tv Key Capitol Hill Hearings CSPAN December 7, 2013 4:00am-6:01am EST
the aca that is a routine )-close-paren action. whether the administration do? on july 2, it announced the decision to postpone for one year to january 1, 2014 effective date for the aca that workers provide health insurance or pay taxes. this and other subsequently announced the delays do not enforce at all. on the contrary they are merely phasing in the adjustments designed to ensure effective implementation of the statute in accordance with congress purposes. the treasury department announcement makes that clear in the proposed regulations that it has followed through on on september 5 to make that clear as does the treasury statement
that it intends to continue fine-tuning those regulations and working with the people affected by them until you become finally effective. and i should emphasize just after the administration took this action, president george w. bush secretary concord the obama administration to delay the mandate was wise. that was based on his experience in phasing in the medicare part d. prescription drug benefit. i have to say hyperventilating about an extraordinary and unprecedented constitutional these delays are is just that. it's contrary to the obvious historical fact. nor is the delay of the employer mandate on the front of the constitution. the framers could have prescribed to m believe that the
president execute so why do they have faithfully and take care and i would have to disagree with professor rosenkranz and turley about their explanation of this in the original meaning of the clause. they were taking pains to clarify the president's duty is to implement the law in good faith and to exercise reasonable care with the word take care in doing so. the fact is that scholars on both left and right can' concors broadly worded phase to handle with fidelity to all including indeed the constitution. as a legal and practical matter, the president's phase in of the employer mandate and other provisions as well with the job description so is the program for the childhood arrivals. i'm not going to go into that now but the congressman
explained why that's true and in my written statement, we do so also. i have to say one quick word about what i know my good friend and frequent partner michael cannon is going to focus on, and that is his theory and he gets a lot of credit for picking it up and marketing it. his theory that the tax credits and subsidies must be available, that they are on the available to americans who have been living in states that have set up their own exchanges. i can't go into detail on this. in the questioning perhaps i will be able to do that, but if
there is a few phrases in this enormous statute that have to be construed in a way that would stiff millions of people who are the intended beneficiaries of the act -- m.i. over? the fact is that it's not the correct construction and we will be able to talk about that further. >> thank you mr. lazarus. mr. cannon, welcomed. >> welcome. >> [inaudible] >> open microphone level closer. >> i want to start off by saying that the concerns sharing with you today are not partisanship and it's no secret that i've worked for public and. i myself am not a republican. i am acutely aware of the last publican president's failure to execute the law faithfully. in 20080 i. supported neither party candidate i actually preferred barack obama to his
opponent in part because he promised to curb such abuse is by the executive grade i praised him for doing more than any libertarians to celebrate equality and the freedom on the nations for african-americans and gays and lesbians. it commends the president shall take care that the law be faithfully executed. guilty to this duty as it is essential for maintaining the system of governance and public order. the law is a reciprocal between the government. the public order acquires the government to remain faithful to the wall as much as it requires the citizenry to do so because of the actions of the government officials leading the citizens to conclude that those officials are no longer meaningfully bound by the law and the citizens will rightly conclude that neither are they. since he signed the patient protection affordable care act into the law, president obama has failed to execute but faithfully.
the president has unilaterally taken the taxpayers dollars and made them available in favor to them from the authorized purposes towards the purposes for which no congress has ever appropriated funds. he has repeatedly written the statute to spend taxpayer dollars that no law authorizes him to spend and they expressly forbid him. he's unilaterally issued blanket waivers and requirements that doesn't authorize him to wave intand at the same time declineo collect taxes that they order him to collect and he's unilaterally rewritten the statute to impose williams in texas that the ppca and billions of dollars in debt that the statute forbids him to incur. he's unilaterally rewritten to allow health insurance products the statute expressly for bids and he has encouraged the consumers, insurers and state officials to violate the law that he himself and acted and he's taking the steps for the
purpose of stalling the action by the people's representatives in congress. president obama blank unfaithfulness is no longer accurate to say that the statute is the law of the land. with respect to health care at least of the law of the land is whatever one man says it is or what the divided congress to let him get away with saying. what he says may contradict federal statute and comfort the benefits on favored groups or taxed the favorite groups without favorite representation. it may undermine the planning done by millions of individuals. it may change from day to day. this method has more in common with monarchy than with democracy or the constitutional republic. the president's failure or any president failure to honor his constitutional duty to execute the law faithfully isn't a partisan issue. the fact that they violate the duty is caused not for solace but cause for greater alarm
because the guarantees the president for both parties will replicate and even surpass the abuses of their predecessors as payback. the result is democracy and freedom will suffer no matter who occupies the oval office. thank you and i look forward to your questions. >> i will begin the questioning under the five-minute rule. often times the legislative process of negotiation and about give and take between the competing interest in compromise. how does the president creating amendment suspending and ignoring acts of congress that will do will affect the voters latest process. >> that is a great question mr. tremaine. the short term effect is an aggrandizement of the president but predictable long-term effect is legislative gridlock. there is every reason to believe congress will not be able to reach the compromises if they know that these compromises can be unilaterally returned the white house.
so every reason to believe congress will grind to a halt under the threat that president obama will rewrite it anywhere. >> could you argue that it's happening right now as you try to work out differences between the various perspectives on a piece of legislation those that may be asked to get something they think the president agrees with them on mike say why should i give up on that because they n get a change done unilaterally by the executive branch. >> you could imagine such a negotiation about the effective date of obamacare. after the statute is passed via decide what the congress wants. gridlock is almost quite a predictable result. >> professor turley, the constitution of the breed of power isn't simply about stopping one branch of government from usurping another. it's about protecting the
liberty of american of concentrated government power. how does the modification of act of congress affect the balance of power between the political branches into the liberty interest of the american people? >> the danger is quite severe. the problem with the president is doing is that he spoke simply posing a danger to the constitutional system. he's becoming the very danger that the constitution was designed to avoid. that is the concentration of power in every single branch. this orbit that the three branches exist in is a delicate one but it is defined to prevent this type of concentration. there are two trends going on that should be of equal concern. one is that we have had a radical expansion of presidential powers under both president bush and president obama. we have with many calling imperial presidency model of largely unchecked authority and
in that we also have a continued rise of the fourth branch. we have agencies that are quite large that issue regulations the supreme court said recently they could define their own or interpret their own jurisdicti jurisdiction. >> mr. cannon come you argue to the president is going to spend millions of dollars congress did not authorized to provide a premium assistance tax credits and subsidies on federally run health-care exchanges. could you please quickly walk me through by the president's plan to provide premium assistance on the poorly run exchanges is indeed illegal? gimmick we call those tax credits that in fact they are governed to subsidies and government spending at the statute is quite clear it was purposeful when it said that those premium assistance tax credits would be available only to people who purchasing health insurance through an exchange established by the state under
section 13 of them. that isn't just one mention of the phrase. it's mentioned several times explicitly through cross-references and the statute is very tightly worded and it makes it clear those tax credits are available only if the state establishes an exchange itself and if the federal government established a federal fallback exchange those are not available because the exchange was under section 1321 and as the obama administration has acknowledged in the regulation. >> professor rosenkranz comes on the fenders have asserted that the actions were an exercise of prosecutorial discretion. are these assertions correct or is there a fundamental difference between the prosecutorial discretion and many of the president's unilateral actions? >> there are many cases i agree with the professor turley to prosecutorial discretion is one
thing but the wholesale suspension of the law is something else and that is what happened under obamacare. likewise on the immigration context of a case-by-case prosecutorial discretion is one thing but if they get policy that will apply to 1.8 million people, that is quite something different. this is a scale of decision-making that isn't in the traditional conception of the prosecutorial discretion. >> the president has taken it a step further and has actually given legal documents to the people in that circumstance well beyond simply deciding not to leave them there and not prosecute them but actually enable the violation by giving them documents to help them avoid the problems from the country that they are not present.
>> [inaudible] with the witness to his left and i would like to ask if he could pick up that line of discussion. we are pleased that you are here because there has been so much excitement or excited rhetoric about where president an the prd his administration are going. i've never heard of this level of hypothesizing where this is all going to take us and i think it is considerably over the top. i'm glad you are here today and i would ask you to respond, please.
