[House Report 113-377]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-377
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EXECUTIVE NEEDS TO FAITHFULLY OBSERVE AND RESPECT CONGRESSIONAL
ENACTMENTS 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. 4138]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4138) to protect the separation of powers in the
Constitution of the United States by ensuring that the
President takes care that the laws be faithfully executed, and
for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 24
Committee Consideration.......................................... 24
Committee Votes.................................................. 24
Committee Oversight Findings..................................... 31
New Budget Authority and Tax Expenditures........................ 31
Congressional Budget Office Cost Estimate........................ 31
Duplication of Federal Programs.................................. 31
Disclosure of Directed Rule Makings.............................. 32
Performance Goals and Objectives................................. 32
Advisory on Earmarks............................................. 32
Section-by-Section Analysis...................................... 32
Dissenting Views................................................. 33
Purpose and Summary
To prevent executive overreach and to ensure that the
President discharges his constitutional duty to ``take care
that the laws be faithfully executed,'' the ``Executive Needs
to Faithfully Observe and Respect Congressional Enactments of
the Law (ENFORCE the Law) Act'' puts a procedure in place to
permit the House of Representatives, or the Senate, to
authorize a lawsuit against the Executive Branch for failure to
faithfully execute the laws. The legislation also provides for
expedited consideration of any such lawsuit, first through a
three-judge panel at the Federal district court level and then
by providing for direct appeal to the United States Supreme
Court. Furthermore, the bill statutorily mandates that the
courts set aside their own court-created standing rules and
thereby prevents courts from using procedural excuses to avoid
making decisions in these important separation of powers cases.
Background and Need for the Legislation
Article II, Section 3, of the U.S. Constitution declares
that the President ``shall take care that the laws be
faithfully executed.'' However, President Obama has failed on
numerous occasions to enforce Acts of Congress that he
disagrees with for policy reasons and has also stretched his
regulatory authority to put in place policies that Congress has
refused to enact. 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.
To prevent executive overreach, Representative Trey Gowdy
(R-SC), Chairman Darrell Issa (R-CA), and House Judiciary
Committee Chairman Bob Goodlatte (R-VA) introduced the
``Executive Needs to Faithfully Observe and Respect
Congressional Enactments of the Law (ENFORCE the Law) Act'' to
put a procedure in place to permit the House of
Representatives, or the Senate, to authorize a lawsuit against
the Executive Branch for failure to faithfully execute the
laws. The legislation also provides for expedited consideration
of any such lawsuit, first through a three-judge panel at the
Federal district court level and then by providing for direct
appeal to the United States Supreme Court.
Specifically, the bill provides that if the President, or
any other officer or employee of the United States, establishes
or implements a formal or informal policy to refrain from
enforcing any provision of Federal law, in violation of the
requirement that the President ``take care that the laws be
faithfully executed,'' the House or the Senate may, by adoption
of a resolution, authorize a civil action to seek declaratory
or injunctive relief. Any such lawsuit may be brought by the
House, the Senate, or both Houses of Congress jointly.
The bill also provides for special court procedural rules
for any case brought by Congress pursuant to the bill. First,
the bill provides that any such action shall be filed in a
Federal district court of competent jurisdiction and that the
district court shall convene a three-judge panel to hear the
case. Second, the bill provides that the three-judge panel's
decision is appealable directly to the United States Supreme
Court. Finally, the district courts and the Supreme Court are
required to expedite any case filed pursuant to the
legislation.
The bill is intended to address procedural hurdles the
courts have put in front of previous attempts by individual
Members of Congress, and ad hoc groups of Members, to seek
judicial review of alleged failures by the President to
faithfully execute the law. The courts have held that when
Congress, or one House of Congress, suffers an institutional
injury, the Congress, or a House of Congress, must authorize
any lawsuit aimed at redressing the injury. The ENFORCE the Law
Act puts a procedure in place to allow for such authorization,
provides for expedited judicial review of these cases, and
removes court-created procedural hurdles for deciding these
cases.
BACKGROUND
I. THE TAKE CARE CLAUSE
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.''\1\ 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.
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\1\U.S. Const. art. II., Sec. 1, cl. 1 (``The executive Power shall
be vested in a President of the United States of America.'').
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Although the Take Care Clause limits the President's
enforcement discretion, it does not require the President to
enforce an unconstitutional statute. ``The Executive is charged
with the faithful execution of `the law,' and an
unconstitutional statute is not law.''\2\ Accordingly, in those
instances in which the President may lawfully act in
contravention of an Act of Congress, ``it is the Constitution
that dispenses with the operation of the statute. The Executive
cannot.''\3\
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\2\Robert J. Delahunty, ``The Obama Administration's Decisions to
Enforce, but Not Defend, DOMA Sec. 3,'' 106 Nw. U. L. Rev. 69 (2011).
\3\43 Op. Att'y Gen. 275 (1980).
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The U.S. Court of Appeals for the D.C. Circuit, in a recent
opinion striking down the Executive's assertion of authority to
disregard a Federal statute, provided a succinct description of
the President's obligations under the Take Care Clause:
Under Article II of the Constitution and relevant
Supreme Court precedents, the President must follow
statutory mandates so long as there is appropriated
money available and the President has no constitutional
objection to the statute. So, too, the President must
abide by statutory prohibitions unless the President
has a constitutional objection to the prohibition. If
the President has a constitutional objection to a
statutory mandate or prohibition, the President may
decline to follow the law unless and until a final
Court order dictates otherwise. But the President may
not decline to follow a statutory mandate or
prohibition simply because of policy objections. Of
course, if Congress appropriates no money for a
statutorily mandated program, the Executive obviously
cannot move forward. But absent a lack of funds or a
claim of unconstitutionality that has not been rejected
by final Court order, the Executive must abide by
statutory mandates and prohibitions.\4\
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\4\In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013).
A. LThe Original Understanding of the Take Care Clause
The historical underpinnings of the original understanding
of the Take Care Clause predate the American Revolution. The
Take Care Clause is best understood ``against the historical
backdrop with which the Framers were familiar--the four hundred
year struggle of the English people to limit the king's
prerogative and achieve a government under law rather than
royal fiat.''\5\ During this period, English monarchs asserted
a right to dispense with or suspend acts of parliament they
disliked.\6\ The English struggle with the royal prerogative
was a key grievance that led to the Glorious Revolution and
culminated in the Bill of Rights of 1689, which declared, in
its very first provision, that ``the pretended power of
suspending of laws, or the execution of laws, by regal
authority, without consent of parliament, is illegal.''\7\ The
English Bill of Rights became a template for American
constitution drafting.\8\
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\5\Christopher N. May, ``Presidential Defiance of
`Unconstitutional' Laws: Reviving the Royal Prerogative,'' 21 Hastings
Const. L. Q. 865, 873 (1994).
\6\The power of suspension abrogated a statute across the board;
the power of dispensation referred to royally-assigned as-applied
exceptions to the rule of law.
\7\W. & M., Sess. 2, c. 2 (1689) (``Act declareing the Rights and
Liberties of the Subject and Setleing the Succession of the Crown'').
\8\``Virtually every secular provision in that statute was
incorporated into the U.S. Constitution. The prohibition on the
suspending and dispensing powers was encoded in Article II's
requirement that the President must `take Care that the Laws be
faithfully executed.' Thus, these rejected royal prerogatives were
denied to the President.'' May, supra note 5, at 870-74.
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Based on the Framers' deep-seated fear of the abuse of
executive power, and in order to ensure that American
presidents could not resurrect anything similar to the king's
prerogative, the Framers made the faithful enforcement of the
law a constitutional duty. Thus, ``[r]ead in the light of
history, the requirement that the President `take care that the
Laws be faithfully executed' is a succinct and all-inclusive
command through which the Framers sought to prevent the
Executive from resorting to the panoply of devices employed by
the English kings to evade the will of Parliament.''\9\
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\9\Id. at 873.
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Provisions in state constitutions help illuminate the scope
of the executive power the Framers' envisioned granting the
President. Thomas Jefferson, in his 1783 Draft of a Fundamental
Constitution for Virginia, wrote: ``[b]y Executive powers, we
mean no reference to the powers exercised under our former
government by the Crown as of its prerogative. . . . We give
them these powers only, which are necessary to execute the laws
(and administer the government).''\10\ ``This understanding of
`executive power' and its implementation were reflected in the
Virginia Plan, which Edmund Randolph introduced to the
Constitutional Convention, and which provided for a `national
executive . . . with power to carry into execution national
laws [and] to appoint officers in cases not otherwise provided
for.''\11\ In other words, for the Framers' the ``executive
power'' granted to the President in the Vesting Clause was
limited.
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\10\Thomas Jefferson, Notes on the State of Virginia 365 (1787).
\11\May, supra note 5, at 873.
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As James Madison observed, ``[t]he natural province of the
executive magistrate is to execute laws, as that of the
legislature to make laws. All his acts, therefore, properly
executive, must presuppose the existence of the laws to be
executed.''\12\ James Wilson, later an Associate Justice of the
Supreme Court,\13\ explained that the Take Care Clause meant
that the President has the ``authority, not to make, or alter,
or dispense with the laws, but to execute and act the laws,
which [are] established.''\14\ Because if the President had the
authority not only to execute the laws, but also to make,
alter, or dispense with the laws, it would have led, according
to the Framers' reasoning, to a dangerous concentration of
power in one branch of government. But the Framers sought to
avoid such a concentration of power. According to scholars,
there was a ``fundamental agreement'' among the Framers ``on
the proposition that accumulation of powers and tyranny were
inseparable.''\15\ This is reflected in Madison's statement in
Federalist No. 47 that,
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\12\6 James Madison, Writings of James Madison 145 (G. Hunt, ed.
1906).
\13\James Wilson introduced a draft dealing with the Executive at
the Constitutional Convention that read in part: ``It shall be his duty
to provide for the due & faithful exec--of the laws.'' 2 The Records of
the Federal Convention of 1787, at 171 (Max Farrand ed., 1911).
\14\2 James Wilson, Lectures on Law Part 2, in Collected Works of
James Wilson 829, 878 (Kermit L. Hall & Mark David Hall eds., 2007).
\15\George W. Carey, In Defense of the Constitution 153 (1997).
No political truth is certainly of greater intrinsic
value, or is stamped with the authority of more
enlightened patrons of liberty than that . . . [t]he
accumulation of all powers legislative, executive and
judiciary, in the same hands whether of one, a few or
many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition
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of tyranny.
The Framers' thus rejected giving the newly created chief
executive the legal authority to suspend or dispense with the
enforcement of the laws. That is the province of the Congress.
As Madison wrote in Federalist No. 51, ``in republican
government, legislative authority necessarily predominates.''
Obviously, if the Framers had intended to endow the President
with the power to waive, amend, or suspend the laws, it would
be in direct conflict with their fear of legislative supremacy.
B. LSupreme Court Interpretation of the Take Care Clause
The Supreme Court has rejected the authority of the
President to refuse to enforce constitutional laws. This
rejection can be seen as early as the Court's 1803 decision in
Marbury v. Madison.\16\ Although Marbury is best known for its
discussion of the power of judicial review, the opinion also
recognized Congress's authority to impose specific duties upon
Executive Branch officials by law, as well as the official's
corresponding obligation to execute the congressional
directive. The Supreme Court more forcefully articulated this
principle in an 1838 case, Kendall v. United States,\17\
involving the Executive Branch's refusal to comply with an Act
of Congress. The Court in Kendall observed that ``[t]o contend
that the obligation imposed on the President to see the laws
faithfully executed implies a power to forbid their execution,
is a novel construction of the constitution, and entirely
inadmissible.''\18\ The Court further noted that permitting
Executive Branch non-compliance with the statute ``would be
vesting in the President a dispensing power, which has no
countenance for its support in any part of the constitution;
and is asserting a principle, which, if carried out in its
results to all cases falling within it, would be clothing the
President with a power to control the legislation of congress,
and paralyze the administration of justice.''\19\
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\16\5 U.S. (1 Cranch) 137 (1803).
\17\Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838).
\18\Id. at 613.
\19\Id.
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Moreover, a century later, in what has become the seminal
case on executive power, Youngstown Sheet & Tube Co. v. Sawyer,
the Court reasoned that,
In the framework of our Constitution, the President's
power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and
the vetoing of laws he thinks bad. And the Constitution
is neither silent nor equivocal about who shall make
laws which the President is to execute. . . . The
Constitution does not subject this lawmaking power of
Congress to presidential . . . supervision or control.
