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[House Report 113-377]
[From the U.S. Government Publishing Office]

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

                          Purpose and Summary

    To prevent executive overreach and to ensure that the 
President discharges his constitutional duty to ``take care 
that the laws be faithfully executed,'' the ``Executive Needs 
to Faithfully Observe and Respect Congressional Enactments of 
the Law (ENFORCE the Law) Act'' puts a procedure in place to 
permit the House of Representatives, or the Senate, to 
authorize a lawsuit against the Executive Branch for failure to 
faithfully execute the laws. The legislation also provides for 
expedited consideration of any such lawsuit, first through a 
three-judge panel at the Federal district court level and then 
by providing for direct appeal to the United States Supreme 
Court. Furthermore, the bill statutorily mandates that the 
courts set aside their own court-created standing rules and 
thereby prevents courts from using procedural excuses to avoid 
making decisions in these important separation of powers cases.

                Background and Need for the Legislation

    Article II, Section 3, of the U.S. Constitution declares 
that the President ``shall take care that the laws be 
faithfully executed.'' However, President Obama has failed on 
numerous occasions to enforce Acts of Congress that he 
disagrees with for policy reasons and has also stretched his 
regulatory authority to put in place policies that Congress has 
refused to enact. Although President Obama is not the first 
president to stretch his powers beyond their constitutional 
limits, executive overreach has accelerated at an alarming rate 
under his Administration.
    To prevent executive overreach, Representative Trey Gowdy 
(R-SC), Chairman Darrell Issa (R-CA), and House Judiciary 
Committee Chairman Bob Goodlatte (R-VA) introduced the 
``Executive Needs to Faithfully Observe and Respect 
Congressional Enactments of the Law (ENFORCE the Law) Act'' to 
put a procedure in place to permit the House of 
Representatives, or the Senate, to authorize a lawsuit against 
the Executive Branch for failure to faithfully execute the 
laws. The legislation also provides for expedited consideration 
of any such lawsuit, first through a three-judge panel at the 
Federal district court level and then by providing for direct 
appeal to the United States Supreme Court.
    Specifically, the bill provides that if the President, or 
any other officer or employee of the United States, establishes 
or implements a formal or informal policy to refrain from 
enforcing any provision of Federal law, in violation of the 
requirement that the President ``take care that the laws be 
faithfully executed,'' the House or the Senate may, by adoption 
of a resolution, authorize a civil action to seek declaratory 
or injunctive relief. Any such lawsuit may be brought by the 
House, the Senate, or both Houses of Congress jointly.
    The bill also provides for special court procedural rules 
for any case brought by Congress pursuant to the bill. First, 
the bill provides that any such action shall be filed in a 
Federal district court of competent jurisdiction and that the 
district court shall convene a three-judge panel to hear the 
case. Second, the bill provides that the three-judge panel's 
decision is appealable directly to the United States Supreme 
Court. Finally, the district courts and the Supreme Court are 
required to expedite any case filed pursuant to the 
legislation.
    The bill is intended to address procedural hurdles the 
courts have put in front of previous attempts by individual 
Members of Congress, and ad hoc groups of Members, to seek 
judicial review of alleged failures by the President to 
faithfully execute the law. The courts have held that when 
Congress, or one House of Congress, suffers an institutional 
injury, the Congress, or a House of Congress, must authorize 
any lawsuit aimed at redressing the injury. The ENFORCE the Law 
Act puts a procedure in place to allow for such authorization, 
provides for expedited judicial review of these cases, and 
removes court-created procedural hurdles for deciding these 
cases.

                               BACKGROUND

                        I. THE TAKE CARE CLAUSE

    Article II, Section 3, of the Constitution declares that 
the President ``shall take Care that the Laws be faithfully 
executed.'' This clause, known as the Take Care Clause, 
requires the President to enforce all constitutionally valid 
Acts of Congress, regardless of his own Administration's view 
of their wisdom or policy. The clause imposes a duty on the 
President; it does not confer a discretionary power. Thus, the 
Take Care Clause is a limit on the Vesting Clause's grant to 
the President of ``the executive power.''\1\ In other words, 
while the Vesting Clause gives the President discretion about 
how to enforce the law, the Take Care Clause provides that he 
has no discretion about whether to do so.
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    \1\U.S. Const. art. II., Sec. 1, cl. 1 (``The executive Power shall 
be vested in a President of the United States of America.'').
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    Although the Take Care Clause limits the President's 
enforcement discretion, it does not require the President to 
enforce an unconstitutional statute. ``The Executive is charged 
with the faithful execution of `the law,' and an 
unconstitutional statute is not law.''\2\ Accordingly, in those 
instances in which the President may lawfully act in 
contravention of an Act of Congress, ``it is the Constitution 
that dispenses with the operation of the statute. The Executive 
cannot.''\3\
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    \2\Robert J. Delahunty, ``The Obama Administration's Decisions to 
Enforce, but Not Defend, DOMA Sec. 3,'' 106 Nw. U. L. Rev. 69 (2011).
    \3\43 Op. Att'y Gen. 275 (1980).
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    The U.S. Court of Appeals for the D.C. Circuit, in a recent 
opinion striking down the Executive's assertion of authority to 
disregard a Federal statute, provided a succinct description of 
the President's obligations under the Take Care Clause:

        Under Article II of the Constitution and relevant 
        Supreme Court precedents, the President must follow 
        statutory mandates so long as there is appropriated 
        money available and the President has no constitutional 
        objection to the statute. So, too, the President must 
        abide by statutory prohibitions unless the President 
        has a constitutional objection to the prohibition. If 
        the President has a constitutional objection to a 
        statutory mandate or prohibition, the President may 
        decline to follow the law unless and until a final 
        Court order dictates otherwise. But the President may 
        not decline to follow a statutory mandate or 
        prohibition simply because of policy objections. Of 
        course, if Congress appropriates no money for a 
        statutorily mandated program, the Executive obviously 
        cannot move forward. But absent a lack of funds or a 
        claim of unconstitutionality that has not been rejected 
        by final Court order, the Executive must abide by 
        statutory mandates and prohibitions.\4\
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    \4\In re Aiken County, 725 F.3d 255, 259 (D.C. Cir. 2013).

