39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–377 

EXECUTIVE NEEDS TO FAITHFULLY OBSERVE AND RESPECT CONGRESSIONAL ENACTMENTS OF THE LAW 

ACT OF 2014 

MARCH 7, 2014.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4138] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4138) to protect the separation of powers in the Constitution 

of the United States by ensuring that the President takes care that 

the laws be faithfully executed, and for other purposes, having considered the same, report favorably thereon without amendment and 

recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 24 

Committee Consideration ........................................................................................ 24 

Committee Votes ...................................................................................................... 24 

Committee Oversight Findings ............................................................................... 31 

New Budget Authority and Tax Expenditures ...................................................... 31 

Congressional Budget Office Cost Estimate .......................................................... 31 

Duplication of Federal Programs ............................................................................ 31 

Disclosure of Directed Rule Makings ..................................................................... 32 

Performance Goals and Objectives ......................................................................... 32 

Advisory on Earmarks ............................................................................................. 32 

Section-by-Section Analysis .................................................................................... 32 

Dissenting Views ..................................................................................................... 33 


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Purpose and Summary 

To prevent executive overreach and to ensure that the President 

discharges his constitutional duty to ‘‘take care that the laws be 

faithfully executed,’’ the ‘‘Executive Needs to Faithfully Observe 

and Respect Congressional Enactments of the Law (ENFORCE the 

Law) Act’’ puts a procedure in place to permit the House of Representatives, or the Senate, to authorize a lawsuit against the Executive Branch for failure to faithfully execute the laws. The legislation also provides for expedited consideration of any such lawsuit, 

first through a three-judge panel at the Federal district court level 

and then by providing for direct appeal to the United States Supreme Court. Furthermore, the bill statutorily mandates that the 

courts set aside their own court-created standing rules and thereby 

prevents courts from using procedural excuses to avoid making decisions in these important separation of powers cases. 

Background and Need for the Legislation 

Article II, Section 3, of the U.S. Constitution declares that the 

President ‘‘shall take care that the laws be faithfully executed.’’ 

However, President Obama has failed on numerous occasions to enforce Acts of Congress that he disagrees with for policy reasons and 

has also stretched his regulatory authority to put in place policies 

that Congress has refused to enact. Although President Obama is 

not the first president to stretch his powers beyond their constitutional limits, executive overreach has accelerated at an alarming 

rate under his Administration. 

To prevent executive overreach, Representative Trey Gowdy (RSC), Chairman Darrell Issa (R-CA), and House Judiciary Committee Chairman Bob Goodlatte (R-VA) introduced the ‘‘Executive 

Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act’’ to put a procedure in 

place to permit the House of Representatives, or the Senate, to authorize a lawsuit against the Executive Branch for failure to faithfully execute the laws. The legislation also provides for expedited 

consideration of any such lawsuit, first through a three-judge panel 

at the Federal district court level and then by providing for direct 

appeal to the United States Supreme Court. 

Specifically, the bill provides that if the President, or any other 

officer or employee of the United States, establishes or implements 

a formal or informal policy to refrain from enforcing any provision 

of Federal law, in violation of the requirement that the President 

‘‘take care that the laws be faithfully executed,’’ the House or the 

Senate may, by adoption of a resolution, authorize a civil action to 

seek declaratory or injunctive relief. Any such lawsuit may be 

brought by the House, the Senate, or both Houses of Congress 

jointly. 

The bill also provides for special court procedural rules for any 

case brought by Congress pursuant to the bill. First, the bill provides that any such action shall be filed in a Federal district court 

of competent jurisdiction and that the district court shall convene 

a three-judge panel to hear the case. Second, the bill provides that 

the three-judge panel’s decision is appealable directly to the United 

States Supreme Court. Finally, the district courts and the Supreme 


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1 U.S. Const. art. II., § 1, cl. 1 (‘‘The executive Power shall be vested in a President of the 

United States of America.’’). 2 Robert J. Delahunty, ‘‘The Obama Administration’s Decisions to Enforce, but Not Defend, 

DOMA § 3,’’ 106 Nw. U. L. Rev. 69 (2011). 3 43 Op. Att’y Gen. 275 (1980). 

Court are required to expedite any case filed pursuant to the legislation. 

The bill is intended to address procedural hurdles the courts 

have put in front of previous attempts by individual Members of 

Congress, and ad hoc groups of Members, to seek judicial review 

of alleged failures by the President to faithfully execute the law. 

The courts have held that when Congress, or one House of Congress, suffers an institutional injury, the Congress, or a House of 

Congress, must authorize any lawsuit aimed at redressing the injury. The ENFORCE the Law Act puts a procedure in place to 

allow for such authorization, provides for expedited judicial review 

of these cases, and removes court-created procedural hurdles for 

deciding these cases. 

BACKGROUND

I. THE TAKE CARE CLAUSE

Article II, Section 3, of the Constitution declares that the President ‘‘shall take Care that the Laws be faithfully executed.’’ This 

clause, known as the Take Care Clause, requires the President to 

enforce all constitutionally valid Acts of Congress, regardless of his 

own Administration’s view of their wisdom or policy. The clause imposes a duty on the President; it does not confer a discretionary 

power. Thus, the Take Care Clause is a limit on the Vesting 

Clause’s grant to the President of ‘‘the executive power.’’ 1 In other 

words, while the Vesting Clause gives the President discretion 

about how to enforce the law, the Take Care Clause provides that 

he has no discretion about whether to do so. 

Although the Take Care Clause limits the President’s enforcement discretion, it does not require the President to enforce an unconstitutional statute. ‘‘The Executive is charged with the faithful 

execution of ‘the law,’ and an unconstitutional statute is not law.’’ 2

Accordingly, in those instances in which the President may lawfully act in contravention of an Act of Congress, ‘‘it is the Constitution that dispenses with the operation of the statute. The Executive 

cannot.’’ 3

The U.S. Court of Appeals for the D.C. Circuit, in a recent opinion striking down the Executive’s assertion of authority to disregard a Federal statute, provided a succinct description of the 

President’s obligations under the Take Care Clause: 

Under Article II of the Constitution and relevant Supreme 

Court precedents, the President must follow statutory 

mandates so long as there is appropriated money available 

and the President has no constitutional objection to the 

statute. So, too, the President must abide by statutory prohibitions unless the President has a constitutional objection to the prohibition. If the President has a constitutional objection to a statutory mandate or prohibition, the 

President may decline to follow the law unless and until 

a final Court order dictates otherwise. But the President 


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4 In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013). 5 Christopher N. May, ‘‘Presidential Defiance of ‘Unconstitutional’ Laws: Reviving the Royal 

Prerogative,’’ 21 Hastings Const. L. Q. 865, 873 (1994). 6The power of suspension abrogated a statute across the board; the power of dispensation referred to royally-assigned as-applied exceptions to the rule of law. 7W. & M., Sess. 2, c. 2 (1689) (‘‘Act declareing the Rights and Liberties of the Subject and 

Setleing the Succession of the Crown’’). 8 ‘‘Virtually every secular provision in that statute was incorporated into the U.S. Constitution. The prohibition on the suspending and dispensing powers was encoded in Article II’s requirement that the President must ‘take Care that the Laws be faithfully executed.’ Thus, these 

rejected royal prerogatives were denied to the President.’’ May, supra note 5, at 870–74. 9 Id. at 873. 10Thomas Jefferson, Notes on the State of Virginia 365 (1787). 

may not decline to follow a statutory mandate or prohibition simply because of policy objections. Of course, if Congress appropriates no money for a statutorily mandated 

program, the Executive obviously cannot move forward. 

But absent a lack of funds or a claim of unconstitutionality 

that has not been rejected by final Court order, the Executive must abide by statutory mandates and prohibitions.4

A. The Original Understanding of the Take Care Clause 

The historical underpinnings of the original understanding of the 

Take Care Clause predate the American Revolution. The Take Care 

Clause is best understood ‘‘against the historical backdrop with 

which the Framers were familiar—the four hundred year struggle 

of the English people to limit the king’s prerogative and achieve a 

government under law rather than royal fiat.’’ 5 During this period, 

English monarchs asserted a right to dispense with or suspend acts 

of parliament they disliked.6 The English struggle with the royal 

prerogative was a key grievance that led to the Glorious Revolution 

and culminated in the Bill of Rights of 1689, which declared, in its 

very first provision, that ‘‘the pretended power of suspending of 

laws, or the execution of laws, by regal authority, without consent 

of parliament, is illegal.’’ 7 The English Bill of Rights became a template for American constitution drafting.8

Based on the Framers’ deep-seated fear of the abuse of executive 

power, and in order to ensure that American presidents could not 

resurrect anything similar to the king’s prerogative, the Framers 

made the faithful enforcement of the law a constitutional duty. 

Thus, ‘‘[r]ead in the light of history, the requirement that the President ‘take care that the Laws be faithfully executed’ is a succinct 

and all-inclusive command through which the Framers sought to 

prevent the Executive from resorting to the panoply of devices employed by the English kings to evade the will of Parliament.’’ 9

Provisions in state constitutions help illuminate the scope of the 

executive power the Framers’ envisioned granting the President. 

Thomas Jefferson, in his 1783 Draft of a Fundamental Constitution 

for Virginia, wrote: ‘‘[b]y Executive powers, we mean no reference 

to the powers exercised under our former government by the Crown 

as of its prerogative. . . . We give them these powers only, which 

are necessary to execute the laws (and administer the government).’’ 10 ‘‘This understanding of ‘executive power’ and its implementation were reflected in the Virginia Plan, which Edmund Randolph introduced to the Constitutional Convention, and which provided for a ‘national executive . . . with power to carry into execution national laws [and] to appoint officers in cases not otherwise 


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11May, supra note 5, at 873. 12 6 James Madison, Writings of James Madison 145 (G. Hunt, ed. 1906). 13 James Wilson introduced a draft dealing with the Executive at the Constitutional Convention that read in part: ‘‘It shall be his duty to provide for the due & faithful exec—of the laws.’’ 

2 The Records of the Federal Convention of 1787, at 171 (Max Farrand ed., 1911). 14 2 James Wilson, Lectures on Law Part 2, in Collected Works of James Wilson 829, 878 

(Kermit L. Hall & Mark David Hall eds., 2007). 15George W. Carey, In Defense of the Constitution 153 (1997). 16 5 U.S. (1 Cranch) 137 (1803). 17Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838). 

provided for.’’ 11 In other words, for the Framers’ the ‘‘executive 

power’’ granted to the President in the Vesting Clause was limited. 

As James Madison observed, ‘‘[t]he natural province of the executive magistrate is to execute laws, as that of the legislature to 

make laws. All his acts, therefore, properly executive, must presuppose the existence of the laws to be executed.’’ 12 James Wilson, 

later an Associate Justice of the Supreme Court,13 explained that 

the Take Care Clause meant that the President has the ‘‘authority, 

not to make, or alter, or dispense with the laws, but to execute and 

act the laws, which [are] established.’’ 14 Because if the President 

had the authority not only to execute the laws, but also to make, 

alter, or dispense with the laws, it would have led, according to the 

Framers’ reasoning, to a dangerous concentration of power in one 

branch of government. But the Framers sought to avoid such a concentration of power. According to scholars, there was a ‘‘fundamental agreement’’ among the Framers ‘‘on the proposition that accumulation of powers and tyranny were inseparable.’’ 15 This is reflected in Madison’s statement in Federalist No. 47 that, 

No political truth is certainly of greater intrinsic value, or 

is stamped with the authority of more enlightened patrons 

of liberty than that . . . [t]he accumulation of all powers 

legislative, executive and judiciary, in the same hands 

whether of one, a few or many, and whether hereditary, 

self-appointed, or elective, may justly be pronounced the 

very definition of tyranny. 

The Framers’ thus rejected giving the newly created chief executive the legal authority to suspend or dispense with the enforcement of the laws. That is the province of the Congress. As Madison 

wrote in Federalist No. 51, ‘‘in republican government, legislative 

authority necessarily predominates.’’ Obviously, if the Framers had 

intended to endow the President with the power to waive, amend, 

or suspend the laws, it would be in direct conflict with their fear 

of legislative supremacy. 

B. Supreme Court Interpretation of the Take Care Clause 

The Supreme Court has rejected the authority of the President 

to refuse to enforce constitutional laws. This rejection can be seen 

as early as the Court’s 1803 decision in Marbury v. Madison.16 Although Marbury is best known for its discussion of the power of judicial review, the opinion also recognized Congress’s authority to 

impose specific duties upon Executive Branch officials by law, as 

well as the official’s corresponding obligation to execute the congressional directive. The Supreme Court more forcefully articulated 

this principle in an 1838 case, Kendall v. United States,17 involving 

the Executive Branch’s refusal to comply with an Act of Congress. 