. . . The Founders of this Nation entrusted the
lawmaking power to the Congress alone in both good and
bad times.\20\
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\20\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587
(1952).
More recently, in Tennessee Valley Authority v. Hill, the
Court held that it is ``the exclusive province of the Congress
not only to formulate legislative policies and mandate programs
and projects, but also to establish their relative priority for
the Nation. Once Congress, exercising its delegated powers, has
decided the order of priorities in a given area, it is for the
Executive to administer the laws.''\21\ In 1998, the Court
further observed, in a case involving the line item veto, that
``there is no provision in the Constitution that authorizes the
President to enact, to amend, or to repeal statutes.''\22\ In
other words, the ``only constitutional power the president has
to suspend or repeal statutes is to veto a bill or propose new
legislation.''\23\
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\21\Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).
\22\Clinton v. City of New York, 524 US 417, 438 (1998).
\23\Michael W. McConnell, ``Obama Suspends the Law,'' Wall St. J.,
July 8, 2013.
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C. LDepartment of Justice Interpretation of the Take Care Clause
Legal opinions from the Justice Department under Presidents
Carter, Reagan, George H. W. Bush, Clinton, and George W. Bush
all agree that while the President does not have a duty to
execute laws that he in good faith determines are
unconstitutional, the President may not refuse to enforce an
Act of Congress for policy reasons. As Attorney General
Civiletti advised during the Carter administration, ``[t]he
President has no `dispensing power,''' meaning that the
President and his subordinates ``may not lawfully defy an Act
of Congress if the Act is constitutional. . . . In those rare
instances in which the Executive may lawfully act in
contravention of a statute, it is the Constitution that
dispenses with the operation of the statute. The Executive
cannot.''\24\ The Department's Office of Legal Counsel has
similarly reasoned that the President's duty under the Take
Care Clause ``does not authorize the President to refuse to
enforce a statute he opposes for policy reasons.''\25\
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\24\43 Op. Att'y Gen. 275 (1980).
\25\14 Op. Off. Legal Counsel 37, 51 (1990); see also 18 Op. Off.
Legal Counsel 199, 200 (Nov. 2, 1994) (stating that ``if the president
believes that the Court would sustain a particular provision as
Constitutional, the President should execute the statute . . . but, if
he determines it to be unconstitutional, and the Court would likely
agree, he has the authority not to execute the statute'').
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Indeed, other than one decision by President Nixon to
refuse to spend money appropriated by Congress, it does not
appear that any previous President has claimed the power to
negate a law that the President believes is constitutional.
Moreover, even with regard to President Nixon's decision to
ignore an Act of Congress, the Office of Legal Counsel rebuffed
his assertion of authority. According to Assistant Attorney
General Rehnquist, ``it seems an anomalous proposition that
because the Executive branch is bound to execute the laws, it
is free to decline to execute them.''\26\
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\26\Memorandum from William H. Rehnquist, Assistant Att'y Gen.,
Office of Legal Counsel, Re: Presidential Authority to Impound Funds
Appropriated for Assistance to Federally Impacted Schools (Dec. 1,
1969).
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D. LProsecutorial Discretion
It has been argued that some of President Obama's waivers
and suspensions of enforcement of Acts of Congress are a proper
exercise of prosecutorial discretion. However, there are some
fundamental differences between the exercise of prosecutorial
discretion and the President's delay, waiver, or suspension of
an Act of Congress.
First, the exercise of prosecutorial discretion ordinarily
involves a determination as to whether a particular individual
or entity should be the subject of an enforcement action for
past conduct. With regard, for instance, to the
Administration's immigration non-enforcement directive,
Deferred Action for Childhood Arrivals, the Administration has
not merely concluded that it should abstain from prosecuting
existing offenses, but that no enforcement action will be taken
for continuing and future ones. In other words, the
beneficiaries of this determination (a determination that is
defined on a categorical rather than individual basis) are
assured of immunity from legal consequences even though their
violations continue. This is not simple prosecutorial
discretion, but suspension of the law's operation with respect
to this entire group.
Second, a legitimate exercise of prosecutorial discretion
is about setting priorities and allocating resources; it does
not challenge and ignore the basic policy judgments Congress
made in enacting the law at issue. The President must enforce
the law as adopted by Congress and must respect the policy
choices Congress has made. Under the Take Care Clause, he may
not nullify the law simply because he disagrees with Congress's
choices, or substitute through administrative means his policy
preferences for those enacted by Congress. Changes to Federal
statutory law must be sought and obtained from Congress.
Administratively exempting whole categories of individuals from
otherwise applicable law is an impermissible act of suspension.
The President can, of course, establish enforcement
priorities because Congress rarely appropriates adequate funds
to allow perfect enforcement of any Federal statutory regime.
Thus, the President can decide to devote more resources to a
particular problem, such as human trafficking or white collar
crime, with the inevitable result that other Federal statutes
or areas of concern will be less vigorously pursued and
enforced. This is entirely lawful and appropriate. Presidents
are elected for the very purpose of establishing such
priorities.
This authority, however, is not boundless. Although the
President can, for example, legitimately decide that, in the
post-9/11 environment, most of the Federal Bureau of
Investigation's resources should be dedicated to the
investigation and prosecution of terrorism cases, he cannot
decree that no enforcement assets whatsoever will be allocated
to securities fraud or counterfeiting cases. Because the
Constitution gives the Executive Branch the exclusive power to
enforce Federal laws, this would effectively decriminalize
securities fraud and counterfeiting, derogating from the
Federal statutes that prescribed such activities.
In short, the President is entitled to establish
enforcement priorities, but the ultimate goal must always be
implementation of the law enacted by Congress. If the President
disagrees with that law, he must convince Congress to change
it.
E. LForeign Affairs vs. Domestic Affairs
During the Bush administration the label of ``imperial
presidency'' was a favorite refrain of many of the President's
critics. However, while the Bush administration may have had an
aggressive reading of executive authority, that reading was
limited to an area of core presidential power--foreign affairs.
The Constitution declares that the President is the
Commander-in-Chief and that he has the authority to make
treaties and to receive foreign ambassadors and other public
ministers. Indeed, the Supreme Court has gone as far as to
proclaim that the President is the ``sole organ of the Federal
Government in the field of international relations.''\27\
Accordingly, ``if broad executive powers were to exist
anywhere, they would exist in foreign affairs, where the
limitations of republican government are most pronounced.
Furthermore, it is here where the Constitution is most vague,
hence giving the President the opportunity to act with the most
discretion.'' \28\ By contrast, the domestic powers of the
Federal Government are strictly defined and limited. ``Unlike
the `invitation to struggle' that is the foreign affairs
Constitution, the process for enacting legislation is strict
and defined.''\29\ In short, Presidential powers are at their
weakest in the sphere of domestic policy. Yet this is where
President Obama has granted himself unprecedented executive
authority.
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\27\United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936).
\28\Robert J. Delahunty & John C. Yoo, ``The Obama Administration,
the DREAM Act and the Take Care Clause,'' 91 Tex. L. Rev. 781, 826
(2013).
\29\Id.
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F. LPresident Obama has Acknowledged His Limited Authority
Even President Obama has acknowledged that action to waive
legal requirements put in place by Congress would be outside
his constitutional powers. In a March 2011 Univision Town Hall
in Washington, D.C., the President responded to a question
regarding whether he would grant ``temporary protected status''
to undocumented students by stating that,
With respect to the notion that I can just suspend
deportations through executive order, that's just not
the case, because there are laws on the books. . . .
Congress passes the law. The executive branch's job is
to enforce and implement those laws. And then the
judiciary has to interpret the laws. There are enough
laws on the books by Congress that are very clear in
terms of how we have to enforce our immigration system
that for me to simply through executive order ignore
those congressional mandates would not conform with my
appropriate role as President.\30\
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\30\Jeffrey H. Anderson, ``Lawlessness in the Executive,'' The
Weekly Standard (Sept. 2, 2013).
Moreover, in a 2012 interview with Univision, the President
responded to a question regarding whether he could halt
deportations of illegal immigrants. The President said that he
could not ``waive away the laws that Congress put in place''
and that ``the president doesn't have the authority to simply
ignore Congress and say, `We're not going to enforce the laws
that you've passed.'''\31\
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\31\Lamar Smith, ``Obama's Amnesty for Illegal Immigrants Is
Against the Law,'' Christian Sci. Monitor (June 16, 2012).
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II. THE PRESIDENT'S FAILURES TO FAITHFULLY EXECUTE THE LAWS
Our system of government is a tripartite one, with each
branch having certain defined functions delegated to it by the
Constitution. The Obama administration, however, has ignored
the Constitution's carefully balanced separation of powers and
has unilaterally granted itself the extra-constitutional
authority to amend, waive, or suspend the enforcement of the
laws. This goes beyond the ``executive power'' granted to the
President and specifically violates the Constitution's command
that the President is to ``take care that the laws be
faithfully executed.''
The President's encroachment into the Congress's sphere of
power is not a transgression that should be taken lightly. As
English historian Edward Gibbon famously observed regarding the
fall of the Roman Empire, ``[t]he principles of a free
constitution are irrevocably lost, when the legislative power
is dominated by the executive.''\32\ Although the President's
actions have not yet risen to the level of dominating the
legislative power, they are certainly undermining the rule of
law that is at the center of our constitutional design. From
Obamacare to immigration, the current Administration is
continually picking and choosing which laws to enforce and
which to ignore.
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\32\1 Edward Gibbon, The History of the Decline and Fall of the
Roman Empire 54 (1897).
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The following are examples of President Obama's failures to
faithfully execute the laws passed by Congress. In none of the
below examples has the Administration claimed that the
statutory law at issue violates the Constitution or infringes
on authorities granted the President in Article II. In fact,
with regard to the Affordable Care Act, the Obama
administration has argued all the way to the Supreme Court that
the Act is constitutional.
A. LObamacare and the Take Care Clause
1. LIllegal Waiver of the Employer Mandate
On July 2, 2013, the Obama administration claimed the
authority to delay for 1 year the penalties associated with the
Affordable Care Act's employer mandate despite the clear
language of the Act. And, on February 10, 2014, the
Administration announced that it would further delay the
employer mandate for another year for medium-sized employers,
those with 50 to 99 employees. Although these delays may be
welcome news to employers, who face enormous burdens as a
result of the mandate, the unilateral decision to delay
implementation of a major provision in the ACA is a serious
breach of the President's constitutional duty to ensure that
the laws are faithfully executed.
Section 1513 of the ACA imposes penalties on employers who
fail to provide ``minimum essential coverage'' to their
employees. The section further provides that these penalties
``shall apply to months beginning after December 31,
2013.''\33\ Despite this explicit requirement that the
penalties shall apply beginning in 2014, the Administration has
announced that the penalties ``will not apply for 2014'' for
all employers and will not apply to medium-sized employers for
2015 as well.\34\ Although the House has acted to delay
application of the employer mandate for a year, the Senate has
not acted on this legislation.\35\
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\33\Patient Protection and Affordable Care Act Sec. 1513(d)
(emphasis added).
\34\Mark J. Mazur, Continuing to Implement the ACA in a Careful,
Thoughtful Manner, available at http://www.treasury.gov/connect/blog/
pages/continuing-to-implement-the-aca-in-a-careful-thoughtful-
manner-.aspx (emphasis added); Juliet Eilperin and Amy Goldstein,
``White House delays health insurance mandate for medium-sized
employers until 2016,'' Wash. Post, Feb. 10, 2014.
\35\See H.R. 2667. Moreover, the Administration has stated that the
President will veto H.R. 2667 if the bill is presented to him.
Statement of Administration Policy on H.R. 2667 and H.R. 2668 (July 16,
2013) available at http://www.whitehouse.gov/sites/default/files/omb/
legislative/sap/113/saphr2667r_20130716.pdf.