>> thank you very much mr. conyers. of the theory that the affordable care act actually intended to have the very benefits the law was passed to create to create the core constituency of needy people that was the target of the law my friend mr. cannon came up with is something that no one on either side of the idol had anything about when the law was passed. he and some other clever colleagues came up with a theory at least nine months after it was passed into the factors -- and they were happy that they have done so and they've bloated that their theory adopted by the courts would drive the stake through the part of obamacare. that's their words that it would sink the aca and threaten its
survival. in fact however it does not universally acknowledged the purpose of ensuring access to health insurance for all the millions of americans who cannot afford it. to the contrary, mr. cannon and his colleagues have a few isolated words in the context and ignore the rest of this huge statute. but if you look at the entire statute, the whole text not just the isolated phrases mean the purpose of the statute and all americans who are eligible for the benefits to enable them to afford insurance will be able to have them whether or not they reside in the federal exchange or state exchange. one quick thing and that is
mr. cannon and his friends soon realized that the reading of the text didn't make sense so they came up with an even more head scratching claim and that is the sponsors intentionally and purposely designed it to achieve this self immolation and mr. cannon just referred to that argument. so what this means, it means that the aca sponsors actually intended not only to stiff the very people that they wanted to benefit but it actually means that they intentionally handed over to the allies in the state capitals the state that he talks about and invited them if they chose to do so to drive it through the heart of the aca. for your theory to make sense,
one has to imagine senator baucus, senator murray, senator reid, senator schumer getting together in a room off the senate floor and saying i know what we are going to do. we are going to enable the republican governors and state legislatures to decide that it won't work in their states. unsurprisingly there isn't a single piece of evidence in the record to support this notion and what is really going on is having politically lost in the supreme court the opponents in this theory were hoping that the courts would bail them out once again it if it is a big political left. i don't think that the courts are going to do that. >> i would ask unanimous consent
to put in the record this report entitled obamacare blank single most relentless antagonist distinguished witness here tod today. >> can i ask one quick question. is the republic doing reports or articles? reports or articles? i can tell you. you mean on the one i'm introducing? >> yes, mr. ranking member. i have newspapers and offense put in the record but i just went and characterized not as a report but as they have a substantive backing. >> i've never been asked this question before. only because i'm often called president antagonist and i'm not
sure that a report that left me out would be justified as factual. without objection, the new republican article entitled obamacare blank single most relentless antagonist and i'm sure both the author of the theory with regard to the federal use of the funds and the gentleman from california would both be proud to have the article in the record therefore without objection we will make it a part of the record. >> i'm sorry to disappoint my friend whose name isn't even mentioned in this article. the chair recognizes the gentleman from texas for five minutes. >> thank you mr. chairman. in my judgment, the president has ignored the calls and field to enforce them, undermined them and changed the laws contrary to
the constitution. it seems to be the president is trying to meet the clause by the executive decree in the news conferences. but in a 2012 interview the president said that he could not, quote, wave away the wall fothat the congress put in place and about, quote, the president doesn't have the authority to simply ignore congress and say we are not going to enforce the law that you passed, "-end-double-quote. yet it seems to me that that is exactly what he has done. i would like to address my first question to the professor and director cannon. i think i know their answer. but the question is do you think the president has acted contrary to the constitution? you voted for him and you see that he's even crossed the constitutional line into the legislative process is not an option in the president has done
is dangerous. so, i assume that your answer is yes. the president has acted in contrary. >> and i would also add this was an issue that the framers considered. 150 years before they drafted on the provision we shouldn't change much in the committee. the framers were very familiar with it and i think that is what gave light to this. >> i would say some of them are close cases but some are not. the suspension of the law for example is the paradigm case of the violation, yes. what can congress or the american people do about it and how can we restring the
president from acting in a way contrary to the constitution that is the most difficult question we face. i have the honor of representing members of both parties of congress in going to the courts that are very hostile towards members and for example when they believe the violation of the constitution has occurred. they would solve many of the problems. the members could go to the accord and raise violations of the constitution that would be -- it would make them go away but he would know that the administration has made references and i think that there is support on this that they would withstand so we have something the framers would have never but you can have violations of the constitution yet literally no one can raise the issue successfully with courts for review. >> professor rosenkranz. >> i'm not sure that i agree
with professor turley on the standing question. it is quite true that some of the violations may not be amenable to judicial review. ultimately though, that check on the constitutional violation is the election so this is the sort of hearing that we ought to be having and that the electorate ought to be paying attention to for the next round. >> rector? >> there is little that congress can do if it is divided over the president's abuse of his authority. but unfortunately comin commandr as the traditional revenues go it is very difficult for them to challenge an action of the president when he relaxes an obligation on a certain party. it's much easier to find those that have standing to challenge the action that imposes the due obligations that the legislature has never approved. that is what has happened in the case of the president issuing
tax credits through federal exchanges because those tax credits will trigger tax penalties on employers and individuals in those 34 states that have established the exchange and a number of those employers and individuals including the two states attorneys general in the 15 indiana school districts and a dozen or more private employers and private citizens have filed suit. one of them will have disasters that here in washington dc said there is a remedy for some of these abuses. >> thank you director. i yield back. >> thank you mr. chairman. mr. lazarus, professor rosenkranz has written in "the wall street journal" op-ed pieces abraham lincoln wouldn't
approve of the delay and the employer mandate and can extend the habeas corpus. can you comment on the claim that they would disapprove and what about the conscientious decision of habeas corpus by lincoln? >> i read it up with some amusement. i think president lincoln would chuckle between suspending the writ of habeas corpus and the most fundamental guarantee freedom in the whole system is a temporary delay in the implementation of regulation as a part of a very complex law which is something that happens under all administrations and has to have been sometimes for practical reasons and why we are making a big buzz about this in a constitutional matter.
it doesn't do justice to your position. >> i have too little time for two little questions. let me start by saying that i generally in many respects agree with professor turley about the growth of the presidency over the last half century or more. i am particularly concerned about the abuse of the war powers by many president and the state secrets doctrine for the enforcement of constitutional rights and a surveillance under bush and obama and the patriot act, warrantless surveillance in the bush administration and things like that. i must say that everything we are talking about today is laughable in my opinion in the context of these problems.
i am particularly struck by the overwhelming hypocrisy of the claim that the president in interpreting the law and in refusing to interpret the law in the way that would drive a stake through the law is not enforced. it's amending that he and force the law in the way that the person making the demand is not taking care and must be painfully executed. it's to the president to interpret the law within the boundaries that he has in a way that makes practical implementation of the law to fluctuate the will of the congress and the fact people that want to sabotage the wall and for if no it not to work ane no bones about it save he is not obeying this particular sentence in order to make it work. talk about hypocrisy. let me ask a question. have you made this statement i want to ask mr. lazarus the following question.
the judge in the district of columbia circuit recently in the decision by judge kavanaugh wrote the following. the executives also tutorial discussion illustrated the key point of the separation of powers. one of the greatest unilateral powers the president possesses under the constitution at least in the domestic sphere of the power to protect individual liberty by enforcing the private behavior for precisely the power to seek charges against violators of the federal law would pardon the federal law. this would seem to support the broad discretion in the executive branch who said enforcement is therefore nonenforcement priorities of judge, immigration and other law. is it not related to the alleged violation of the constitution by the president sitting immigration enforcement priorities outlined earlier to. >> thank you congressman. the judge who was one of the
most respected and conservative judges on the federal bench, but he said here is absolutely correct and the principles that he's enunciating are precisely why according to face with the issue is undoubtedly to uphold as perfectly compatible with the president's discretion and the program that my co- panelists here is a gross violation of his duty. it's an important decision about a year and a half ago, the five to three majority including justice kennedy who wrote the opinion behind the teacher of the removal system on the immigration area by the immigration officials.
the initial matter he must decide whether it makes sense to pursue the removal out on the beat cobol and they went on to say that the president of the immigration law that forces the media concern and another as workers try to support their families likely pose busting wir than alien smugglers were aliens who commit a serious crime. and that's very recent decision like the judge kavanaugh blank remarks is completely at odds with the critics interpretation of the president enforcement in the country. >> if mr. rosenkranz agreed with the judge kavanaugh unanimous consent for one additional minute so he can answer that, mr. chairman. >> without objection to the general will have an additional one minute. >> judge kavanaugh said the president may not decline to follow the statutory mandate or prohibition simply because
policy objections. the congress appropriates no money for the program the executive officer cannot move forward. but absent the claim of constitutionality that haven't been rejected by the final court order, the executive order must abide by the statutory mandate and prohibitions. the judge kavanaugh blank right side -- >> the question was delay the. thank you. >> the chair recognizes the gentleman from ohio for five minutes. >> thank you mr. trabant. mr. rosenkranz and mr. cannon, mr. lazarus commented upon the previous writings that you were not afforded the opportunity to respond. did you want to take a moment to do that? and i will go to you first mr. rosenkranz. >> thank you very much. there was a comment about an op-ed i wrote in "the wall street journal" comparing lincoln blank suspension of cbss corpus with president obama blank suspension of obamacare.
of course i agree with mr. lazarus. they are not the same as obamacare. but what is striking about the comparison is that president lincoln welcomed the involvement of congress. welcome to the congress to ratify what he had done to pass the statute justify eating. he was concerned that they had overstepped the constitutional authority and welcom welcomed cs ratification of its action. president obama by contrast actually threatened to veto the statute that would have ratified his action. in fact i think is a startling contrast i was trying to bring out in that op-ed. ..
