Congress expressly directed the 
Secretary of Homeland Security to establish ``national 
immigration enforcement policies and priorities.''\22\ The 
Administration's DACA policy comports both with the statutory 
directive to establish national enforcement priorities and with 
the responsibility to exercise prosecutorial discretion under 
the ``take care'' clause of the Constitution.
---------------------------------------------------------------------------
    \21\Memorandum from Bo Cooper, General Counsel, INS, INS Exercise 
of Prosecutorial Discretion, July 11, 2000, at 17-18, available at 
http://iwp.legalmomentum.org/reference/additional-materials/
immigration/enforcement-detention-and-criminal-justice/government-
documents/Bo-Coope
r-memo%20pros%20discretion7.11.2000.pdf/view.
    \22\6 U.S.C. Sec. 202 (2014).
---------------------------------------------------------------------------
    While some critics argue that DACA can be distinguished 
because the possibility for relief is extended to persons who 
fall within a larger category, this ignores the fact that 
specific decisions to defer action still are made on a case-by-
case basis. It also overlooks the fact that the executive 
branch has exercised its enforcement discretion on a 
categorical basis for decades. For example, the Kennedy 
Administration extended voluntary departure to persons from 
Cuba on a categorical basis, which allowed many otherwise 
deportable individuals to remain in the United States for an 
extended period of time.\23\ President George W. Bush's 
Administration temporarily suspended sanctions on employment of 
unauthorized aliens in areas affected by Hurricane Katrina and 
directed agents and officers to exercise prosecutorial 
discretion with respect to nursing mothers.\24\
---------------------------------------------------------------------------
    \23\CRS Immigration Report at 1.
    \24\Id.; Memorandum from Julie L. Myers, Assistant Secretary, 
Immigration and Customs 
Enforcement, Prosecutorial and Custodial Discretion, Nov. 7, 2007, 
available at http://www.scribd.com/doc/22092973/ICE-Guidance-Memo-
Prosecutorial-Discretion-Julie-Myers-11-7-07.
---------------------------------------------------------------------------
    As with DACA, the revised Justice Department charging 
guidelines still require particular charging decisions to be 
made on a case-by-case (not class-wide) basis to ensure that a 
particular offender meets the required criteria. Assessing the 
particular facts of a case to the appropriate criminal charge 
is a core function of prosecutorial discretion, the wide 
latitude that prosecutors have in determining when, whom, how, 
and even whether to prosecute apparent violations of the law. 
Far from violating the ``take care'' clause, prosecutorial 
discretion derives from this obligation to ``take care'' to 
``faithfully'' execute the law.
    Regarding the seeming tension between the duty to execute 
the laws and decisions not to enforce the law, Professor 
Schroeder testified:

        At first blush, it may seem paradoxical to say that an 
        agency is executing the laws when it decides not to 
        enforce the law, but the paradox is completely 
        eliminated once one recognizes that executing laws 
        encompasses many activities, not all of which can be 
        performed at any given time. Insofar as making 
        decisions about where and when to enforce frees up 
        resources for other activities constitutive of law 
        execution, non-enforcement decisions are part of the 
        overall process of executing the laws.\25\
---------------------------------------------------------------------------
    \25\Enforcing Constitutional Duty Hearing (Schroeder statement at 
7).

    In short, the examples that the proponents of H.R. 3973 
cite to justify its burdensome new reporting requirement fail 
to support the underlying premise of the bill, which is that 
routine exercises of enforcement discretion amount to 
violations of the President's duty to take care that the laws 
be faithfully executed. In the absence of any credible examples 
of such a failure to meet his constitutional obligations, the 
justification for the bill fails.