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The Administration's defense of its claim of authority to
delay the employer mandate is unavailing. The ACA gives the
Treasury Secretary the authority to collect these penalties
``on an annual, monthly, or other periodic basis as the
Secretary may prescribe.'' The Secretary's discretion to
prescribe the time at which the affected party must discharge
that obligation neither affects the existence of the
obligation, nor empowers the Secretary to repeal it. Moreover,
the ACA does not allow the Secretary to waive the imposition of
such penalties, except in one circumstance unrelated to the
Administration's delay.\36\ In other words, Congress spoke to
the question of whether and when the executive should be able
to waive the employer mandate, and Congress clearly did not
want the Administration to waive the mandate unless certain
specified conditions were met.
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\36\Section 1332 authorizes the Treasury secretary to waive the
employer mandate, but only as part of a state-specific waiver, and only
if the state enacts a law that would provide equally comprehensive
health insurance to as many residents, and only if that law would
impose no additional cost to the Federal Government, and only if there
is a ``meaningful level of public input'' over the waiver and its
approval, and even then not until 2017.
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Some of the President's supporters have claimed the
President is not waiving the penalties, only the reporting
requirements. This argument, however, is not persuasive. The
ACA added two sections to the Internal Revenue Code that
require employers to report certain information on their health
benefits and the workers who enroll in that coverage, in order
to help the IRS determine whether those workers are eligible
for tax credits and whether the employer is subject to
penalties. Again, the statute is clear: those reporting
requirements take effect in ``calendar years beginning after
2013'' and ``periods beginning after December 31, 2013.'' The
statute contains no language authorizing the Executive Branch
to waive those requirements.
The Obama administration claims it can altogether eliminate
the obligation to report the 2014 information: ``The
Administration . . . will provide an additional year before the
ACA mandatory employer and insurer reporting requirements
begin.''\37\ It has no statutory or constitutional authority to
do this and, therefore, this delay is illegal.
---------------------------------------------------------------------------
\37\Mazur, supra note 34.
---------------------------------------------------------------------------
2. LIllegal IRS Rule to Expand Premium Assistance Subsidies
The Affordable Care Act provides ``premium assistance'' tax
credits and subsidies to help individuals with incomes within
400 percent of the poverty line purchase qualifying health
insurance plans on state-run insurance exchanges.\38\ However,
34 states have decided not to create their own insurance
exchanges.\39\ If a state fails to create an exchange, the ACA
authorizes the Federal Government to create a ``fallback''
exchange for that state. But, under the plain text of the ACA,
premium assistance is not available for individuals who
purchase insurance in states that have federally established
exchanges, because individuals in those states will not have
the opportunity to enroll in health insurance ``through an
Exchange established by the State under section 1311 of the
[ACA],'' which is the statutory prerequisite to eligibility for
premium assistance.\40\
---------------------------------------------------------------------------
\38\26 U.S.C. Sec. 36B (authorizing subsidies for policies
``enrolled in through an Exchange established by the State under
section 1311 of the Patient Protection and Affordable Care Act'').
These subsidies take the form of refundable tax credits, which are paid
directly by the Federal treasury to the taxpayer's insurer, as an
offset against the taxpayer's premiums.
\39\State Decisions For Creating Health Insurance Exchanges, Kaiser
State Health Facts, available at http://kff.org/health-reform/
stateindicator/health-insurance-exchanges/. Twenty-seven states have
opted out of the exchange regime completely, while another seven have
opted only to assist the Federal Government with the operation of
federally established exchanges.
\40\26 U.S.C. Sec. 36B.
---------------------------------------------------------------------------
Undaunted by the clear statutory text, the Obama
administration issued an Internal Revenue Service rule that
purports to extend the ACA's premium assistance to the purchase
of health insurance from federally-run exchanges created in
states without exchanges of their own. This rule lacks
statutory authority--the ACA precludes the IRS from providing
premium assistance for insurance purchased from a federally-run
exchange.\41\ The text, structure, and history of the ACA show
that tax credits and subsidies are not available in federally-
run exchanges. The IRS rule is therefore illegal and yet
another failure on the Administration's part to faithfully
execute the law. What is more, the rule allows for the
distribution of billions of dollars of Federal funds that
Congress never authorized.\42\
---------------------------------------------------------------------------
\41\But see Halbig v. Sebelius, 2014 U.S. Dist. LEXIS 4853 (D.D.C.
2014).
\42\Contra U.S. Const. art. I, Sec. 9 (``No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by
Law.'').
---------------------------------------------------------------------------
Moreover, this illegal IRS rule affects more than just the
availability of premium assistance. This is because the
availability of premium assistance also operates as the trigger
for other mandates and penalties under the ACA. First, the
availability of premium assistance triggers the individual
mandate penalty for many Americans that would otherwise be
exempt from the mandate.\43\ Second, the availability of
premium assistance also effectively triggers the enforcement
mechanism for the employer mandate.\44\ As a consequence, the
employer mandate should be unenforceable in states that decline
to create an exchange. In short a state's decision not to
create an exchange exempts a substantial portion of its
residents and business from Obamacare.
---------------------------------------------------------------------------
\43\See 26 U.S.C. Sec. 5000A.
\44\See 26 U.S.C. Sec. 4980H (Employers must make an ``assessable
payment'' if they do not offer their employees the opportunity to
enroll in employer-sponsored health coverage, but that payment is only
triggered if at least one employee enrolls in a plan from state-run
exchange.).
---------------------------------------------------------------------------
This supposed IRS fix is actually an effort to rewrite the
law to provide for the expenditure of billions of taxpayer
dollars without Congress's approval.
3. LIllegal Waiver for Non-Compliant Health Plans
Section 1251 of the Affordable Care Act lists the
conditions under which an individual can keep pre-ACA health
insurance even if it runs afoul of the ACA's requirements. That
section, known as the grandfathering provision, states that
``nothing in this Act . . . shall be construed to require that
an individual terminate coverage under a group health plan or
health insurance coverage in which such individual was enrolled
on the date of enactment of this Act.''\45\ It further provides
that additional family members can be added to ``a group health
plan or health insurance coverage in which an individual was
enrolled on the date of enactment of this Act,''\46\ and that
new employees and their families can be added to a group plan
``that provide[d] coverage on the date of enactment of this
Act.''\47\ These are the only three exceptions listed in the
statutory text of the ACA that allow for the grandfathering of
an existing health care plan.
---------------------------------------------------------------------------
\45\42 U.S.C. Sec. 18011.
\46\Id.
\47\Id.
---------------------------------------------------------------------------
However, despite the clear language of the ACA, on November
14, 2013, President Obama announced, without statutory
authorization, a new grandfathering exception:
Already people who have plans that predate the
Affordable Care Act can keep those plans if they
haven't changed. That was already in the law. That's
what's called a grandfather clause that was included in
the law. Today, we're going to extend that principle
both to people whose plans have changed since the law
took effect and to people who bought plans since the
law took effect.\48\
---------------------------------------------------------------------------
\48\``President Obama Announces New Steps to Help Americans
Receiving Insurance Cancellation Notices,'' available at http://
www.whitehouse.gov/blog/2013/11/14/president-obama-announces-new-steps-
help-americans-receiving-insurance-cancellation (emphasis added).
The President does not possess the lawful authority to take
unilateral action to permit the continued sale of plans that
were not in effect on the date of enactment of the ACA. The
House passed a bill on November 15, 2013, to allow Americans to
keep their existing coverage; however, the Senate has not taken
action on that legislation and the President has threatened to
veto it.
4. LIllegal Contraceptive Mandate
The Affordable Care Act requires employers to provide
certain ``preventive services'' at no-cost to the insured. In
carrying out this requirement the Department of Health and
Human Services (HHS) has mandated that employers, including
religiously-affiliated institutions, pay for sterilization,
abortion-inducing drugs, and birth control services even if
paying for them violates the employers' conscience rights.
However, this regulatory mandate violates an Act of
Congress: the Religious Freedom Restoration Act (RFRA). RFRA
provides that the Federal Government may ``substantially
burden'' a person's ``exercise of religion'' only if it
demonstrates that application of the burden to the person ``is
in furtherance of a compelling governmental interest'' and ``is
the least restrictive means of furthering'' that interest.\49\
Yet in issuing the contraceptive mandate, HHS never even
attempted to structure the requirements in such a way as to
eliminate the burden on religious employers. The President has
a constitutional duty to ensure that RFRA is faithfully
executed even if it interferes with his policy preferences
regarding contraceptives.
---------------------------------------------------------------------------
\49\42 U.S.C. Sec. 2000bb-1.
---------------------------------------------------------------------------
B. LImmigration Non-Enforcement and the Take Care Clause
1. LDeferred Action for Childhood Arrivals
Article I, Section 8 of the Constitution gives Congress,
not the President, the authority ``to establish a uniform rule
of naturalization.'' ``Although the Constitution is silent on
border control and immigration, the Supreme Court declared long
ago that these authorities reside with Congress.''\50\ While
the Supreme Court has indicated on several occasions that the
President has some measure of ``inherent'' power over
immigration,\51\ the Court seems to have settled finally on the
view that the formation of immigration policy ``is entrusted
exclusively to Congress,''\52\ and that ``[t]he plenary
authority of Congress over aliens . . . is not open to
question.''\53\ Congress has passed an extensive Immigration
and Naturalization Act, which specifies the limited cases in
which the Executive Branch can suspend the removal of illegal
aliens. The Act does not give the President the authority to
interrupt the deportation of whole classes of illegal aliens.
---------------------------------------------------------------------------
\50\John Yoo, ``Obama Has Pursued a Dangerous Change in the Powers
of the President,'' FoxNews.com, October 12, 2012.
\51\See, e.g., United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542 (1950).
\52\Galvan v. Press, 347 U.S. 522, 531 (1954).
\53\INS v. Chadha, 462 U.S. 919, 940-41 (1983).
---------------------------------------------------------------------------
The Administration has stated that going forward
deportation efforts will be focused solely on aliens with
criminal records and no enforcement resources will be expended
on other types of cases. Undocumented individuals who have
avoided apprehension at the border and have not been convicted
of a serious offense since arriving to the United States will
no longer face the prospect of deportation, the most basic
means of immigration enforcement.
Far from merely prioritizing the use of limited resources,
the Administration's policy effectively rewrites the law. It
means that the vast majority of undocumented aliens no longer
need to fear immigration enforcement. This applies even to
those aliens who are now in deportation proceedings. Limiting
the possibility of deportation in this manner eliminates
entirely any deterrent effect the immigration laws have, and
also states plainly that those laws can be ignored with
impunity. The President has, in effect, suspended operation of
those laws with respect to a very large and identifiable class
of offenders. This clearly exceeds his constitutional
authority.
2. LNon-enforcement of Immigration Laws for Parents and
Guardians
On August 23, 2013, the Obama administration issued a
policy directive instructing Immigration and Customs
Enforcement officials not to enforce immigration laws in cases
in which the unlawful immigrant is the primary provider for a
minor child, regardless of the child's immigration status, or
in which the unlawful immigrant is the parent or legal guardian
of a child who is a U.S. citizen or lawful permanent resident.
This is yet another example of President Obama abusing his
authority and unilaterally refusing to enforce the current
immigration laws by directing ICE officials to stop removing
broad categories of unlawful immigrants.
Instead of working with Congress to address problems with
the country's immigration system, the President has once again
decided to go it alone despite the fact that both the House and
the Senate are working on immigration reform measures. This is
another example of the President's contempt for the rule of law
and a failure to faithfully execute the laws passed by
Congress.
3. LUnlawful Extension of Parole in Place
On November 15, 2013, U.S. Citizenship and Immigration
Services (USCIS) issued a policy memorandum providing that
spouses, children, and parents of those who are serving--or who
have previously served--in the Armed Forces of the United
States could receive ``parole-in-place'' on a categorical
basis. The policy allows aliens who entered the United States
without inspection--and who are family members of current or
former service members--to apply for and receive ``parole''
that would permit them to remain in the country and apply for
green cards. This will permit many aliens to adjust status
without having to travel abroad for consular processing of
their immigrant visas (and likely trigger the 3 or 10 year
inadmissibility bars).
Notably, the parole statute, the regulations, and the
legislative history do not seem to contemplate parole for: (1)
aliens who are already in the United States illegally, (2) an
entire category of people, or (3) an indefinite period of time.
Parole was created to permit aliens to enter the United States
temporarily, on a case-by-case basis, for urgent or
humanitarian reasons.
