tv Key Capitol Hill Hearings CSPAN December 4, 2013 3:00am-5:01am EST
new law, which is something that happens under all administrations, it has to happen sometimes for practical reasons. why we are making a big fuss about this as a constitutional matter, is not beyond me. i understand why it is being done. if it sounds like politics, that is what it is. 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 record? >> that interpretation is what i support, what the president and the administration supports. ..
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 instances where you think he has overstepped. >> the other two that come out to me is really the issue of the $454 million in the prevention fund issue for the federal health care insurance exchange. and also the 700 billion for the state exchanges. then finally the, essentially the subsidies for congressional employees which is less significant than those other ones. what bothers me about those last examples is that it goes directly to the the power of the purse and we have seen over and and over again courts saying don't worry, you have the power of the purse. this administration is now directly challenging that and saying, we can take money that
was dedicated for one purpose and give it to an unspecified, unallowed, disallowed purpose. that challenges the very rock foundation of the congress. >> mr. rosencrans, do you want to add anything to this list of, i've got four? >> well i agree with all the items on that list. recent d.c. circuit opinion spoke after nuclear regulatory commission refusing to make a decision about yucca mountains. that is quite a striking example. that is the example where judge cavanagh, the judge cavanagh quote came from. and you know the other example that i really want to keep returning to is the irs targeted enforcement. so, to my mind, taking care that the laws be faithfully execute, the core of that requirement is non-discriminatory enforcement. >> mr. lazarus, do you want to add any to this, perhaps not?
mr. cannon, would you like to add any to this. >> i would like to ask, isn't the nuclear regulatory commission -- >> i'm going to reclaim my time, mr. lazarus. before i get to you, mr. cannon, i want to use my last minute with mr. rosencrans. you said that, in extreme instances impeachment would be appropriate to address, you know, one of these transgressions. we sues -- used example, declaring war without congressional authorization. on scale of one to 10, that being a 10 as necessitating impeachment proceedings, we've related off six instances where the president has exceeded his constitutional authority. i would add a 7th in there on the, what he is doing with our drug laws and manned tore minimums and insistence that prosecutors not charge all the relevant facts. out of any of these seven, where do, which ones rise to the beat
of most egregious and would any of them trigger what you would think, meaning impeachment to be appropriate? >> well i wouldn't want to opine on quite what the impeachment line ought to be but i think this, this body should think about a pattern. if they see a pattern and particularly if they see willful conduct, that should be, that is really the most egregious thing a president can do, willfully violate the take care clause or just display a pattern of disregard for constitutional prohibition. so that is what i think the committee should keep their eye on. >> mr. chairman, i yield back. >> thank the gentleman from north carolina. chao recognizes the gentleman from georgia, mr. collins. >> thank you, mr. chairman. i sat here and i listened and to both sides. . .