       II. H.R. 3973 RAISES SERIOUS SEPARATION-OF-POWERS CONCERNS

    H.R. 3973 may pose as-applied political question problems. 
In a memorandum to House Judiciary Committee Democratic staff 
analyzing H.R. 3973, Professor Laurence Tribe of Harvard Law 
School noted that the practical effect of the bill would be 
analogous to expanding the Administrative Procedure Act\26\ to 
require the Attorney General to submit a reasoned report every 
time any executive agency exercised its discretion not to 
enforce a statute.\27\ Requiring the executive branch to 
explain its decision not to enforce a statute, he noted, may, 
in many circumstances, pose serious problems of judicial 
enforcement.\28\
---------------------------------------------------------------------------
    \26\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2014).
    \27\Memorandum from Laurence H. Tribe to Democratic Staff of the 
House Judiciary Committee 2 (Mar. 3, 2014) (on file with H. Committee 
on the Judiciary, Democratic Staff) [hereinafter ``Tribe memo''].
    \28\Id.
---------------------------------------------------------------------------
    Professor Tribe used the hypothetical example of regime 
change developments in Ukraine and Egypt. Section 508 of the 
Foreign Assistance Act\29\ prohibits the executive branch from 
spending funds to assist a country whose leader was deposed in 
a coup. The State Department has yet to announce whether these 
developments in Ukraine or Egypt are coups, and thus has not 
yet enforced the Act. Nevertheless, the practical effect of 
H.R. 3973 would be to require either the State Department to 
make such an announcement or the Attorney General to issue a 
section 530D report explaining why the State Department was not 
enforcing the Foreign Assistance Act.\30\ Should the Attorney 
General or Secretary of State remain silent, a court would 
rightfully be loath to involve itself in enforcing the 
reporting requirement under H.R. 3973.\31\ Indeed, under the 
various factors outlined by the Supreme Court in Baker v. Carr 
for determining whether an issue is a political question that 
is inappropriate for judicial determination, a court would 
likely determine that enforcing section 530D in the context of 
foreign affairs would present a clear political question.\32\
---------------------------------------------------------------------------
    \29\Pub. L. No. 87-195, 75 Stat. 424-2 (1961).
    \30\Tribe memo at 3.
    \31\Id.
    \32\Id.; Baker v. Carr, 369 U.S. 186 (1962). The Court outlined the 
factors for determining when a question was political and, therefore, 
not appropriate for decision by a court:

      Prominent on the surface of any case held to involve a 
      political question is found a textually demonstrable 
      constitutional commitment of the issue to a coordinate 
      political department; or a lack of judicially discoverable 
      and manageable standards for resolving it; or the 
      impossibility of deciding without an initial policy 
      determination of a kind clearly for nonjudicial discretion; 
      or the impossibility of a court's undertaking independent 
      resolution without expressing lack of the respect due 
      coordinate branches of government; or an unusual need for 
      unquestioning adherence to a political decision already 
      made; or the potentiality of embarrassment from 
      multifarious pronouncements by various departments on one 
---------------------------------------------------------------------------
      question.

    Id. at 217.
---------------------------------------------------------------------------
    To highlight this flaw in the bill, Ranking Member John 
Conyers, Jr. (D-MI) offered an amendment to clarify that the 
conduct of foreign affairs is outside the bill's scope. As he 
explained, by applying this legislation to the State 
Department, it ``would put our Nation in the untenable position 
of being forced to disclose certain critical legal and policy 
positions to other nations--including our enemies--when it is 
not in our best interest to do so.''\33\ Unfortunately, his 
amendment failed by a party-line vote of 11 to 18.
---------------------------------------------------------------------------
    \33\Unofficial Tr. of Markup of H.R. 3973, the ``Faithful Execution 
of the Law Act of 2014,'' by the H. Comm. on the Judiciary, 113th Cong. 
(Mar. 5. 2014).
---------------------------------------------------------------------------
    Beyond the foreign affairs context, H.R. 3973 would pose 
problems. The mere requirement that the executive branch report 
on whether it plans to enforce a law touches on what Justice 
Scalia has called the ```common law' of judicial review of 
agency action.''\34\ Courts frequently fail to discipline the 
executive branch when a decision involves ``a sensitive and 
inherently discretionary judgment call, . . . the sort of 
decision that has traditionally been nonreviewable, . . . [and 
decisions for which] review would have disruptive practical 
consequences.''\35\ While this would present an as-applied as 
opposed to a facial problem for H.R. 3973, it is worth noting 
the possibility of future concern.
---------------------------------------------------------------------------
    \34\Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., 
dissenting).
    \35\Id. at 609 (internal quotation marks and citations omitted).
---------------------------------------------------------------------------