A. LThe Original Understanding of the Take Care Clause
    The historical underpinnings of the original understanding 
of the Take Care Clause predate the American Revolution. The 
Take Care Clause is best understood ``against the historical 
backdrop with which the Framers were familiar--the four hundred 
year struggle of the English people to limit the king's 
prerogative and achieve a government under law rather than 
royal fiat.''\5\ During this period, English monarchs asserted 
a right to dispense with or suspend acts of parliament they 
disliked.\6\ The English struggle with the royal prerogative 
was a key grievance that led to the Glorious Revolution and 
culminated in the Bill of Rights of 1689, which declared, in 
its very first provision, that ``the pretended power of 
suspending of laws, or the execution of laws, by regal 
authority, without consent of parliament, is illegal.''\7\ The 
English Bill of Rights became a template for American 
constitution drafting.\8\
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    \5\Christopher N. May, ``Presidential Defiance of 
`Unconstitutional' Laws: Reviving the Royal Prerogative,'' 21 Hastings 
Const. L. Q. 865, 873 (1994).
    \6\The power of suspension abrogated a statute across the board; 
the power of dispensation referred to royally-assigned as-applied 
exceptions to the rule of law.
    \7\W. & M., Sess. 2, c. 2 (1689) (``Act declareing the Rights and 
Liberties of the Subject and Setleing the Succession of the Crown'').
    \8\``Virtually every secular provision in that statute was 
incorporated into the U.S. Constitution. The prohibition on the 
suspending and dispensing powers was encoded in Article II's 
requirement that the President must `take Care that the Laws be 
faithfully executed.' Thus, these rejected royal prerogatives were 
denied to the President.'' May, supra note 5, at 870-74.
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    Based on the Framers' deep-seated fear of the abuse of 
executive power, and in order to ensure that American 
presidents could not resurrect anything similar to the king's 
prerogative, the Framers made the faithful enforcement of the 
law a constitutional duty. Thus, ``[r]ead in the light of 
history, the requirement that the President `take care that the 
Laws be faithfully executed' is a succinct and all-inclusive 
command through which the Framers sought to prevent the 
Executive from resorting to the panoply of devices employed by 
the English kings to evade the will of Parliament.''\9\
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    \9\Id. at 873.
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    Provisions in state constitutions help illuminate the scope 
of the executive power the Framers' envisioned granting the 
President. Thomas Jefferson, in his 1783 Draft of a Fundamental 
Constitution for Virginia, wrote: ``[b]y Executive powers, we 
mean no reference to the powers exercised under our former 
government by the Crown as of its prerogative. . . . We give 
them these powers only, which are necessary to execute the laws 
(and administer the government).''\10\ ``This understanding of 
`executive power' and its implementation were reflected in the 
Virginia Plan, which Edmund Randolph introduced to the 
Constitutional Convention, and which provided for a `national 
executive . . . with power to carry into execution national 
laws [and] to appoint officers in cases not otherwise provided 
for.''\11\ In other words, for the Framers' the ``executive 
power'' granted to the President in the Vesting Clause was 
limited.
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    \10\Thomas Jefferson, Notes on the State of Virginia 365 (1787).
    \11\May, supra note 5, at 873.
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    As James Madison observed, ``[t]he natural province of the 
executive magistrate is to execute laws, as that of the 
legislature to make laws. All his acts, therefore, properly 
executive, must presuppose the existence of the laws to be 
executed.''\12\ James Wilson, later an Associate Justice of the 
Supreme Court,\13\ explained that the Take Care Clause meant 
that the President has the ``authority, not to make, or alter, 
or dispense with the laws, but to execute and act the laws, 
which [are] established.''\14\ Because if the President had the 
authority not only to execute the laws, but also to make, 
alter, or dispense with the laws, it would have led, according 
to the Framers' reasoning, to a dangerous concentration of 
power in one branch of government. But the Framers sought to 
avoid such a concentration of power. According to scholars, 
there was a ``fundamental agreement'' among the Framers ``on 
the proposition that accumulation of powers and tyranny were 
inseparable.''\15\ This is reflected in Madison's statement in 
Federalist No. 47 that,
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    \12\6 James Madison, Writings of James Madison 145 (G. Hunt, ed. 
1906).
    \13\James Wilson introduced a draft dealing with the Executive at 
the Constitutional Convention that read in part: ``It shall be his duty 
to provide for the due & faithful exec--of the laws.'' 2 The Records of 
the Federal Convention of 1787, at 171 (Max Farrand ed., 1911).
    \14\2 James Wilson, Lectures on Law Part 2, in Collected Works of 
James Wilson 829, 878 (Kermit L. Hall & Mark David Hall eds., 2007).
    \15\George W. Carey, In Defense of the Constitution 153 (1997).

        No political truth is certainly of greater intrinsic 
        value, or is stamped with the authority of more 
        enlightened patrons of liberty than that . . . [t]he 
        accumulation of all powers legislative, executive and 
        judiciary, in the same hands whether of one, a few or 
        many, and whether hereditary, self-appointed, or 
        elective, may justly be pronounced the very definition 
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        of tyranny.

    The Framers' thus rejected giving the newly created chief 
executive the legal authority to suspend or dispense with the 
enforcement of the laws. That is the province of the Congress. 
As Madison wrote in Federalist No. 51, ``in republican 
government, legislative authority necessarily predominates.'' 
Obviously, if the Framers had intended to endow the President 
with the power to waive, amend, or suspend the laws, it would 
be in direct conflict with their fear of legislative supremacy.
B. LSupreme Court Interpretation of the Take Care Clause
    The Supreme Court has rejected the authority of the 
President to refuse to enforce constitutional laws. This 
rejection can be seen as early as the Court's 1803 decision in 
Marbury v. Madison.\16\ Although Marbury is best known for its 
discussion of the power of judicial review, the opinion also 
recognized Congress's authority to impose specific duties upon 
Executive Branch officials by law, as well as the official's 
corresponding obligation to execute the congressional 
directive. The Supreme Court more forcefully articulated this 
principle in an 1838 case, Kendall v. United States,\17\ 
involving the Executive Branch's refusal to comply with an Act 
of Congress. The Court in Kendall observed that ``[t]o contend 
that the obligation imposed on the President to see the laws 
faithfully executed implies a power to forbid their execution, 
is a novel construction of the constitution, and entirely 
inadmissible.''\18\ The Court further noted that permitting 
Executive Branch non-compliance with the statute ``would be 
vesting in the President a dispensing power, which has no 
countenance for its support in any part of the constitution; 
and is asserting a principle, which, if carried out in its 
results to all cases falling within it, would be clothing the 
President with a power to control the legislation of congress, 
and paralyze the administration of justice.''\19\
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    \16\5 U.S. (1 Cranch) 137 (1803).
    \17\Kendall v. United States, 37 U.S. (12 Pet.) 524 (1838).
    \18\Id. at 613.
    \19\Id.
---------------------------------------------------------------------------
    Moreover, a century later, in what has become the seminal 
case on executive power, Youngstown Sheet & Tube Co. v. Sawyer, 
the Court reasoned that,

        In the framework of our Constitution, the President's 
        power to see that the laws are faithfully executed 
        refutes the idea that he is to be a lawmaker. The 
        Constitution limits his functions in the lawmaking 
        process to the recommending of laws he thinks wise and 
        the vetoing of laws he thinks bad. And the Constitution 
        is neither silent nor equivocal about who shall make 
        laws which the President is to execute. . . . The 
        Constitution does not subject this lawmaking power of 
        Congress to presidential . . . supervision or control. 
        . . . The Founders of this Nation entrusted the 
        lawmaking power to the Congress alone in both good and 
        bad times.\20\
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    \20\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 
(1952).