C. LNon-Enforcement of Federal Criminal Law and the Take Care Clause
1. LNon-enforcement of the Controlled Substances Act for
Medical and Recreational Marijuana
The Controlled Substances Act (CSA) prohibits the
possession, growth, and distribution of marijuana.\54\ The CSA
does not distinguish between purposes or different uses of
marijuana; it clearly states that all use and distribution is
illegal.\55\ The administrations of both President George W.
Bush and President Bill Clinton enforced the CSA and prosecuted
medical marijuana suppliers.\56\ Moreover, in 2005, the Supreme
Court held that the CSA did not make exceptions for any
intrastate sales, including cases of small-scale production and
use of medical marijuana.\57\
---------------------------------------------------------------------------
\54\Controlled Substances Act, 21 U.S.C. Sec. Sec. 841, 844 (2006).
\55\Id.
\56\Robert A. Mikos, A Critical Appraisal of the Department of
Justice's New Approach to Medical Marijuana, 22 Stan. L. & Pol'y Rev.
633, 638 (2011).
\57\Gonzales v. Raich, 545 U.S. 1 (2005) (challenging the CSA's
application to a small-scale grower and medical marijuana user).
---------------------------------------------------------------------------
However, Attorney General Holder announced on October 19,
2009, that the Justice Department would stop enforcing the
Federal marijuana ban against persons who comply with state
medical marijuana laws. Although the memo recognized Congress's
inclusion of marijuana as a dangerous drug and serious crime in
the CSA, the Department proclaimed that enforcement of the CSA
with regard to medical marijuana is unnecessary for
``individuals whose actions are in clear and unambiguous
compliance with existing state laws providing for the medical
use of marijuana.''\58\ As of September 2013, 20 states and the
District of Columbia have legalized medical marijuana.\59\
---------------------------------------------------------------------------
\58\Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't
of Justice, to Selected U.S. Att'ys (Oct.19, 2009), available at http:/
/blogs.justice.gov/main/archives/192.
\59\20 Legal Medical Marijuana States and DC, ProCon.org, available
at http://medicalmarijuana.procon.org/
view.resource.php?resourceID=000881 (including California (in 1996);
Oregon (1998); Washington (1998); Alaska (1999), Maine (1999), Colorado
(2000), Hawaii (2000), Montana (2004), Nevada (2004); Vermont (2004);
Rhode Island (2006), New Mexico (2007), Michigan (2008), New Jersey
(2009), Arizona (2010); DC (2010), Delaware (2011), Connecticut (2012),
Massachusetts (2012), Illinois (2013), New Hampshire (2013)).
---------------------------------------------------------------------------
Additionally, on August 29, 2013, Attorney General Holder
announced that the Justice Department would not enforce the CSA
against companies--even large companies--that produce and
distribute marijuana as a recreational drug as long as those
companies operated within a ``strong and effective'' state
regulatory system (and also meet eight other criteria).\60\
Starting in January 2014, two states--Colorado and Washington--
will allow large-scale, for-profit production and distribution
of marijuana for recreational (non-medical) use.
---------------------------------------------------------------------------
\60\Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't
of Justice, to All U.S. Att'ys (Aug. 29, 2003), available at http://
www.justice.gov/iso/opa/resources/3052013829132
756857467.pdf.
---------------------------------------------------------------------------
The decision of the Obama administration not to enforce the
CSA in entire states is not a valid exercise of prosecutorial
discretion. A decision by an individual Federal prosecutor not
to bring charges against an individual for violating the CSA's
prohibitions on the production, possession, or distribution of
marijuana likely falls within the umbrella of ``prosecutorial
discretion.'' Thus, there would appear to be no constitutional
defect in a prosecutor's decision not to prosecute a specific
individual whose use of marijuana is in compliance with state
law. The Executive Branch has no obligation to prosecute all
violations of Federal law.
However, the breadth of the Justice Department's position
on marijuana non-enforcement goes well beyond the limits of
prosecutorial discretion. Rather, the guidance to U.S.
Attorneys establishes a formal, department-wide policy of
selective non-enforcement of an Act of Congress. This infringes
on Congress's lawmaking authority by, in effect, amending the
flat prohibitions of the CSA to permit the possession,
distribution, and cultivation of marijuana so long as that
conduct is in compliance with state law. This crosses the line
between permissible discretionary decisions made by prosecutors
on a case-by-case basis and an impermissible suspension of the
law by executive fiat.
2. LAmending Statutory Mandatory Minimums by Executive
Decree
On August 12, 2013, Attorney General Holder announced in a
speech to the American Bar Association changes in Federal
mandatory minimum sentencing policy regarding low-level, non-
violent drug offenders. Attorney General Holder's announcement
continues the Obama administration's pattern of overstepping
its constitutional bounds by selectively enforcing Federal law
and attempting to amend Acts of Congress through executive fiat
in blatant disregard for the limitations the Constitution
places on the Executive Branch. The Obama administration cannot
unilaterally ignore the laws or the limits on the President's
powers. While the Executive Branch has the ability to use
prosecutorial discretion in individual cases, that authority
does not extend to entire categories of people.
Although Members of Congress may agree with many of the
policy issues Attorney General Holder outlined in his
announcement, reform regarding mandatory minimums is
constitutionally required to come from Congress. And Congress
is working on the issue. The House Judiciary Committee created
the Overcriminalization Task Force to address these issues as
well as others with the Federal criminal justice system. This
Task Force is in the process of taking a broad look at the
Federal criminal code, allowing for input from experts, and is
already considering sentencing and prison reform issues. If the
Obama administration wants to reform our criminal justice
system, it is constitutionally required to work with Congress
to do so.
D. LOther Failures to Faithfully Execute the Laws
1. LIllegally Amending No Child Left Behind Through
Executive Waivers
In 2001, Congress enacted the No Child Left Behind (NCLB)
education reforms. The legislation imposed numerous
requirements on states and local school districts that receive
Federal funds. While there is bipartisan agreement that the law
needs to be reformed, rather than working with Congress to
reform the law, the Obama administration has used the promise
of waivers from the requirements of NCLB to compel states to
adopt the Administration's own version of education reform
policies.
The Administration's proposals have not been considered by
Congress, let alone enacted into law, but by attaching strings
to the 35 state waivers that have thus far been granted, the
Administration is effectively implementing a new law without
bothering to go to Congress. As the New York Times described
it: ``In the heat of an election year, the Obama administration
has maneuvered around Congress, using the waivers to advance
its own education agenda. . . . The waivers appear to follow an
increasingly deliberate pattern by the administration to
circumvent lawmakers.''\61\
---------------------------------------------------------------------------
\61\Motoko Rich, ```No Child' Law Whittled Down by White House,''
N.Y. Times, July 6, 2012.
---------------------------------------------------------------------------
2. LIllegally Amending the 1996 Welfare Reform Law Through
Waivers
In July 2012, despite the plain meaning of the law, the
Obama administration asserted that it had the authority to
waive the statutory work requirements included in the
bipartisan 1996 welfare reform law. The non-partisan Government
Accountability Office (GAO) has determined that the Obama
administration's decision to unilaterally grant itself the
authority to waive Federal Temporary Assistance for Needy
Families (TANF) work requirements, which were a critical
element of the welfare reform enacted in 1996, qualifies as a
rule.\62\ As such, the waiver must be submitted to Congress and
is subject to review--and potential disapproval--under the
Congressional Review Act.
---------------------------------------------------------------------------
\62\Letter from Lynn H. Gibson, General Counsel, General
Accountability Office, to Sen. Orrin Hatch and Rep. Dave Camp (Sept. 4,
2012) available at http://waysandmeans.house.gov/uploadedfiles/
gao_tanf_report_sept_2012.pdf.
---------------------------------------------------------------------------
Despite the Obama administration's attempts to unilaterally
undo welfare work requirements, the GAO analysis is unequivocal
that any changes must be submitted to Congress. Circumventing
Congress is a flagrant abuse of our system of separated powers.
Work requirements were a critical part of the landmark 1996
Welfare Reform law and cannot constitutionally be scrapped
through executive decree by the Obama administration.
3. LIllegally Ignoring Advise & Consent (``Recess''
Appointments)
One of the checks and balances imposed by the Founding
Fathers was the requirement that senior Executive Branch
officials be appointed only with the consent of the Senate. In
the modern regulatory state the approval of officials by the
Senate is one key way to ensure that regulators do not abuse
their authority. In order to address situations in which the
Senate was in recess, thus preventing the Senate from
consenting, the Framers provided for a limited interim
appointment process absent Senate confirmation.
When the Senate did not approve four of his nominees to two
regulatory agencies--the head of the new Consumer Financial
Protection Bureau (CFPB) and three members of the National
Labor Relations Board (NLRB)--President Obama took the
unprecedented step of declaring that the Senate was in recess--
even though it was not--and invoking his interim appointments
power. Seating the head of the CFPB and a quorum for the NLRB
allowed both agencies to begin promulgating regulations that
would have otherwise been on hold until the President and the
Senate came to agreement on filling the vacancies.
On January 25, 2013, the U.S. Court of Appeals for the D.C.
Circuit held that President Obama exceeded his constitutional
authority by making ``recess'' appointments to the National
Labor Relations Board.\63\ According to the court, the
appointments were unconstitutional because (1) they were not
made during ``the Recess'' of the Senate (that is, the
intersession recess between the first and second Senate
sessions), and (2) the vacancies the appointments filled did
not arise during the intersession recess.
---------------------------------------------------------------------------
\63\Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).
---------------------------------------------------------------------------
III. THE DOCTRINE OF STANDING
``Federal courts are courts of limited jurisdiction[,
possessing] only that power authorized by Constitution and
statute.''\64\ The ``judicial power'' conferred on Article III
courts by the Constitution is limited to deciding particular
``Cases'' and ``Controversies.''\65\ ``In an attempt to give
meaning to Article III's case-or-controversy requirement, the
courts have developed a series of principles termed
`justiciability doctrines,' among which [is] standing.''\66\ In
other words, ```Article III standing . . . enforces the
Constitution's case-or-controversy requirement.'''\67\
---------------------------------------------------------------------------
\64\Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994).
\65\U. S. Const., Art. III, Sec. 2.
\66\Allen v. Wright, 468 U.S. 737, 750 (1984).
\67\DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)
(quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11
(2004)).
---------------------------------------------------------------------------
Standing is ```an essential and unchanging' predicate to
any exercise of jurisdiction'' by an Article III Federal
court.\68\ Thus, standing is a threshold procedural question
that does not turn on the merits of a plaintiff's complaint,
but rather on whether the particular plaintiff has a legal
right to a judicial determination on the issues before the
court. The doctrine of standing is made up of both
constitutional requirements and prudential considerations.
``The Court has kept these two strands separate: `Article III
standing, which enforces the Constitution's case-or-controversy
requirement, and prudential standing, which embodies
`judicially self-imposed limits on the exercise of Federal
jurisdiction.'''\69\
---------------------------------------------------------------------------
\68\See Am. Chemistry Council v. Dep't of Transp., 468 F.3d 810,
814 (D.C. Cir. 2006) (quoting Florida Audubon Soc. v. Bentsen, 94 F.3d
658, 663 (D.C. Cir. 1996)).
\69\United States v. Windsor, 133 S. Ct. 2675, 2685 (2013) (quoting
Elk Grove Unified School Dist., 542 U. S. 11-12) (internal citations
omitted).
---------------------------------------------------------------------------
In order to satisfy the constitutional standing
requirements, the Supreme Court has imposed three requirements.
``First, the plaintiff must have suffered an injury in fact--an
invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical.''\70\ ``Second, there must be a
causal connection between the injury and the conduct complained
of--the injury has to be fairly traceable to the challenged
action of the defendant and not the result of the independent
action of some third party not before the court.''\71\ ``Third,
it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.''\72\
---------------------------------------------------------------------------
\70\Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotations and citations omitted).
\71\Id. (internal quotations and alterations omitted).
\72\Id.
---------------------------------------------------------------------------
The Supreme Court has stressed that the standing inquiry is
``especially rigorous'' in cases in which important separation
of powers concerns are implicated by a dispute.\73\ In the
separation of powers context, the courts have required
plaintiffs to demonstrate that ``the dispute is `traditionally
thought to be capable of resolution through the judicial
process.'''\74\
---------------------------------------------------------------------------
\73\See Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
\74\Id. at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)).