they have offered despite two years of people like me raising this issue with the irs is trying to do is illegal. they have yet to offer one shred of, when statutory provision or one shred of evidence that supports their claim that the statute authorizes tax credit through exchanges of established by the federal government under section 1321 or that it was congresses intent for the statute to authorize tax credit through those exchanges. so there's a lot more to be said about all of this. if i make would like to respond to some of -- >> let me cut you off at this point. i only have all bit of time.
mr. turley, you mentioned something along the lines of your concern that president obama is becoming the very danger, separation of powers was meant to prevent. and mr. lazarus mentioned earlier that, i don't know exactly who he's referring to, but some are hyperventilating about this whole topic. would you want to comment on both of those things, either in relation to each other or not? >> mr. lazarus maybe responding to my labor breathing with the flu, but if not, my testimony -- the reason i think there's this disconnect in our view, is we obviously read history differently. i view the constitutional convention is quite clear. the framers were students of history, james madison. 150 years before they took a pen and wrote out this clause there was a fight with james i about
what was called royal prerogative. very similar to what president obama is claiming, the right of the game to essentially stand above the law to reform the law to the kings views. i'm not saying that president obama is a monarch but that was the issue that gave the impetus to this clause, in my view. the language did not change very much. later, people like benjamin -- the dispensing power of the president. he wrote a very good paper about when the president can refuse to enforce laws. he basically said he could only be done -- they could only be done when there's intrusion upon executive power. by the way, that's was involved in the myers case we talked about, referred to earlier. or if it was clearly unconstitutional, and that second issue, established had to be very, very clear so the president does not exercise that
authority. this is a i would respond. we don't have to hyperventilate to look any problem and take it is not about who the president it today or what he's trying to achieve. what is lacking from the other side is any notion of what the world will look like in a tripartite system if the president can literally ignore any deadline, a major piece of legislation, exclude whole classes of people. the question is what is left that madison described? i would suggest what's left a very dangerous and unstable system. >> thank you very much. my time is expired. yield back. >> the chair recognizes the gentleman from virginia for five minutes. >> thank you, mr. chairman. mr. lazarus, first of all, on the aca it seems to me absorbed by the federal exchanges -- absurd -- for all intents and purposes deserve as the state exchange, state marketplace, that would be, it would be
absurd to interpret that they are there for all intents and purposes except for the purpose of the bill, which is the subsidies. is that right? >> is obviously absurd, congressman scott, and, therefore, to say that the president is violating his duty to see that the law is faithfully enforced because he interprets the law in a way that is consistent with his purpose, and consistent with the known objectives of the congress that enacted it is also it seems to me quite absurd. >> thank you. congressional research service had several examples in prior administrations for the irs, delayed enforcement despite a congressionally mandated effective date. can you say a word about the
president's power to delay implementation of provisions, particularly when compliance and was logistically impossible to? >> yes. and i think actually despite the sparks that are flying around this room about the president's action with respect to the affordable care act, these principles are quite simple. several people have noted that the president cannot refuse to enforce a law or policy reasons. obviously, correct. certainly correct, it is also obviously not what the president is doing. does the president have policy objections for the affordable care act? i don't think so. facing in the enforcement of major statute like the affordable care act or the clean air act, or other laws, certainly laws that the epa administers, ms. statutory deadlines very, very quickly because it simply is statistically impossible to prudently implement them in
accordance to those deadlines. this is just a tempest in a teapot. >> thank you. -- >> and if i can answer, said one for the thing about your first question, congressman scott. we should understand what the consequences of mr. gannon's interpretation of the aca would be, and why i they would drive a stake through the heart of the aca and every federal exchanges state. it's not just that it would keep maybe 80% of the people who are expected to enroll for insurance on exchanges from being able to afford the insurance. 80%. so it would really record that part of the program. but actually it would probably just cost the entire individual insurance market, even for people who could afford insurance, to implode because it would so screwe screw of the acl calculation. so it really would drive a stick
to the heart of the law in the states, and to say that congress intended pun intended to do that, i don't, it's just pretty hard to argue. >> thank you. in november 1999, 28 bipartisan members of the house wrote the attorney general a letter and expressed concern that ins was pursuing removal in some cases quote when so many other more serious cases existed. how do you set priorities -- as the president can set priorities and enforcement when there's obviously not enough money to enforce each and every provision for the letter of the law, how do you set priorities if he can't, can't enforce each and every provision? >> the answer is the essence of
the executive responsibility to do just that, and i might note that i think that president obama has increased the number of deportations to the consternation of some of his own supporters, a very great deal as everyone here i'm sure is well aware. and my understanding is just increased to 400,000 people a year which is to or times as many as the number was around 2000. the reason for that is that's all the funds that congress has appropriated. >> my time is about to expire. i wanted to get in one of the question. can you talk about the obligation of the president to defend defense of marriage act replace it to be unconstitutional? >> yes. i think -- i agree that the president should only very, very rarely and with extremely good reason declined to defend a law
in court. and i've written about that, and i think it's hard to fault with the president did in the case of doma. he concluded with very good recent there was simply no argument that could justify, justify doma. he notified the congress of this decision. he continued to enforce the he invited congress to intervene in litigation to present at that point of view. and ultimate the supreme court vindicated his judgment. so it seems to me it's very difficult to complain -- to blame everyone on all sides of these debates, and in both parties agree is that it contemplates the president may decline to enforce a law which he concludes in a responsible it is unconstitutional. >> the gentleman's time has expired. spent i ask unanimous consent to
introduce into the record the letter i refer to. >> without objections order. the gentleman from california is recognized. >> thank you, mr. chairman. mr. lazarus, i hear you on the president deeply believing in his policy, his signature legislation, the affordable care act. but he deeply believes, i'm sure, in every item that he wants appropriated from congress. but two years later it expires, right? and two years later he can't just spend money unless he comes back to congress for more money, isn't that true, that it's implicit in the constitution? >> i apologize but it don't really understand the question, congressman. >> in the president's authority has run out, he must come back to the congress for new authority. in the case of the affordable care act, things which were not in the law have gone wrong. this act, this 2400 pages that had to be passed and then read,
as flaws in it and these are fatal flaws if not corrected. isn't that so? including the absence of an answer to how do you subsidize if, in fact, a state chooses not to do it? mr. rosenkranz, if the law does not give the president authority and something goes wrong, i'm presuming that the framers always intended that you would come back to the congress to resolve that need for additional authority. that it happened, as earlier abraham lincoln came back to have his suspension of habeas, attempt to have it ratified because he knew he didn't come even if he did by executive order he had limited jurisdiction. he wanted to have a codified. i think a good example would be macarthur the promise in war, they came back with a recession act in order to undo some of the
promises that were made in war to the filipino people, and so on. is there anything in the affordable care act that is different than any other time that something that's not in the law occurs that's outside the law that you come to congress and say, i need authority to ask? please. >> i quite agree. it's quite startling that this congress, this house offered to ratify exotica what the president wanted to do, actually passed a bill which would have delayed the implemented exactly as the president wanted. and far from welcoming this, the president actually threatened to veto it. to me that's quite startling. >> i want to go through a couple things i think we can all agree on and to do something mr. turley said. would you all agree, without further adjudicating, that when andy jackson heard from the u.s. supreme court that had no right to move native americans out of their homes to oklahoma, and he
then did it anyway saying essentially to the supreme court, you have no army, therefore, i'm doing it, that he was outside his constitutional authority? you at all agree to that? let the record show i had all -- all shaking his. when richard nixon tried to withhold his tapes which were essentially evidence of his complicity in the watergate and the cover-up, and the court ordered the states even after he fired a number of people excellent, you would all agree that the courts action was appropriate, that there was a crime, it went to the white house and ultimate led to richard nixon resigned. you would all agree it was appropriate, i assume, for the court to intervene in this constitutional dilemma of a president who didn't want to turn over evidence related to describe. would you all agree? i would. >> good. >> yes state in which you all
agree, maybe, maybe not, that when president bush asserted in the harriet miers case, as was referred to earlier, when the judge essentially said congress has a need to get people in front of it, whether that person speaks were not, ultimately, and this is mr. conyers case, that, in fact, the court intervened and said yes, i have a right to decide and you must produce witnesses. you would all agree that was a good balance of power decision by judge bates, is that correct? in george w.'s case. okay. then on what basis, on what basis does president obama say he's above the law win in "fast and furious" he asserted that the court had no right to even decide whether or not a lawfully delivered subpoena should, in fact, be complied with?
and in this case, judge amy jackson has ruled that yes, she has the right to decide it. the question for all of you is, if we cannot go to the courts, as congress with our standing after a contentious vote, if we cannot go and get the court to decide the differences between the two branches, that, in fact, as some identified friends have asserted, the imperial presidency is complete. isn't that the most essential item that is, in fact, we don't have standing, if, in fact, the court doesn't have a right to decide, then executive power is essentially unlimited? mr. crowley, you have written on this. >> may i answer? >> i would ask -- >> without objection the gentleman is granted one additional minute. >> i agree that's part of the problem here, that we created a
system by which presidents can assert powers that others here is unconstitutional. i think president has in this case but in the department of justice proceeds to try to block any effort of judicial review. this administration has been very successful in that, largely on standing grounds. and so there's no ability to challenge these things even if they're viewed as flagrantly in violation of the constitution. i would also add with reference to your earlier point, one of the things the court says with those of us represent members go to the court and say the president is acting unconstitutionally, we hear this mantra from the judge is saying you have the power of the purse. in this case is the power of the purse being violate a? if hundreds of minutes of dollars in essentially shifted in a way that congress never approved? and we have in many ways the perfect storm. even the power of the purse is often cited by the court really doesn't mean much if the president can just shoot fund unilaterally without any type of review. >> anyone else?