    More recently, in Tennessee Valley Authority v. Hill, the 
Court held that it is ``the exclusive province of the Congress 
not only to formulate legislative policies and mandate programs 
and projects, but also to establish their relative priority for 
the Nation. Once Congress, exercising its delegated powers, has 
decided the order of priorities in a given area, it is for the 
Executive to administer the laws.''\21\ In 1998, the Court 
further observed, in a case involving the line item veto, that 
``there is no provision in the Constitution that authorizes the 
President to enact, to amend, or to repeal statutes.''\22\ In 
other words, the ``only constitutional power the president has 
to suspend or repeal statutes is to veto a bill or propose new 
legislation.''\23\
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    \21\Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).
    \22\Clinton v. City of New York, 524 US 417, 438 (1998).
    \23\Michael W. McConnell, ``Obama Suspends the Law,'' Wall St. J., 
July 8, 2013.
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C. LDepartment of Justice Interpretation of the Take Care Clause
    Legal opinions from the Justice Department under Presidents 
Carter, Reagan, George H. W. Bush, Clinton, and George W. Bush 
all agree that while the President does not have a duty to 
execute laws that he in good faith determines are 
unconstitutional, the President may not refuse to enforce an 
Act of Congress for policy reasons. As Attorney General 
Civiletti advised during the Carter administration, ``[t]he 
President has no `dispensing power,''' meaning that the 
President and his subordinates ``may not lawfully defy an Act 
of Congress if the Act is constitutional. . . . In those rare 
instances in which the Executive may lawfully act in 
contravention of a statute, it is the Constitution that 
dispenses with the operation of the statute. The Executive 
cannot.''\24\ The Department's Office of Legal Counsel has 
similarly reasoned that the President's duty under the Take 
Care Clause ``does not authorize the President to refuse to 
enforce a statute he opposes for policy reasons.''\25\
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    \24\43 Op. Att'y Gen. 275 (1980).
    \25\14 Op. Off. Legal Counsel 37, 51 (1990); see also 18 Op. Off. 
Legal Counsel 199, 200 (Nov. 2, 1994) (stating that ``if the president 
believes that the Court would sustain a particular provision as 
Constitutional, the President should execute the statute . . . but, if 
he determines it to be unconstitutional, and the Court would likely 
agree, he has the authority not to execute the statute'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \26\Memorandum from William H. Rehnquist, Assistant Att'y Gen., 
Office of Legal Counsel, Re: Presidential Authority to Impound Funds 
Appropriated for Assistance to Federally Impacted Schools (Dec. 1, 
1969).
---------------------------------------------------------------------------
D. LProsecutorial Discretion
    It has been argued that some of President Obama's waivers 
and suspensions of enforcement of Acts of Congress are a proper 
exercise of prosecutorial discretion. However, there are some 
fundamental differences between the exercise of prosecutorial 
discretion and the President's delay, waiver, or suspension of 
an Act of Congress.
    First, the exercise of prosecutorial discretion ordinarily 
involves a determination as to whether a particular individual 
or entity should be the subject of an enforcement action for 
past conduct. With regard, for instance, to the 
Administration's immigration non-enforcement directive, 
Deferred Action for Childhood Arrivals, the Administration has 
not merely concluded that it should abstain from prosecuting 
existing offenses, but that no enforcement action will be taken 
for continuing and future ones. In other words, the 
beneficiaries of this determination (a determination that is 
defined on a categorical rather than individual basis) are 
assured of immunity from legal consequences even though their 
violations continue. This is not simple prosecutorial 
discretion, but suspension of the law's operation with respect 
to this entire group.
    Second, a legitimate exercise of prosecutorial discretion 
is about setting priorities and allocating resources; it does 
not challenge and ignore the basic policy judgments Congress 
made in enacting the law at issue. The President must enforce 
the law as adopted by Congress and must respect the policy 
choices Congress has made. Under the Take Care Clause, he may 
not nullify the law simply because he disagrees with Congress's 
choices, or substitute through administrative means his policy 
preferences for those enacted by Congress. Changes to Federal 
statutory law must be sought and obtained from Congress. 
Administratively exempting whole categories of individuals from 
otherwise applicable law is an impermissible act of suspension.
    The President can, of course, establish enforcement 
priorities because Congress rarely appropriates adequate funds 
to allow perfect enforcement of any Federal statutory regime. 
Thus, the President can decide to devote more resources to a 
particular problem, such as human trafficking or white collar 
crime, with the inevitable result that other Federal statutes 
or areas of concern will be less vigorously pursued and 
enforced. This is entirely lawful and appropriate. Presidents 
are elected for the very purpose of establishing such 
priorities.
    This authority, however, is not boundless. Although the 
President can, for example, legitimately decide that, in the 
post-9/11 environment, most of the Federal Bureau of 
Investigation's resources should be dedicated to the 
investigation and prosecution of terrorism cases, he cannot 
decree that no enforcement assets whatsoever will be allocated 
to securities fraud or counterfeiting cases. Because the 
Constitution gives the Executive Branch the exclusive power to 
enforce Federal laws, this would effectively decriminalize 
securities fraud and counterfeiting, derogating from the 
Federal statutes that prescribed such activities.
    In short, the President is entitled to establish 
enforcement priorities, but the ultimate goal must always be 
implementation of the law enacted by Congress. If the President 
disagrees with that law, he must convince Congress to change 
it.
E. LForeign Affairs vs. Domestic Affairs
    During the Bush administration the label of ``imperial 
presidency'' was a favorite refrain of many of the President's 
critics. However, while the Bush administration may have had an 
aggressive reading of executive authority, that reading was 
limited to an area of core presidential power--foreign affairs.
    The Constitution declares that the President is the 
Commander-in-Chief and that he has the authority to make 
treaties and to receive foreign ambassadors and other public 
ministers. Indeed, the Supreme Court has gone as far as to 
proclaim that the President is the ``sole organ of the Federal 
Government in the field of international relations.''\27\ 
Accordingly, ``if broad executive powers were to exist 
anywhere, they would exist in foreign affairs, where the 
limitations of republican government are most pronounced. 
Furthermore, it is here where the Constitution is most vague, 
hence giving the President the opportunity to act with the most 
discretion.'' \28\ By contrast, the domestic powers of the 
Federal Government are strictly defined and limited. ``Unlike 
the `invitation to struggle' that is the foreign affairs 
Constitution, the process for enacting legislation is strict 
and defined.''\29\ In short, Presidential powers are at their 
weakest in the sphere of domestic policy. Yet this is where 
President Obama has granted himself unprecedented executive 
authority.
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    \27\United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 
(1936).
    \28\Robert J. Delahunty & John C. Yoo, ``The Obama Administration, 
the DREAM Act and the Take Care Clause,'' 91 Tex. L. Rev. 781, 826 
(2013).
    \29\Id.
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F. LPresident Obama has Acknowledged His Limited Authority
    Even President Obama has acknowledged that action to waive 
legal requirements put in place by Congress would be outside 
his constitutional powers. In a March 2011 Univision Town Hall 
in Washington, D.C., the President responded to a question 
regarding whether he would grant ``temporary protected status'' 
to undocumented students by stating that,

        With respect to the notion that I can just suspend 
        deportations through executive order, that's just not 
        the case, because there are laws on the books. . . . 
        Congress passes the law. The executive branch's job is 
        to enforce and implement those laws. And then the 
        judiciary has to interpret the laws. There are enough 
        laws on the books by Congress that are very clear in 
        terms of how we have to enforce our immigration system 
        that for me to simply through executive order ignore 
        those congressional mandates would not conform with my 
        appropriate role as President.\30\
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    \30\Jeffrey H. Anderson, ``Lawlessness in the Executive,'' The 
Weekly Standard (Sept. 2, 2013).