in the case of the president now has stepped over those boundaries. we can have legal discussions appear that the problem is where i come from the northeast georgia people just don't get it. they look at the government, they look at what's going on right now and they basically say this is not the way that it's supposed to work. you can let the school house rock, go to the civics class and
be graduated law professor, but at the same plaintiff you can't communicate it to the people who have to live under the situation, then there are problems and i believe there is a right to have a mass problem right now. we talked about the power of the purse. i talked all session ever since i got up here about iab leave truly that this institution has got to matter again. its article one. we talked about article to a lot. congress has to matter again. that means we take seriously the role of budgeting and legislative but also holding accountable when we are being bypassed. the power of the purse is an issue that we talk about elections and that is an issue that has been discussed, but the other issue for me that is bothersome and you try to explain is i'm also asked you have to go up there and you just
cut the funds off and shut everything down and it just becomes a blur. i believe he has stepped over review pvp hasn't and that's where we differ. we will agree on something's got agree or not it wasn't in the bounds of the constitution. and that is interesting for us to talk about for just a moment because it comes back to what do we do besides getting the acts together with congress, what can we do? standing is an issue so i want to ask you this question where do we go to begin that process of reclaiming our article one constitution will roll so that it is a three-legged stool and not right now one and a half. >> that is an excellent
question. despite my deepest concerns i remain optimistic. most of my life was on the zaire is that it is as serious as you suggesting that there is a good reason people can't understand what's going on because we are acting outside of the system. we have taken the system off-line and we are in this ad hoc and improvisational world of the unconstitutional law that is dangerous and i disagree with my friends and mr. rosenkranz i'm always leery about people who say the solution. the framers didn't intend for the elections to be the solution to the problems. they created a system with checks and balances to allow the system to correct itself because there are plenty of abuses. you can have a majoritarian terror that can continue through elections. also in impeachment is not a good device for regulation. it's a very difficult thing. i testified a testify that the t
hearings. it's a very difficult standard and certainly isn't there as a substitute. what this -- i think the hearing that this body should seriously consider is the hearing on the members standing. i've been writing about this for years and i recommended if we have members standing and members could go to court and raise unconstitutional acts, much of these problems would go away because we have guaranteed review that no one would be able to call them into account. >> i believe you are right. you said you are an optimist but i'm an optimistic realist and i don't get on the plane to come to washington dc. i still look at the capitol and i still believe it matters. we are a shining light in the
world but i want to spend our time to bring us back to a balanced and checks and balances system in which the congress article one authority is respected and honored and we have a system that most people in the country grew up understanding and that is what the hearing is ultimately about is the respect of the people that sent us here and we have to continue that. >> now to recognize the gentleman from florida. >> mr. lazarus if congress passes a statute that applies to whatever parameters, can the president and large the perimeters of the tax and apply it to areas outside the statute contemplated? >> no. >> let me qualify that. this is an abstract question. >> i will give you a chance to respond. you cite bureaucrats in the administration on the president's conduct but you don't cite any quotes for the president himself justified in his conduct and what is interesting in the most recent
legislative six for the grandfather plans here is what the president says. already people that predated them can keep the plans they have in place. that was already in the law and that is what was called a grandfather clause that was included in the law. today we are going to extend that principle to people whose plans have changed since the law took effect and people that bought plans since it took effect. in other words, obamacare has a grandfather clause anything after the enactment of obamacare is illegal unless it meets the statutory requirement. with the president is saying as he is extending a grandfather clause to cover plans beyond what the statute contemplates so you think that's appropriate? >> i think you are making a good point. if it is to bury -- >> let me say that we passed in the house a bill that would have grandfathered in the plans and i
think that we should do that. >> what i meant to say is i think it is appropriate as a measure if it is necessary to effectively -- >> contrary to the statute the whole point of obamacare is unique to force people into these exchanges. what about this idea. if the political environment is tough with fb a reason to delay the law or grant a waiver to the law if you cite to the political environment as your justification? congress isn't doing what i want. i may suffer political damage so i'm going to do it anyway. i think in your testimony you did make some good points. i will give you that. you didn't cite the justification for delaying the mandate. he was asked about a press conference and he said in the normal political environment i would call the speaker and say this doesn't go to the essence of the law and we would've delay for a year but the but there
wasn't a political environment on quote unquote obamacare. i think that is totally outlandish of the explanation and even more because congress by the time he made that statement had already passed the bill to delay the employer mandate precisely for the reason the president suggested. let me ask another question because professor turley, i appreciate her testimony and you cite above examples of the founding fathers. mr. lazarus you made the point that it doesn't mean that the rest of these guys say. original founding fathers understood, but you didn't cite any actual founding fathers, so can you cite for me a federalist paper hamilton wrote a number of the executive power, you cite ratifying the early practice in the republic that would substantiate your assertion that that is consistent with the original understanding? >> yes. jefferson?