The Court in Kendall observed that ‘‘[t]o contend that the obligaVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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18 Id. at 613. 19 Id. 20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). 21Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). 22 Clinton v. City of New York, 524 US 417, 438 (1998). 23Michael W. McConnell, ‘‘Obama Suspends the Law,’’ Wall St. J., July 8, 2013. 

tion imposed on the President to see the laws faithfully executed 

implies a power to forbid their execution, is a novel construction of 

the constitution, and entirely inadmissible.’’ 18 The Court further 

noted that permitting Executive Branch non-compliance with the 

statute ‘‘would be vesting in the President a dispensing power, 

which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its 

results to all cases falling within it, would be clothing the President with a power to control the legislation of congress, and paralyze the administration of justice.’’ 19

Moreover, a century later, in what has become the seminal case 

on executive power, Youngstown Sheet & Tube Co. v. Sawyer, the 

Court reasoned that, 

In the framework of our Constitution, the President’s 

power to see that the laws are faithfully executed refutes 

the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he 

thinks bad. And the Constitution is neither silent nor 

equivocal about who shall make laws which the President 

is to execute. . . . The Constitution does not subject this 

lawmaking power of Congress to presidential . . . supervision or control. . . . The Founders of this Nation entrusted the lawmaking power to the Congress alone in 

both good and bad times.20

More recently, in Tennessee Valley Authority v. Hill, the Court 

held that it is ‘‘the exclusive province of the Congress not only to 

formulate legislative policies and mandate programs and projects, 

but also to establish their relative priority for the Nation. Once 

Congress, exercising its delegated powers, has decided the order of 

priorities in a given area, it is for the Executive to administer the 

laws.’’ 21 In 1998, the Court further observed, in a case involving 

the line item veto, that ‘‘there is no provision in the Constitution 

that authorizes the President to enact, to amend, or to repeal statutes.’’ 22 In other words, the ‘‘only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose 

new legislation.’’ 23

C. Department of Justice Interpretation of the Take Care Clause 

Legal opinions from the Justice Department under Presidents 

Carter, Reagan, George H. W. Bush, Clinton, and George W. Bush 

all agree that while the President does not have a duty to execute 

laws that he in good faith determines are unconstitutional, the 

President may not refuse to enforce an Act of Congress for policy 

reasons. As Attorney General Civiletti advised during the Carter 

administration, ‘‘[t]he President has no ‘dispensing power,’’’ meaning that the President and his subordinates ‘‘may not lawfully defy 

an Act of Congress if the Act is constitutional. . . . In those rare 

instances in which the Executive may lawfully act in contravention 


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24 43 Op. Att’y Gen. 275 (1980). 25 14 Op. Off. Legal Counsel 37, 51 (1990); see also 18 Op. Off. Legal Counsel 199, 200 (Nov. 

2, 1994) (stating that ‘‘if the president believes that the Court would sustain a particular provision as Constitutional, the President should execute the statute . . . but, if he determines it 

to be unconstitutional, and the Court would likely agree, he has the authority not to execute 

the statute’’). 26Memorandum from William H. Rehnquist, Assistant Att’y Gen., Office of Legal Counsel, Re: 

Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted 

Schools (Dec. 1, 1969). 

of a statute, it is the Constitution that dispenses with the operation 

of the statute. The Executive cannot.’’ 24 The Department’s Office of 

Legal Counsel has similarly reasoned that the President’s duty 

under the Take Care Clause ‘‘does not authorize the President to 

refuse to enforce a statute he opposes for policy reasons.’’ 25

Indeed, other than one decision by President Nixon to refuse to 

spend money appropriated by Congress, it does not appear that any 

previous President has claimed the power to negate a law that the 

President believes is constitutional. Moreover, even with regard to 

President Nixon’s decision to ignore an Act of Congress, the Office 

of Legal Counsel rebuffed his assertion of authority. According to 

Assistant Attorney General Rehnquist, ‘‘it seems an anomalous 

proposition that because the Executive branch is bound to execute 

the laws, it is free to decline to execute them.’’ 26

D. Prosecutorial Discretion 

It has been argued that some of President Obama’s waivers and 

suspensions of enforcement of Acts of Congress are a proper exercise of prosecutorial discretion. However, there are some fundamental differences between the exercise of prosecutorial discretion 

and the President’s delay, waiver, or suspension of an Act of Congress. 

First, the exercise of prosecutorial discretion ordinarily involves 

a determination as to whether a particular individual or entity 

should be the subject of an enforcement action for past conduct. 

With regard, for instance, to the Administration’s immigration nonenforcement directive, Deferred Action for Childhood Arrivals, the 

Administration has not merely concluded that it should abstain 

from prosecuting existing offenses, but that no enforcement action 

will be taken for continuing and future ones. In other words, the 

beneficiaries of this determination (a determination that is defined 

on a categorical rather than individual basis) are assured of immunity from legal consequences even though their violations continue. 

This is not simple prosecutorial discretion, but suspension of the 

law’s operation with respect to this entire group. 

Second, a legitimate exercise of prosecutorial discretion is about 

setting priorities and allocating resources; it does not challenge and 

ignore the basic policy judgments Congress made in enacting the 

law at issue. The President must enforce the law as adopted by 

Congress and must respect the policy choices Congress has made. 

Under the Take Care Clause, he may not nullify the law simply because he disagrees with Congress’s choices, or substitute through 

administrative means his policy preferences for those enacted by 

Congress. Changes to Federal statutory law must be sought and 

obtained from Congress. Administratively exempting whole categories of individuals from otherwise applicable law is an impermissible act of suspension. 


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27 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). 28 Robert J. Delahunty & John C. Yoo, ‘‘The Obama Administration, the DREAM Act and the 

Take Care Clause,’’ 91 Tex. L. Rev. 781, 826 (2013). 29 Id. 

The President can, of course, establish enforcement priorities because Congress rarely appropriates adequate funds to allow perfect 

enforcement of any Federal statutory regime. Thus, the President 

can decide to devote more resources to a particular problem, such 

as human trafficking or white collar crime, with the inevitable result that other Federal statutes or areas of concern will be less vigorously pursued and enforced. This is entirely lawful and appropriate. Presidents are elected for the very purpose of establishing 

such priorities. 

This authority, however, is not boundless. Although the President can, for example, legitimately decide that, in the post-9/11 environment, most of the Federal Bureau of Investigation’s resources 

should be dedicated to the investigation and prosecution of terrorism cases, he cannot decree that no enforcement assets whatsoever will be allocated to securities fraud or counterfeiting cases. Because the Constitution gives the Executive Branch the exclusive 

power to enforce Federal laws, this would effectively decriminalize 

securities fraud and counterfeiting, derogating from the Federal 

statutes that prescribed such activities. 

In short, the President is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the 

law enacted by Congress. If the President disagrees with that law, 

he must convince Congress to change it. 

E. Foreign Affairs vs. Domestic Affairs 

During the Bush administration the label of ‘‘imperial presidency’’ was a favorite refrain of many of the President’s critics. 

However, while the Bush administration may have had an aggressive reading of executive authority, that reading was limited to an 

area of core presidential power—foreign affairs. 

The Constitution declares that the President is the Commanderin-Chief and that he has the authority to make treaties and to receive foreign ambassadors and other public ministers. Indeed, the 

Supreme Court has gone as far as to proclaim that the President 

is the ‘‘sole organ of the Federal Government in the field of international relations.’’ 27 Accordingly, ‘‘if broad executive powers were 

to exist anywhere, they would exist in foreign affairs, where the 

limitations of republican government are most pronounced. Furthermore, it is here where the Constitution is most vague, hence 

giving the President the opportunity to act with the most discretion.’’ 28 By contrast, the domestic powers of the Federal Government are strictly defined and limited. ‘‘Unlike the ‘invitation to 

struggle’ that is the foreign affairs Constitution, the process for enacting legislation is strict and defined.’’ 29 In short, Presidential 

powers are at their weakest in the sphere of domestic policy. Yet 

this is where President Obama has granted himself unprecedented 

executive authority. 

F. President Obama has Acknowledged His Limited Authority 

Even President Obama has acknowledged that action to waive 

legal requirements put in place by Congress would be outside his 


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30 Jeffrey H. Anderson, ‘‘Lawlessness in the Executive,’’ The Weekly Standard (Sept. 2, 2013). 31Lamar Smith, ‘‘Obama’s Amnesty for Illegal Immigrants Is Against the Law,’’ Christian Sci. 

Monitor (June 16, 2012). 32 1 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 54 (1897). 

constitutional powers. In a March 2011 Univision Town Hall in 

Washington, D.C., the President responded to a question regarding 

whether he would grant ‘‘temporary protected status’’ to undocumented students by stating that, 

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books. . . . Congress passes 

the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret 

the laws. There are enough laws on the books by Congress 

that are very clear in terms of how we have to enforce our 

immigration system that for me to simply through executive order ignore those congressional mandates would not 

conform with my appropriate role as President.30

Moreover, in a 2012 interview with Univision, the President responded to a question regarding whether he could halt deportations 

of illegal immigrants. The President said that he could not ‘‘waive 

away the laws that Congress put in place’’ and that ‘‘the president 

doesn’t have the authority to simply ignore Congress and say, 

‘We’re not going to enforce the laws that you’ve passed.’’’ 31

II. THE PRESIDENT’S FAILURES TO FAITHFULLY EXECUTE THE LAWS

Our system of government is a tripartite one, with each branch 

having certain defined functions delegated to it by the Constitution. 

The Obama administration, however, has ignored the Constitution’s carefully balanced separation of powers and has unilaterally 

granted itself the extra-constitutional authority to amend, waive, or 

suspend the enforcement of the laws. This goes beyond the ‘‘executive power’’ granted to the President and specifically violates the 

Constitution’s command that the President is to ‘‘take care that the 

laws be faithfully executed.’’ 

The President’s encroachment into the Congress’s sphere of 

power is not a transgression that should be taken lightly. As 

English historian Edward Gibbon famously observed regarding the 

fall of the Roman Empire, ‘‘[t]he principles of a free constitution 

are irrevocably lost, when the legislative power is dominated by the 

executive.’’ 32 Although the President’s actions have not yet risen to 

the level of dominating the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional 

design. From Obamacare to immigration, the current Administration is continually picking and choosing which laws to enforce and 

which to ignore. 

The following are examples of President Obama’s failures to 

faithfully execute the laws passed by Congress. In none of the 

below examples has the Administration claimed that the statutory 

law at issue violates the Constitution or infringes on authorities 

granted the President in Article II. In fact, with regard to the Affordable Care Act, the Obama administration has argued all the 

way to the Supreme Court that the Act is constitutional. 


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33Patient Protection and Affordable Care Act § 1513(d) (emphasis added). 34Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, available at http://www.treasury.gov/connect/blog/pages/continuing-to-implement-the-aca-in-a-carefulthoughtful-manner-.aspx (emphasis added); Juliet Eilperin and Amy Goldstein, ‘‘White House 

delays health insurance mandate for medium-sized employers until 2016,’’ Wash. Post, Feb. 10, 

2014. 35See H.R. 2667. Moreover, the Administration has stated that the President will veto H.R. 

2667 if the bill is presented to him. Statement of Administration Policy on H.R. 2667 and H.R. 

2668 (July 16, 2013) available at http://www.whitehouse.gov/sites/default/files/omb/legislative/ 

sap/113/saphr2667r_20130716.pdf. 36Section 1332 authorizes the Treasury secretary to waive the employer mandate, but only 

as part of a state-specific waiver, and only if the state enacts a law that would provide equally 

comprehensive health insurance to as many residents, and only if that law would impose no 

additional cost to the Federal Government, and only if there is a ‘‘meaningful level of public 

input’’ over the waiver and its approval, and even then not until 2017. 

A. Obamacare and the Take Care Clause 

1. Illegal Waiver of the Employer Mandate 

On July 2, 2013, the Obama administration claimed the authority to delay for 1 year the penalties associated with the Affordable 

Care Act’s employer mandate despite the clear language of the Act. 

And, on February 10, 2014, the Administration announced that it 

would further delay the employer mandate for another year for medium-sized employers, those with 50 to 99 employees. Although 

these delays may be welcome news to employers, who face enormous burdens as a result of the mandate, the unilateral decision 

to delay implementation of a major provision in the ACA is a serious breach of the President’s constitutional duty to ensure that the 

laws are faithfully executed. 

Section 1513 of the ACA imposes penalties on employers who fail 

to provide ‘‘minimum essential coverage’’ to their employees. The 

section further provides that these penalties ‘‘shall apply to months 

beginning after December 31, 2013.’’ 33 Despite this explicit requirement that the penalties shall apply beginning in 2014, the Administration has announced that the penalties ‘‘will not apply for 2014’’ 

for all employers and will not apply to medium-sized employers for 

2015 as well.34 Although the House has acted to delay application 

of the employer mandate for a year, the Senate has not acted on 

this legislation.35

The Administration’s defense of its claim of authority to delay 

the employer mandate is unavailing. The ACA gives the Treasury 

Secretary the authority to collect these penalties ‘‘on an annual, 

monthly, or other periodic basis as the Secretary may prescribe.’’ 

The Secretary’s discretion to prescribe the time at which the affected party must discharge that obligation neither affects the existence of the obligation, nor empowers the Secretary to repeal it. 

Moreover, the ACA does not allow the Secretary to waive the imposition of such penalties, except in one circumstance unrelated to 

the Administration’s delay.36 In other words, Congress spoke to the 

question of whether and when the executive should be able to 

waive the employer mandate, and Congress clearly did not want 

the Administration to waive the mandate unless certain specified 

conditions were met. 

Some of the President’s supporters have claimed the President is 

not waiving the penalties, only the reporting requirements. This argument, however, is not persuasive. The ACA added two sections 

to the Internal Revenue Code that require employers to report certain information on their health benefits and the workers who enVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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37Mazur, supra note 34. 38 26 U.S.C. § 36B (authorizing subsidies for policies ‘‘enrolled in through an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act’’). 