    Moreover, in a 2012 interview with Univision, the President 
responded to a question regarding whether he could halt 
deportations of illegal immigrants. The President said that he 
could not ``waive away the laws that Congress put in place'' 
and that ``the president doesn't have the authority to simply 
ignore Congress and say, `We're not going to enforce the laws 
that you've passed.'''\31\
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    \31\Lamar Smith, ``Obama's Amnesty for Illegal Immigrants Is 
Against the Law,'' Christian Sci. Monitor (June 16, 2012).
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      II. THE PRESIDENT'S FAILURES TO FAITHFULLY EXECUTE THE LAWS

    Our system of government is a tripartite one, with each 
branch having certain defined functions delegated to it by the 
Constitution. The Obama administration, however, has ignored 
the Constitution's carefully balanced separation of powers and 
has unilaterally granted itself the extra-constitutional 
authority to amend, waive, or suspend the enforcement of the 
laws. This goes beyond the ``executive power'' granted to the 
President and specifically violates the Constitution's command 
that the President is to ``take care that the laws be 
faithfully executed.''
    The President's encroachment into the Congress's sphere of 
power is not a transgression that should be taken lightly. As 
English historian Edward Gibbon famously observed regarding the 
fall of the Roman Empire, ``[t]he principles of a free 
constitution are irrevocably lost, when the legislative power 
is dominated by the executive.''\32\ Although the President's 
actions have not yet risen to the level of dominating the 
legislative power, they are certainly undermining the rule of 
law that is at the center of our constitutional design. From 
Obamacare to immigration, the current Administration is 
continually picking and choosing which laws to enforce and 
which to ignore.
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    \32\1 Edward Gibbon, The History of the Decline and Fall of the 
Roman Empire 54 (1897).
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    The following are examples of President Obama's failures to 
faithfully execute the laws passed by Congress. In none of the 
below examples has the Administration claimed that the 
statutory law at issue violates the Constitution or infringes 
on authorities granted the President in Article II. In fact, 
with regard to the Affordable Care Act, the Obama 
administration has argued all the way to the Supreme Court that 
the Act is constitutional.
A. LObamacare and the Take Care Clause
            1. LIllegal Waiver of the Employer Mandate
    On July 2, 2013, the Obama administration claimed the 
authority to delay for 1 year the penalties associated with the 
Affordable Care Act's employer mandate despite the clear 
language of the Act. And, on February 10, 2014, the 
Administration announced that it would further delay the 
employer mandate for another year for medium-sized employers, 
those with 50 to 99 employees. Although these delays may be 
welcome news to employers, who face enormous burdens as a 
result of the mandate, the unilateral decision to delay 
implementation of a major provision in the ACA is a serious 
breach of the President's constitutional duty to ensure that 
the laws are faithfully executed.
    Section 1513 of the ACA imposes penalties on employers who 
fail to provide ``minimum essential coverage'' to their 
employees. The section further provides that these penalties 
``shall apply to months beginning after December 31, 
2013.''\33\ Despite this explicit requirement that the 
penalties shall apply beginning in 2014, the Administration has 
announced that the penalties ``will not apply for 2014'' for 
all employers and will not apply to medium-sized employers for 
2015 as well.\34\ Although the House has acted to delay 
application of the employer mandate for a year, the Senate has 
not acted on this legislation.\35\
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    \33\Patient Protection and Affordable Care Act Sec. 1513(d) 
(emphasis added).
    \34\Mark J. Mazur, Continuing to Implement the ACA in a Careful, 
Thoughtful Manner, available at http://www.treasury.gov/connect/blog/
pages/continuing-to-implement-the-aca-in-a-careful-thoughtful-
manner-.aspx (emphasis added); Juliet Eilperin and Amy Goldstein, 
``White House delays health insurance mandate for medium-sized 
employers until 2016,'' Wash. Post, Feb. 10, 2014.
    \35\See H.R. 2667. Moreover, the Administration has stated that the 
President will veto H.R. 2667 if the bill is presented to him. 
Statement of Administration Policy on H.R. 2667 and H.R. 2668 (July 16, 
2013) available at http://www.whitehouse.gov/sites/default/files/omb/
legislative/sap/113/saphr2667r_20130716.pdf.
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    The Administration's defense of its claim of authority to 
delay the employer mandate is unavailing. The ACA gives the 
Treasury Secretary the authority to collect these penalties 
``on an annual, monthly, or other periodic basis as the 
Secretary may prescribe.'' The Secretary's discretion to 
prescribe the time at which the affected party must discharge 
that obligation neither affects the existence of the 
obligation, nor empowers the Secretary to repeal it. Moreover, 
the ACA does not allow the Secretary to waive the imposition of 
such penalties, except in one circumstance unrelated to the 
Administration's delay.\36\ In other words, Congress spoke to 
the question of whether and when the executive should be able 
to waive the employer mandate, and Congress clearly did not 
want the Administration to waive the mandate unless certain 
specified conditions were met.
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    \36\Section 1332 authorizes the Treasury secretary to waive the 
employer mandate, but only as part of a state-specific waiver, and only 
if the state enacts a law that would provide equally comprehensive 
health insurance to as many residents, and only if that law would 
impose no additional cost to the Federal Government, and only if there 
is a ``meaningful level of public input'' over the waiver and its 
approval, and even then not until 2017.
---------------------------------------------------------------------------
    Some of the President's supporters have claimed the 
President is not waiving the penalties, only the reporting 
requirements. This argument, however, is not persuasive. The 
ACA added two sections to the Internal Revenue Code that 
require employers to report certain information on their health 
benefits and the workers who enroll in that coverage, in order 