medicine? hamilton? spec there's very little discussion. >> so you're making the assertion to understand the theory that you've are depositing but i think it is tough and you have to back it up and i think professor turley backed up what he was trying to say so i'm asking you what would you point to? >> can i finish? the answer to the question is during the constitutional convention -- this is what i said in my testimony and this is the basis of the interpretation. i think it is widely accepted. originally what became the take care clause didn't have take care in it. it's just say that the president shall carry into execution of the law. as the db2 forward, that got changed and take care was added. there really isn't -- when i said that clearly shows, and i
think what the scholars on all sides have accepted that shows the president has a good-faith -- >> let me be claimed by tim. show me something i can go where hamilton is saying this. >> the point about the language is more correct. let me say one other thing on the legislative record and it is more -- >> so it matters there but it doesn't matter because you are saying that purpose is different from what the text actually says. i do think that the idea is when you are talking about mr. cannon blank argument that nobody in congress, they didn't intend for the subsidy to do. the idea that we know what congress intended on the 2600 page bill many members didn't read that much less understand they were swearing that you could keep your plan and now we have members of congress running
around saying i didn't know you wouldn't be able to keep your plan. so the fact you were going to rely on that over the text of the actual statute to me i don't think i would do that anyway, but with this healthcare law, surely you cannot point to whatt the congress intended to be these intricate provisions because many of them did not read or understand it. >> mr. cannon is claiming that it was the intention. it was intentional and purposeful of congress to come through the wall. >> we recognize the gentleman from texas. >> thank you mr. chairman and in all of the witnesses. it's good to see some of you back. i don't remember all of you otherwise it would be all of you. but if you would suppose with me
that you are in a town hall back in the congressional district and you had in elementar an elel child a student stand up and ask this question i would like to know how each of you would answer this child's question. what right does the house of representatives have two pick and choose what type of government gets funding, what is the response? start with professor turley. >> i'm sorry the last part of the question? was right does the house of representatives have to pick and choose what part of the government gets funded? >> i think the answer is clear. the order of the three branches are placed by the framers that keep our given to the congress and house of representatives was the power of the purse to control the funds. what is alarming about the situation is that even that power is being challenged.
>> professor rosenkranz? >> the power to decide what provisions he wants to fund and you don't want to fund. >> professor cannon? i-beam professor lazarus? >> professor rosenkranz took the words right out of my mouth. >> article one, section eight. >> mr. chairman and i would ask that we provided copy of this to the senate leader since he asked that question. with regards to libya the president said he didn't need to come to congress in order to get our authority to start bombing in libya and that was a concern to some of us. he said he had been asked by the organization of the islamic conference 50 or 57 states, whatever they got, 50, 57.
and also some of the allies said he didn't need congress approval because he had those requests. he was initially prepared to help the theory and rebels it hasn't become initially but they have become the most profound part and he was ready to start bombing the syrian leader that hillary clinton had called a reformer. initially, he planned to do that without the congress consent. he didn't think he needed the congress' consent. obviously once there was a lot of political pushback he threw it to the congress and let them decide. but i'm curious from each of y you, what gives the president the authority to order bombing even if he promises to limit the numbetothe number of people thae will kill, what gives him the
authority to start bombing a country obviously we consider an act of war what gives him that authority i am curious from each of you. >> while, i think it is a great question because i was a little bit confused when he said no one has accused president obama of being inclined to engage in a war without a declaration. i was in court with members of this committee saying exactly that in the conflict and what disturbed us is the white house came back and said the reason that we don't need a declaration of war is the president defines what it is and he's simply saying this isn't a war. when we talk about the danger this is a danger of a different kind. not only did a express language of the constitution, that this administration through these acts and through the large numbers of attacks is returning the world to a state of nature.