These subsidies take the form of refundable tax credits, which are paid directly by the Federal 

treasury to the taxpayer’s insurer, as an offset against the taxpayer’s premiums. 39State Decisions For Creating Health Insurance Exchanges, Kaiser State Health Facts, 

available at http://kff.org/health-reform/stateindicator/health-insurance-exchanges/. Twentyseven states have opted out of the exchange regime completely, while another seven have opted 

only to assist the Federal Government with the operation of federally established exchanges. 40 26 U.S.C. § 36B. 41 But see Halbig v. Sebelius, 2014 U.S. Dist. LEXIS 4853 (D.D.C. 2014). 42 Contra U.S. Const. art. I, § 9 (‘‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’’). 

roll in that coverage, in order to help the IRS determine whether 

those workers are eligible for tax credits and whether the employer 

is subject to penalties. Again, the statute is clear: those reporting 

requirements take effect in ‘‘calendar years beginning after 2013’’ 

and ‘‘periods beginning after December 31, 2013.’’ The statute contains no language authorizing the Executive Branch to waive those 

requirements. 

The Obama administration claims it can altogether eliminate the 

obligation to report the 2014 information: ‘‘The Administration . . . 

will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin.’’ 37 It has no statutory or constitutional authority to do this and, therefore, this 

delay is illegal. 

2. Illegal IRS Rule to Expand Premium Assistance Subsidies 

The Affordable Care Act provides ‘‘premium assistance’’ tax credits and subsidies to help individuals with incomes within 400 percent of the poverty line purchase qualifying health insurance plans 

on state-run insurance exchanges.38 However, 34 states have decided not to create their own insurance exchanges.39 If a state fails 

to create an exchange, the ACA authorizes the Federal Government 

to create a ‘‘fallback’’ exchange for that state. But, under the plain 

text of the ACA, premium assistance is not available for individuals who purchase insurance in states that have federally established exchanges, because individuals in those states will not have 

the opportunity to enroll in health insurance ‘‘through an Exchange 

established by the State under section 1311 of the [ACA],’’ which 

is the statutory prerequisite to eligibility for premium assistance.40

Undaunted by the clear statutory text, the Obama administration issued an Internal Revenue Service rule that purports to extend the ACA’s premium assistance to the purchase of health insurance from federally-run exchanges created in states without exchanges of their own. This rule lacks statutory authority—the ACA 

precludes the IRS from providing premium assistance for insurance 

purchased from a federally-run exchange.41 The text, structure, 

and history of the ACA show that tax credits and subsidies are not 

available in federally-run exchanges. The IRS rule is therefore illegal and yet another failure on the Administration’s part to faithfully execute the law. What is more, the rule allows for the distribution of billions of dollars of Federal funds that Congress never 

authorized.42

Moreover, this illegal IRS rule affects more than just the availability of premium assistance. This is because the availability of 

premium assistance also operates as the trigger for other mandates 

and penalties under the ACA. First, the availability of premium asVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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43See 26 U.S.C. § 5000A. 44See 26 U.S.C. § 4980H (Employers must make an ‘‘assessable payment’’ if they do not offer 

their employees the opportunity to enroll in employer-sponsored health coverage, but that payment is only triggered if at least one employee enrolls in a plan from state-run exchange.). 45 42 U.S.C. § 18011. 46 Id. 47 Id. 48 ‘‘President Obama Announces New Steps to Help Americans Receiving Insurance Cancellation Notices,’’ available at http://www.whitehouse.gov/blog/2013/11/14/president-obama-announces-new-steps-help-americans-receiving-insurance-cancellation (emphasis added). 

sistance triggers the individual mandate penalty for many Americans that would otherwise be exempt from the mandate.43 Second, 

the availability of premium assistance also effectively triggers the 

enforcement mechanism for the employer mandate.44 As a consequence, the employer mandate should be unenforceable in states 

that decline to create an exchange. In short a state’s decision not 

to create an exchange exempts a substantial portion of its residents 

and business from Obamacare. 

This supposed IRS fix is actually an effort to rewrite the law to 

provide for the expenditure of billions of taxpayer dollars without 

Congress’s approval. 

3. Illegal Waiver for Non-Compliant Health Plans 

Section 1251 of the Affordable Care Act lists the conditions under 

which an individual can keep pre-ACA health insurance even if it 

runs afoul of the ACA’s requirements. That section, known as the 

grandfathering provision, states that ‘‘nothing in this Act . . . shall 

be construed to require that an individual terminate coverage 

under a group health plan or health insurance coverage in which 

such individual was enrolled on the date of enactment of this 

Act.’’ 45 It further provides that additional family members can be 

added to ‘‘a group health plan or health insurance coverage in 

which an individual was enrolled on the date of enactment of this 

Act,’’ 46 and that new employees and their families can be added to 

a group plan ‘‘that provide[d] coverage on the date of enactment of 

this Act.’’ 47 These are the only three exceptions listed in the statutory text of the ACA that allow for the grandfathering of an existing health care plan. 

However, despite the clear language of the ACA, on November 

14, 2013, President Obama announced, without statutory authorization, a new grandfathering exception: 

Already people who have plans that predate the Affordable 

Care Act can keep those plans if they haven’t changed. 

That was already in the law. That’s what’s called a grandfather clause that was included in the law. Today, we’re 

going to extend that principle both to people whose plans 

have changed since the law took effect and to people who 

bought plans since the law took effect.48

The President does not possess the lawful authority to take unilateral action to permit the continued sale of plans that were not in 

effect on the date of enactment of the ACA. The House passed a 

bill on November 15, 2013, to allow Americans to keep their existing coverage; however, the Senate has not taken action on that legislation and the President has threatened to veto it. 


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49 42 U.S.C. § 2000bb–1. 50 John Yoo, ‘‘Obama Has Pursued a Dangerous Change in the Powers of the President,’’ 

FoxNews.com, October 12, 2012. 51See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). 52Galvan v. Press, 347 U.S. 522, 531 (1954). 53 INS v. Chadha, 462 U.S. 919, 940–41 (1983). 

4. Illegal Contraceptive Mandate 

The Affordable Care Act requires employers to provide certain 

‘‘preventive services’’ at no-cost to the insured. In carrying out this 

requirement the Department of Health and Human Services (HHS) 

has mandated that employers, including religiously-affiliated institutions, pay for sterilization, abortion-inducing drugs, and birth 

control services even if paying for them violates the employers’ conscience rights. 

However, this regulatory mandate violates an Act of Congress: 

the Religious Freedom Restoration Act (RFRA). RFRA provides 

that the Federal Government may ‘‘substantially burden’’ a person’s ‘‘exercise of religion’’ only if it demonstrates that application 

of the burden to the person ‘‘is in furtherance of a compelling governmental interest’’ and ‘‘is the least restrictive means of furthering’’ that interest.49 Yet in issuing the contraceptive mandate, 

HHS never even attempted to structure the requirements in such 

a way as to eliminate the burden on religious employers. The President has a constitutional duty to ensure that RFRA is faithfully executed even if it interferes with his policy preferences regarding 

contraceptives. 

B. Immigration Non-Enforcement and the Take Care Clause 

1. Deferred Action for Childhood Arrivals 

Article I, Section 8 of the Constitution gives Congress, not the 

President, the authority ‘‘to establish a uniform rule of naturalization.’’ ‘‘Although the Constitution is silent on border control and immigration, the Supreme Court declared long ago that these authorities reside with Congress.’’ 50 While the Supreme Court has indicated on several occasions that the President has some measure of 

‘‘inherent’’ power over immigration,51 the Court seems to have settled finally on the view that the formation of immigration policy ‘‘is 

entrusted exclusively to Congress,’’ 52 and that ‘‘[t]he plenary authority of Congress over aliens . . . is not open to question.’’ 53 Congress has passed an extensive Immigration and Naturalization Act, 

which specifies the limited cases in which the Executive Branch 

can suspend the removal of illegal aliens. The Act does not give the 

President the authority to interrupt the deportation of whole classes of illegal aliens. 

The Administration has stated that going forward deportation efforts will be focused solely on aliens with criminal records and no 

enforcement resources will be expended on other types of cases. 

Undocumented individuals who have avoided apprehension at the 

border and have not been convicted of a serious offense since arriving to the United States will no longer face the prospect of deportation, the most basic means of immigration enforcement. 

Far from merely prioritizing the use of limited resources, the Administration’s policy effectively rewrites the law. It means that the 

vast majority of undocumented aliens no longer need to fear immigration enforcement. This applies even to those aliens who are now 


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54 Controlled Substances Act, 21 U.S.C. §§ 841, 844 (2006). 

in deportation proceedings. Limiting the possibility of deportation 

in this manner eliminates entirely any deterrent effect the immigration laws have, and also states plainly that those laws can be 

ignored with impunity. The President has, in effect, suspended operation of those laws with respect to a very large and identifiable 

class of offenders. This clearly exceeds his constitutional authority. 

2. Non-enforcement of Immigration Laws for Parents and 

Guardians 

On August 23, 2013, the Obama administration issued a policy 

directive instructing Immigration and Customs Enforcement officials not to enforce immigration laws in cases in which the unlawful immigrant is the primary provider for a minor child, regardless 

of the child’s immigration status, or in which the unlawful immigrant is the parent or legal guardian of a child who is a U.S. citizen 

or lawful permanent resident. This is yet another example of President Obama abusing his authority and unilaterally refusing to enforce the current immigration laws by directing ICE officials to stop 

removing broad categories of unlawful immigrants. 

Instead of working with Congress to address problems with the 

country’s immigration system, the President has once again decided to go it alone despite the fact that both the House and the 

Senate are working on immigration reform measures. This is another example of the President’s contempt for the rule of law and 

a failure to faithfully execute the laws passed by Congress. 

3. Unlawful Extension of Parole in Place 

On November 15, 2013, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing that spouses, 

children, and parents of those who are serving—or who have previously served—in the Armed Forces of the United States could receive ‘‘parole-in-place’’ on a categorical basis. The policy allows 

aliens who entered the United States without inspection—and who 

are family members of current or former service members—to 

apply for and receive ‘‘parole’’ that would permit them to remain 

in the country and apply for green cards. This will permit many 

aliens to adjust status without having to travel abroad for consular 

processing of their immigrant visas (and likely trigger the 3 or 10 

year inadmissibility bars). 

Notably, the parole statute, the regulations, and the legislative 

history do not seem to contemplate parole for: (1) aliens who are 

already in the United States illegally, (2) an entire category of people, or (3) an indefinite period of time. Parole was created to permit 

aliens to enter the United States temporarily, on a case-by-case 

basis, for urgent or humanitarian reasons. 

C. Non-Enforcement of Federal Criminal Law and the Take Care 

Clause 

1. Non-enforcement of the Controlled Substances Act for 

Medical and Recreational Marijuana 

The Controlled Substances Act (CSA) prohibits the possession, 

growth, and distribution of marijuana.54 The CSA does not distinguish between purposes or different uses of marijuana; it clearly 


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55 Id. 56 Robert A. Mikos, A Critical Appraisal of the Department of Justice’s New Approach to Medical Marijuana, 22 Stan. L. & Pol’y Rev. 633, 638 (2011). 57Gonzales v. Raich, 545 U.S. 1 (2005) (challenging the CSA’s application to a small-scale 

grower and medical marijuana user). 58Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to Selected 

U.S. Att’ys (Oct.19, 2009), available at http://blogs.justice.gov/main/archives/192. 59 20 Legal Medical Marijuana States and DC, PROCON.ORG, available at http:// 

medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (including California (in 

1996); Oregon (1998); Washington (1998); Alaska (1999), Maine (1999), Colorado (2000), Hawaii 

(2000), Montana (2004), Nevada (2004); Vermont (2004); Rhode Island (2006), New Mexico 

(2007), Michigan (2008), New Jersey (2009), Arizona (2010); DC (2010), Delaware (2011), Connecticut (2012), Massachusetts (2012), Illinois (2013), New Hampshire (2013)). 60Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to All U.S. 

Att’ys (Aug. 29, 2003), available at http://www.justice.gov/iso/opa/resources/3052013829132 

756857467.pdf. 

states that all use and distribution is illegal.55 The administrations 

of both President George W. Bush and President Bill Clinton enforced the CSA and prosecuted medical marijuana suppliers.56

Moreover, in 2005, the Supreme Court held that the CSA did not 

make exceptions for any intrastate sales, including cases of smallscale production and use of medical marijuana.57

However, Attorney General Holder announced on October 19, 

2009, that the Justice Department would stop enforcing the Federal marijuana ban against persons who comply with state medical 

marijuana laws. Although the memo recognized Congress’s inclusion of marijuana as a dangerous drug and serious crime in the 

CSA, the Department proclaimed that enforcement of the CSA with 

regard to medical marijuana is unnecessary for ‘‘individuals whose 

actions are in clear and unambiguous compliance with existing 

state laws providing for the medical use of marijuana.’’ 58 As of 

September 2013, 20 states and the District of Columbia have legalized medical marijuana.59

Additionally, on August 29, 2013, Attorney General Holder announced that the Justice Department would not enforce the CSA 

against companies—even large companies—that produce and distribute marijuana as a recreational drug as long as those companies operated within a ‘‘strong and effective’’ state regulatory system (and also meet eight other criteria).60 Starting in January 

2014, two states—Colorado and Washington—will allow large-scale, 

for-profit production and distribution of marijuana for recreational 

(non-medical) use. 

The decision of the Obama administration not to enforce the CSA 

in entire states is not a valid exercise of prosecutorial discretion. 

A decision by an individual Federal prosecutor not to bring charges 

against an individual for violating the CSA’s prohibitions on the 

production, possession, or distribution of marijuana likely falls 

within the umbrella of ‘‘prosecutorial discretion.’’ Thus, there would 

appear to be no constitutional defect in a prosecutor’s decision not 

to prosecute a specific individual whose use of marijuana is in compliance with state law. The Executive Branch has no obligation to 

prosecute all violations of Federal law. 