to help the IRS determine whether those workers are eligible 
for tax credits and whether the employer is subject to 
penalties. Again, the statute is clear: those reporting 
requirements take effect in ``calendar years beginning after 
2013'' and ``periods beginning after December 31, 2013.'' The 
statute contains no language authorizing the Executive Branch 
to waive those requirements.
    The Obama administration claims it can altogether eliminate 
the obligation to report the 2014 information: ``The 
Administration . . . will provide an additional year before the 
ACA mandatory employer and insurer reporting requirements 
begin.''\37\ It has no statutory or constitutional authority to 
do this and, therefore, this delay is illegal.
---------------------------------------------------------------------------
    \37\Mazur, supra note 34.
---------------------------------------------------------------------------
            2. LIllegal IRS Rule to Expand Premium Assistance Subsidies
    The Affordable Care Act provides ``premium assistance'' tax 
credits and subsidies to help individuals with incomes within 
400 percent of the poverty line purchase qualifying health 
insurance plans on state-run insurance exchanges.\38\ However, 
34 states have decided not to create their own insurance 
exchanges.\39\ If a state fails to create an exchange, the ACA 
authorizes the Federal Government to create a ``fallback'' 
exchange for that state. But, under the plain text of the ACA, 
premium assistance is not available for individuals who 
purchase insurance in states that have federally established 
exchanges, because individuals in those states will not have 
the opportunity to enroll in health insurance ``through an 
Exchange established by the State under section 1311 of the 
[ACA],'' which is the statutory prerequisite to eligibility for 
premium assistance.\40\
---------------------------------------------------------------------------
    \38\26 U.S.C. Sec. 36B (authorizing subsidies for policies 
``enrolled in through an Exchange established by the State under 
section 1311 of the Patient Protection and Affordable Care Act''). 
These subsidies take the form of refundable tax credits, which are paid 
directly by the Federal treasury to the taxpayer's insurer, as an 
offset against the taxpayer's premiums.
    \39\State Decisions For Creating Health Insurance Exchanges, Kaiser 
State Health Facts, available at http://kff.org/health-reform/
stateindicator/health-insurance-exchanges/. Twenty-seven states have 
opted out of the exchange regime completely, while another seven have 
opted only to assist the Federal Government with the operation of 
federally established exchanges.
    \40\26 U.S.C. Sec. 36B.
---------------------------------------------------------------------------
    Undaunted by the clear statutory text, the Obama 
administration issued an Internal Revenue Service rule that 
purports to extend the ACA's premium assistance to the purchase 
of health insurance from federally-run exchanges created in 
states without exchanges of their own. This rule lacks 
statutory authority--the ACA precludes the IRS from providing 
premium assistance for insurance purchased from a federally-run 
exchange.\41\ The text, structure, and history of the ACA show 
that tax credits and subsidies are not available in federally-
run exchanges. The IRS rule is therefore illegal and yet 
another failure on the Administration's part to faithfully 
execute the law. What is more, the rule allows for the 
distribution of billions of dollars of Federal funds that 
Congress never authorized.\42\
---------------------------------------------------------------------------
    \41\But see Halbig v. Sebelius, 2014 U.S. Dist. LEXIS 4853 (D.D.C. 
2014).
    \42\Contra U.S. Const. art. I, Sec. 9 (``No Money shall be drawn 
from the Treasury, but in Consequence of Appropriations made by 
Law.'').
---------------------------------------------------------------------------
    Moreover, this illegal IRS rule affects more than just the 
availability of premium assistance. This is because the 
availability of premium assistance also operates as the trigger 
for other mandates and penalties under the ACA. First, the 
availability of premium assistance triggers the individual 
mandate penalty for many Americans that would otherwise be 
exempt from the mandate.\43\ Second, the availability of 
premium assistance also effectively triggers the enforcement 
mechanism for the employer mandate.\44\ As a consequence, the 
employer mandate should be unenforceable in states that decline 
to create an exchange. In short a state's decision not to 
create an exchange exempts a substantial portion of its 
residents and business from Obamacare.
---------------------------------------------------------------------------
    \43\See 26 U.S.C. Sec. 5000A.
    \44\See 26 U.S.C. Sec. 4980H (Employers must make an ``assessable 
payment'' if they do not offer their employees the opportunity to 
enroll in employer-sponsored health coverage, but that payment is only 
triggered if at least one employee enrolls in a plan from state-run 
exchange.).
---------------------------------------------------------------------------
    This supposed IRS fix is actually an effort to rewrite the 
law to provide for the expenditure of billions of taxpayer 
dollars without Congress's approval.
            3. LIllegal Waiver for Non-Compliant Health Plans
    Section 1251 of the Affordable Care Act lists the 
conditions under which an individual can keep pre-ACA health 
insurance even if it runs afoul of the ACA's requirements. That 
section, known as the grandfathering provision, states that 
``nothing in this Act . . . shall be construed to require that 
an individual terminate coverage under a group health plan or 
health insurance coverage in which such individual was enrolled 
on the date of enactment of this Act.''\45\ It further provides 
that additional family members can be added to ``a group health 
plan or health insurance coverage in which an individual was 
enrolled on the date of enactment of this Act,''\46\ and that 
new employees and their families can be added to a group plan 
``that provide[d] coverage on the date of enactment of this 
Act.''\47\ These are the only three exceptions listed in the 
statutory text of the ACA that allow for the grandfathering of 
an existing health care plan.
---------------------------------------------------------------------------
    \45\42 U.S.C. Sec. 18011.
    \46\Id.
    \47\Id.
---------------------------------------------------------------------------
    However, despite the clear language of the ACA, on November 
14, 2013, President Obama announced, without statutory 
authorization, a new grandfathering exception:

        Already people who have plans that predate the 
        Affordable Care Act can keep those plans if they 
        haven't changed. That was already in the law. That's 
        what's called a grandfather clause that was included in 
        the law. Today, we're going to extend that principle 
        both to people whose plans have changed since the law 
        took effect and to people who bought plans since the 
        law took effect.\48\
---------------------------------------------------------------------------
    \48\``President Obama Announces New Steps to Help Americans 
Receiving Insurance Cancellation Notices,'' available at http://
www.whitehouse.gov/blog/2013/11/14/president-obama-announces-new-steps-
help-americans-receiving-insurance-cancellation (emphasis added).

The President does not possess the lawful authority to take 
unilateral action to permit the continued sale of plans that 
were not in effect on the date of enactment of the ACA. The 
House passed a bill on November 15, 2013, to allow Americans to 
keep their existing coverage; however, the Senate has not taken 
action on that legislation and the President has threatened to 
veto it.
            4. LIllegal Contraceptive Mandate
    The Affordable Care Act requires employers to provide 
certain ``preventive services'' at no-cost to the insured. In 
carrying out this requirement the Department of Health and 
Human Services (HHS) has mandated that employers, including 
religiously-affiliated institutions, pay for sterilization, 
abortion-inducing drugs, and birth control services even if 
paying for them violates the employers' conscience rights.
    However, this regulatory mandate violates an Act of 
Congress: the Religious Freedom Restoration Act (RFRA). RFRA 
provides that the Federal Government may ``substantially 
burden'' a person's ``exercise of religion'' only if it 
demonstrates that application of the burden to the person ``is 
in furtherance of a compelling governmental interest'' and ``is 
the least restrictive means of furthering'' that interest.\49\ 
Yet in issuing the contraceptive mandate, HHS never even 
attempted to structure the requirements in such a way as to 
eliminate the burden on religious employers. The President has 
a constitutional duty to ensure that RFRA is faithfully 
executed even if it interferes with his policy preferences 
regarding contraceptives.
---------------------------------------------------------------------------
    \49\42 U.S.C. Sec. 2000bb-1.
---------------------------------------------------------------------------
B. LImmigration Non-Enforcement and the Take Care Clause
            1. LDeferred Action for Childhood Arrivals
    Article I, Section 8 of the Constitution gives Congress, 
not the President, the authority ``to establish a uniform rule 
of naturalization.'' ``Although the Constitution is silent on 
border control and immigration, the Supreme Court declared long 
ago that these authorities reside with Congress.''\50\ While 
the Supreme Court has indicated on several occasions that the 
President has some measure of ``inherent'' power over 
immigration,\51\ the Court seems to have settled finally on the 
view that the formation of immigration policy ``is entrusted 
exclusively to Congress,''\52\ and that ``[t]he plenary 
authority of Congress over aliens . . . is not open to 
question.''\53\ Congress has passed an extensive Immigration 
and Naturalization Act, which specifies the limited cases in 
which the Executive Branch can suspend the removal of illegal 
aliens. The Act does not give the President the authority to 
interrupt the deportation of whole classes of illegal aliens.
---------------------------------------------------------------------------
    \50\John Yoo, ``Obama Has Pursued a Dangerous Change in the Powers 
of the President,'' FoxNews.com, October 12, 2012.
    \51\See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 
U.S. 537, 542 (1950).
    \52\Galvan v. Press, 347 U.S. 522, 531 (1954).
    \53\INS v. Chadha, 462 U.S. 919, 940-41 (1983).
---------------------------------------------------------------------------
    The Administration has stated that going forward 
deportation efforts will be focused solely on aliens with 
criminal records and no enforcement resources will be expended 
on other types of cases. Undocumented individuals who have 
avoided apprehension at the border and have not been convicted 
of a serious offense since arriving to the United States will 
no longer face the prospect of deportation, the most basic 
means of immigration enforcement.
    Far from merely prioritizing the use of limited resources, 
the Administration's policy effectively rewrites the law. It 
means that the vast majority of undocumented aliens no longer 
need to fear immigration enforcement. This applies even to 
those aliens who are now in deportation proceedings. Limiting 
the possibility of deportation in this manner eliminates 
entirely any deterrent effect the immigration laws have, and 
also states plainly that those laws can be ignored with 
impunity. The President has, in effect, suspended operation of 
those laws with respect to a very large and identifiable class 
of offenders. This clearly exceeds his constitutional 
authority.
            2. LNon-enforcement of Immigration Laws for Parents and 
                    Guardians
    On August 23, 2013, the Obama administration issued a 
policy directive instructing Immigration and Customs 
Enforcement officials not to enforce immigration laws in cases 
in which the unlawful immigrant is the primary provider for a 
minor child, regardless of the child's immigration status, or 
in which the unlawful immigrant is the parent or legal guardian 
of a child who is a U.S. citizen or lawful permanent resident. 
This is yet another example of President Obama abusing his 
authority and unilaterally refusing to enforce the current 
immigration laws by directing ICE officials to stop removing 
broad categories of unlawful immigrants.
    Instead of working with Congress to address problems with 
the country's immigration system, the President has once again 
decided to go it alone despite the fact that both the House and 
the Senate are working on immigration reform measures. This is 
another example of the President's contempt for the rule of law 
and a failure to faithfully execute the laws passed by 
Congress.
            3. LUnlawful Extension of Parole in Place
    On November 15, 2013, U.S. Citizenship and Immigration 
Services (USCIS) issued a policy memorandum providing that 
spouses, children, and parents of those who are serving--or who 
have previously served--in the Armed Forces of the United 
States could receive ``parole-in-place'' on a categorical 
basis. The policy allows aliens who entered the United States 
without inspection--and who are family members of current or 
former service members--to apply for and receive ``parole'' 
that would permit them to remain in the country and apply for 
green cards. This will permit many aliens to adjust status 
without having to travel abroad for consular processing of 
their immigrant visas (and likely trigger the 3 or 10 year 
inadmissibility bars).
    Notably, the parole statute, the regulations, and the 
legislative history do not seem to contemplate parole for: (1) 
aliens who are already in the United States illegally, (2) an 
entire category of people, or (3) an indefinite period of time. 
Parole was created to permit aliens to enter the United States 
temporarily, on a case-by-case basis, for urgent or 
humanitarian reasons.
C. LNon-Enforcement of Federal Criminal Law and the Take Care Clause
            1. LNon-enforcement of the Controlled Substances Act for 
                    Medical and Recreational Marijuana
    The Controlled Substances Act (CSA) prohibits the 
possession, growth, and distribution of marijuana.\54\ The CSA 
does not distinguish between purposes or different uses of 
marijuana; it clearly states that all use and distribution is 
illegal.\55\ The administrations of both President George W. 
Bush and President Bill Clinton enforced the CSA and prosecuted 
medical marijuana suppliers.\56\ Moreover, in 2005, the Supreme 
Court held that the CSA did not make exceptions for any 
intrastate sales, including cases of small-scale production and 
use of medical marijuana.\57\
---------------------------------------------------------------------------
    \54\Controlled Substances Act, 21 U.S.C. Sec. Sec. 841, 844 (2006).
    \55\Id.
    \56\Robert A. Mikos, A Critical Appraisal of the Department of 
Justice's New Approach to Medical Marijuana, 22 Stan. L. & Pol'y Rev. 
633, 638 (2011).
    \57\Gonzales v. Raich, 545 U.S. 1 (2005) (challenging the CSA's 
application to a small-scale grower and medical marijuana user).
---------------------------------------------------------------------------
    However, Attorney General Holder announced on October 19, 
2009, that the Justice Department would stop enforcing the 
Federal marijuana ban against persons who comply with state 
medical marijuana laws. Although the memo recognized Congress's 
inclusion of marijuana as a dangerous drug and serious crime in 
the CSA, the Department proclaimed that enforcement of the CSA 
with regard to medical marijuana is unnecessary for 
``individuals whose actions are in clear and unambiguous 
compliance with existing state laws providing for the medical 
use of marijuana.''\58\ As of September 2013, 20 states and the 
District of Columbia have legalized medical marijuana.\59\
---------------------------------------------------------------------------