---------------------------------------------------------------------------
In addition to constitutional standing requirements,
Federal courts also follow a set of prudential standing
principles. Similar to the constitutional requirements, these
prudential limits are ``founded in concern about the proper--
and properly limited--role of the courts in a democratic
society''; however, these standing principles are judicially
created. Unlike their constitutional counterparts, prudential
standing principles ``can be modified or abrogated by
Congress.''\75\ Accordingly, prudential standing principles are
more flexible ``rule[s] . . . of Federal appellate
practice,''\76\ designed to protect the courts from
``decid[ing] abstract questions of wide public significance
even though other governmental institutions may be more
competent to address the questions and even though judicial
intervention may be unnecessary to protect individual
rights.''\77\
---------------------------------------------------------------------------
\75\Bennett v. Spear, 520 U.S. 154, 162 (1997). These prudential
principles require that (1) the plaintiff assert his own legal rights
and interests, rather than those of a third party; (2) the plaintiff's
complaint fall within the ``zone of interests'' protected or regulated
by the statute or constitutional guarantee in question; and (3) the
plaintiff not assert ``abstract questions of wide public significance
which amount to generalized grievances pervasively shared and most
appropriately addressed in the representative branches.''
\76\Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980).
\77\Warth v. Seldin, 422 U.S. 490, 500 (1975).
---------------------------------------------------------------------------
A. LIndividual Member of Congress Standing
The courts have been increasingly skeptical, especially
since Raines v. Byrd, of finding standing in cases brought by
individual Members of Congress or ad hoc groups of Members.
Courts have rejected Member standing in many of these cases, in
part, because the Members bringing the suit were not singled
out for especially unfavorable treatment as opposed to other
Members of Congress. Rather, their claims were based on
institutional injuries (generally the diminution of legislative
power), which necessarily damage all Members of Congress
equally.
Moreover, in these cases Members have not claimed that they
have been deprived of something to which they personally are
entitled--such as their seats as Members of Congress after
their constituents had elected them.\78\ Instead, their claims
have been based on a loss of political power, not loss of any
private right, which would make the injury more concrete. As
one Federal district court judge recently observed, the Supreme
Court's legislative standing jurisprudence ``teaches that
generalized injuries that affect all Members of Congress in the
same broad and undifferentiated manner are not sufficiently
`personal' or `particularized,' but rather are institutional,
and too widely dispersed to confer standing.''\79\
---------------------------------------------------------------------------
\78\But see Powell v. McCormack, 395 U.S. 486 (1969).
\79\Kucinich v. Bush, 236 F. Supp. 2d 1, 7 (D.D.C. 2002).
---------------------------------------------------------------------------
B. LInstitutional Standing
While Members of Congress often have difficulty
establishing standing to allege an institutional injury,
institutional plaintiffs (e.g., a House committee when
authorized by the full House to bring suit) have been more
successful at establishing standing in cases in which they have
been authorized to seek judicial recourse on behalf of one
House of Congress. However, all of the available cases
regarding institutional standing have dealt with judicial
enforcement of a subpoena. It is unclear how, or if, these
precedents would be applied outside of the subpoena enforcement
context.
It is clear though that Raines v. Byrd, the leading
legislative standing case, ``does not stand for the proposition
that Congress can never assert its institutional interests in
court.''\80\ In fact, the Supreme Court noted in Raines that it
``attach[ed] some importance to the fact that [plaintiffs] have
not been authorized to represent their respective Houses of
Congress in this action, and indeed both Houses actively oppose
their suits.''\81\ In other words, the Supreme Court's decision
in Raines was premised in part on the fact that the Members in
that case did not initiate the lawsuit on behalf of their
respective House of Congress.
---------------------------------------------------------------------------
\80\Comm. on Oversight & Gov't Reform v. Holder, 2013 U.S. Dist.
LEXIS 140994 at *34 (D.D.C. 2013).
\81\Raines, 521 U.S. at 829.
---------------------------------------------------------------------------
DISCUSSION
In order to rein in the President's failure to faithfully
execute the laws, the ENFORCE the Law Act puts a procedure in
place to permit the House, or the Senate, to authorize a
lawsuit against the Executive Branch. One hurdle the House or
the Senate would face in any such lawsuit is establishing
standing to sue. The Federal courts have been very resistant to
find that legislators have standing to bring suit. However,
this does not mean that a legal challenge brought by one House
of Congress based on the failure to faithfully execute the laws
is necessarily foreclosed.
Although the cases in the leading line of legislative
standing cases all found that the Members of Congress bringing
lawsuits did not have standing to sue, in none of those cases
was the lawsuit brought pursuant to the authorization of one
House of Congress to redress a clearly delineated, concrete
injury to the institution.\82\ Rather, in those cases
individual Members sought to ameliorate Congress's
institutional injury without the consent of the institution
itself. But the Court has never held that an institution, such
as the House of Representatives, cannot file suit to address an
institutional harm. As one Federal district court judge
recently pointed out regarding the seminal case on legislative
standing, Raines v. Byrd, ``the Supreme Court's decision in
Raines was premised in part on the fact that the legislators in
that case did not initiate their lawsuit on behalf of their
respective legislative bodies.''\83\
---------------------------------------------------------------------------
\82\See, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Campbell v
Clinton, 203 F.3d 19 (D.C. Cir. 1999); Chenoweth v. Clinton, 181 F.3d
112 (D.C. Cir. 1999).
\83\Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011).
---------------------------------------------------------------------------
There is a separate line of cases, however, involving
enforcement of congressional subpoenas in which the Federal
courts in the D.C. Circuit have found that a House of Congress
has standing to defend its institutional interests.\84\ In this
line of cases, the plaintiff was authorized to act on behalf of
the House or Senate to vindicate the House's, or the Senate's,
institutional interest that had been challenged by the
Executive Branch. This line of cases is clearly distinguishable
from the Raines line of cases. In fact, in Raines, the Supreme
Court even noted that it ``attach[ed] some importance to the
fact that [plaintiffs] have not been authorized to represent
their respective Houses of Congress in this action, and indeed
both Houses actively oppose their suits.''\85\ Indeed, ``the
Raines case was dismissed because the individual lawmakers who
brought the action failed to allege the requisite
particularized and concrete injury to themselves, not because a
legislative body as an institution would lack standing to bring
an action on its own behalf.''\86\ Thus, authorization by a
House of Congress is a ``key factor'' in the standing calculus
in institutional injury cases: ``the fact that the House . . .
explicitly authorized this suit does more than simply remove
any doubt that [the House] considers itself aggrieved. It is a
key factor that moves this case from the impermissible category
of individual plaintiff asserting an institutional injury to
the permissible category of an institutional plaintiff
asserting an institutional injury.''\87\
---------------------------------------------------------------------------
\84\See, e.g., United States v. AT&T, 551 F.2d 384 (D.C. Cir.
1976); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C.
2008); Comm. on Oversight & Gov't Reform v. Holder, 2013 U.S. Dist.
LEXIS 140994 (D.D.C. 2013); Senate Select Comm. on Presidential
Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
\85\Raines, 521 U.S. at 829.
\86\Comm. on Oversight & Gov't Reform, 2013 U.S. Dist. LEXIS 140994
at *55.
\87\Miers, 558 F. Supp.2d at 71.
---------------------------------------------------------------------------
The ENFORCE the Law Act provides for lawsuits brought
pursuant to authorization by one House of Congress. It would
appear, therefore, that this second line of cases is more
applicable to standing in the lawsuits contemplated by this
legislation.
In addition to institutional authorization to bring suit,
there is another factor that distinguishes the Raines line of
cases from the cases contemplated by the ENFORCE the Law Act.
In Raines, the asserted injury was to Congress's vaguely
defined ``political power'' that would be lost as a result of
the President's use of the line item veto. The harm alleged was
not tied to a specific instance of a loss in voting power;
rather, the Members asserted that they could be injured in the
future as a result of the line item veto. By contrast, with
regard to the President's failure to faithfully execute the
laws, the injury is not some future hypothetical--the President
is currently refusing to enforce clear provisions in statutes
passed by Congress. Accordingly, a suit brought to challenge a
failure to faithfully execute the laws would be based on an
injury to the House or Senate caused by the President's failure
to enforce a particular statutory provision. As has been
observed, ``it is clear that the action in Raines was dismissed
for lack of jurisdiction because of the `amorphous' nature of
the claim, not because it was an inter-branch dispute.''\88\ Or
as the Raines court put it, ``[t]here is a vast difference
between the level of vote nullification at issue in Coleman v.
Miller[, a case in which the Court determined the legislators
had standing,] and the abstract dilution of institutional
legislative power that is alleged here.''\89\
---------------------------------------------------------------------------
\88\Comm. on Oversight & Gov't Reform., 2013 U.S. Dist. LEXIS
140994 at *33.
\89\Raines, 521 U.S. at 826.
---------------------------------------------------------------------------
The institutional injuries that could be alleged in light
of the Obama administration's failures to faithfully execute
the laws appear to rise to the ``level of vote nullification at
issue in Coleman.'' This is because in Raines, the Court
characterized Coleman as holding that ``legislators whose votes
would have been sufficient to defeat (or enact) a specific
legislative Act have standing to sue if that legislative action
goes into effect (or does not go into effect), on the ground
that their votes have been completely nullified.''\90\ In other
words, because many of the Obama administration's actions have
effectively nullified Acts of Congress, according to Raines and
Coleman there is ``institutional injury'' sufficient to satisfy
Article III standing. For example, in the Affordable Care Act,
Congress passed language that stated that the employers who
fail to provide ``minimum essential coverage'' to their
employees are subject to a penalty that ``shall apply to months
beginning after December 31, 2013.''\91\ The Obama
administration, however, has, without statutory authorization,
issued two 1-year delays to all, or part, of this mandate. This
was a nullification of an Act of Congress that should be
sufficient to confer Article III standing.
---------------------------------------------------------------------------
\90\Id. at 823.
\91\Patient Protection and Affordable Care Act Sec. 1513(d)
(emphasis added).
---------------------------------------------------------------------------
Thus, the nullification of a legislative act, such as
delaying the employer mandate, provides an institutional injury
sufficient to qualify as an Article III case or controversy. If
Congress explicitly authorizes an institutional lawsuit to
enforce the nullified law, Congress, or a House of Congress, as
an institution, should have standing to bring a lawsuit--``[s]o
long as the courts are convinced that the legislator-plaintiffs
are speaking on behalf of the institution (the `institutional
check') and the Executive's act is tantamount to a
`nullification' of legislative action (the ``injury check''),
the controversy will be sufficiently direct and concrete to
satisfy Article III injury-in-fact requirements.''\92\
---------------------------------------------------------------------------
\92\Enforcing the President's Constitutional Duty to Faithfully
Execute the Laws: Hearing Before the House Committee on the Judiciary,
113th Cong. (2014) (statement of Elizabeth Price Foley).
---------------------------------------------------------------------------
Moreover, there are factors present in the situation
created by President Obama's repeated failures to faithfully
execute the laws that were not present in Raines. The Supreme
Court in Raines was careful to note that,
our conclusion neither deprives Members of Congress of
an adequate remedy (since they may repeal the Act or
exempt appropriations bills from its reach), nor
forecloses the Act from constitutional challenge (by
someone who suffers judicially cognizable injury as a
result of the Act). Whether the case would be different
if any of these circumstances were different we need
not now decide.\93\
---------------------------------------------------------------------------
\93\Raines, 521 U.S. at 829-30 (internal footnotes and citations
omitted).
The current circumstances related to President Obama's
failure to faithfully execute the laws are different than the
circumstances present in Raines. First, because the President
is ignoring statutory provisions that restrict his authority,
it is not a real option for Congress to pass more legislation
to remedy the situation. The separation of powers cannot be
preserved by Congress passing new legislation that effectively
says, ``we really mean it this time,'' in all the areas in
which the President is failing to faithfully execute the law.
Accordingly, without judicial review there is effectively no
way for Congress to defend the separation of powers.
Second, there are no other plaintiffs to bring a
constitutional challenge to many of the Obama administration's
lawless actions. This is because these actions by the President
are ``benevolent'' suspensions of the law, in which whole
classes of people are exempted from the requirements of Federal
law. As David Rivkin and Elizabeth Price Foley have observed,
``[n]o one person was sufficiently harmed to create standing to
sue, for instance, when Obama instructed the Department of
Homeland Security to stop deporting young illegal immigrants.