>> i guess the only thing i would say and i don't claim to be an expert on standing, as i stated i more interested in standing of course which was the question. does the court, does the federal court have the right and obligation to make those vital decisions on essentially balance the power? and if not, aren't we didn't? >> two quick things. first of all, the courts did not have authority. have authority under the constitution to cases and controversies, and the courts did not have constitutional authority to decide matters that are not cases of controversy. that's why we have standing rules to the second thing i would you say, congressman -- >> so confused old to comply with a subpoena would not be a problem, therefore nixon should never have resigned because his tapes never would have been discovered? >> i don't think that that follows. >> he didn't turn them over without being ordered to.
>> he might have. >> mr. rosenkranz, final? >> some of the standard questions may be tricky, but again the ultimate check on presidential law is elections and in extreme cases engagement, but elections by really should be a check on -- >> so when the irs prevents the word from getting out they infect thwarinfact thwart the e, therefore, elections are no longer the final answer, are they? >> to the extent that the irs targeting is an example of discriminatory enforcement, you're quite right. it's actually the most corrosive form of -- it does cast on everything that follows. it cast doubt on elections that followed. you're quite right. >> thank you, mr. chairman. >> the gentleman from georgia mr. johnson, is recognized for five minutes. >> thank you, mr. chairman. for holding this very important and significant hearing today.
get my notes squared away. this hearing is pure political theater. it's a comedy but the audience has seen it so many times now that it's no longer funny. in fact, this hearing is an egregious waste of this committee's time. especially when one considers all of the legislation that remains unaddressed by the house, like immigration reform. the senate has passed comprehensive immigration reform by the speaker of the house continues to refuse to bring the issue to the house floor. yesterday, as house members walked down the capitol steps on their way home from an exhausting one hour workday, i watched as most members had their heads down. they wanted to avoid eye contact with the 60 or so young people standing at the foot of the steps in the cold wind. they had their hands clasped
together, the young people, in prayer. their prayer was on behalf of those families and immigrants that are being destroyed as a result of this nations failed to pass comprehensive immigration reform. they are per was a simple one. that speaker boehner allow the house to vote on comprehensive immigration reform before the end of this session of congress. the spectacle of those kids shivering in prayer in the cold last night could not be avoided by the members of congress. though most ge capped their heas down, probably in shame as they hastily escaped to the safety of their cars. i suggest that this committee held a hearing on the question of why, despite immigration reform being supported by a majority of americans, having been passed by the senate, and the president having said that he will sign it if it ever gets to his desk, why is it that we can't bring that measure to the house floor for a vote?
mr. chairman, this do-nothing house has only seven days left, seven legislative days left before it adjourned for its well-earned year in holiday. the same republican party that has voted 46 times to repeal the transport is today, ironically, complaining that the president is not implementing the law quickly enough. but at its essence, this hearing sadly is simply a continuation of the majorities overwhelmingly obsessive and insatiable desire to kill the affordable care act, which will enable 30 million americans to have health care. 32 million americans. 46 times they tried and failed to kill it. the result of this hearing will not change the fact that obamacare is the law of the land. and since today we're hearing testimony on the use of executive authority, let's not
forget that they keep authority for congress is to check the power of the executive, is its article i authority over appropriations. and by the way, this congress has not yet passed a budget to congress continues to shirk its constitutional duties in the article i, funding the government through short-term resolutions is not leadership and the american people deserve better. so after holding yet another hearing to obstruct this administration, perhaps this committee can also take up the question of congress' duties under article one any hearing entitled the congress' constitutional duty to appropriate funds. now, as far as the affordable care act is concerned, the individual mandate is constitutional. it will reduce costs, prohibit discrimination against patients with preexisting conditions, and extend coverage to the uninsured. it will extend coverage that
32 million americans. the individual mandate is key to this legislation being successful. it would ensure that millions of americans will not have to worry about being denied health care because of their current medical condition or fear that the coverage will be capped if they get sick. to the members have served longer than i on this committee i invite you to look back at 2003 when the republican-led congress enacted the law creating the medicare prescription drug program. most democrats voted against the bill in 2003. the program is also very unpopular with most americans, but democratic members worked hard when the program was implemented in 2006-2007 to make sure that their constituents received the full benefits of the program. it's unfortunate that the republicans today are not doing the same thing. mr. lazarus, this is not the
first administration to temporarily postpone the application of new legislation. how have prior republican and democratic administrations treated the implementation of statutes with statutory deadlines become unworkable? >> objection. one additional minute spent all try not to take the whole minute. the answer is that prior administrations have done just what this administration is doing, because they have to. i quoted president bush's secretary of health and human services, mike leavitt, in saying that the president current decision to delay the employer mandate was wise. and he said that come in inside his own experience in facing them -- facing in the drug benefit program. the environmental protection
agency under all administrations faces statutory deadlines that cannot be met. we all know that. and the bush administration was often chastised by environmental groups for missing statutory deadlines, and the environmental community charged, and charged in court in fact that the bush administration was using delays as a cover for simply extending the law. i don't know what the basis for that was or was not, and, of course, again, if a president refuses to enforce a law for policy reasons that is a violation but that's not what is going on here. >> thank you. i yield back. >> the chair recognizes the gentleman from iowa mr. king, ma for five minutes. >> thank you, mr. chairman. this is been one of most interesting i concede your in my more than a decade on this committee. as i listen, i listen to mr.
lazarus, and often your dialogue goes to the policy effect of this rather than being tied to the constitutional language or the statutory link which although he of referenced both. and countries as to what you think limited powers of the president might be, given you granting such latitude to amend obamacare, extend the statutory deadline because it conforms with the broader intent of the law and governance to the intent of congress that it was intended to allow for the application of taxes and the distribution of refundable tax credits, even though mr. tenet testified and said that's not in the section that applies. so from a broader perspective could you tell me how you think the president's powers are limited? and maybe just ask, does have the power to collect taxes speak was first of all i think the present powers are limited by what the statute provides. and i think i said several times
i agree entirely that a president cannot simply refuse to apply or enforce a law for policy reasons. [talking over each other] >> the president is obligated to face in a new law is i'm sorry, i hear that, but i'm trying to get you to constitutional limitations that you think the president has. let me just bypass the enumerated powers with the exception of. what would happen -- i'm concerned about mr. kerry's statement that we get into a pretty dangerous area here if we don't have constitutional limitation. what if we just linked to the end of this thing? what if the president declared war? what did he assume that authority? what is the recourse been -- what would you counsel be to this congress if we objected to such a thing? or even if we objected to a purely constitutional grounds and we thought it was a good policy decision and he vetoed our resolution to declare war? that should get us to the bottom of this discussion.