    \58\Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't 
of Justice, to Selected U.S. Att'ys (Oct.19, 2009), available at http:/
/blogs.justice.gov/main/archives/192.
    \59\20 Legal Medical Marijuana States and DC, ProCon.org, available 
at http://medicalmarijuana.procon.org/
view.resource.php?resourceID=000881 (including California (in 1996); 
Oregon (1998); Washington (1998); Alaska (1999), Maine (1999), Colorado 
(2000), Hawaii (2000), Montana (2004), Nevada (2004); Vermont (2004); 
Rhode Island (2006), New Mexico (2007), Michigan (2008), New Jersey 
(2009), Arizona (2010); DC (2010), Delaware (2011), Connecticut (2012), 
Massachusetts (2012), Illinois (2013), New Hampshire (2013)).
---------------------------------------------------------------------------
    Additionally, on August 29, 2013, Attorney General Holder 
announced that the Justice Department would not enforce the CSA 
against companies--even large companies--that produce and 
distribute marijuana as a recreational drug as long as those 
companies operated within a ``strong and effective'' state 
regulatory system (and also meet eight other criteria).\60\ 
Starting in January 2014, two states--Colorado and Washington--
will allow large-scale, for-profit production and distribution 
of marijuana for recreational (non-medical) use.
---------------------------------------------------------------------------
    \60\Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't 
of Justice, to All U.S. Att'ys (Aug. 29, 2003), available at http://
www.justice.gov/iso/opa/resources/3052013829132
756857467.pdf.
---------------------------------------------------------------------------
    The decision of the Obama administration not to enforce the 
CSA in entire states is not a valid exercise of prosecutorial 
discretion. A decision by an individual Federal prosecutor not 
to bring charges against an individual for violating the CSA's 
prohibitions on the production, possession, or distribution of 
marijuana likely falls within the umbrella of ``prosecutorial 
discretion.'' Thus, there would appear to be no constitutional 
defect in a prosecutor's decision not to prosecute a specific 
individual whose use of marijuana is in compliance with state 
law. The Executive Branch has no obligation to prosecute all 
violations of Federal law.
    However, the breadth of the Justice Department's position 
on marijuana non-enforcement goes well beyond the limits of 
prosecutorial discretion. Rather, the guidance to U.S. 
Attorneys establishes a formal, department-wide policy of 
selective non-enforcement of an Act of Congress. This infringes 
on Congress's lawmaking authority by, in effect, amending the 
flat prohibitions of the CSA to permit the possession, 
distribution, and cultivation of marijuana so long as that 
conduct is in compliance with state law. This crosses the line 
between permissible discretionary decisions made by prosecutors 
on a case-by-case basis and an impermissible suspension of the 
law by executive fiat.
            2. LAmending Statutory Mandatory Minimums by Executive 
                    Decree
    On August 12, 2013, Attorney General Holder announced in a 
speech to the American Bar Association changes in Federal 
mandatory minimum sentencing policy regarding low-level, non-
violent drug offenders. Attorney General Holder's announcement 
continues the Obama administration's pattern of overstepping 
its constitutional bounds by selectively enforcing Federal law 
and attempting to amend Acts of Congress through executive fiat 
in blatant disregard for the limitations the Constitution 
places on the Executive Branch. The Obama administration cannot 
unilaterally ignore the laws or the limits on the President's 
powers. While the Executive Branch has the ability to use 
prosecutorial discretion in individual cases, that authority 
does not extend to entire categories of people.
    Although Members of Congress may agree with many of the 
policy issues Attorney General Holder outlined in his 
announcement, reform regarding mandatory minimums is 
constitutionally required to come from Congress. And Congress 
is working on the issue. The House Judiciary Committee created 
the Overcriminalization Task Force to address these issues as 
well as others with the Federal criminal justice system. This 
Task Force is in the process of taking a broad look at the 
Federal criminal code, allowing for input from experts, and is 
already considering sentencing and prison reform issues. If the 
Obama administration wants to reform our criminal justice 
system, it is constitutionally required to work with Congress 
to do so.
D. LOther Failures to Faithfully Execute the Laws
            1. LIllegally Amending No Child Left Behind Through 
                    Executive Waivers
    In 2001, Congress enacted the No Child Left Behind (NCLB) 
education reforms. The legislation imposed numerous 
requirements on states and local school districts that receive 
Federal funds. While there is bipartisan agreement that the law 
needs to be reformed, rather than working with Congress to 
reform the law, the Obama administration has used the promise 
of waivers from the requirements of NCLB to compel states to 
adopt the Administration's own version of education reform 
policies.
    The Administration's proposals have not been considered by 
Congress, let alone enacted into law, but by attaching strings 
to the 35 state waivers that have thus far been granted, the 
Administration is effectively implementing a new law without 
bothering to go to Congress. As the New York Times described 
it: ``In the heat of an election year, the Obama administration 
has maneuvered around Congress, using the waivers to advance 
its own education agenda. . . . The waivers appear to follow an 
increasingly deliberate pattern by the administration to 
circumvent lawmakers.''\61\
---------------------------------------------------------------------------
    \61\Motoko Rich, ```No Child' Law Whittled Down by White House,'' 
N.Y. Times, July 6, 2012.
---------------------------------------------------------------------------
            2. LIllegally Amending the 1996 Welfare Reform Law Through 
                    Waivers
    In July 2012, despite the plain meaning of the law, the 
Obama administration asserted that it had the authority to 
waive the statutory work requirements included in the 
bipartisan 1996 welfare reform law. The non-partisan Government 
Accountability Office (GAO) has determined that the Obama 
administration's decision to unilaterally grant itself the 
authority to waive Federal Temporary Assistance for Needy 
Families (TANF) work requirements, which were a critical 
element of the welfare reform enacted in 1996, qualifies as a 
rule.\62\ As such, the waiver must be submitted to Congress and 
is subject to review--and potential disapproval--under the 
Congressional Review Act.
---------------------------------------------------------------------------
    \62\Letter from Lynn H. Gibson, General Counsel, General 
Accountability Office, to Sen. Orrin Hatch and Rep. Dave Camp (Sept. 4, 
2012) available at http://waysandmeans.house.gov/uploadedfiles/
gao_tanf_report_sept_2012.pdf.
---------------------------------------------------------------------------
    Despite the Obama administration's attempts to unilaterally 
undo welfare work requirements, the GAO analysis is unequivocal 
that any changes must be submitted to Congress. Circumventing 
Congress is a flagrant abuse of our system of separated powers. 
Work requirements were a critical part of the landmark 1996 
Welfare Reform law and cannot constitutionally be scrapped 
through executive decree by the Obama administration.
            3. LIllegally Ignoring Advise & Consent (``Recess'' 
                    Appointments)
    One of the checks and balances imposed by the Founding 
Fathers was the requirement that senior Executive Branch 
officials be appointed only with the consent of the Senate. In 
the modern regulatory state the approval of officials by the 
Senate is one key way to ensure that regulators do not abuse 
their authority. In order to address situations in which the 
Senate was in recess, thus preventing the Senate from 
consenting, the Framers provided for a limited interim 
appointment process absent Senate confirmation.
    When the Senate did not approve four of his nominees to two 
regulatory agencies--the head of the new Consumer Financial 
Protection Bureau (CFPB) and three members of the National 
Labor Relations Board (NLRB)--President Obama took the 
unprecedented step of declaring that the Senate was in recess--
even though it was not--and invoking his interim appointments 
power. Seating the head of the CFPB and a quorum for the NLRB 
allowed both agencies to begin promulgating regulations that 
would have otherwise been on hold until the President and the 
Senate came to agreement on filling the vacancies.
    On January 25, 2013, the U.S. Court of Appeals for the D.C. 
Circuit held that President Obama exceeded his constitutional 
authority by making ``recess'' appointments to the National 
Labor Relations Board.\63\ According to the court, the 
appointments were unconstitutional because (1) they were not 
made during ``the Recess'' of the Senate (that is, the 
intersession recess between the first and second Senate 
sessions), and (2) the vacancies the appointments filled did 
not arise during the intersession recess.
---------------------------------------------------------------------------
    \63\Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).
---------------------------------------------------------------------------