Indeed, these actions have helped, rather than harmed
them.''\94\ In other words, unlike Raines, where other
plaintiffs were available to challenge the constitutionality of
the line item veto (and did so in Clinton v. City of New
York),\95\ if legislative standing were denied to challenge
President Obama's usurpations of Congress's authority, there
will be no other way to check the President.
---------------------------------------------------------------------------
\94\David Rivkin & Elizabeth Price Foley, ``Can Obama's Legal End-
Run Around Congress Be Stopped?,'' Politico (Jan. 15, 2014).
\95\524 U.S. 417 (1998).
---------------------------------------------------------------------------
It is also important to note that there is nothing unusual
or inappropriate about courts weighing in on separation of
powers disputes. ``Our system of government requires that
Federal courts on occasion interpret the Constitution in a
manner at variance with the construction given the document by
another branch. The alleged conflict that such an adjudication
may cause cannot justify the courts' avoiding their
constitutional responsibility.''\96\ Moreover, deciding
``whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as
ultimate interpreter of the Constitution.''\97\ The courts have
a long history of resolving cases involving the allocation of
power between the political branches and addressing important
separation of powers concerns: Morrison v. Olson, 487 U.S. 654
(1988) (removal of appointed officials); Bowsher v. Synar, 478
U.S. 714 (1986) (execution of the laws); INS v. Chadha, 462
U.S. 919 (1983) (legislative veto); Humphrey's Executor v.
United States, 295 U.S. 602 (1935) (removal of appointed
officials); Myers v. United States, 272 U.S. 52 (1926) (removal
of appointed officials).
---------------------------------------------------------------------------
\96\Powell v. McCormack, 395 U.S. 486, 549 (1969).
\97\Baker v. Carr, 369 U.S. 186, 211 (1962).
---------------------------------------------------------------------------
Congress can help itself overcome the standing issues that
have prevented judicial review in the Raines line of cases.
Congress can do this by passing the ENFORCE the Law Act to put
a procedure in place for authorizing the House, or the Senate,
to seek judicial review of instances in which either body has
determined that the President has failed to faithfully execute
the laws. The ENFORCE the Law Act will ensure that the courts
do not apply prudential standing principles to avoid judicial
review--prudential standing principles ``can be modified or
abrogated by Congress.''\98\ It will also ensure that cases
alleging institutional injuries can be brought on behalf of the
institution rather than by ad hoc groups of individual Members
of Congress. In other words, putting a congressional lawsuit
authorization procedure in place as part of statutory law
should bolster the House's, or the Senate's, standing in court.
---------------------------------------------------------------------------
\98\Bennett v. Spear, 520 U.S. 154, 162 (1997).
---------------------------------------------------------------------------
In addition, by providing for legislative standing
statutorily, Congress can provide for special court procedural
rules, including expedited review, for cases brought pursuant
to the legislation. These special procedural rules can
significantly increase the speed by which a case challenging
the President's failure to faithfully execute the law makes its
way through the courts. The court procedural rules in the
ENFORCE the Law Act are similar to those in the Line Item Veto
Act. Litigation challenging the constitutionality of the line
item veto made it through the district court and was decided by
the Supreme Court within 7 months of the Act's effective
date.\99\
---------------------------------------------------------------------------
\99\See Raines, 521 U.S. 811.
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary held no hearings on H.R.
4138.
Committee Consideration
On March 5, 2014, the Committee met in open session and
ordered the bill H.R. 4138 favorably reported, without
amendment, by a rollcall vote of 18 to 14, 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. 4138.
1. An amendment by Mr. Conyers to provide that nothing in
the Act would limit or otherwise affect any action taken by the
President, the head of a department or agency of the United
States, or any other officer or employee of the United States
in order to combat discrimination and protect the civil rights
of the people of the United States. Defeated by a rollcall vote
of 11 to 16.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
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)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)...................................
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 16
------------------------------------------------------------------------
2. An amendment by Mr. Nadler to provide that nothing in
the Act would limit or otherwise affect the constitutional
authority of the executive branch to exercise prosecutorial
discretion. Defeated by a rollcall vote of 11 to 17.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................
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)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)...................................
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 17
------------------------------------------------------------------------
3. An amendment by Ms. Jackson Lee to provide that nothing
in the Act would limit or otherwise affect the ability of the
executive branch to comply with judicial decisions interpreting
the Constitution or Federal laws. Defeated by a rollcall vote
of 13 to 18.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
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)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 13 18
------------------------------------------------------------------------
4. An amendment by Mr. Johnson to provide that nothing in
the Act would limit or otherwise affect any action taken by the
President, the head of a department or agency of the United
States, or any other officer or employee of the United States
that concerns a right protected by the Constitution of the
United States. Defeated by a rollcall vote of 11 to 15.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
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)................................
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)...............................
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)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 11 15
------------------------------------------------------------------------
5. An amendment by Mr. Cicilline to provide for the
quarterly report by the General Accountability Office to submit
to the House and Senate Judiciary Committees a report on the
costs of any civil action brought pursuant to this Act,
including the attorneys' fees of any attorney that has been
hired to provide legal services in connection with a civil
action brought pursuant to the Act. Defeated by a rollcall vote
of 11 to 16.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
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)...............................
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)...............................
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 11 16
------------------------------------------------------------------------
6. An amendment by Mr. Cicilline to provide that an
attorney who is not a regular employee of the legislative
branch, who is hired to provide legal services in a civil
action brought pursuant to this Act to the House of Congress
that brought such action consult with any Member of that House
who requests a consultation with the attorney regarding the
civil action. Defeated by a rollcall vote of 13 to 17.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
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..........
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 13 17
------------------------------------------------------------------------
7. Motion to report H.R. 4138 favorably, without amendment.
Passed by a rollcall vote of 18 to 14.
ROLLCALL NO. 7
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC)................................. X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................
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)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL)............................. X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 18 14
------------------------------------------------------------------------
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. 4138 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. 4138 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.
4138 puts a procedure in place to permit the House of
Representatives, or the Senate, to authorize a lawsuit against
the Executive Branch for failure to faithfully execute the
laws.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4138 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 ``Executive Needs to Faithfully Observe and Respect
Congressional Enactments of the Law (ENFORCE the Law) Act.''
Section 2. Authorization to Bring Civil Action for Violation of the
Take Care Clause.
Section 2(a) puts a procedure in place to permit the House,
or the Senate, to authorize a lawsuit against the Executive
Branch for failure to faithfully execute the laws.
Specifically, section 2(a) provides that if the President, or
any other officer or employee of the United States, establishes
or implements a formal or informal policy to refrain from
enforcing any provision of Federal law in violation of the
requirement that the President ``take care that the laws be
faithfully executed,'' the House or the Senate may, by adoption
of a resolution, authorize a civil action to seek declaratory
or injunctive relief. Any such lawsuit may be brought by the
House of Representatives, the Senate, or both Houses of
Congress jointly.
Section 2(b) provides for the content of a resolution to
authorize a lawsuit by the House or the Senate. Section 2(c)
provides for special court rules for any lawsuit brought
pursuant to the legislation: the case must be heard by a three-
judge panel in the district court; appeal is directly to the
Supreme Court; and the district courts and the Supreme Court
are required to expedite the consideration of any case filed
pursuant to the legislation.
Dissenting Views
INTRODUCTION
H.R. 4138, the ``Executive Needs to Faithfully Observe and
Respect Congressional Enactments of the Law Act of 2014''
(ENFORCE Act), is a deeply flawed bill, both because of its
substance and because of the process by which the Committee
considered it. The bill would enable one House of Congress to
sue the President, Federal officers, and even Federal employees
if that House determines that any of those individuals has
failed to ``take Care that the Laws be faithfully executed'' as
required by Article II, Section 3 of the U.S. Constitution.\1\
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\1\U.S. Const. art. II, Sec. 3.
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The bill is problematic for several reasons. First, it is a
faulty solution in search of a non-existent problem because
none of the examples of executive action cited by the bill's
proponents actually demonstrate any failure by the President to
execute the laws. Rather, each of them represents the exercise
of enforcement discretion, authority that stems from the
President's duty to ``take care'' that he ``faithfully''
execute the laws, i.e., the very provision that the bill's
supporters cite. Second, the bill raises serious separation-of-
powers concerns and would likely be unconstitutional as
applied. Congress likely cannot meet the standing requirements
of Article III in an action brought under this bill because the
kind of injury that would be alleged--that is, a generalized
injury that the President failed to comply with a law--is
insufficiently concrete to meet the Constitution's requirement
of a case or controversy.\2\ Additionally, the bill would
likely force Federal courts to decide political questions,
which are questions that the Constitution commits to the
political branches or which are otherwise unfit for a judicial
forum. Moreover, the bill threatens to turn Congress into a
super enforcement agency with the ability to bring civil
actions whenever it disagrees with an exercise of enforcement
discretion not only by the President, but by potentially
thousands of Federal officers and employees. Finally, the bill
could potentially result in numerous, lengthy, and complex
court cases for which taxpayers would have to pay the legal
bills. Also, it must be noted that there was almost no
meaningful deliberative process surrounding the Committee's
consideration of the bill, further calling the soundness of
this legislation into question.
---------------------------------------------------------------------------
\2\See discussion infra.
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For the foregoing reasons, which are more fully discussed
below, we dissent from the Committee report and urge our
colleagues to oppose this bill.
DESCRIPTION AND BACKGROUND
DESCRIPTION
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Executive Needs to Faithfully
Enforce and Respect Congressional Enactments of the Law Act of
2014'' or ``ENFORCE the Law Act of 2014.''
Section 2. Authorization to Bring Civil Action for
Violation of the Take Care Clause. Section 2(a) describes
procedures for either House of Congress to bring a civil action
against the President for violation of the ``take care''
clause. Specifically, if one House adopts a resolution
declaring that the President, the head of any Federal
department or agency, or any other Federal officer or employee
has established or implemented a formal or informal policy,
practice, or procedure not to enforce a Federal law in
violation of the ``take care'' clause, that House would be
authorized to bring suit and seek declaratory relief and other
relief that a court may deem appropriate based on a declaratory
judgment or decree.
Section 2(b), in turn, details the specific requirements
for a resolution under section 2(a).
Section 2(c) prescribes special rules for Federal courts to
follow in considering a civil action under section 2(a).
Specifically, the action is to be heard by a three-judge panel
of a Federal district court of competent jurisdiction, and the
court's decision would be reviewable only by direct appeal to
the Supreme Court. A notice of appeal must be filed within ten
days, presumably of the final decision by the three-judge
district court panel. In addition, subsection (c) declares it
to be the ``duty'' of the district courts and the Supreme Court
to expedite consideration and disposition of any civil action
and appeal under this bill.
BACKGROUND
I. THE ``TAKE CARE'' CLAUSE AND ENFORCEMENT DISCRETION
Article II, section 3 of the U. S. 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. 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\
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\3\U.S. Const. art. II, Sec. 3.
\4\See, e.g., 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).
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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, which report to the
President, 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, R42924, 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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II. ARTICLE III STANDING REQUIREMENT
In order to participate as party litigants in any suit,
congressional plaintiffs--whether they be individual Members,
committees, or Houses of Congress--must demonstrate that they
meet the requirements established by Article III of the
Constitution, including standing to sue. The failure to
establish standing is fatal to the litigation and will result
in its dismissal without the court addressing the merits of the
presented claims.
Generally, the doctrine of standing is a threshold question
that does not turn on the merits of a plaintiff's complaint,
but, rather, on whether the particular plaintiff has a legal
right to a judicial determination on the issues before the
court.\8\ The law with respect to standing is a mix of both
constitutional requirements and prudential considerations.\9\
Article III of the Constitution specifically limits the
exercise of Federal judicial power to ``cases'' and
``controversies.''\10\ Accordingly, the courts have
``consistently declined to exercise any powers other than those
which are strictly judicial in their nature.''\11\ Thus, it has
been said that ``the law of Art. III standing is built on a
single basic idea--the idea of separation of powers.''\12\
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\8\Flast v. Cohen, 392 U.S. 83, 99 (1968).
\9\Dep't of Commerce v. House of Representatives, 525 U.S. 316,
328-29 (1999).
\10\U.S. Const. art. III, Sec. 2.
\11\Raines v. Byrd, 521 U.S. 811, 819 (1997) (quoting Muskrat v.