>> the president does have the authority under the constitution to declare war. the congress does. the congress has not been enormously bigger to exercise that authority in my lifetime. but that's a very publi compensd subject and a subject of -- >> and two, mr. lazarus. >> between congress and executive branch there is a war powers act. there's dispute about how -- >> let me pick it up from there. i'm militating this point that if there's an incremental march, the president overreaching its constitutional authority in my opinion, i think the opinion of many people on this committee in this room, he could assume any of the enumerated powers and the recourse that congress would have all the way down to the declaration of war, and the recourse that congress would have would be passed a resolution of disapproval, or we could shut off the funding to the power over the purse and the president has already assumed the power of the purse. so the next recourse is go to the courts, and if we find out
that the courts do not grant stand for members of congress, then the next recourse is i think as mr. rosenkranz said, the word we don't like to say in this committee and i'm not about to utter in this particular hearing, about someone to come to is ask mr. cannon this question. the frustration of this balance of power, because of the dishes but for the various branches, the competing branches of government that, and argued the founding fathers envisioned that each branch of government would jealously protect its constitutional power and authority and that static bounds that would be there would be the definition of a brighter line between the three articles of the constitution. but what's your suggestion on -- what been finally resolved the i know we said elections, if the elections are affected by decisions of the executive branch, what do the people who are the final arbiters of this definition of the constitution? >> to me are -- >> i'm asking mr. cannon. >> i think it was to meet him
and get asking if there's no remedy, what did the people do. to what particular sort of abuses are you -- >> anyone on the list of the enumerated powers, for example, any with the question of war because that's the starkest of all. >> there is a procedure in the constitution that allows peoplee people to amend the constitution without going through congress. that is another method where the people can try to restrain executive spent you suggest then if that should happen why would an executive with such disrespect for the constitution today on an amended constitution from the constitutional convention? >> that is an excellent question. >> i would like to turn to mr. turley. he's had a chance to reflect upon the earlier statement of the situation that we are in, and where this goes. we need to look into the future and ask unanimous consent for the additional minute to ask each of the witnesses to tell us
what does america look like in the next 25 years if we have executive upon executive builds upon this continual stretching or disregard of the constitutional restraint and a disrespect for article i? start with mr. turley and speeding you may answer the question as quickly as you can. >> i really have great trepidation of where we're heading because we are creating a new system here, something that is not designed. we have this rising fourth branch and a system that is tripartite. this center of gravity is shifting and that makes it unstable. and within that system you have the rise of the presidency. there could be no greater danger for individual liberty. and i really think that the framers would be horrified by that shift because everything they dedicate themselves to was creating this orbital balance. we lost it. >> as i said before i think the ultimate check is elections, but
i don't think you should be hesitant to seek the word in this room. a check on executive lawlessness is impeachment. and if you find that the president is willfully and repeatedly violating the constitution if, on your hypothetical he were to declare war, i would think it would be a clear case for impeachment. >> well, i guess this is the first time i've heard anyone complain about the possibility that this president is going to unilaterally be clear war, and the overaggressive about that. i don't think that's much of a description of his foreign policy. but congress has lots of power if he chooses to use. the power of the purse is an enormous power, and i think if i were you, i would find ways to
influence policy using the congress' powers, which were not doing. for example, we are hearing complaints about the president's actions do not enforce deportation against a certain classes of immigrants. you know, instead of complaining about that, this committee could hold a markup and report of a comprehensive immigration reform bill, send it to the for -- >> mr. lazarus, you are -- not you but the question is too inept minutes over. so you can do this by giving us advice of what our legislative agenda should lock like an answer the question, i would be grateful to you. >> that is an answer. i think on this has a lot of power and it should use it. >> and i assume that the failure to exercise is also an exercise of power. the failure to act. mr. cannon, would you like to briefly -- >> maybe mr. lazarus knows better than i do how many bombs
the president has dropped before that becomes more. i don't know the actual number. but i think what mr. king was getting at is, there is one last thing to which the people can resort to the government does not respect the restraints the constitution places on the cover. abraham lincoln talks about our right to alter our government or our revolution right to overthrow it. added a certain something that no one wants to contemplate, as i mentioned in my written and might deliver testimony, if the people come to believe that the government is no longer constrained by the laws and they will conclude that neither are they. that is a very dangerous sort of thing where the president to do to wantonly ignore the laws, to try to impose obligation upon people that the legislature did not approve -.
>> thank you, chairman. professor lazarus, made a statement about, at least i invert about this being political, i want to assure you that i left a lucrative law practice to come to congress in 2011 because i continually see the eroding of the constitution. is what protects us. so i'm not here for the pomp and circumstance, for the notoriety or to promote my career. i'm here because i'm concerned about the future of my children and the constitution to want to make that perfectly clear. number two, you may become it, and again, i invert that -- i inferred that the intent, intent wasn't an issue or was an issue in part of the affordable care act. and i don't want to get in to
the details of that but i find that interesting that you made intent the issue when the speaker of the house at that time, nancy pelosi, said we have to pass it before we know what's in it. okay? so let's get real about this. now we are finding what is in it. well, what is not in it and i hear consistently from a constituent, small businesses how this is destroying them. let me be the first to say that i think everyone needs health care, and those who cannot afford it, we they can afford it have helped those individuals. i firmly and truly believe that. and so with that, i'd like to read you something. i'm not a constitutional expert but i love constitutional law. i follow constitutional law ad nauseam. is asked by way. why. i'm always thought about constitutional law. in newspapers 51 said -- in
federalist papers 51, what is government itself? degrees reflection on human nature. and it went back to refer to the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means, the personal motives to resist encroachment of the others. and the government was set up to specifically prevent that. and the problem is, i am sitting here, not only in this administration, but in the previous administration and several administrations, the executive branch is taking for granted that they have exclusive power over issues that they don't. and i'm concerned about that. and what do we do to prevent that? where does it stop? here's my question. we've seen the president, and
past presidents, inserting the war powers act which i think violate the constitution. in this administration, stopped enforcement of -- detaining illegal immigrants, stopped enforcement of drug laws. i know that because i'm a prosecuted. i saw it. stopped enforcement of mandatory sentencing. stopped parts of obamacare. the benghazi issue. the ag being held in content. irs is -- how many more things do you think has to occur? i'm thinking like a prosecuted. one of those in and of itself is not enough evidence. two of those in and of itself is not is not evidence. the violations that i see, that which is listed, and there are many more, i think is enough evidence to start asking questions, where do you see the line drawn in what i've cited here as enough evidence to start asking questions about
presidents exceeding their power? >> well, first of all, congressman, i can't address all of the speed i don't expect you to. >> but many of those things -- let's be honest about it, our honest disagreements about policy, or about how to interpret the law. spin to your interpretation of the law -- you are saying, you don't agree with way perhaps i'm interpreting the law so you say i'm wrong. >> no. just to finish the sentence. raising the specter of some kind of grotesque presidential assertion of unwarranted authority, it's just not based on fact. mr. cannon, for example, strong pleased his interpretation of the law which would think obamacare in his view, is correct, or i guess he does. the president disagrees with it. the president has very good
reason to disagree with it. so to say that he's not taking care of the law-based -- >> let me replay my time here. when laws are enacted, they should be followed to the letter, and it's not being done. i've heard you raised the issue of, well, prior administrations have done it. to me, that's no excuse not to pursue this from the congressional standpoint. because whether it's obama, and whether it's war powers act, whether it's getting into iraq, these are all issues are deeply concerned about. so you criticized and, you know, you've made some i think remarks concerning, i don't think you take some of this seriously of what your colleagues have to say up there. so give me an answer as to what you think we need to do to get, to curtail the executive power the way i think it's been used over the years.
>> you may answer the question quickly. >> quickly spin well, i think you can pass legislation to overturn an executive action to disapprove the. you can withhold funds for it speeded let me ask you. you are not reciting, 94% of obamacare is mandatory spending. and the democrats pass that in italy without any motion from the public. nothing to be done about that at this point. it's the law. i yield back. >> thank the gentleman from pennsylvania. the chair will not recognize the gentleman from new york, my friend, mr. jeffries. >> thank you, mr. chairman, as was ranking member, and the panelists for their participation this morning. if i could just start with professor rosenkranz, and i want to explore this issue of prosecutorial executive branch discretion, particularly in the context of the enforcement of
our nation's immigration laws. but if i could just start with some foundational questions. the department of justice, for example, is an executive branch agency, correct? >> yes. >> and federal prosecutors within the department of justice are exercising executive branch action in the context of their participation in the criminal justice system, correct? >> exercising executive authority, yes. >> executive of 40. now, when prosecutors make a decision, after initially charging someone with a serious offense and then agree to a plea bargain to a lesser included offense, short of what they may have concluded the evidence provide that particular defendant was guilty of -- is that an appropriate exercise of prosecutorial discretion within
the four corners of the constitution? >> well, i figured depends on the circumstances under hypothetical. it would not be appropriate if it were motivated i race for something, but on the facts you describe, if the prosecutor thought he didn't have the resources to prosecute a particular crim crime for perhas a sure hit the evidence for a particular element of the crime, then yes, that's an appropriate exercise of discretion spent executive branch and the constitutional content, department of justice or immigration context within homeland security, they have an ability to prioritize the nature of the offenses that they enforce them is that correct, ma as an appropriate exercise of the constitutional authority to? >> the executive branch has authority to husband its resources in the most efficient way that it sees fit. so the president doesn't have the money or resources to
completely execute every law. and so he does have to by necessity make decisions about enforcement priorities, yes. >> so you've concluded i believe that the presidential exercise of authority, with respect to defer action, certain class of individuals, do you believe there's an unconstitutional exercise of his authority? >> starry? spent in the immigration context. >> yes, i do. >> and she believe that's the case because of the fact that you contend it was a wide ranging exercise that was not made on a case-by-case basis? what is the foundation of your belief that it's unconstitutional? >> i think are two basic reasons. one is that it is dramatically further than hypotheticals we were discussing before. this is not a prosecutor decided on a case. this is the president deciding on 1.8 million cases.