However, the breadth of the Justice Department’s position on 

marijuana non-enforcement goes well beyond the limits of prosecutorial discretion. Rather, the guidance to U.S. Attorneys establishes 

a formal, department-wide policy of selective non-enforcement of an 

Act of Congress. This infringes on Congress’s lawmaking authority 

by, in effect, amending the flat prohibitions of the CSA to permit 

the possession, distribution, and cultivation of marijuana so long as 


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61Motoko Rich, ‘‘‘No Child’ Law Whittled Down by White House,’’ N.Y. Times, July 6, 2012. 

that conduct is in compliance with state law. This crosses the line 

between permissible discretionary decisions made by prosecutors 

on a case-by-case basis and an impermissible suspension of the law 

by executive fiat. 

2. Amending Statutory Mandatory Minimums by Executive 

Decree 

On August 12, 2013, Attorney General Holder announced in a 

speech to the American Bar Association changes in Federal mandatory minimum sentencing policy regarding low-level, non-violent 

drug offenders. Attorney General Holder’s announcement continues 

the Obama administration’s pattern of overstepping its constitutional bounds by selectively enforcing Federal law and attempting 

to amend Acts of Congress through executive fiat in blatant disregard for the limitations the Constitution places on the Executive 

Branch. The Obama administration cannot unilaterally ignore the 

laws or the limits on the President’s powers. While the Executive 

Branch has the ability to use prosecutorial discretion in individual 

cases, that authority does not extend to entire categories of people. 

Although Members of Congress may agree with many of the policy issues Attorney General Holder outlined in his announcement, 

reform regarding mandatory minimums is constitutionally required 

to come from Congress. And Congress is working on the issue. The 

House Judiciary Committee created the Overcriminalization Task 

Force to address these issues as well as others with the Federal 

criminal justice system. This Task Force is in the process of taking 

a broad look at the Federal criminal code, allowing for input from 

experts, and is already considering sentencing and prison reform 

issues. If the Obama administration wants to reform our criminal 

justice system, it is constitutionally required to work with Congress 

to do so. 

D. Other Failures to Faithfully Execute the Laws 

1. Illegally Amending No Child Left Behind Through Executive Waivers 

In 2001, Congress enacted the No Child Left Behind (NCLB) 

education reforms. The legislation imposed numerous requirements 

on states and local school districts that receive Federal funds. 

While there is bipartisan agreement that the law needs to be reformed, rather than working with Congress to reform the law, the 

Obama administration has used the promise of waivers from the 

requirements of NCLB to compel states to adopt the Administration’s own version of education reform policies. 

The Administration’s proposals have not been considered by Congress, let alone enacted into law, but by attaching strings to the 35 

state waivers that have thus far been granted, the Administration 

is effectively implementing a new law without bothering to go to 

Congress. As the New York Times described it: ‘‘In the heat of an 

election year, the Obama administration has maneuvered around 

Congress, using the waivers to advance its own education agenda. . . . The waivers appear to follow an increasingly deliberate 

pattern by the administration to circumvent lawmakers.’’ 61


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62Letter from Lynn H. Gibson, General Counsel, General Accountability Office, to Sen. Orrin 

Hatch and Rep. Dave Camp (Sept. 4, 2012) available at http://waysandmeans.house.gov/ 

uploadedfiles/gao_tanf_report_sept_2012.pdf. 63 Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). 

2. Illegally Amending the 1996 Welfare Reform Law Through 

Waivers 

In July 2012, despite the plain meaning of the law, the Obama 

administration asserted that it had the authority to waive the statutory work requirements included in the bipartisan 1996 welfare 

reform law. The non-partisan Government Accountability Office 

(GAO) has determined that the Obama administration’s decision to 

unilaterally grant itself the authority to waive Federal Temporary 

Assistance for Needy Families (TANF) work requirements, which 

were a critical element of the welfare reform enacted in 1996, 

qualifies as a rule.62 As such, the waiver must be submitted to 

Congress and is subject to review—and potential disapproval— 

under the Congressional Review Act. 

Despite the Obama administration’s attempts to unilaterally 

undo welfare work requirements, the GAO analysis is unequivocal 

that any changes must be submitted to Congress. Circumventing 

Congress is a flagrant abuse of our system of separated powers. 

Work requirements were a critical part of the landmark 1996 Welfare Reform law and cannot constitutionally be scrapped through 

executive decree by the Obama administration. 

3. Illegally Ignoring Advise & Consent (‘‘Recess’’ Appointments) 

One of the checks and balances imposed by the Founding Fathers 

was the requirement that senior Executive Branch officials be appointed only with the consent of the Senate. In the modern regulatory state the approval of officials by the Senate is one key way 

to ensure that regulators do not abuse their authority. In order to 

address situations in which the Senate was in recess, thus preventing the Senate from consenting, the Framers provided for a 

limited interim appointment process absent Senate confirmation. 

When the Senate did not approve four of his nominees to two 

regulatory agencies—the head of the new Consumer Financial Protection Bureau (CFPB) and three members of the National Labor 

Relations Board (NLRB)—President Obama took the unprecedented step of declaring that the Senate was in recess—even 

though it was not—and invoking his interim appointments power. 

Seating the head of the CFPB and a quorum for the NLRB allowed 

both agencies to begin promulgating regulations that would have 

otherwise been on hold until the President and the Senate came to 

agreement on filling the vacancies. 

On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit held that President Obama exceeded his constitutional authority by making ‘‘recess’’ appointments to the National Labor Relations Board.63 According to the court, the appointments were unconstitutional because (1) they were not made during ‘‘the Recess’’ 

of the Senate (that is, the intersession recess between the first and 

second Senate sessions), and (2) the vacancies the appointments 

filled did not arise during the intersession recess. 


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64Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 65 U. S. Const., Art. III, § 2. 66 Allen v. Wright, 468 U.S. 737, 750 (1984). 67DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Elk Grove Unified School 

Dist. v. Newdow, 542 U.S. 1, 11 (2004)). 68See Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 814 (D.C. Cir. 2006) (quoting 

Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)). 69 United States v. Windsor, 133 S. Ct. 2675, 2685 (2013) (quoting Elk Grove Unified School 

Dist., 542 U. S. 11–12) (internal citations omitted). 70Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations and citations 

omitted). 71 Id. (internal quotations and alterations omitted). 72 Id. 73See Raines v. Byrd, 521 U.S. 811, 819–20 (1997). 74 Id. at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). 

III. THE DOCTRINE OF STANDING

‘‘Federal courts are courts of limited jurisdiction[, possessing] 

only that power authorized by Constitution and statute.’’ 64 The ‘‘judicial power’’ conferred on Article III courts by the Constitution is 

limited to deciding particular ‘‘Cases’’ and ‘‘Controversies.’’ 65 ‘‘In an 

attempt to give meaning to Article III’s case-or-controversy requirement, the courts have developed a series of principles termed 

‘justiciability doctrines,’ among which [is] standing.’’ 66 In other 

words, ‘‘ ‘Article III standing . . . enforces the Constitution’s caseor-controversy requirement.’ ’’ 67

Standing is ‘‘‘an essential and unchanging’ predicate to any exercise of jurisdiction’’ by an Article III Federal court.68 Thus, standing is a threshold procedural question that does not turn on the 

merits of a plaintiff’s complaint, but rather on whether the particular plaintiff has a legal right to a judicial determination on the 

issues before the court. The doctrine of standing is made up of both 

constitutional requirements and prudential considerations. ‘‘The 

Court has kept these two strands separate: ‘Article III standing, 

which enforces the Constitution’s case-or-controversy requirement, 

and prudential standing, which embodies ‘judicially self-imposed 

limits on the exercise of Federal jurisdiction.’’’ 69

In order to satisfy the constitutional standing requirements, the 

Supreme Court has imposed three requirements. ‘‘First, the plaintiff must have suffered an injury in fact—an invasion of a legally 

protected interest which is (a) concrete and particularized . . . and 

(b) actual or imminent, not conjectural or hypothetical.’’ 70 ‘‘Second, 

there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the 

challenged action of the defendant and not the result of the independent action of some third party not before the court.’’ 71 ‘‘Third, 

it must be likely, as opposed to merely speculative, that the injury 

will be redressed by a favorable decision.’’ 72

The Supreme Court has stressed that the standing inquiry is ‘‘especially rigorous’’ in cases in which important separation of powers 

concerns are implicated by a dispute.73 In the separation of powers 

context, the courts have required plaintiffs to demonstrate that 

‘‘the dispute is ‘traditionally thought to be capable of resolution 

through the judicial process.’’’ 74

In addition to constitutional standing requirements, Federal 

courts also follow a set of prudential standing principles. Similar 

to the constitutional requirements, these prudential limits are 

‘‘founded in concern about the proper—and properly limited—role 

of the courts in a democratic society’’; however, these standing prinVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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75 Bennett v. Spear, 520 U.S. 154, 162 (1997). These prudential principles require that (1) the 

plaintiff assert his own legal rights and interests, rather than those of a third party; (2) the 

plaintiff’s complaint fall within the ‘‘zone of interests’’ protected or regulated by the statute or 

constitutional guarantee in question; and (3) the plaintiff not assert ‘‘abstract questions of wide 

public significance which amount to generalized grievances pervasively shared and most appropriately addressed in the representative branches.’’ 76Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980). 77Warth v. Seldin, 422 U.S. 490, 500 (1975). 78 But see Powell v. McCormack, 395 U.S. 486 (1969). 79Kucinich v. Bush, 236 F. Supp. 2d 1, 7 (D.D.C. 2002). 80 Comm. on Oversight & Gov’t Reform v. Holder, 2013 U.S. Dist. LEXIS 140994 at *34 

(D.D.C. 2013). 

ciples are judicially created. Unlike their constitutional counterparts, prudential standing principles ‘‘can be modified or abrogated 

by Congress.’’ 75 Accordingly, prudential standing principles are 

more flexible ‘‘rule[s] . . . of Federal appellate practice,’’ 76 designed to protect the courts from ‘‘decid[ing] abstract questions of 

wide public significance even though other governmental institutions may be more competent to address the questions and even 

though judicial intervention may be unnecessary to protect individual rights.’’ 77

A. Individual Member of Congress Standing 

The courts have been increasingly skeptical, especially since 

Raines v. Byrd, of finding standing in cases brought by individual 

Members of Congress or ad hoc groups of Members. Courts have 

rejected Member standing in many of these cases, in part, because 

the Members bringing the suit were not singled out for especially 

unfavorable treatment as opposed to other Members of Congress. 

Rather, their claims were based on institutional injuries (generally 

the diminution of legislative power), which necessarily damage all 

Members of Congress equally. 

Moreover, in these cases Members have not claimed that they 

have been deprived of something to which they personally are entitled—such as their seats as Members of Congress after their constituents had elected them.78 Instead, their claims have been based 

on a loss of political power, not loss of any private right, which 

would make the injury more concrete. As one Federal district court 

judge recently observed, the Supreme Court’s legislative standing 

jurisprudence ‘‘teaches that generalized injuries that affect all 

Members of Congress in the same broad and undifferentiated manner are not sufficiently ‘personal’ or ‘particularized,’ but rather are 

institutional, and too widely dispersed to confer standing.’’ 79

B. Institutional Standing 

While Members of Congress often have difficulty establishing 

standing to allege an institutional injury, institutional plaintiffs 

(e.g., a House committee when authorized by the full House to 

bring suit) have been more successful at establishing standing in 

cases in which they have been authorized to seek judicial recourse 

on behalf of one House of Congress. However, all of the available 

cases regarding institutional standing have dealt with judicial enforcement of a subpoena. It is unclear how, or if, these precedents 

would be applied outside of the subpoena enforcement context. 

It is clear though that Raines v. Byrd, the leading legislative 

standing case, ‘‘does not stand for the proposition that Congress 

can never assert its institutional interests in court.’’ 80 In fact, the 


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81Raines, 521 U.S. at 829. 82See, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Campbell v Clinton, 203 F.3d 19 (D.C. Cir. 

1999); Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999). 83Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011). 84See, e.g., United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976); Comm. on the Judiciary 

v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); Comm. on Oversight & Gov’t Reform v. Holder, 2013 

U.S. Dist. LEXIS 140994 (D.D.C. 2013); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973). 85Raines, 521 U.S. at 829. 

Supreme Court noted in Raines that it ‘‘attach[ed] some importance 

to the fact that [plaintiffs] have not been authorized to represent 

their respective Houses of Congress in this action, and indeed both 

Houses actively oppose their suits.’’ 81 In other words, the Supreme 

Court’s decision in Raines was premised in part on the fact that 

the Members in that case did not initiate the lawsuit on behalf of 

their respective House of Congress. 

DISCUSSION

In order to rein in the President’s failure to faithfully execute the 

laws, the ENFORCE the Law Act puts a procedure in place to permit the House, or the Senate, to authorize a lawsuit against the 

Executive Branch. One hurdle the House or the Senate would face 

in any such lawsuit is establishing standing to sue. The Federal 

courts have been very resistant to find that legislators have standing to bring suit. However, this does not mean that a legal challenge brought by one House of Congress based on the failure to 

faithfully execute the laws is necessarily foreclosed. 