    III. IMPLEMENTATION OF H.R. 3973 WILL CAUSE CONFUSION AND DRAIN 
                       ALREADY-LIMITED RESOURCES

    H.R. 3973 poses substantial practical difficulties. The 
bill expands 28 U.S.C. Sec. 530D's reporting requirement to 
include any purported non-enforcement policy of any Federal 
officer, but does not define the term ``federal officer.'' In 
Buckley v. Valeo, the Supreme Court defined ``Officers of the 
United States'' to include ``any appointee exercising 
significant authority pursuant to the laws of the United 
States.''\36\ Under that definition, the set of Federal 
officers may number in the hundreds, if not the thousands. 
Because H.R. 3973 does not define ``federal officer,'' the 
statute might be read to encompass all ``Officers of the United 
States'' under Article II of the Constitution. Thus, H.R. 3973 
could conceivably reach routine enforcement decisions by a low-
level Federal officer. Nevertheless, H.R. 3973 would require 
the Attorney General to monitor every executive branch agency 
to find and report all instances in which a Federal officer 
adopts a policy-formal or informal-to refrain from enforcing 
any Federal statute, rule, or regulation. That task could prove 
quite onerous, if not impossible.
---------------------------------------------------------------------------
    \36\424 U.S. 1, 126 (1976).
---------------------------------------------------------------------------
    In terms of what is meant under the amended statute by a 
``policy'' not to enforce, to the extent that H.R. 3973's 
proponents mean to limit its reporting requirement to those 
instances where an executive branch official decides entirely 
not to enforce a provision of law, it may be less problematic. 
If, however, the bill's proponents mean to include cases like 
the DACA program, which was an exercise in enforcement 
discretion, then the bill would require officials to report the 
reason to Congress anytime they decide not to enforce a 
provision of law in a set of cases. But, as Professor 
Schroeder's testimony showed, executive branch officials never 
have sufficient resources to enforce the laws in each and every 
case to which they would apply. If they have to report to 
Congress every time they prioritize some classes of cases over 
others in allocating scarce resources, their resources will be 
even further stretched, and enforcement of the law will suffer.

   IV. THERE WAS AN ALMOST COMPLETE ABSENCE OF GENUINE DELIBERATIVE 
                                PROCESS

    Further calling into question the soundness of H.R. 3973 is 
the fact that the Committee did not thoroughly vet it. The 
Committee failed to hold a single legislative hearing on this 
bill and did not hold any Subcommittee markup of the bill. 
Finally, this Report is being filed less than two days after 
the full Committee markup of the bill--which itself was 
perfunctory--and without a budgetary impact estimate from the 
Congressional Budget Office. In the absence of any thorough 
consideration of the bill's provisions and its potential real-
world implications, it is no surprise that the bill is vague 
and perhaps broader in scope than its authors intended.

                               CONCLUSION

    H.R. 3973 is an ill-considered and deeply flawed bill. It 
is based on the false premise that President Obama has violated 
his constitutional duty to ``take care'' that he ``faithfully'' 
execute the laws. None of the examples that the bill's 
proponents rely on constitute a failure to execute the law. 
Rather, they are all examples of the President's exercise of 
his authority to use discretion in enforcing the law, which 
stems from the very ``take care'' clause that the bill's 
proponents claims he is violating. Moreover, H.R. 3973 can 
present serious separation-of-powers concerns in specific 
contexts whereby a court may be drafted into deciding questions 
that the Constitution reserves for the political branches or 
for which a court is otherwise ill-equipped to decide. Finally, 
H.R. 3973 imposes an incredibly large practical burden on the 
Attorney General to monitor the activities of potentially 
thousands of executive branch officers and make determinations 
as to whether their routine discretionary decisions amount to a 
``policy'' of non-enforcement. Particularly in light of the 
fact that this bill does not provide extra resources to carry 
out its requirements, this burden will inevitably divert 
limited resources away from the Justice Department's core law 
enforcement function.
    For all of the foregoing reasons, we strongly urge our 
colleagues to oppose H.R. 3973.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Pedro R. Pierluisi.
                                   Judy Chu.
                                   Ted Deutch.
                                   Luis V. Gutierrez.
                                   Karen Bass.
                                   Cedric Richmond.
                                   Hakeem Jeffries.
                                   David N. Cicilline.

                                  
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