and second striking thing about it is the president deciding on exactly the set of cases that congress considered exempting and decided not to extend. that's what's particularly talking about it. >> reclaiming my time. you are familiar with the criteria that has been set forth for the determination that i made i believe on a case-by-case basis as it relates to who qualifies for this defer action, are you not? >> yes. >> okay. so for instance, one of the criteria, you must have entered the united states before the 16th birth and the younger than 31 as of june 15, 2012. that's one particular criteria. another is cannot have convictions of any felony offense, significant misdemeanor or have committed any three misdemeanor offenses. those are pretty specific enumerated categories, but another category which helps to determine whether discretion is
appropriate is you cannot pose a threat to public safety or national security. isn't that a pretty broad category within which discretion can be exercise on a case-by-case basis as to whether, in fact, you pose a threat to public safety or national security, that that is not a specifically constrained factor that people either automatically fall within or automatically fall without? >> well, i think it's a dramatic shift in the status quo. so 1.8 million people will presumptively be allowed to stay. i can't imagine that but a tiny fraction of them will be found to fall within that exception. >> i would just note that of these individuals, more than four and 50,000 have been granted deferred action, but in excess of 100,000 have been
denied access or who have not received that grant of discretion. i yield back. >> thank the gentleman from new york. now recognize himself for five minutes question. it strikes me the law can require action or for being action. the law can forbid the possession of child pornography. the lock in some instances require you to file an income tax return. mr. lazarus, is the chief executive constitution capable of ignoring both categories of long? >> well, as i said several times, congressman gowdy, the president cannot refuse to apply or enforce the law for policy reasons. >> well, let's analyze that for a second. congress decided in its collective wisdom that if you possess xml at a controlled stuff as you're going to get x. amount of time in prison. you may like mandatoriness. you may not like them. this administration summarily
dispensed with that law. so my question to you again is can the chief executive failed to enforce categories of laws that are both permissive and mandatory. >> it is well-established that the executive branch has prosecutorial discretion. that's a decline in force spendt what are those limits of? >> very frankly, i'm not an expert on that. >> let me ask you this. can the president -- lets us in a statute required you to show two pieces of identification to purchase a farm. can the chief executive knock that down to one? >> i guess i would have been all a bit more but i would -- >> it's a very simple fact that in but you have to show two forms of idea to purchase a firearm. can the chief executive under his pardon authority or his prosecutorial discretion will authority knocked that down to just one form of identification?
>> are not aware of limits on the president's pardon authority -- >> so you would say he could? >> under the pardon authority a president can pardon just about anyone. not that he should. >> even before the act is committed? and he do it before the act is committed? that's my question. can he do it before the act is committed speak with again, that's another -- that's above my pay grade. i don't know that. >> is the present and failed to afford -- and he failed to enforce election long? >> whether the president can pardon someone before a prosecution is initiated? are before it -- >> i think i know the answer to that question. my question was before the act was committed to he certainly can't before the prosecution. if you can dispense with immigration laws or marijuana laws are mandatory minimums, and also dispense with election laws? >> i, again, i think we've gone
over this ground many times. >> let's do it one more time. can the president suspended election laws? >> no. >> why not? iif you can suspend mandatory minimum and immigration laws, why not election laws? >> because we live in a government of laws and the president is about to abate in and apply them. >> he's not up on the aca and not applying immigration laws and he's not applying marijuana laws and does not applying mandatory minimum to which the different? >> we have a disagreement whether or not he is applying those laws. he is applying those laws -- >> did eric holder instructors prosecutors to no longer follow the mandatory minimums with respect to charging decisions speak with this isn't anywhere i really don't know nearly as much as you do, congressman. >> i find that shocking anybody would not do more than i do on any topic. who would you like me to ask professor turley? >> my impression is that it is
not exactly doing what you just said, that -- >> tell me how i'm wrong. because eric holder sent out a memo that we are no longer going to put in the indictment -- agree with me that congress can pass mandatory minimums? >> constitutionally, yes. >> do you agree congress can pass mandatory -- can congress also the statutory maximum? in other words, you can get more than 30 years for a crime. >> of course. >> any president exceeded the statutory maximum? >> can he extinguish a? >> can he exceed it speak with kenny exceeded? how would he do that? you mean keep someone in prison beyond his prison term? >> if you can put him in prison for less time than congress says is the law, can you also don't for more time than caucuses as s is the long? >> you know, it's really, it's
-- this is kind fruitless because it's an area that i really don't know -- >> professor turley, what are the limits of prosecutor of discretion? and did the president can suspend immigration laws, marijuana laws, why not election laws? >> well, i think that some of these areas i can't imagine it would be justified to prosecutorial discretion. it's not prosecutorial discretion to go in and say an entire category of people no longer be subject to the law. that's a legislative session. prosecutorial discretion is a case-by-case decision that is made by the department of justice. the department of justice starts to say we're going to extend that to whole sections of law, then they are engaging in the legislative act. not prosecutor discretion but wherever the lawn -- the law is drawn as can be drawn somewhere for me but it can't include categorical rejections of application of the law to millions of people. >> my time is up but i would just tell you that i always
thought prosecutorial discretion was an individual prosecutor determine whether she or he has enough tax to substantially result in a conviction on a case-by-case basis. if a president is ignoring entire categories of the law, whether it be immigration, marijuana, mandatory minimum, the aca, what is a remedy for the legislative branch? >> first of all, the first part of the question, as you may know i do criminal defense work. i would never go to prosecute and say i want your prosecutorial discretion to say that the entire class of which my client belongs cannot be subject to this law because prosecutors look at me and say, are you insane? i am not congress. so i wouldn't even raise the question. in terms of where we go from here, i'm not too sure because the great concern i have for this body is that it's not only being circumvented, but it is also being denied the ability to enforce its inherent powers.
many of these questions are not close in my view. at present is outside the line. but it has to go in front of the court and the court has to grant review. and that's what we have the most series constitutional crisis iv in my lifetime. and that is, this body becoming less and less relevant. >> with that i would recognize the gentlelady from texas, ms. jackson lee. >> i think the majority and minority, mr. conyers, for holding is to let me thank the witnesses. whenever witnesses come before our body, it is of course valuable, and we trust your judgment. also we may disagree with you vigorously. let me say that the wasteland that mr. lazarus spoke of, and mr. lazarus, please let me cite you and indicate that i will be using this across the land, the vast lands of this nation. which is a rhetorical waste that this hearing equates, but also
to suggest that the reason why this body that professor turley has suggested may be on the verge of some basis of irrelevancy, which i take issue with, is because under the president's house leadership we passed no legislation for the president to be up to implement in the first place. we have not passed immigration reform. we have not held with the question of a mandatory minimum. we have not dealt with a budget process. we've not dealt with sequester. if we would simply do our jobs, the relevance to the american people would exceed our expectations. i just came from the fast for family. just a few hours ago we had in this room dreamers. as far as i'm concerned, the duty of the president is to be the ultimate giver of relief within the context of the constitution and the necessary release of the people who are begging for relief.
if you read the lines that we are so intellectually gifted to interpret, along with precedents come it says that he shall take care of the laws he faithfully executed. and shall commission all the officers of the united states. well, i could be a believer and, therefore, my faith that the president is taking within the context of the laws the ability to implement to help the most vulnerable. and what we are doing here is a rhetorical wasteland of ignoring the pain of our nation. let me give you an example. first of all my good friend from south carolina knows full well as a federal prosecutor that each day prosecutors are making distinctive decisions about who to prosecute and how. within the context of the law. and to answer the question for you, mr. lazarus, the issue is that in election law, you follow the law that you have the right
in a prosecutorial posture determine whether you are prosecuting or not. that is what happened with mandatory minimums. that is what's happening with the issues of the drugs. that is what the attorney general is speaking up. he is not throwing laws to the wasteland. we are in this hearing. for it has no sense to it. and then it is interesting that we have not understood the question of the secretary of homeland security. she issued a memo to her staff. she has an inherent authority to deal with policy. each of the deferred adjudication's are the deferred deferments for dreamers is individually obsessed but what is this constitutional googly talking about? they don't understand the difference between policy and the ability to do that?