Although the cases in the leading line of legislative standing 

cases all found that the Members of Congress bringing lawsuits did 

not have standing to sue, in none of those cases was the lawsuit 

brought pursuant to the authorization of one House of Congress to 

redress a clearly delineated, concrete injury to the institution.82

Rather, in those cases individual Members sought to ameliorate 

Congress’s institutional injury without the consent of the institution itself. But the Court has never held that an institution, such 

as the House of Representatives, cannot file suit to address an institutional harm. As one Federal district court judge recently pointed out regarding the seminal case on legislative standing, Raines 

v. Byrd, ‘‘the Supreme Court’s decision in Raines was premised in 

part on the fact that the legislators in that case did not initiate 

their lawsuit on behalf of their respective legislative bodies.’’ 83

There is a separate line of cases, however, involving enforcement 

of congressional subpoenas in which the Federal courts in the D.C. 

Circuit have found that a House of Congress has standing to defend its institutional interests.84 In this line of cases, the plaintiff 

was authorized to act on behalf of the House or Senate to vindicate 

the House’s, or the Senate’s, institutional interest that had been 

challenged by the Executive Branch. This line of cases is clearly 

distinguishable from the Raines line of cases. In fact, in Raines, the 

Supreme Court even noted that it ‘‘attach[ed] some importance to 

the fact that [plaintiffs] have not been authorized to represent their 

respective Houses of Congress in this action, and indeed both 

Houses actively oppose their suits.’’ 85 Indeed, ‘‘the Raines case was 

dismissed because the individual lawmakers who brought the action failed to allege the requisite particularized and concrete injury 

to themselves, not because a legislative body as an institution 


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86 Comm. on Oversight & Gov’t Reform, 2013 U.S. Dist. LEXIS 140994 at *55. 87Miers, 558 F. Supp.2d at 71. 88 Comm. on Oversight & Gov’t Reform., 2013 U.S. Dist. LEXIS 140994 at *33. 89Raines, 521 U.S. at 826. 90 Id. at 823. 

would lack standing to bring an action on its own behalf.’’ 86 Thus, 

authorization by a House of Congress is a ‘‘key factor’’ in the standing calculus in institutional injury cases: ‘‘the fact that the House 

. . . explicitly authorized this suit does more than simply remove 

any doubt that [the House] considers itself aggrieved. It is a key 

factor that moves this case from the impermissible category of individual plaintiff asserting an institutional injury to the permissible 

category of an institutional plaintiff asserting an institutional injury.’’ 87

The ENFORCE the Law Act provides for lawsuits brought pursuant to authorization by one House of Congress. It would appear, 

therefore, that this second line of cases is more applicable to standing in the lawsuits contemplated by this legislation. 

In addition to institutional authorization to bring suit, there is 

another factor that distinguishes the Raines line of cases from the 

cases contemplated by the ENFORCE the Law Act. In Raines, the 

asserted injury was to Congress’s vaguely defined ‘‘political power’’ 

that would be lost as a result of the President’s use of the line item 

veto. The harm alleged was not tied to a specific instance of a loss 

in voting power; rather, the Members asserted that they could be 

injured in the future as a result of the line item veto. By contrast, 

with regard to the President’s failure to faithfully execute the laws, 

the injury is not some future hypothetical—the President is currently refusing to enforce clear provisions in statutes passed by 

Congress. Accordingly, a suit brought to challenge a failure to 

faithfully execute the laws would be based on an injury to the 

House or Senate caused by the President’s failure to enforce a particular statutory provision. As has been observed, ‘‘it is clear that 

the action in Raines was dismissed for lack of jurisdiction because 

of the ‘amorphous’ nature of the claim, not because it was an interbranch dispute.’’ 88 Or as the Raines court put it, ‘‘[t]here is a vast 

difference between the level of vote nullification at issue in Coleman v. Miller[, a case in which the Court determined the legislators had standing,] and the abstract dilution of institutional legislative power that is alleged here.’’ 89

The institutional injuries that could be alleged in light of the 

Obama administration’s failures to faithfully execute the laws appear to rise to the ‘‘level of vote nullification at issue in Coleman.’’ 

This is because in Raines, the Court characterized Coleman as 

holding that ‘‘legislators whose votes would have been sufficient to 

defeat (or enact) a specific legislative Act have standing to sue if 

that legislative action goes into effect (or does not go into effect), 

on the ground that their votes have been completely nullified.’’ 90

In other words, because many of the Obama administration’s actions have effectively nullified Acts of Congress, according to 

Raines and Coleman there is ‘‘institutional injury’’ sufficient to satisfy Article III standing. For example, in the Affordable Care Act, 

Congress passed language that stated that the employers who fail 

to provide ‘‘minimum essential coverage’’ to their employees are 

subject to a penalty that ‘‘shall apply to months beginning after DeVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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91Patient Protection and Affordable Care Act § 1513(d) (emphasis added). 92 Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before 

the House Committee on the Judiciary, 113th Cong. (2014) (statement of Elizabeth Price Foley). 93Raines, 521 U.S. at 829–30 (internal footnotes and citations omitted). 94David Rivkin & Elizabeth Price Foley, ‘‘Can Obama’s Legal End-Run Around Congress Be 

Stopped?,’’ Politico (Jan. 15, 2014). 95 524 U.S. 417 (1998). 

cember 31, 2013.’’ 91 The Obama administration, however, has, 

without statutory authorization, issued two 1-year delays to all, or 

part, of this mandate. This was a nullification of an Act of Congress that should be sufficient to confer Article III standing. 

Thus, the nullification of a legislative act, such as delaying the 

employer mandate, provides an institutional injury sufficient to 

qualify as an Article III case or controversy. If Congress explicitly 

authorizes an institutional lawsuit to enforce the nullified law, 

Congress, or a House of Congress, as an institution, should have 

standing to bring a lawsuit—‘‘[s]o long as the courts are convinced 

that the legislator-plaintiffs are speaking on behalf of the institution (the ‘institutional check’) and the Executive’s act is tantamount to a ‘nullification’ of legislative action (the ‘‘injury check’’), 

the controversy will be sufficiently direct and concrete to satisfy Article III injury-in-fact requirements.’’ 92

Moreover, there are factors present in the situation created by 

President Obama’s repeated failures to faithfully execute the laws 

that were not present in Raines. The Supreme Court in Raines was 

careful to note that, 

our conclusion neither deprives Members of Congress of an 

adequate remedy (since they may repeal the Act or exempt 

appropriations bills from its reach), nor forecloses the Act 

from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether 

the case would be different if any of these circumstances 

were different we need not now decide.93

The current circumstances related to President Obama’s failure 

to faithfully execute the laws are different than the circumstances 

present in Raines. First, because the President is ignoring statutory provisions that restrict his authority, it is not a real option for 

Congress to pass more legislation to remedy the situation. The separation of powers cannot be preserved by Congress passing new 

legislation that effectively says, ‘‘we really mean it this time,’’ in all 

the areas in which the President is failing to faithfully execute the 

law. Accordingly, without judicial review there is effectively no way 

for Congress to defend the separation of powers. 

Second, there are no other plaintiffs to bring a constitutional 

challenge to many of the Obama administration’s lawless actions. 

This is because these actions by the President are ‘‘benevolent’’ suspensions of the law, in which whole classes of people are exempted 

from the requirements of Federal law. As David Rivkin and Elizabeth Price Foley have observed, ‘‘[n]o one person was sufficiently 

harmed to create standing to sue, for instance, when Obama instructed the Department of Homeland Security to stop deporting 

young illegal immigrants. Indeed, these actions have helped, rather 

than harmed them.’’ 94 In other words, unlike Raines, where other 

plaintiffs were available to challenge the constitutionality of the 

line item veto (and did so in Clinton v. City of New York),95 if legisVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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96Powell v. McCormack, 395 U.S. 486, 549 (1969). 97 Baker v. Carr, 369 U.S. 186, 211 (1962). 98 Bennett v. Spear, 520 U.S. 154, 162 (1997). 99See Raines, 521 U.S. 811. 

lative standing were denied to challenge President Obama’s 

usurpations of Congress’s authority, there will be no other way to 

check the President. 

It is also important to note that there is nothing unusual or inappropriate about courts weighing in on separation of powers disputes. ‘‘Our system of government requires that Federal courts on 

occasion interpret the Constitution in a manner at variance with 

the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify 

the courts’ avoiding their constitutional responsibility.’’ 96 Moreover, deciding ‘‘whether a matter has in any measure been committed by the Constitution to another branch of government, or 

whether the action of that branch exceeds whatever authority has 

been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’’ 97 The courts have a long history of resolving cases involving the allocation of power between the political 

branches and addressing important separation of powers concerns: 

Morrison v. Olson, 487 U.S. 654 (1988) (removal of appointed officials); Bowsher v. Synar, 478 U.S. 714 (1986) (execution of the 

laws); INS v. Chadha, 462 U.S. 919 (1983) (legislative veto); Humphrey’s Executor v. United States, 295 U.S. 602 (1935) (removal of 

appointed officials); Myers v. United States, 272 U.S. 52 (1926) (removal of appointed officials). 

Congress can help itself overcome the standing issues that have 

prevented judicial review in the Raines line of cases. Congress can 

do this by passing the ENFORCE the Law Act to put a procedure 

in place for authorizing the House, or the Senate, to seek judicial 

review of instances in which either body has determined that the 

President has failed to faithfully execute the laws. The ENFORCE 

the Law Act will ensure that the courts do not apply prudential 

standing principles to avoid judicial review—prudential standing 

principles ‘‘can be modified or abrogated by Congress.’’ 98 It will 

also ensure that cases alleging institutional injuries can be brought 

on behalf of the institution rather than by ad hoc groups of individual Members of Congress. In other words, putting a congressional lawsuit authorization procedure in place as part of statutory 

law should bolster the House’s, or the Senate’s, standing in court. 

In addition, by providing for legislative standing statutorily, Congress can provide for special court procedural rules, including expedited review, for cases brought pursuant to the legislation. These 

special procedural rules can significantly increase the speed by 

which a case challenging the President’s failure to faithfully execute the law makes its way through the courts. The court procedural rules in the ENFORCE the Law Act are similar to those in 

the Line Item Veto Act. Litigation challenging the constitutionality 

of the line item veto made it through the district court and was decided by the Supreme Court within 7 months of the Act’s effective 

date.99


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Hearings 

The Committee on the Judiciary held no hearings on H.R. 4138. 

Committee Consideration 

On March 5, 2014, the Committee met in open session and ordered the bill H.R. 4138 favorably reported, without amendment, 

by a rollcall vote of 18 to 14, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

4138. 

1. An amendment by Mr. Conyers to provide that nothing in the 

Act would limit or otherwise affect any action taken by the President, the head of a department or agency of the United States, or 

any other officer or employee of the United States in order to combat discrimination and protect the civil rights of the people of the 

United States. Defeated by a rollcall vote of 11 to 16. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .........................................................


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 11 16 

2. An amendment by Mr. Nadler to provide that nothing in the 

Act would limit or otherwise affect the constitutional authority of 

the executive branch to exercise prosecutorial discretion. Defeated 

by a rollcall vote of 11 to 17. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ......................................................

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ......................................................

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) .............................................................

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 11 17 

3. An amendment by Ms. Jackson Lee to provide that nothing in 

the Act would limit or otherwise affect the ability of the executive 

branch to comply with judicial decisions interpreting the Constitution or Federal laws. Defeated by a rollcall vote of 13 to 18. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) .......................................................


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ..................................................... X 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 13 18 

4. An amendment by Mr. Johnson to provide that nothing in the 

Act would limit or otherwise affect any action taken by the President, the head of a department or agency of the United States, or 

any other officer or employee of the United States that concerns a 

right protected by the Constitution of the United States. Defeated 

by a rollcall vote of 11 to 15. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) ..........................................................

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) .......................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ..................................................... X 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) .........................................................

Mr. Jeffries (NY) .......................................................

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 11 15 

5. An amendment by Mr. Cicilline to provide for the quarterly 

report by the General Accountability Office to submit to the House 

and Senate Judiciary Committees a report on the costs of any civil 

action brought pursuant to this Act, including the attorneys’ fees 

of any attorney that has been hired to provide legal services in connection with a civil action brought pursuant to the Act. Defeated 

by a rollcall vote of 11 to 16. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) .......................................................

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) .......................................................

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) .........................................................

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ..................................................... X 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) .......................................................

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 11 16 

6. An amendment by Mr. Cicilline to provide that an attorney 

who is not a regular employee of the legislative branch, who is 

hired to provide legal services in a civil action brought pursuant to 

this Act to the House of Congress that brought such action consult 

with any Member of that House who requests a consultation with 

the attorney regarding the civil action. Defeated by a rollcall vote 

of 13 to 17. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 


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ROLLCALL NO. 6—Continued 

Ayes Nays Present 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member .................

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ..................................................... X 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 13 17 

7. Motion to report H.R. 4138 favorably, without amendment. 

Passed by a rollcall vote of 18 to 14. 

ROLLCALL NO. 7 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) .........................................................

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) ..............................................................

Mr. Chaffetz (UT) ......................................................

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 


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ROLLCALL NO. 7—Continued 

Ayes Nays Present 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) ..................................................... X 

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) ....................................................

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 18 14 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

The Committee advises that a Congressional Budget Office cost 

estimate was not available at the time this report was printed. 

Duplication of Federal Programs 

No provision of H.R. 4138 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 


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21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 4138 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

§ 551. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 4138 puts a procedure in place to permit the House of Representatives, or the Senate, to authorize a lawsuit against the Executive Branch for failure 

to faithfully execute the laws. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 4138 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short Title. 

Section 1 provides for the short title of the legislation, the ‘‘Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act.’’ 