we are taking dumb criminal international principles that have governed this world that respect the territorial limitations. i spoke to the nato parliamentarians and i told them you will blow the the day that you and force the position that they can take unilateral action when somebody vaporizes somebody in london. >> my time is about to run out three and let me give each of you this question. the president ordered and more a -- and more all the -- anwar awalaki. i asked this question in another room how far does that order extend? if he came back to capitol hill and led prayers as he has before, congressional staffers was that order still good, i wanted to know in case there was a german strike that was still
on. what authority do you think the president has to order american citizens killed in other countries and which were not at war or in the u.s.? my time is up but if i can get answers to questions from each of you. >> as quickly as you can given the subject matter. >> i don't believe that he has the authority to do that. they cite things like hot pursuit would be no sense. it's not an imminent threat and the president blank kill list policy is an dangerously constitutional. >> it is a difficult question, but the obama administration's office of legal counsel memo on this was certainly quite strained so they are reaching for allergies and analyst is that is quite unconvincing i would say. >> i am very far from an expert on these matters. but i would just offer one
observation and that is i don't really see why the american citizenship the congress is referring to is all that significant. iit cannotif he knocked the genl happened to be an american citizen and wouldn't alter the way that we could deal with them militarily but they are awaiting questions about the president's authority to implement the drone program. i don't have an expert view on that. >> it's been very effective militarily so that is a good thing. >> i will just associate myself with professor turley blank testimony. >> the chair will now recognize another gentleman from texas. >> thank you very much mr. chairman. i appreciate the opportunity to ask some questions here. i'm going to ask for your help
in answering what is probably the number one question that i get at the town hall meetings and people running up to me at the grocery store when i'm back home in texas and it goes something like this. in the light of -- can insert whatever you want, benghazi, fast and furious, targeting of advocacy groups, overreach, if you like your healthcare you can keep it, very in the terms of obamacare. but the number one question that i get is what can you do about it? we sent you to congress to do something about this. and i've listened today and i've heard that we can enact new laws. that doesn't work if we cannot get through the senate and the president won't sign them and we can use the power of the purse. that's pretty much dead and we have heard testimony about that and that continuing resolution we don't have a lot of options
there. we can go to the court and we heard about the standing issue. also even when there is standing, the delay tactic leads you turned out by the time any of the court decisions are held. we talked a little bit about elections and i think chairman isa brought up the issue with interfering with elections. that's kind of off the table and bible admit my party didn't do as well as we probably should have ended the other election but we did do well when we stored numbers and congress changed and then we've also talked about impeachment, which again i don't think what gets passed the senate in the current. am i missing anything? is there anything else we can do, mr. turley? >> as we said before for years
i've encouraged members to consider members standing the stand-alone issue to try to find a way to establish the constitutionally or through statute to allow the members of congress. >> about your start going to get that through any amount of time. >> i published along the line and i reached this which i also testified on. >> that was in the list of -- >> what is fascinating is that because congress has been stripped of more and more of its power, it has actually put more emphasis on appointment as a way of controlling -- >> have we been stripped of it or giving it up? >> as i said it before and i'm to see again it was slow and messy but at the end of the day the right answer for the committees to hold hearings like this to publicize what it takes
to be the violation of the constitution and for that to become an election issue. >> we don't have the problem for the president of my constituents have, but if i had missed have d anything on the remedy against any rogue not planing to anybody in particular. >> with all due respect a gross misrepresentation of this president. >> i wasn't pointing to the president. a hypothetical rogue president. >> we knew we had a president who was driven from office and would have been convicted had that not happened. and actually, that result was guaranteed in this very room. the ranking republican member of the judiciary committe judiciaro
impeach nixon. >> what the professor said is accurate or would help the members of standing. you have to win elections. getting democrats to care about this issue when there's a democratic president and getting republicans to care about these issues when there's a republican president and right now i don't know if anyone who is watching this at home has noticed, but all five democratic members of the committee have left the room. i think they left 20 minutes, three and a half hours into the hearing. they are obviously not as interested in this. >> i think that one of our problems here is that we have a president right now but isn't willing to work with congress. i think that is -- we just had a democrat walk in. i retract my statement. my apologies. i talked to a constituency that worked for the bush white house and who's job it was to lobby with congress and i met with somebody