i've had dreamers come to my office. i could not wave a magic wand. they had to go through the process, and indicates that it went to cbp, ice, immigration enforcement, and others. i'm taken aback that this issue does not come with humanitarianism, and that if they should be hearing it should be hearing of the failure of this congress to act on its constitutional responsive those. let me ask on the affordable care act, which is now just another way, if i might say so, at having the 50th and 52nd in the 53rd challenge on the affordable care act. mr. lazarus, to go back to a common about these exchanges, another wasteland, that if your space does not have an exchange -- state does not have an exchange, just a practical english it means that you in the state cannot comply, meaning you the citizen, are left in the
wasteland of noncompliance. what you can get on. so we've established the national exchanges. would would have preferred to have stayed exchanges and to have a list of states insurance? yes. would we prefer for republicans not to encourage young people not to do what is best for them by getting covered? yes. but my question is, if directive is to run it is the direct is to run such exchange, that means the same characteristics, including a tax credit that allows for people to insurance, obviously these are about. us with coming in the middle of my question, mr. lazarus. this is for you. in essence, in states with few exchanges the federal comment stands in issues of the states. doesn't that further illustrate why you, not mr. cannon, are correct based on the purest text of the law? and that the president is carefully, faithfully implementing the law? would you go over that for us again so that it can be in the
making no sense whatsoever i think. >> may i just have an additional 30 seconds. he didn't answer. does this not exceed, ask unanimous consent. >> i'm sorry. >> ex seed the authority of,. >> we're already two minutes over. so if you give us a very pithy response. >> thank you, mr. chairman. mr. lazarus, if you could -- >> i think the president is not violating his take-care responsibilities by acting on the interpretation. >> do you associate with my interpretation of statements my made previously? >> mr. chairman -- >> may i ask a submission for the record. >> you may ask all questions for the record. >> no. may i submit a document for record. >> without objection. >> op-ed by myself on signing statements. ask unanimous consent. >> without objection. >> i thank the chairman panned the witnesses. i yield back. >> before i recognize the
gentleman from idaho. for those of our panelists who may not be able to avail themselves history of this committee from 2008 around 2010, the other side controlled this committee and not one single, solitary piece of immigration reform was produced. now let's be fair. i have got colleagues like the gentleman from illinois who are equally desirous of immigration rerecall to no matter who the president is, but let's don't rewrite history. from 2008 and 2010 the democrats controlled this committee and nothing with respect to immigration reform. so don't talk to me now what a huge priority it is. i recognize -- >> gentleman yield. >> i recognize the gentleman from idaho. >> gentleman yield. >> thank you for the time. mr. lazarus i've been listening to you for 2 1/2 hours now, and i have not heard a single time where you have told me where in the law the federal exchanges are given the authority to grant these subsidies.
you talk about policy, you talk about what you think the president wants. you talk about what you think the democrats want. tell me in the statute, just one time, where it says that the federal exchanges are supposed to give this subsidy? >> yes. i didn't go into detail and i don't think that my friend, mr. cannon did either. >> i think he did. he mentioned the numerous times where it gives solely to the state exchanges. >> let me answer the question. first of all, i asked that the committee include written testimony that i gave to subcommittee of congressman issa's oversight committee that goes into detail about what -- >> just name one. i want one section of the law. i don't have that much time. name one section of law. >> secondly -- >> you don't know. mr.-- >> i didn't say i don't know. >> can you name one section of the law? one section of law, mr. lazarus where it says that. >> i would cite two sections. >> that's all i'm asking.
>> first section is one that congresswoman lee referred to and that is, where the law says that in the event that a state does not set up its own exchange, then the secretary of health and human services shall establish such exchange. our interpretation, the administration's interpretation is that the word such exchange, should be interpreted to mean that the exchanges will operate on the same terms and have the same authority. michael does not agree with that. >> okay. >> that's the interpretation. secondly, and i think this is really quite important, when the statute defines exchange with a capital-e, put as capital-e in there, it, says, exchange shall be an exchange established by the state under the relevant section. and then --
>> i reclaim my time. i just asked you a simple question. mr. turley, mr. cannon, i think both of you, coming from different political points of view have some of the same concerns that i had about the prior administration, about the bush administration. in fact i read some of your writings, mr. turley, before i was a member about congress. >> bless you. >> and i was very concerned about the imperial presidency. i was very concerned about having a republican with republicans in congress who were not willing to be a check and a balance on a republican president. and in fact like mr. cannon stated in hits testimony, i think it was you, i can't remember which one of you it was, who stated that maybe the one thing that you liked about obama, you seem to agree with his policies, you seem to kind of like the fact that he was going to be a check on what previous presidents had done. so i'm actually really disappointed that we are here at this hearing today and i'm
surprised at my friend on the other side don't think this is an important hearing because they seem to bitch and whine eight years what the bush administration did. all of sudden they don't seem to have one single concern about what this president is doing with his authority. what do you have to say about that, mr. turley? >> well i believe that this institution is facing a critical "crossroads" in terms of its continued relevance in this process. what this body can not become is a debating society where it can issue rules and laws that are either complied with or not complied with by the president. i think that's where we are. where mr. lazarus and i disagree, mr. lads russ can not ignore express statement on policy grounds. i'm not sure what is involved here. if you look at the individual mandate, the policy issue there were a great number people were upset, they felt there was a bait and switch. that is not the same thing we see with the environmental statutes that mr. lazarus points out. that is a political issue, a
policy issue, where the president said, i don't want this to happen now. a lot of people are upset with it. that would seem to me if that is not a policy question, i don't know what is. by mr. lads russ's own definition that that would seem to be outside authority of the president. look at issue you're raising, look around you. is this truly the body that existed when it was formed? does it have the same gaffetational pull and authority given by its framers. you're the keepers of this authority. you took an oath to uphold it. the framers assumed you would have the institutional wherewithal and frankly ambition to defend the turf that is the legislative branch. >> mr. cannon, it seems to me that mr. lazarus is arguing that the president can do anything that we refuse to act on. and i think that goes beyond what the constitutional powers were given to the president by our founding fathers. in fact, if you follow his logic seems to me that if he, next
decides that he wants to make sure that nobody who came here illegally, who came here just to work in agriculture, for example, can be deported, because there would be some humanitarian concerns, about the deporting these people, that he has the express authority to actually do that. i'm actually a proponent of immigration reform. i want immigration reform to be done and i think the actions of the president have made it less likely this body is going to act because we're not sure what he will enforce and what he will not enforce. what are your comments on that? >> i think that one, there is no bright line as far as i know, to be drawn between enforcement discretion and legislating. i think that the president's actions with regard to the patient protection under the affordable care act wherever you draw that line, he is on the wrong side of it but i think one way to, the best way to curtail the abuse proves cute tomorrow discretion is to have fewer crimes. we have a lot of crimes on our
immigration, in our immigration laws i just don't think should be there i think our drug war creates a lot of criminals that, and, there are a lot of crimes on our books as a result of the drug war that should not be there and that is why prosecutors across this country are stretched so thin. why prisons are overcrowded and when you have a situation like that where you've got a surplus of crimes and not enough resources to prosecute all of them, then you get a lot, you put a lot more power in the hand of individual prosecutors as we as executive branch generally to decide how these laws will be enforced or not enforced. i think on a macrolevel that is how you try to attack this problem. >> thank you, i yield back my time. >> the gentleman yields. chair recognizes gentleman from illinois, my friend, mr. gutierrez. >> thank you, very much, mr. chairman. once again we're not legislating in this committee. we could be using this time to
find common ground and even have a strenuous and substantive debate on important public policy matters but instead i think what we're doing is offering empty assurances and shaky split -- shaping political messages for next fall, rather than worrying about the president we know and you quote, distrust or, end quote, is enforcing our laws the way you would like him to, we could be making meaningful progress crafting enacting laws for betterment of the american people. i hope this goes, the president isn't a member about this committee. doesn't sit on this committee. doesn't have a vote in the house of representatives. we should craft legislation and get it done. and then we should make sure that legislation is enforced of the now, i know that some people say, well, he is not enforcing the legislation. let me just suggest to everybody, when he, when he got sworn in as president of the
united states, secure communities was nothing in this country. there are hundreds and hundreds of agreement with county, state and local -- how do you think the apparatus was created to deport 2 million people in the last five years? by accident? that apparatus did not exist under george bush. it was created under his administration and implemented by this president. and that is something i'm happy about. 287 g agreements that have been made with one locality after another, we're going to sit here and say that congresswoman s. ina, our colleague, hired a one of dreamers and successfully got her work permit and her mom is under a current order of deportation. she quit her job today as a congressional aid to go fight for her mom. and we're saying he is not enforcing the law? i assure you, that, if you are
fighting this administration as i and many others are fighting this administration each and every day, you will find this president is indeed enforcing the law. unfortunately he should not be limiting his prosecutorial discretion, he should be expanding his prosecutorial discretion. now, on substantive issue of daca, the fact is, we passed the dream act in the house of representatives in the fall of 2010. 216-208. then we went to the senate, mr. turley, over they said you need off votes now to get something done. we always talk about the framers. i don't remember any framers saying you don't need more than one vote of majority in the senate. now you need 60 now they only got 55. clearly the established will of the majority of senator, and house of representatives were to do what? to protect the dreamers. this is what the president did. he took the express will of the
house and of the senate, if not for this new rule, that they incented, that they have had now for 35 years, that you need supermajority of 60 votes. if we needed that here, even my colleagues on the republican side would have a difficult time getting legislation passed. so, all i'm trying to say is, when we move the ball forward the president looked at it. i want to say that, i don't know about the other but it seems like bo cooper, former ins general counsel, paul virtue, former ins general counsel, these are general counsels of the ins, each of them established that the president of the does have prosecutorial discretion when he gets to decide who to prosecute and who not to. that is what he did. he sent children aside, said i'm not going to longer prosecute them because they do not present an imminent threat.