Section 2. Authorization to Bring Civil Action for Violation of the 

Take Care Clause. 

Section 2(a) puts a procedure in place to permit the House, or the 

Senate, to authorize a lawsuit against the Executive Branch for 

failure to faithfully execute the laws. Specifically, section 2(a) provides that if the President, or any other officer or employee of the 

United States, establishes or implements a formal or informal policy to refrain from enforcing any provision of Federal law in violation of the requirement that the President ‘‘take care that the laws 

be faithfully executed,’’ the House or the Senate may, by adoption 

of a resolution, authorize a civil action to seek declaratory or injunctive relief. Any such lawsuit may be brought by the House of 

Representatives, the Senate, or both Houses of Congress jointly. 

Section 2(b) provides for the content of a resolution to authorize 

a lawsuit by the House or the Senate. Section 2(c) provides for special court rules for any lawsuit brought pursuant to the legislation: 

the case must be heard by a three-judge panel in the district court; 

appeal is directly to the Supreme Court; and the district courts and 

the Supreme Court are required to expedite the consideration of 

any case filed pursuant to the legislation. 


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1 U.S. CONST. art. II, § 3. 2See discussion infra. 

Dissenting Views 

INTRODUCTION

H.R. 4138, the ‘‘Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014’’ (ENFORCE Act), is a deeply flawed bill, both because of its substance 

and because of the process by which the Committee considered it. 

The bill would enable one House of Congress to sue the President, 

Federal officers, and even Federal employees if that House determines that any of those individuals has failed to ‘‘take Care that 

the Laws be faithfully executed’’ as required by Article II, Section 

3 of the U.S. Constitution.1

The bill is problematic for several reasons. First, it is a faulty solution in search of a non-existent problem because none of the examples of executive action cited by the bill’s proponents actually 

demonstrate any failure by the President to execute the laws. 

Rather, each of them represents the exercise of enforcement discretion, authority that stems from the President’s duty to ‘‘take care’’ 

that he ‘‘faithfully’’ execute the laws, i.e., the very provision that 

the bill’s supporters cite. Second, the bill raises serious separationof-powers concerns and would likely be unconstitutional as applied. 

Congress likely cannot meet the standing requirements of Article 

III in an action brought under this bill because the kind of injury 

that would be alleged—that is, a generalized injury that the President failed to comply with a law—is insufficiently concrete to meet 

the Constitution’s requirement of a case or controversy.2 Additionally, the bill would likely force Federal courts to decide political 

questions, which are questions that the Constitution commits to 

the political branches or which are otherwise unfit for a judicial 

forum. Moreover, the bill threatens to turn Congress into a super 

enforcement agency with the ability to bring civil actions whenever 

it disagrees with an exercise of enforcement discretion not only by 

the President, but by potentially thousands of Federal officers and 

employees. Finally, the bill could potentially result in numerous, 

lengthy, and complex court cases for which taxpayers would have 

to pay the legal bills. Also, it must be noted that there was almost 

no meaningful deliberative process surrounding the Committee’s 

consideration of the bill, further calling the soundness of this legislation into question. 

For the foregoing reasons, which are more fully discussed below, 

we dissent from the Committee report and urge our colleagues to 

oppose this bill. 


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3 U.S. CONST. art. II, § 3. 4See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Kendall v. U.S., 37 

U.S. (12 Pet.) 524 (1838). 

DESCRIPTION AND BACKGROUND

DESCRIPTION

Section 1. Short Title. Section 1 sets forth the short title of the 

bill as the ‘‘Executive Needs to Faithfully Enforce and Respect Congressional Enactments of the Law Act of 2014’’ or ‘‘ENFORCE the 

Law Act of 2014.’’ 

Section 2. Authorization to Bring Civil Action for Violation of the 

Take Care Clause. Section 2(a) describes procedures for either 

House of Congress to bring a civil action against the President for 

violation of the ‘‘take care’’ clause. Specifically, if one House adopts 

a resolution declaring that the President, the head of any Federal 

department or agency, or any other Federal officer or employee has 

established or implemented a formal or informal policy, practice, or 

procedure not to enforce a Federal law in violation of the ‘‘take 

care’’ clause, that House would be authorized to bring suit and seek 

declaratory relief and other relief that a court may deem appropriate based on a declaratory judgment or decree. 

Section 2(b), in turn, details the specific requirements for a resolution under section 2(a). 

Section 2(c) prescribes special rules for Federal courts to follow 

in considering a civil action under section 2(a). Specifically, the action is to be heard by a three-judge panel of a Federal district court 

of competent jurisdiction, and the court’s decision would be reviewable only by direct appeal to the Supreme Court. A notice of appeal 

must be filed within ten days, presumably of the final decision by 

the three-judge district court panel. In addition, subsection (c) declares it to be the ‘‘duty’’ of the district courts and the Supreme 

Court to expedite consideration and disposition of any civil action 

and appeal under this bill. 

BACKGROUND

I. THE ‘‘TAKE CARE’’ CLAUSE AND ENFORCEMENT DISCRETION

Article II, section 3 of the U. S. Constitution states, among other 

things, that the President ‘‘shall take Care that the Laws be faithfully executed.’’ 3 In interpreting the ‘‘take care’’ clause, courts have 

employed two lines of reasoning that superficially may seem to be 

in tension. One line of decisions holds that the President is obligated to implement and enforce statutes as written by Congress 

and that the President has no authority to disregard such statutes.4 A second line of decisions, however, makes clear that, in implementing his charge to take care that the laws be faithfully executed, the President and the executive branch that he heads have 

the authority, and, indeed, the duty not to enforce a law in some 

instances because he has the discretion to determine how a law is 

enforced or implemented in light of enforcement priorities and limited resources, among many potential factors. As the Supreme 

Court has stated, ‘‘an agency’s decision not to prosecute or enforce, 


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5 Heckler v. Chaney, 470 U.S. 821, 831 (1985). 

6 Id. at 832. 7Kate M. Manuel & Todd Garvey, Prosecutorial Discretion in Immigration Enforcement: Legal 

Issues, Congressional Research Service Report for Congress, R42924, Dec. 27, 2013, at 17 [hereinafter ‘‘CRS Immigration Report’’] (‘‘no court appears to have invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the 

Take Care Clause, and one Federal appellate court has opined that real or perceived inadequate 

enforcement does not constitute a reviewable abdication of duty’’) (quoting Texas v. United 

States, 106 F.3d 661, 667 (5th Cir. (1997)) (internal marks omitted). 8Flast v. Cohen, 392 U.S. 83, 99 (1968). 

9Dep’t of Commerce v. House of Representatives, 525 U.S. 316, 328–29 (1999). 

10 U.S. CONST. art. III, § 2. 11 Raines v. Byrd, 521 U.S. 811, 819 (1997) (quoting Muskrat v. U.S., 219 U.S. 346, 356 

(1911)). 12 Id. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). 13Dep’t of Commerce, 525 U.S. at 329 (quoting Allen, 468 U.S. at 751). 

whether through civil or criminal process, is a decision generally 

committed to an agency’s absolute discretion.’’ 5

Regarding enforcement discretion, the Supreme Court has made 

clear the ‘‘take care’’ clause requires the President to exercise discretion, noting that decisions not to enforce have ‘‘long been regarded as the special province of the Executive Branch, inasmuch 

as it is the Executive who is charged by the Constitution to ‘take 

Care that the Laws be faithfully executed.’ ’’ 6 As to delays in implementing statutes, executive branch administrative agencies, which 

report to the President, routinely miss rulemaking deadlines set by 

Congress in statutes and no court has thus far held that such decisions by themselves constitute constitutional violations. Notably, no 

court has ever invalidated an agency’s exercise of prosecutorial or 

administrative discretion on the grounds that it violated the ‘‘take 

care’’ clause.7

II. ARTICLE III STANDING REQUIREMENT

In order to participate as party litigants in any suit, congressional plaintiffs—whether they be individual Members, committees, 

or Houses of Congress—must demonstrate that they meet the requirements established by Article III of the Constitution, including 

standing to sue. The failure to establish standing is fatal to the litigation and will result in its dismissal without the court addressing 

the merits of the presented claims. 

Generally, the doctrine of standing is a threshold question that 

does not turn on the merits of a plaintiff’s complaint, but, rather, 

on whether the particular plaintiff has a legal right to a judicial 

determination on the issues before the court.8 The law with respect 

to standing is a mix of both constitutional requirements and prudential considerations.9 Article III of the Constitution specifically 

limits the exercise of Federal judicial power to ‘‘cases’’ and ‘‘controversies.’’ 10 Accordingly, the courts have ‘‘consistently declined to 

exercise any powers other than those which are strictly judicial in 

their nature.’’ 11 Thus, it has been said that ‘‘the law of Art. III 

standing is built on a single basic idea—the idea of separation of 

powers.’’ 12

To satisfy the constitutional standing requirements in Article III, 

the Supreme Court imposes three requirements. First, the plaintiff 

must allege a personal injury-in-fact, which is actual or imminent, 

concrete, and particularized. Second, the injury must be ‘‘fairly 

traceable to the defendant’s allegedly unlawful conduct.’’ 13 Third, 


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14 Id. In addition to the constitutional questions posed by the doctrine of standing, Federal 

courts also follow a well-developed set of prudential principles that are relevant to a standing 

inquiry. Unlike their constitutional counterparts, prudential standing requirements are judicially created and ‘‘can be modified or abrogated by Congress.’’ Bennett v. Spear, 520 U.S. 154, 

162 (1997). These prudential principles require that: (1) the plaintiff assert his own legal rights 

and interests, rather than those of a third party; (2) the plaintiff’s complaint fall within the 

‘‘zone of interests’’ protected or regulated by the statute or constitutional guarantee in question; 

and (3) the plaintiff not assert ‘‘ ‘abstract questions of wide public significance’ which amount 

to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches.’’ Valley Forge Christian Coll. v. Ams. United for Separation of Church and 

State, 454 U.S. 464, 475 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499–500 (1957)). 15 521 U.S. 811 (1997). 16 Id. at 818–820. 17 Id. at 829. 18 Id. at 824. 19See Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 

71 (D.D.C. 2008) (finding that House Judiciary Committee had standing to sue to enforce a congressional subpoena in part because it ‘‘ha[d] been expressly authorized . . . by the House of 

Representatives as an institution’’ to bring the suit by House resolution). 

the injury must be ‘‘likely to be redressed by the requested relief.’’ 14

Raines v. Byrd is the Supreme Court case that established the 

current standard for evaluating whether individual Members of 

Congress have standing to sue the executive branch.15 In Raines, 

the Supreme Court dismissed a suit by Members challenging the 

constitutionality of the Line Item Veto Act, holding that their complaint did not establish that they had suffered a personal, particularized, and concrete injury.16 The Court held that a congressional 

plaintiff may have standing in a suit against the executive branch 

if he or she alleges either: (1) a personal injury (e.g., loss of a Member’s seat), or (2) an institutional injury that is not ‘‘abstract and 

widely dispersed’’ and amounts to vote nullification.17 In Raines, 

the Court concluded that the plaintiffs asserted an institutional injury, but their votes were not nullified because of the continued existence of other legislative remedies. These legislative remedies included the ability of ‘‘a majority of Senators and Congressman [to] 

vote to repeal the Act, or to exempt a given appropriations bill (or 

a given provision in an appropriations bill) from the Act. . . .’’ 18

It appears that an institutional plaintiff has only been successful 

in establishing standing when it has been authorized to seek judicial recourse on behalf of a House of Congress. In the past, a onehouse resolution that specifically authorizes judicial recourse has 

satisfied this authorization requirement, although authorization 

alone is only one part of the standing analysis.19

The Raines vote nullification requirement would likely not be 

satisfied in cases where an institutional plaintiff files suit to challenge an executive action because, unlike in the subpoena enforcement context, legislative actions that remedy the institutional 

plaintiff’s injury could exist. Therefore, whether or not the Raines 

vote nullification standard applies to institutional plaintiffs may be 

an important factor in determining if an authorized institutional 

plaintiff has standing to challenge an executive action. 

If the Raines vote nullification standard were applied to institutional plaintiffs, the existence of legislative remedies may prevent 

an institutional plaintiff, like a House of Congress, from establishing standing. The following actions could serve as potential 

remedies to executive actions: the repeal or disapproval of executive branch regulations or guidance documents establishing the 

challenged policies; employing the power of the purse to restrict the 


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20See generally Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws: 

Hearing Before the H. Comm. on the Judiciary, 113th Cong. (2014) [hereinafter Enforcing Constitutional Duty Hearing]; President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (2013) [hereinafter Faithfully Execute 

Hearing]. 21 Id. 22See Enforcing Constitutional Duty Hearing. 23 Attorney General Eric H. Holder, Jr., Annual Meeting of the American Bar Association’s 

House of Delegates, Aug. 12, 2013, http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech130812.html. 

use of funds to administer objectionable programs; legislation eliminating, limiting, or clarifying the scope of agency discretion with 

regard to the implementation of existing laws; and oversight activity. Because the Constitution requires parties to meet Article III 

standing requirements, Congress cannot simply overcome those requirements by claiming to grant itself standing to sue. 