U.S., 219 U.S. 346, 356 (1911)).
\12\Id. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).
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To satisfy the constitutional standing requirements in
Article III, the Supreme Court imposes three requirements.
First, the plaintiff must allege a personal injury-in-fact,
which is actual or imminent, concrete, and particularized.
Second, the injury must be ``fairly traceable to the
defendant's allegedly unlawful conduct.''\13\ Third, the injury
must be ``likely to be redressed by the requested relief.''\14\
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\13\Dep't of Commerce, 525 U.S. at 329 (quoting Allen, 468 U.S. at
751).
\14\Id. In addition to the constitutional questions posed by the
doctrine of standing, Federal courts also follow a well-developed set
of prudential principles that are relevant to a standing inquiry.
Unlike their constitutional counterparts, prudential standing
requirements are judicially created and ``can be modified or abrogated
by Congress.'' Bennett v. Spear, 520 U.S. 154, 162 (1997). These
prudential principles require that: (1) the plaintiff assert his own
legal rights and interests, rather than those of a third party; (2) the
plaintiff's complaint fall within the ``zone of interests'' protected
or regulated by the statute or constitutional guarantee in question;
and (3) the plaintiff not assert ```abstract questions of wide public
significance' which amount to `generalized grievances' pervasively
shared and most appropriately addressed in the representative
branches.'' Valley Forge Christian Coll. v. Ams. United for Separation
of Church and State, 454 U.S. 464, 475 (1982) (quoting Warth v. Seldin,
422 U.S. 490, 499-500 (1957)).
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Raines v. Byrd is the Supreme Court case that established
the current standard for evaluating whether individual Members
of Congress have standing to sue the executive branch.\15\ In
Raines, the Supreme Court dismissed a suit by Members
challenging the constitutionality of the Line Item Veto Act,
holding that their complaint did not establish that they had
suffered a personal, particularized, and concrete injury.\16\
The Court held that a congressional plaintiff may have standing
in a suit against the executive branch if he or she alleges
either: (1) a personal injury (e.g., loss of a Member's seat),
or (2) an institutional injury that is not ``abstract and
widely dispersed'' and amounts to vote nullification.\17\ In
Raines, the Court concluded that the plaintiffs asserted an
institutional injury, but their votes were not nullified
because of the continued existence of other legislative
remedies. These legislative remedies included the ability of
``a majority of Senators and Congressman [to] vote to repeal
the Act, or to exempt a given appropriations bill (or a given
provision in an appropriations bill) from the Act. . . .''\18\
---------------------------------------------------------------------------
\15\521 U.S. 811 (1997).
\16\Id. at 818-820.
\17\Id. at 829.
\18\Id. at 824.
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It appears that an institutional plaintiff has only been
successful in establishing standing when it has been authorized
to seek judicial recourse on behalf of a House of Congress. In
the past, a one-house resolution that specifically authorizes
judicial recourse has satisfied this authorization requirement,
although authorization alone is only one part of the standing
analysis.\19\
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\19\See Comm. on the Judiciary, U.S. House of Representatives v.
Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008) (finding that House
Judiciary Committee had standing to sue to enforce a congressional
subpoena in part because it ``ha[d] been expressly authorized . . . by
the House of Representatives as an institution'' to bring the suit by
House resolution).
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The Raines vote nullification requirement would likely not
be satisfied in cases where an institutional plaintiff files
suit to challenge an executive action because, unlike in the
subpoena enforcement context, legislative actions that remedy
the institutional plaintiff's injury could exist. Therefore,
whether or not the Raines vote nullification standard applies
to institutional plaintiffs may be an important factor in
determining if an authorized institutional plaintiff has
standing to challenge an executive action.
If the Raines vote nullification standard were applied to
institutional plaintiffs, the existence of legislative remedies
may prevent an institutional plaintiff, like a House of
Congress, from establishing standing. The following actions
could serve as potential remedies to executive actions: the
repeal or disapproval of executive branch regulations or
guidance documents establishing the challenged policies;
employing the power of the purse to restrict the use of funds
to administer objectionable programs; legislation eliminating,
limiting, or clarifying the scope of agency discretion with
regard to the implementation of existing laws; and oversight
activity. Because the Constitution requires parties to meet
Article III standing requirements, Congress cannot simply
overcome those requirements by claiming to grant itself
standing to sue.
CONCERNS WITH H.R. 4138
I. H.R. 4138 IS A FUNDAMENTALLY FLAWED SOLUTION TO A NON-EXISTENT
PROBLEM
An initial problem with H.R. 4138 is that it is based on
the false premise that President Barack 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. 4138'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.\20\
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.\21\ 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.\22\
The modified charging guidelines direct prosecutors to charge
certain low-level, nonviolent drug offenders with offenses that
do not trigger mandatory minimum sentences.\23\
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\20\See generally 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].
\21\Id.
\22\See Enforcing Constitutional Duty Hearing.
\23\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.''\24\ Section 7805(a) provides that
``the Secretary [of the Treasury] shall prescribe all needful
rules and regulations for the enforcement of this title.''\25\
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\24\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''].
\25\26 U.S.C. Sec. 7805 (2014).
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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.''\26\ 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.\27\
---------------------------------------------------------------------------
\26\Mazur Letter at 2.
\27\Id.
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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.''\28\ 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.''\29\ He also noted that such discretionary
enforcement decisions were routine and were too numerous to
count.\30\
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\28\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''].
\29\Id. at 6 (emphases in original).
\30\Id.
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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.\31\ 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.\32\ 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.
---------------------------------------------------------------------------
\31\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.
\32\Enforcing Constitutional Duty Hearing.
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Immigration officials may exercise enforcement discretion
in individual cases or ``prosecutorial discretion may be more
formalized and generalized through agency regulations or
procedures.''\33\ In fact, Congress expressly directed the
Secretary of Homeland Security to establish ``national
immigration enforcement policies and priorities.''\34\ 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.
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\33\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-Cooper-memo%20pros%20discretion7.11.2000.pdf/view.
\34\6 U.S.C. Sec. 202 (2014).
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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.\35\ 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.\36\
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\35\CRS Immigration Report at 1.
\36\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.
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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.\37\
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\37\Enforcing Constitutional Duty Hearing (Schroeder statement at
7).
In short, the examples that the proponents of H.R. 4138
cite to justify its radical scheme to allow one House of
Congress to sue the President 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. 4138 VIOLATES SEPARATION-OF-POWERS PRINCIPLES AND WOULD LIKELY
BE UNCONSTITUTIONAL AS APPLIED
A. Congress Would Likely Lack Article III Standing to Sue
Congress would likely lack the constitutionally-required
standing to sue pursuant to H.R. 4138 because the alleged
injury--i.e., the alleged failure to take care that a law be
faithfully executed--is not the kind of a concrete and
particularized injury to Congress sufficient to confer Article
III standing on Congress to sue pursuant to the ENFORCE Act.
Rather, it amounts only to a generalized complaint that the
executive branch did not follow the law. The Supreme Court has
made clear that injury ``amounting only to the alleged
violation of a right to have the Government act in accordance
with law was not judicially cognizable'' for Article III
standing purposes.\38\ To allow standing based on an
``undifferentiated public interest in executive officers'
compliance with the law . . . is to transfer from the President
to the courts the Chief Executive's most important
constitutional duty, to `take care that the Laws be faithfully
executed.'''\39\ Congress cannot simply ``give itself'' Article
III standing where it does not exist, as some Members of the
Committee Majority contended during the markup debate on this
bill.
---------------------------------------------------------------------------
\38\Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-576 (1992).
\39\Id. at 577.
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Article III's standing requirements enforce the
Constitution's separation-of-powers principles. The separation
of law-making from law-execution is a distinctive feature of
the U.S. Constitution, and as part of this structural
separation, the Supreme Court has held that the Constitution
bars Congress from vesting itself with the power to appoint
officers charged with executing Federal laws, including through
litigation.\40\
---------------------------------------------------------------------------
\40\Buckley v. Valeo, 424 U.S. 1, 138-140 (1976).
---------------------------------------------------------------------------
Representative Trey Gowdy (R-SC), H.R. 4138's sponsor,
repeatedly claimed during the markup that the bill merely
``codifies'' the Supreme Court's decision in Coleman v. Miller,
where the Court held that members of the Kansas legislature who
voted against ratification of a proposed amendment to the U.S.
Constitution had standing to sue the state's lieutenant
governor for acting beyond his authority when he cast the tie-
breaking vote for ratification.\41\ The Court reasoned that the
legislators had a ``plain, direct and adequate interest in
maintaining the effectiveness of their votes'' and, therefore,
had standing under Article III because the legislators had the
right to have their votes against ratification be given full
effect under the Constitution.\42\ After finding that the
legislators had standing, the Court ultimately held that
because Article V of the Constitution grants Congress undivided
power to control the amendment process, questions about the
ratification process were ``political questions'' that were
non-justiciable.\43\
---------------------------------------------------------------------------
\41\307 U.S. 433 (1939).
\42\Id. at 437-438.
\43\Id. at 450.
---------------------------------------------------------------------------
Raines, however, significantly limited the reach of the
Coleman decision to challenge executive action, making it clear
that in order for legislators to have standing, they must
allege an injury that would amount to vote nullification, that
is, that other legislative remedies are not available to
address the asserted institutional injury.\44\ As the Court in
Raines noted, it is not enough that a Member simply lost a vote
or cannot garner majority support for a position. To establish
vote nullification for Article III standing purposes, a
legislative plaintiff must establish that his or her votes will
in the future be nullified.\45\ So long as future Senators and
House Members retain the power to vote to repeal an Act or deny
appropriations or take any number of other measures in response
to executive action, their votes cannot be said to have been
nullified and they cannot meet Article III's requirement that
they suffer a concrete injury.\46\
---------------------------------------------------------------------------
\44\Raines, 524 U.S. at 824.
\45\Id.
\46\Id.
---------------------------------------------------------------------------
Here, none of the examples raised by H.R. 4138's proponents
establish that the votes of Members of Congress were nullified.
Rather, in each case, Congress retains the power to repeal or
disapprove executive branch regulations or guidance documents
establishing the challenged policies; employ the power of the
purse to restrict the use of funds to administer objectionable
programs; pass legislation eliminating, limiting, or clarifying
the scope of agency discretion with regard to the
implementation of existing laws; deny confirmation of nominees;
and engage in oversight of executive branch activity. Any
action pursuant to H.R. 4138 to challenge executive action,
therefore, would not meet the test for Article III standing for
legislators as articulated in Raines.
H.R. 4138's proponents also cannot rely on court decisions
finding standing for one House of Congress to sue to enforce a
subpoena. In the subpoena enforcement context, the
institutional plaintiff is alleging a concrete injury to a
special prerogative of the legislative body--i.e., to defend
the power of the legislative body to perform its oversight and
information gathering duties.\47\ By contrast, H.R. 4138
contemplates lawsuits where no special prerogative of Congress,
or one House of Congress, is at stake. Rather, any suit to
enforce the ``take care'' clause necessarily only alleges an
``undifferentiated public interest in executive officers'
compliance with the law'' which is insufficient to establish
Article III standing.\48\
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\47\See Committee on the Judiciary, U.S. House of Representatives
v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). Similarly, in INS v.
Chadha, the Court found institutional standing for the House and Senate
to intervene because the alleged injury--a challenge to the
constitutionality of the one-House legislative veto--threatened a mode
of Congressional action. INS v. Chadha, 462 U.S. 919 (1983).
\48\Lujan, 504 U.S. at 577.
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Additionally, even if Congress as a whole could establish a
concrete injury pursuant to the ENFORCE Act, any legislative
interest in enforcing the ``take care'' clause against the
President would belong to the entire Congress, not just one
House. To the extent that the ENFORCE Act permits one House to
proceed with a lawsuit, it violates this principle. Allowing
only one House to pursue litigation to enforce the ``take
care'' clause as it sees fit heightens the risk that courts
would become the arbiters of partisan differences between
elected officials.