guess what, mr. chairman? year-and-a-half later, 500,000 of them are walking around and i assure you, because i know the way this place works, if you could find one and bring them up here that sheets how he has caused some danger or some harm that person would have already have come but the fact is they're not. they're working in congressional offices. three are working in my congressional office, filling out forms. they're american citizens in everything but a piece of paper. all i want to do, and i want to establish because the chairman is absolutely correct. i'm going to say this for my point. when we were in charge in 2007 and 2008, we were worried about losing our majority because your side was beating the crap out of us. maybe that word shouldn't be used here. but that is what you were doing. so if a democrat voted for immigration reform, your side would boom, boom, knock them out, right? and then we were in the majority in 2009 and 2010, and we did nothing.
i agree with you, we did nothing. but let's not repeat history. not say you didn't do anything so we're not going to do anything. let's do something. i want to end with this because, i don't -- here is what i would like to do. i want to step outside of my democratic party because i know there are men and women on your side of the aisle that want to step outside of their republican party and join an american party on the issue of immigration because i know there is common ground that we can reach. and then the president won't have to be taking these actions because more and more what you're going to find, people are going to say, congressman cinema's staffer, we shouldn't have deported her mom. mr. president, stop the deportation of that mom. so all we're going to do is, look, they're here. there are 11 million of them. figure out a way how we legalize their status. figure out if you want triggers, put the triggers in but the in the end they will have to come back here. when they become american
citizens, they all will become american citizens. we should get over that. you know what happens, mr. chairman, we pass legislation don't all go to citizenship, somebody will show up and say this congressman gutierrez didn't do a good enough job. that is the problem with this place. thank you you've been so kind and so generous. i know one thing eventually we'll have a hearing here we'll call you all back and let us know how we will get this done. pray that that happens. it is the right thing for america. thank you very much. >> thank you gentleman from illinois. the chair will now recognize the gentleman from arizona, mr. frank. >> thank you, mr. chairman. mr. chairman, the subject of today's meeting is pretty profound related to rule of law and. there are some examples some of us point to and it is hard to name them all. so i'm just going to point to a few this administration seems to have stepped outside of the boundaries of quote, the rule of law. taxing political contributions. again, not in the law.
political speech disclosures for federal contractors. the deepwater drilling ban. mr. holder's attempt to reform criminal justice by selectively enforcing our laws. the, mr. obama unilaterally ignoring immigration laws in many cases. recess appointments. "fast & furious" where, were unconstitutional efforts there to walk guns. unconstitutional wiretaps of the ap. the irs scandal, one of the more egregious ones as the gentleman mentioned, subverts the entire political process. and of course obamacare which i'll touch on in a moment. but all of these are examples where this president, in the words of my friends on the left, has, as exercised prosecutorial discretion. that's the word. presidential pardon powers but i think they're more along the lines of professor turley said. these are, could be considered royal prerogatives.
if my history is right, that's what we had the little unpleasantness with great britain about and, so the subject here is of profound significance. and i would suggest, mr. chairman, that not only in the application of the law has this administration held themselves unconstrained bit constitution or even the truth in many cases, but even the process of getting the law, on obama care, this was passed in a unique situation where you know, i've see in mr. cannon's testimony, especially probably the perfect citation. i see in your testimony, writes, president obama's unfaithfulness to the ppaca is so wanton, it is no longer accurate to say that patient protection and affordable care act is, quote, the law of the land. and you know, it is kind of ironic because some of my colleagues, about 53 of us, have
signed on to the house resolution stating that we believe that obamacare has yet to be the law of the land because it violated origination clause of the u.s. constitution when it was passed. we don't talk about that a great deal but it, is significant because the origination clause which was vital to the constitution ever coming into existence in the first place, it was, the, the critical, negotiation that took place to allow the cons to exist. -- constitution to exist. requires al bills for raising revenue originate in the house. incident -- incidentally, mr. cannon, our colleague at tate cowritten an excellent piece laying out this argument. i will ask this be placed into the record here in a moment. like to ask you to address it if you have perspective of it. but the bottom line that is, at issue here is that if the u.s.
senate can take a totally unrelated piece of legislation, strike everything but the number, and take legislation that they call, the senate health care bill, and place it in its entirety, which raises taxes to enormous deagree, if they can take any bill in the house and do that, then i would suggest to you especially after the supreme court has labeled obamacare a tax, they have officially called it a tax and if indeed it can be done this way, then i would suggest to you that the origination clause is a dead letter. there is no more purpose for it being in the constitution. and it is something that i hope we'll look at a little more carefully. if it is all right, mr. cannon, i will address my question to you. do you have anything that would help illuminate this in way that is the rest of us can understand? >> well, this is, this is a provision of the constitution that hasn't really been used or,
or, employed by the supreme court to knock down any revenue measures that were alleged to have, originated in the senate instead of in the house as required by the constitution. i think that, what happened with the ppaca is a more extreme example of the abuse of the, or a more extreme violation of the origination clause than what we have seen in the past. as you say, a bill came up with a totally unrelated revenue measure came over in the house, from the house. the senate stripped out everything within that bill, kept only bill numbers hr-3590 i believe, and inserted into that the patient and protection affordable care act which had all sorts of revenue measures and individual mandate we didn't know then was a tax but now we know it is a tax which the administration changes its mind and continues to do. there is nothing in the bill
number is revenue measures. all. revenue measures were stripped out of that bill. if the origination clause means anything, then it means that that was, that the revenue measure that the senate passed and then the house passed, we now call the patient protection and affordable care act originated in the senate and the senate did not have the power to originate a bill, a revenue measure like that. so, what, but the difficulty is, will courts enforce that part of the constitution? there is a difficult line to be drawn between when, when are you amending a revenue measure that came from the house and when are you originating a new bill? i think reasonable people candies agree where that line will be drawn. i don't think reasonable people candies agree whether the senate's gutting of hr-3590 and inserting into that a totally
new revenue measure, i don't think anyone candies agree that is on the wrong side of that line. it remains to be seen whether the courts uphold the constitution. if they do they have to strike down the entire ppca. fortunately a lawsuit is making its way through federal courts filed by the pacific legal foundation. the challenges is the original mandate under origination clause. >> mr. chairman, thank you. if the administration does not succeed in stacking the d.c. circuit, we should find out whether the administration clause means anything at all with the case that the gentleman mentions. >> thank you, the gentleman from arizona. chair recognizes the gentleman from north carolina, the former u.s. tone, mr. holden. >> thank you, mr. chairman. professor turley, throughout your testimony you referred to several instances you believe the president stepped over the line and we talked about a
number of them and ask you to recap, and give the top five instances where you think he overstepped the line and breached the constitution? >> thank you very much, congressman. first of all i do think there is number of previsions in the aca where he did overstep the line. the, the decision on individual mandates strike me as a rather obvious policy determination that the president did not want to see it enforced given amount of public opposition occurred and accusations of a bait and switch. those are all political issues. this was not some clean air act regulation that was stuck in the mire of regulatory disagreements as to command-and-control statute. i also believe that the, the mandate, the employer mandate which was also extended, constitutes a significant change in legislation. i also believe that the immigration issue, as well
crossed the line. i might, i actually agree with the president on the decision that was made but that doesn't matter. because it was not made in a way allowed under the constitution. i report to your attention, congressman holding, if you look at each of these questions, a couple of things jump out at you. one is they happened to occur in areas of tremendous political division if not deadlock. that is precisely the type of issue the framers wanted to go through the legislative process because our process, unlike other systems, that would explode into the streets of paris and other cities, we have a type of constitutional implosion. we direct those pressures to the center of congress and from that we take disparate factional interests and return them to majoritarian compromise. >> keep going down the list of