CONCERNS WITH H.R. 4138

I. H.R. 4138 IS A FUNDAMENTALLY FLAWED SOLUTION TO A NONEXISTENT PROBLEM

An initial problem with H.R. 4138 is that it is based on the false 

premise that President Barack Obama has failed in his duty to 

take care that he faithfully execute the laws. Over the course of 

two House Judiciary Committee oversight hearings on the ‘‘take 

care’’ clause, H.R. 4138’s proponents sought to portray certain actions of President Obama as examples of his failure to execute the 

law. They cited, for example, the President’s Deferred Action for 

Childhood Arrivals (DACA) program, which temporarily defers removal of certain young adults who were brought into the country 

as young children.20 In addition, they cited several decisions by the 

Administration to delay or clarify the implementation of certain 

provisions of the Patient Protection and Affordable Care Act (ACA) 

as examples of the President’s failure to faithfully execute the 

laws.21 Finally, they alleged that the Justice Department’s revised 

charging guidelines for certain non-violent, low-level drug offenders 

amounted to a failure to enforce the law.22 The modified charging 

guidelines direct prosecutors to charge certain low-level, nonviolent 

drug offenders with offenses that do not trigger mandatory minimum sentences.23

Rather than being examples of constitutional violations, however, 

these examples merely illustrate the President’s exercise of enforcement discretion in light of limited available resources, which is not 

only within the President’s constitutional authority, but is required 

by the ‘‘take care’’ clause. For instance, the decisions to delay the 

employer mandates and to allow the renewal of otherwise nonACA-compliant health insurance plans for a temporary time period 

were attempts to phase-in implementation of the ACA and were 

not an attempt to prevent implementation. Moreover, the provision 

of subsidies for those in Federal exchanges was consistent with the 

text, history, and purpose of the ACA. It would defy common sense 

to suggest that the President would act to undermine his signature 

legislative accomplishment. 

In response to questions regarding the Administration’s legal authority for delaying implementation, the Treasury Department explained that this delay ‘‘is an exercise of the Treasury DepartVerDate Mar 15 2010 00:37 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00037 Fmt 6601 Sfmt 6601 E:\HR\OC\HR377.XXX HR377

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24Letter from Mark J. Mazur, Assistant Secretary for Tax Policy, U.S. Department of the 

Treasury to Chairman Fred Upton, et al., at 2 (July 9, 2013), available at http://democrats.energycommerce.house.gov/sites/default/files/documents/Upton-Treasury-ACA-2013-7-9.pdf) 

[hereinafter ‘‘Mazur Letter’’]. 25 26 U.S.C. § 7805 (2014). 26Mazur Letter at 2. 27 Id. 28 Enforcing Constitutional Duty Hearing (statement of Christopher H. Schroeder, Charles S. 

Murphy Professor of Law and Professor of Public Policy Studies, Duke University, at 3) [hereinafter ‘‘Schroeder statement’’]. 29 Id. at 6 (emphases in original). 30 Id. 31 132 S. Ct. 2492 (2012). The Court relied upon the ‘‘broad discretion’’ exercised by Federal 

immigration officials, including ‘‘whether it makes sense to pursue removal at all,’’ in striking 

down almost all of Arizona’s sweeping anti-immigrant law (SB 1070). Id. at 2499. Because Arizona’s law could result in ‘‘unnecessary harassment of some aliens (for instance, a veteran, college 

student, or someone assisting with a criminal investigation) whom Federal officials determine 

should not be removed,’’ the Court concluded that the law ‘‘violates the principle that the removal process is entrusted to the discretion of the Federal Government.’’ Id. at 2506. 

ment’s longstanding administrative authority to grant transition 

relief when implementing legislation like the ACA. Administrative 

authority is granted by section 7805(a) of the Internal Revenue 

Code.’’ 24 Section 7805(a) provides that ‘‘the Secretary [of the Treasury] shall prescribe all needful rules and regulations for the enforcement of this title.’’ 25

As the Treasury Department further explained, ‘‘[t]his authority 

has been used to postpone the application of new legislation on a 

number of prior occasions across Administrations.’’ 26 The Department provided several past examples where it had delayed or 

waived a statutory requirement, including its decision during the 

George W. Bush Administration to delay implementation of standards return preparers must follow to avoid penalties under the 

Small Business Work Opportunity Act of 2007 until 2008 despite 

the fact that Congress made those changes effective as of May 25, 

2007.27

Allowing flexibility in the implementation of a new program, 

even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation. Such flexibility is integral to 

the President’s duty to ‘‘take care’’ that he ‘‘faithfully’’ execute laws. 

The exercise of enforcement discretion is a traditional power of the 

executive. As Duke University Law School Professor Christopher 

Schroeder testified before the Committee, ‘‘Discretionary choices 

are unavoidable features in executing almost all laws.’’ 28 He further testified that the ‘‘priority setting decisions necessitated by 

budget constraints necessarily affect how the laws are being executed at any point in time, not whether they are being executed.’’ 29

He also noted that such discretionary enforcement decisions were 

routine and were too numerous to count.30

With respect to the Administration’s implementation of DACA, 

and its immigration-related enforcement decisions more generally, 

the exercise of discretion in immigration enforcement is squarely 

within the President’s authority. The Supreme Court has consistently held that the exercise of such discretion is a function of the 

President’s powers under the ‘‘take care’’ clause and has reiterated 

this principle in the immigration enforcement context as recently 

as 2012 in its decision in Arizona v. United States.31 As both Representative Luis Gutierrez (D-IL) and Professor Schroeder pointed 

out during the second hearing on the ‘‘take care’’ clause, DACA is 

not a case where the President has decided simply to not enforce 


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32 Enforcing Constitutional Duty Hearing. 33Memorandum from Bo Cooper, General Counsel, INS, INS Exercise of Prosecutorial Discretion, July 11, 2000, at 17–18, available at http://iwp.legalmomentum.org/reference/additional-materials/immigration/enforcement-detention-and-criminal-justice/government-documents/Bo-Cooper-memo%20pros%20discretion7.11.2000.pdf/view. 34 6 U.S.C. § 202 (2014). 35 CRS Immigration Report at 1. 36 Id.; Memorandum from Julie L. Myers, Assistant Secretary, Immigration and Customs Enforcement, Prosecutorial and Custodial Discretion, Nov. 7, 2007, available at http:// 

www.scribd.com/doc/22092973/ICE-Guidance-Memo-Prosecutorial-Discretion-Julie-Myers-11-7- 

07. 

the law for an entire class of people.32 Although the policy applies 

broadly, immigration authorities must still make particular decisions regarding removal of an individual on a case-by-case basis to 

ensure that the individual meets DACA’s qualifications. 

Immigration officials may exercise enforcement discretion in individual cases or ‘‘prosecutorial discretion may be more formalized 

and generalized through agency regulations or procedures.’’ 33 In 

fact, Congress expressly directed the Secretary of Homeland Security to establish ‘‘national immigration enforcement policies and 

priorities.’’ 34 The Administration’s DACA policy comports both 

with the statutory directive to establish national enforcement priorities and with the responsibility to exercise prosecutorial discretion 

under the ‘‘take care’’ clause of the Constitution. 

While some critics argue that DACA can be distinguished because the possibility for relief is extended to persons who fall within a larger category, this ignores the fact that specific decisions to 

defer action still are made on a case-by-case basis. It also overlooks 

the fact that the executive branch has exercised its enforcement 

discretion on a categorical basis for decades. For example, the Kennedy Administration extended voluntary departure to persons from 

Cuba on a categorical basis, which allowed many otherwise deportable individuals to remain in the United States for an extended period of time.35 President George W. Bush’s Administration temporarily suspended sanctions on employment of unauthorized aliens 

in areas affected by Hurricane Katrina and directed agents and officers to exercise prosecutorial discretion with respect to nursing 

mothers.36

As with DACA, the revised Justice Department charging guidelines still require particular charging decisions to be made on a 

case-by-case (not class-wide) basis to ensure that a particular offender meets the required criteria. Assessing the particular facts of 

a case to the appropriate criminal charge is a core function of prosecutorial discretion, the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. Far from violating the ‘‘take care’’ clause, 

prosecutorial discretion derives from this obligation to ‘‘take care’’ 

to ‘‘faithfully’’ execute the law. 

Regarding the seeming tension between the duty to execute the 

laws and decisions not to enforce the law, Professor Schroeder testified: 

At first blush, it may seem paradoxical to say that an 

agency is executing the laws when it decides not to enforce 

the law, but the paradox is completely eliminated once one 

recognizes that executing laws encompasses many activities, not all of which can be performed at any given time. 


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37 Enforcing Constitutional Duty Hearing (Schroeder statement at 7). 38Lujan v. Defenders of Wildlife, 504 U.S. 555, 575–576 (1992). 39 Id. at 577. 40 Buckley v. Valeo, 424 U.S. 1, 138–140 (1976). 41 307 U.S. 433 (1939). 

Insofar as making decisions about where and when to enforce frees up resources for other activities constitutive of 

law execution, non-enforcement decisions are part of the 

overall process of executing the laws.37

In short, the examples that the proponents of H.R. 4138 cite to 

justify its radical scheme to allow one House of Congress to sue the 

President fail to support the underlying premise of the bill, which 

is that routine exercises of enforcement discretion amount to violations of the President’s duty to take care that the laws be faithfully 

executed. In the absence of any credible examples of such a failure 

to meet his constitutional obligations, the justification for the bill 

fails. 

II. H.R. 4138 VIOLATES SEPARATION-OF-POWERS PRINCIPLES AND

WOULD LIKELY BE UNCONSTITUTIONAL AS APPLIED

A. Congress Would Likely Lack Article III Standing to Sue 

Congress would likely lack the constitutionally-required standing 

to sue pursuant to H.R. 4138 because the alleged injury—i.e., the 

alleged failure to take care that a law be faithfully executed—is not 

the kind of a concrete and particularized injury to Congress sufficient to confer Article III standing on Congress to sue pursuant to 

the ENFORCE Act. Rather, it amounts only to a generalized complaint that the executive branch did not follow the law. The Supreme Court has made clear that injury ‘‘amounting only to the alleged violation of a right to have the Government act in accordance 

with law was not judicially cognizable’’ for Article III standing purposes.38 To allow standing based on an ‘‘undifferentiated public interest in executive officers’ compliance with the law . . . is to 

transfer from the President to the courts the Chief Executive’s 

most important constitutional duty, to ‘take care that the Laws be 

faithfully executed.’ ’’ 39 Congress cannot simply ‘‘give itself’’ Article 

III standing where it does not exist, as some Members of the Committee Majority contended during the markup debate on this bill. 

Article III’s standing requirements enforce the Constitution’s separation-of-powers principles. The separation of law-making from 

law-execution is a distinctive feature of the U.S. Constitution, and 

as part of this structural separation, the Supreme Court has held 

that the Constitution bars Congress from vesting itself with the 

power to appoint officers charged with executing Federal laws, including through litigation.40

Representative Trey Gowdy (R-SC), H.R. 4138’s sponsor, repeatedly claimed during the markup that the bill merely ‘‘codifies’’ the 

Supreme Court’s decision in Coleman v. Miller, where the Court 

held that members of the Kansas legislature who voted against 

ratification of a proposed amendment to the U.S. Constitution had 

standing to sue the state’s lieutenant governor for acting beyond 

his authority when he cast the tie-breaking vote for ratification.41

The Court reasoned that the legislators had a ‘‘plain, direct and 


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42 Id. at 437–438. 43 Id. at 450. 44 Raines, 524 U.S. at 824. 45 Id. 46 Id. 47See Committee on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 

53 (D.D.C. 2008). Similarly, in INS v. Chadha, the Court found institutional standing for the 

House and Senate to intervene because the alleged injury—a challenge to the constitutionality 

of the one-House legislative veto—threatened a mode of Congressional action. INS v. Chadha, 

462 U.S. 919 (1983). 

adequate interest in maintaining the effectiveness of their votes’’ 

and, therefore, had standing under Article III because the legislators had the right to have their votes against ratification be given 

full effect under the Constitution.42 After finding that the legislators had standing, the Court ultimately held that because Article 

V of the Constitution grants Congress undivided power to control 

the amendment process, questions about the ratification process 

were ‘‘political questions’’ that were non-justiciable.43

Raines, however, significantly limited the reach of the Coleman 

decision to challenge executive action, making it clear that in order 

for legislators to have standing, they must allege an injury that 

would amount to vote nullification, that is, that other legislative 

remedies are not available to address the asserted institutional injury.44 As the Court in Raines noted, it is not enough that a Member simply lost a vote or cannot garner majority support for a position. To establish vote nullification for Article III standing purposes, a legislative plaintiff must establish that his or her votes 

will in the future be nullified.45 So long as future Senators and 

House Members retain the power to vote to repeal an Act or deny 

appropriations or take any number of other measures in response 

to executive action, their votes cannot be said to have been nullified and they cannot meet Article III’s requirement that they suffer a concrete injury.46

Here, none of the examples raised by H.R. 4138’s proponents establish that the votes of Members of Congress were nullified. Rather, in each case, Congress retains the power to repeal or disapprove 

executive branch regulations or guidance documents establishing 

the challenged policies; employ the power of the purse to restrict 

the use of funds to administer objectionable programs; pass legislation eliminating, limiting, or clarifying the scope of agency discretion with regard to the implementation of existing laws; deny confirmation of nominees; and engage in oversight of executive branch 

activity. Any action pursuant to H.R. 4138 to challenge executive 

action, therefore, would not meet the test for Article III standing 

for legislators as articulated in Raines. 