Even Professor Elizabeth Foley, one of the Majority
witnesses who testified last month that Congress has standing
to sue to enforce the ``take care'' clause, contradicted
herself in a prior statement that she wrote less than three
weeks before her Committee appearance. In that prior statement,
she said:
Congress probably can't sue the president, either. The
Supreme Court has severely restricted so-called
``congressional standing,'' creating a presumption
against allowing Members of Congress to sue the
president merely because he fails to faithfully execute
its laws.\49\
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\49\Elizabeth Price Foley, Why Not Even Congress Can Sue the
Administration Over Unconstitutional Executive Actions, Daily Caller,
Feb. 7, 2014, available at http://dailycaller.com/2014/02/07/why-not-
even-congress-can-sue-the-administration-over-unconstitutional-
executive-actions/.
Professor Jonathan Turley, another Majority witness,
testified at the first hearing on the ``take care'' clause that
courts are quite hostile toward recognizing Member standing for
purposes of pursuing constitutional violations.\50\ While not
commenting directly on Congress's institutional standing, he
noted that the current situation is one where no one could
successfully raise a President's failure to faithfully execute
the laws as an issue in court.\51\
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\50\Faithfully Execute Hearing at 58.
\51\Id. at 59.
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In his dissent in United States v. Windsor, no less a
conservative than Justice Antonin Scalia, joined by Chief
Justice John Roberts and Justice Clarence Thomas, criticized a
dissent by Justice Samuel Alito that tracked the reasoning
underlying H.R 4138, writing:
Heretofore in our national history, the President's
failure to ``take Care that the Laws be faithfully
executed,'' could only be brought before a judicial
tribunal by someone whose concrete interests were
harmed by that alleged failure. Justice Alito would
create a system in which Congress can hale the
Executive before the courts not only to vindicate its
own institutional powers to act, but to correct a
perceived inadequacy in the execution of its laws. This
system would lay to rest Tocqueville's praise of our
judicial system as one which ``intimately binds the
case made for the law with the case made for one man,''
one in which legislation is ``no longer exposed to the
daily aggression of the parties,'' and in which ``the
political question that the judge must resolve is
linked to the interest of private litigants.''
That would be replaced by a system in which Congress
and the Executive can pop immediately into court, in
their institutional capacity, whenever the President
refuses to implement a statute he believes to be
unconstitutional, and whenever he implements a law in a
manner that is not to Congress's liking.
. . .
If majorities in both Houses of Congress care enough
about the matter, they have available innumerable ways
to compel executive action without a lawsuit--from
refusing to confirm Presidential appointees to the
elimination of funding.\52\
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\52\U.S. v. Windsor, 133 S. Ct. 2675, 2703-05 (2013) (Scalia, J.,
dissenting) (internal citations and marks omitted).
For these reasons, Justice Scalia concluded that the Court had
no power to decide the suit. We agree with Justice Scalia's
view and believe, for that reason, that Congress would fail to
meet the Constitution's standing requirements in any civil
action pursuant to H.R. 4138.
B. H.R. 4138 Presents a Political Question Problem
The ENFORCE Act presents a grave political question
problem. Federal courts will not hear a case if they find that
it presents a political question. The Supreme Court has held
that Federal courts should not hear cases that deal directly
with issues for which the Constitution has directly given
responsibility to the other branches of government or for which
a judicial forum is otherwise inappropriate. In the leading
decision, Baker v. Carr, the Court enumerated the various
factors that would make a question political:
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.\53\
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\53\369 U.S. 186, 217 (1962).
Professor Laurence Tribe of Harvard Law School, in a
memorandum to House Judiciary Committee Democratic staff
analyzing a bill similar to H.R. 4138, noted that the Supreme
Court's jurisprudence regarding section 701(a)(2) of the
Administrative Procedure Act (APA)\54\ indicates how unwilling
the Court is to become involved with telling an executive
branch agency how to exercise its discretion.\55\ He noted
Justice Scalia's opinion in Norton v. South Utah Wilderness
Alliance, where Scalia said:
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\54\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2014).
\55\Memorandum from Laurence H. Tribe to Democratic Staff of the
House Judiciary Committee 5 (Mar. 3, 2014) (on file with H. Committee
on the Judiciary, Democratic Staff) [hereinafter ``Tribe memo''].
If courts were empowered to enter general orders
compelling compliance with broad statutory mandates,
they would necessarily be empowered, as well, to
determine whether compliance was achieved--which would
mean that it would ultimately become the task of the
supervising court, rather than the agency, to work out
compliance with the broad statutory mandate, injecting
the judge into day-to-day agency management.\56\
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\56\542 U.S. 55, 66-67 (2004).
Professor Tribe explained that although Justice Scalia was
interpreting the APA, there was nothing about his analysis that
would not fall under the Court's political question
jurisprudence as well.\57\ Virtually all of the factors
enumerated in Baker v. Carr would be implicated by allowing
Congress to sue the President over enforcement of the ``take
care'' clause. Professor Tribe concluded that in such a civil
action, a judge would be put in the position of directing a
Federal officer how to exercise his or her discretion in
enforcing a law, and doing so would cut at the heart of
separation of powers and, for that reason, would likely lead to
the invalidation of a statute like H.R. 4138.\58\
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\57\Tribe memo at 5.
\58\Id. at 6.
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Recognizing that the ENFORCE Act could upend the carefully
balanced separation-of-powers inherent in the Constitution,
several Members offered amendments to limit the potential
damage that the legislation could do. For instance, Committee
Ranking Member John Conyers, Jr. (D-MI) offered an amendment to
exclude from the bill's scope any executive action taken to
combat discrimination and protect civil rights. As
Representative Conyers noted, both the Emancipation
Proclamation and Executive Order 9981, by which President
Truman desegregated the Nation's armed forces, were actions
that were contrary to then-existing law. Had the ENFORCE Act
been in place when those actions were taken, Congress could
have sued the President based on an alleged failure to
faithfully execute then-existing law. Notwithstanding this
point, the amendment was defeated by a party-line vote of 11 to
16.
Similarly, Representative Hank Johnson (D-GA) offered an
amendment to exclude from the bill's scope any executive action
taken to protect constitutional rights to allow maximum
flexibility for the President and executive branch officials to
exercise their discretion so that constitutional rights could
be protected. This amendment recognized that in some
circumstances, protecting rights would require a President to
refrain from taking action. Nonetheless, the Committee rejected
the amendment by a party-line vote of 11 to 15.
Representative Jerrold Nadler (D-NY) offered an amendment
to exclude from the bill's scope any exercise of the executive
branch's clearly established authority to exercise
prosecutorial discretion. As outlined extensively above, the
exercise of prosecutorial discretion stems from the President's
obligation to ``take care'' in ``faithfully'' executing the
laws. Such discretion in setting enforcement priorities and in
determining the manner of implementing laws is required in
light of the limited resources available to enforce laws. To
the extent that H.R. 4138's proponents claim that the bill does
not hamper traditional enforcement discretion, they should have
had no objection to adopting this amendment. Notwithstanding
this, the Committee rejected the amendment by a 11 to 17 party-
line vote.
Also in recognition of the need to protect separation-of-
powers, Representative Sheila Jackson Lee (D-TX) offered an
amendment to exclude from the bill's scope any executive action
to protect the executive branch's ability to comply with
judicial decisions interpreting the Constitution or Federal
laws. If separation-of-powers principles require anything, it
is that each branch must respect its constitutional role. When
a court issues a decision interpreting the Constitution or a
Federal law, the other branches must abide by the decision. The
executive branch's ability to fulfill its obligation to comply
with judicial decisions should not be hampered by a civil
action by Congress pursuant to this bill. Basic respect for
separation of powers required adoption of this amendment.
Nonetheless, the Committee rejected it on a party-line vote of
13 to 18.
C. H.R. 4138 Would Make Congress a Super Enforcement Agency
The ENFORCE Act would essentially empower one House of
Congress to become a general enforcement body able to rove over
the entire field of administrative action by bringing cases
against the President whenever it disagrees with the President
or any component of the executive branch's exercise of
enforcement discretion. Effectively, one House of Congress
could seize for itself the scope of power of the Justice
Department and executive enforcement agencies. This bill would
intrude on a core function of the presidency and the
constitutional duties of the President in determining how to
implement or enforce the law. The bill radically and
dangerously undermines the balance between the extensive
administrative functions that are committed to the executive
branch and the legislative functions of Congress.\59\
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\59\See Morrison v. Olson, 487 U.S. 654, 658, 685 (1988) (noting
that a statute is suspect if it ``involve[s] an attempt by Congress to
increase its own powers at the expense of the executive branch'' and if
Congress ``impermissibly interferes with the President's exercise of
his constitutionally appointed function,'' which would include his
obligation to take care that the laws be faithfully executed).
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III. H.R. 4138 IS AN INVITATION TO WASTEFUL SPENDING OF
TAXPAYER MONEY
H.R. 4138 potentially could open the floodgates to possibly
endless litigation over any number of decisions of not only the
President, but of any Federal officer or employee. Such
litigation would be time-consuming, complex, and expensive,
particularly when outside counsel is retained. For instance, a
law firm hired to represent the House in its defense of the
Defense of Marriage Act charged $520 an hour for its services
and received an initial $500,000 fee.\60\ The House ultimately
spent $1.5 million on that litigation.\61\ The cost of what
would likely be frivolous litigation under H.R. 4138 would have
to be borne by American taxpayers.
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\60\Letter from Representative Nancy Pelosi, Democratic Leader, to
Representative John Boehner, Speaker of the House, Concerning
Litigation on the Defense of Marriage Act, April 20, 2011, available at
http://www.democraticleader.gov/news/press/pelosi-questions-boehner-
house-contract-outside-doma-counsel.
\61\Jennifer Bendery, DOMA Defense by House Republican Leaders Has
Cost Nearly $1.5 Million, Huffington Post, Oct. 16, 2012, available at
http://www.huffingtonpost.com/2012/10/16/doma-house-
republicans_n_1971666.html.
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Recognizing that in its unconstitutional scheme to use the
courts to mediate political disputes between one House of
Congress and the President, this bill threatens to drain
precious limited public resources, Representative David
Cicilline (D-RI) offered an amendment requiring that the
Government Accountability Office issue quarterly reports to the
House and Senate Judiciary Committees setting forth the costs
of any litigation pursued under the ENFORCE Act. In response to
Representative Cicilline's concerns about costs, the Majority
simply indicated that any cost was worth the price.
Unfortunately, the Committee rejected this common-sense, good-
government amendment by a party-line vote of 11 to 16.
In addressing another point broadly related to costs,
Representative Cicilline offered an amendment to ensure that
any outside counsel hired to represent a House of Congress in
litigation pursuant to the ENFORCE Act must consult with any
Member of that House who requests consultation. As
Representative Cicilline noted, Members had been denied the
opportunity for such consultation when the House hired outside
counsel to represent it in litigation defending the
constitutionality of the Defense of Marriage Act. To avoid a
similar situation from arising under this bill, Representative
Cicilline offered his common-sense amendment. Unfortunately,
the Committee rejected it by a party-line vote of 13 to 17.
IV. THERE WAS A NEAR COMPLETE ABSENCE OF GENUINE DELIBERATIVE PROCESS
Further undermining the soundness of H.R. 4138 is the fact
that there was an utter lack of deliberative process regarding
this legislation. The Committee never held a single legislative
hearing on this bill, nor did it hold any Subcommittee markup.
In fact, the final text of this bill was not made available
until just the day before the markup. Taking into consideration
the fact that the Majority provided only the minimum notice for
the markup of this bill, that no single member of the Majority
voted for any one of the six amendments offered by Democratic
Members, and that we have not received any budgetary impact
estimate from the Congressional Budget Office, it is plainly
obvious that the entire legislative process is an unserious
attempt to legislate.
CONCLUSION
H.R. 4138 is highly problematic for many reasons. It is
based on the false premise that the President is failing to
faithfully execute the laws. Moreover, it violates separation-
of-powers principles and is likely unconstitutional as applied
in several ways. First, Congress likely cannot meet Article
III's standing requirements in any civil action under this
bill. Second, this legislation would likely force courts to
decide political questions, which courts have wisely refrained
from deciding. Third, it would make Congress the ultimate
enforcement agency by allowing it to second-guess through
litigation even routine discretionary enforcement decisions
with which it might disagree. Finally, the legislation fails to
account for the potentially limitless costs of engaging in
litigation every time one house of Congress disagrees with the
President.
For these reasons, we strongly oppose H.R. 4138.
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.
Joe Garcia.
Hakeem Jeffries.
David N. Cicilline.