H.R. 4138’s proponents also cannot rely on court decisions finding standing for one House of Congress to sue to enforce a subpoena. In the subpoena enforcement context, the institutional 

plaintiff is alleging a concrete injury to a special prerogative of the 

legislative body—i.e., to defend the power of the legislative body to 

perform its oversight and information gathering duties.47 By contrast, H.R. 4138 contemplates lawsuits where no special prerogative of Congress, or one House of Congress, is at stake. Rather, any 

suit to enforce the ‘‘take care’’ clause necessarily only alleges an 

‘‘undifferentiated public interest in executive officers’ compliance 


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48Lujan, 504 U.S. at 577. 49 Elizabeth Price Foley, Why Not Even Congress Can Sue the Administration Over Unconstitutional Executive Actions, Daily Caller, Feb. 7, 2014, available at http://dailycaller.com/2014/02/ 

07/why-not-even-congress-can-sue-the-administration-over-unconstitutional-executive-actions/. 50Faithfully Execute Hearing at 58. 51 Id. at 59. 

with the law’’ which is insufficient to establish Article III standing.48

Additionally, even if Congress as a whole could establish a concrete injury pursuant to the ENFORCE Act, any legislative interest 

in enforcing the ‘‘take care’’ clause against the President would belong to the entire Congress, not just one House. To the extent that 

the ENFORCE Act permits one House to proceed with a lawsuit, 

it violates this principle. Allowing only one House to pursue litigation to enforce the ‘‘take care’’ clause as it sees fit heightens the 

risk that courts would become the arbiters of partisan differences 

between elected officials. 

Even Professor Elizabeth Foley, one of the Majority witnesses 

who testified last month that Congress has standing to sue to enforce the ‘‘take care’’ clause, contradicted herself in a prior statement that she wrote less than three weeks before her Committee 

appearance. In that prior statement, she said: 

Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called ‘‘congressional standing,’’ creating a presumption against allowing 

Members of Congress to sue the president merely because 

he fails to faithfully execute its laws.49

Professor Jonathan Turley, another Majority witness, testified at 

the first hearing on the ‘‘take care’’ clause that courts are quite 

hostile toward recognizing Member standing for purposes of pursuing constitutional violations.50 While not commenting directly on 

Congress’s institutional standing, he noted that the current situation is one where no one could successfully raise a President’s failure to faithfully execute the laws as an issue in court.51

In his dissent in United States v. Windsor, no less a conservative 

than Justice Antonin Scalia, joined by Chief Justice John Roberts 

and Justice Clarence Thomas, criticized a dissent by Justice Samuel Alito that tracked the reasoning underlying H.R 4138, writing: 

Heretofore in our national history, the President’s failure 

to ‘‘take Care that the Laws be faithfully executed,’’ could 

only be brought before a judicial tribunal by someone 

whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress 

can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a 

perceived inadequacy in the execution of its laws. This system would lay to rest Tocqueville’s praise of our judicial 

system as one which ‘‘intimately binds the case made for 

the law with the case made for one man,’’ one in which legislation is ‘‘no longer exposed to the daily aggression of the 

parties,’’ and in which ‘‘the political question that the 

judge must resolve is linked to the interest of private litigants.’’ 


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52 U.S. v. Windsor, 133 S. Ct. 2675, 2703–05 (2013) (Scalia, J., dissenting) (internal citations 

and marks omitted). 53 369 U.S. 186, 217 (1962). 54 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2014). 

That would be replaced by a system in which Congress 

and the Executive can pop immediately into court, in their 

institutional capacity, whenever the President refuses to 

implement a statute he believes to be unconstitutional, 

and whenever he implements a law in a manner that is 

not to Congress’s liking. 

. . . 

If majorities in both Houses of Congress care enough about 

the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to 

confirm Presidential appointees to the elimination of funding.52

For these reasons, Justice Scalia concluded that the Court had no 

power to decide the suit. We agree with Justice Scalia’s view and 

believe, for that reason, that Congress would fail to meet the Constitution’s standing requirements in any civil action pursuant to 

H.R. 4138. 

B. H.R. 4138 Presents a Political Question Problem 

The ENFORCE Act presents a grave political question problem. 

Federal courts will not hear a case if they find that it presents a 

political question. The Supreme Court has held that Federal courts 

should not hear cases that deal directly with issues for which the 

Constitution has directly given responsibility to the other branches 

of government or for which a judicial forum is otherwise inappropriate. In the leading decision, Baker v. Carr, the Court enumerated the various factors that would make a question political: 

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind 

clearly for nonjudicial discretion; or the impossibility of a 

court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of 

government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.53

Professor Laurence Tribe of Harvard Law School, in a memorandum to House Judiciary Committee Democratic staff analyzing 

a bill similar to H.R. 4138, noted that the Supreme Court’s jurisprudence regarding section 701(a)(2) of the Administrative Procedure Act (APA)54 indicates how unwilling the Court is to become 

involved with telling an executive branch agency how to exercise 


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55Memorandum from Laurence H. Tribe to Democratic Staff of the House Judiciary Committee 5 (Mar. 3, 2014) (on file with H. Committee on the Judiciary, Democratic Staff) [hereinafter ‘‘Tribe memo’’]. 56 542 U.S. 55, 66–67 (2004). 57Tribe memo at 5. 58 Id. at 6. 

its discretion.55 He noted Justice Scalia’s opinion in Norton v. 

South Utah Wilderness Alliance, where Scalia said: 

If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they 

would necessarily be empowered, as well, to determine 

whether compliance was achieved—which would mean 

that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge 

into day-to-day agency management.56

Professor Tribe explained that although Justice Scalia was interpreting the APA, there was nothing about his analysis that would 

not fall under the Court’s political question jurisprudence as well.57

Virtually all of the factors enumerated in Baker v. Carr would be 

implicated by allowing Congress to sue the President over enforcement of the ‘‘take care’’ clause. Professor Tribe concluded that in 

such a civil action, a judge would be put in the position of directing 

a Federal officer how to exercise his or her discretion in enforcing 

a law, and doing so would cut at the heart of separation of powers 

and, for that reason, would likely lead to the invalidation of a statute like H.R. 4138.58

Recognizing that the ENFORCE Act could upend the carefully 

balanced separation-of-powers inherent in the Constitution, several 

Members offered amendments to limit the potential damage that 

the legislation could do. For instance, Committee Ranking Member 

John Conyers, Jr. (D-MI) offered an amendment to exclude from 

the bill’s scope any executive action taken to combat discrimination 

and protect civil rights. As Representative Conyers noted, both the 

Emancipation Proclamation and Executive Order 9981, by which 

President Truman desegregated the Nation’s armed forces, were actions that were contrary to then-existing law. Had the ENFORCE 

Act been in place when those actions were taken, Congress could 

have sued the President based on an alleged failure to faithfully 

execute then-existing law. Notwithstanding this point, the amendment was defeated by a party-line vote of 11 to 16. 

Similarly, Representative Hank Johnson (D-GA) offered an 

amendment to exclude from the bill’s scope any executive action 

taken to protect constitutional rights to allow maximum flexibility 

for the President and executive branch officials to exercise their 

discretion so that constitutional rights could be protected. This 

amendment recognized that in some circumstances, protecting 

rights would require a President to refrain from taking action. 

Nonetheless, the Committee rejected the amendment by a partyline vote of 11 to 15. 

Representative Jerrold Nadler (D-NY) offered an amendment to 

exclude from the bill’s scope any exercise of the executive branch’s 

clearly established authority to exercise prosecutorial discretion. As 

outlined extensively above, the exercise of prosecutorial discretion 


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59See Morrison v. Olson, 487 U.S. 654, 658, 685 (1988) (noting that a statute is suspect if 

it ‘‘involve[s] an attempt by Congress to increase its own powers at the expense of the executive 

branch’’ and if Congress ‘‘impermissibly interferes with the President’s exercise of his constitutionally appointed function,’’ which would include his obligation to take care that the laws be 

faithfully executed). 60Letter from Representative Nancy Pelosi, Democratic Leader, to Representative John Boehner, Speaker of the House, Concerning Litigation on the Defense of Marriage Act, April 20, 

Continued 

stems from the President’s obligation to ‘‘take care’’ in ‘‘faithfully’’ 

executing the laws. Such discretion in setting enforcement priorities and in determining the manner of implementing laws is required in light of the limited resources available to enforce laws. 

To the extent that H.R. 4138’s proponents claim that the bill does 

not hamper traditional enforcement discretion, they should have 

had no objection to adopting this amendment. Notwithstanding 

this, the Committee rejected the amendment by a 11 to 17 partyline vote. 

Also in recognition of the need to protect separation-of-powers, 

Representative Sheila Jackson Lee (D-TX) offered an amendment 

to exclude from the bill’s scope any executive action to protect the 

executive branch’s ability to comply with judicial decisions interpreting the Constitution or Federal laws. If separation-of-powers 

principles require anything, it is that each branch must respect its 

constitutional role. When a court issues a decision interpreting the 

Constitution or a Federal law, the other branches must abide by 

the decision. The executive branch’s ability to fulfill its obligation 

to comply with judicial decisions should not be hampered by a civil 

action by Congress pursuant to this bill. Basic respect for separation of powers required adoption of this amendment. Nonetheless, 

the Committee rejected it on a party-line vote of 13 to 18. 

C. H.R. 4138 Would Make Congress a Super Enforcement Agency 

The ENFORCE Act would essentially empower one House of 

Congress to become a general enforcement body able to rove over 

the entire field of administrative action by bringing cases against 

the President whenever it disagrees with the President or any component of the executive branch’s exercise of enforcement discretion. 

Effectively, one House of Congress could seize for itself the scope 

of power of the Justice Department and executive enforcement 

agencies. This bill would intrude on a core function of the presidency and the constitutional duties of the President in determining 

how to implement or enforce the law. The bill radically and dangerously undermines the balance between the extensive administrative functions that are committed to the executive branch and 

the legislative functions of Congress.59

III. H.R. 4138 IS AN INVITATION TO WASTEFUL SPENDING OF

TAXPAYER MONEY

H.R. 4138 potentially could open the floodgates to possibly endless litigation over any number of decisions of not only the President, but of any Federal officer or employee. Such litigation would 

be time-consuming, complex, and expensive, particularly when outside counsel is retained. For instance, a law firm hired to represent 

the House in its defense of the Defense of Marriage Act charged 

$520 an hour for its services and received an initial $500,000 fee.60


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2011, available at http://www.democraticleader.gov/news/press/pelosi-questions-boehner-housecontract-outside-doma-counsel. 61 Jennifer Bendery, DOMA Defense by House Republican Leaders Has Cost Nearly $1.5 Million, Huffington Post, Oct. 16, 2012, available at http://www.huffingtonpost.com/2012/10/16/ 

doma-house-republicans_n_1971666.html. 

The House ultimately spent $1.5 million on that litigation.61 The 

cost of what would likely be frivolous litigation under H.R. 4138 

would have to be borne by American taxpayers. 

Recognizing that in its unconstitutional scheme to use the courts 

to mediate political disputes between one House of Congress and 

the President, this bill threatens to drain precious limited public 

resources, Representative David Cicilline (D-RI) offered an amendment requiring that the Government Accountability Office issue 

quarterly reports to the House and Senate Judiciary Committees 

setting forth the costs of any litigation pursued under the ENFORCE Act. In response to Representative Cicilline’s concerns 

about costs, the Majority simply indicated that any cost was worth 

the price. Unfortunately, the Committee rejected this commonsense, good-government amendment by a party-line vote of 11 to 

16. 

In addressing another point broadly related to costs, Representative Cicilline offered an amendment to ensure that any outside 

counsel hired to represent a House of Congress in litigation pursuant to the ENFORCE Act must consult with any Member of that 

House who requests consultation. As Representative Cicilline 

noted, Members had been denied the opportunity for such consultation when the House hired outside counsel to represent it in litigation defending the constitutionality of the Defense of Marriage Act. 

To avoid a similar situation from arising under this bill, Representative Cicilline offered his common-sense amendment. Unfortunately, the Committee rejected it by a party-line vote of 13 to 17. 

IV. THERE WAS A NEAR COMPLETE ABSENCE OF GENUINE

DELIBERATIVE PROCESS

Further undermining the soundness of H.R. 4138 is the fact that 

there was an utter lack of deliberative process regarding this legislation. The Committee never held a single legislative hearing on 

this bill, nor did it hold any Subcommittee markup. In fact, the 

final text of this bill was not made available until just the day before the markup. Taking into consideration the fact that the Majority provided only the minimum notice for the markup of this bill, 

that no single member of the Majority voted for any one of the six 

amendments offered by Democratic Members, and that we have not 

received any budgetary impact estimate from the Congressional 

Budget Office, it is plainly obvious that the entire legislative process is an unserious attempt to legislate. 

CONCLUSION

H.R. 4138 is highly problematic for many reasons. It is based on 

the false premise that the President is failing to faithfully execute 

the laws. Moreover, it violates separation-of-powers principles and 

is likely unconstitutional as applied in several ways. First, Congress likely cannot meet Article III’s standing requirements in any 

civil action under this bill. Second, this legislation would likely 


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force courts to decide political questions, which courts have wisely 

refrained from deciding. Third, it would make Congress the ultimate enforcement agency by allowing it to second-guess through 

litigation even routine discretionary enforcement decisions with 

which it might disagree. Finally, the legislation fails to account for 

the potentially limitless costs of engaging in litigation every time 

one house of Congress disagrees with the President. 

For these reasons, we strongly oppose H.R. 4138. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

PEDRO R. PIERLUISI. 

JUDY CHU. 

TED DEUTCH. 

LUIS V. GUTIERREZ. 

KAREN BASS. 

CEDRIC RICHMOND. 

JOE GARCIA. 

HAKEEM JEFFRIES. 

DAVID N. CICILLINE. 

Æ 


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