                     III. THE DOCTRINE OF STANDING

    ``Federal courts are courts of limited jurisdiction[, 
possessing] only that power authorized by Constitution and 
statute.''\64\ The ``judicial power'' conferred on Article III 
courts by the Constitution is limited to deciding particular 
``Cases'' and ``Controversies.''\65\ ``In an attempt to give 
meaning to Article III's case-or-controversy requirement, the 
courts have developed a series of principles termed 
`justiciability doctrines,' among which [is] standing.''\66\ In 
other words, ```Article III standing . . . enforces the 
Constitution's case-or-controversy requirement.'''\67\
---------------------------------------------------------------------------
    \64\Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 
(1994).
    \65\U. S. Const., Art. III, Sec. 2.
    \66\Allen v. Wright, 468 U.S. 737, 750 (1984).
    \67\DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) 
(quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11 
(2004)).
---------------------------------------------------------------------------
    Standing is ```an essential and unchanging' predicate to 
any exercise of jurisdiction'' by an Article III Federal 
court.\68\ Thus, standing is a threshold procedural question 
that does not turn on the merits of a plaintiff's complaint, 
but rather on whether the particular plaintiff has a legal 
right to a judicial determination on the issues before the 
court. The doctrine of standing is made up of both 
constitutional requirements and prudential considerations. 
``The Court has kept these two strands separate: `Article III 
standing, which enforces the Constitution's case-or-controversy 
requirement, and prudential standing, which embodies 
`judicially self-imposed limits on the exercise of Federal 
jurisdiction.'''\69\
---------------------------------------------------------------------------
    \68\See Am. Chemistry Council v. Dep't of Transp., 468 F.3d 810, 
814 (D.C. Cir. 2006) (quoting Florida Audubon Soc. v. Bentsen, 94 F.3d 
658, 663 (D.C. Cir. 1996)).
    \69\United States v. Windsor, 133 S. Ct. 2675, 2685 (2013) (quoting 
Elk Grove Unified School Dist., 542 U. S. 11-12) (internal citations 
omitted).
---------------------------------------------------------------------------
    In order to satisfy the constitutional standing 
requirements, the Supreme Court has imposed three requirements. 
``First, the plaintiff must have suffered an injury in fact--an 
invasion of a legally protected interest which is (a) concrete 
and particularized . . . and (b) actual or imminent, not 
conjectural or hypothetical.''\70\ ``Second, there must be a 
causal connection between the injury and the conduct complained 
of--the injury has to be fairly traceable to the challenged 
action of the defendant and not the result of the independent 
action of some third party not before the court.''\71\ ``Third, 
it must be likely, as opposed to merely speculative, that the 
injury will be redressed by a favorable decision.''\72\
---------------------------------------------------------------------------
    \70\Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) 
(internal quotations and citations omitted).
    \71\Id. (internal quotations and alterations omitted).
    \72\Id.
---------------------------------------------------------------------------
    The Supreme Court has stressed that the standing inquiry is 
``especially rigorous'' in cases in which important separation 
of powers concerns are implicated by a dispute.\73\ In the 
separation of powers context, the courts have required 
plaintiffs to demonstrate that ``the dispute is `traditionally 
thought to be capable of resolution through the judicial 
process.'''\74\
---------------------------------------------------------------------------
    \73\See Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
    \74\Id. at 819 (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)).
---------------------------------------------------------------------------
    In addition to constitutional standing requirements, 
Federal courts also follow a set of prudential standing 
principles. Similar to the constitutional requirements, these 
prudential limits are ``founded in concern about the proper--
and properly limited--role of the courts in a democratic 
society''; however, these standing principles are judicially 
created. Unlike their constitutional counterparts, prudential 
standing principles ``can be modified or abrogated by 
Congress.''\75\ Accordingly, prudential standing principles are 
more flexible ``rule[s] . . . of Federal appellate 
practice,''\76\ designed to protect the courts from 
``decid[ing] abstract questions of wide public significance 
even though other governmental institutions may be more 
competent to address the questions and even though judicial 
intervention may be unnecessary to protect individual 
rights.''\77\
---------------------------------------------------------------------------
    \75\Bennett v. Spear, 520 U.S. 154, 162 (1997). These prudential 
principles require that (1) the plaintiff assert his own legal rights 
and interests, rather than those of a third party; (2) the plaintiff's 
complaint fall within the ``zone of interests'' protected or regulated 
by the statute or constitutional guarantee in question; and (3) the 
plaintiff not assert ``abstract questions of wide public significance 
which amount to generalized grievances pervasively shared and most 
appropriately addressed in the representative branches.''
    \76\Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980).
    \77\Warth v. Seldin, 422 U.S. 490, 500 (1975).
---------------------------------------------------------------------------
A. LIndividual Member of Congress Standing
    The courts have been increasingly skeptical, especially 
since Raines v. Byrd, of finding standing in cases brought by 
individual Members of Congress or ad hoc groups of Members. 
Courts have rejected Member standing in many of these cases, in 
part, because the Members bringing the suit were not singled 
out for especially unfavorable treatment as opposed to other 
Members of Congress. Rather, their claims were based on 
institutional injuries (generally the diminution of legislative 
power), which necessarily damage all Members of Congress 
equally.
    Moreover, in these cases Members have not claimed that they 
have been deprived of something to which they personally are 
entitled--such as their seats as Members of Congress after 
their constituents had elected them.\78\ Instead, their claims 
have been based on a loss of political power, not loss of any 
private right, which would make the injury more concrete. As 
one Federal district court judge recently observed, the Supreme 
Court's legislative standing jurisprudence ``teaches that 
generalized injuries that affect all Members of Congress in the 
same broad and undifferentiated manner are not sufficiently 
`personal' or `particularized,' but rather are institutional, 
and too widely dispersed to confer standing.''\79\
---------------------------------------------------------------------------
    \78\But see Powell v. McCormack, 395 U.S. 486 (1969).
    \79\Kucinich v. Bush, 236 F. Supp. 2d 1, 7 (D.D.C. 2002).
---------------------------------------------------------------------------
B. LInstitutional Standing
    While Members of Congress often have difficulty 
establishing standing to allege an institutional injury, 
institutional plaintiffs (e.g., a House committee when 
authorized by the full House to bring suit) have been more 
successful at establishing standing in cases in which they have 
been authorized to seek judicial recourse on behalf of one 
House of Congress. However, all of the available cases 
regarding institutional standing have dealt with judicial 
enforcement of a subpoena. It is unclear how, or if, these 
precedents would be applied outside of the subpoena enforcement 
context.
    It is clear though that Raines v. Byrd, the leading 
legislative standing case, ``does not stand for the proposition 
that Congress can never assert its institutional interests in 
court.''\80\ In fact, the Supreme Court noted in Raines that it 
``attach[ed] some importance to the fact that [plaintiffs] have 
not been authorized to represent their respective Houses of 
Congress in this action, and indeed both Houses actively oppose 
their suits.''\81\ In other words, the Supreme Court's decision 
in Raines was premised in part on the fact that the Members in 
that case did not initiate the lawsuit on behalf of their 
respective House of Congress.
---------------------------------------------------------------------------
    \80\Comm. on Oversight & Gov't Reform v. Holder, 2013 U.S. Dist. 
LEXIS 140994 at *34 (D.D.C. 2013).
    \81\Raines, 521 U.S. at 829.
---------------------------------------------------------------------------

                               DISCUSSION

    In order to rein in the President's failure to faithfully 
execute the laws, the ENFORCE the Law Act puts a procedure in 
place to permit the House, or the Senate, to authorize a 
lawsuit against the Executive Branch. One hurdle the House or 
the Senate would face in any such lawsuit is establishing 
standing to sue. The Federal courts have been very resistant to 
find that legislators have standing to bring suit. However, 
this does not mean that a legal challenge brought by one House 
of Congress based on the failure to faithfully execute the laws 
is necessarily foreclosed.
    Although the cases in the leading line of legislative 
standing cases all found that the Members of Congress bringing 
lawsuits did not have standing to sue, in none of those cases 
was the lawsuit brought pursuant to the authorization of one 
House of Congress to redress a clearly delineated, concrete 
injury to the institution.\82\ Rather, in those cases 
individual Members sought to ameliorate Congress's 
institutional injury without the consent of the institution 
itself. But the Court has never held that an institution, such 
as the House of Representatives, cannot file suit to address an 
institutional harm. As one Federal district court judge 
recently pointed out regarding the seminal case on legislative 
standing, Raines v. Byrd, ``the Supreme Court's decision in 
Raines was premised in part on the fact that the legislators in 
that case did not initiate their lawsuit on behalf of their 
respective legislative bodies.''\83\
---------------------------------------------------------------------------
    \82\See, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Campbell v 
Clinton, 203 F.3d 19 (D.C. Cir. 1999); Chenoweth v. Clinton, 181 F.3d 
112 (D.C. Cir. 1999).
    \83\Kucinich v. Obama, 821 F. Supp. 2d 110, 120 (D.D.C. 2011).
---------------------------------------------------------------------------
    There is a separate line of cases, however, involving 
enforcement of congressional subpoenas in which the Federal 
courts in the D.C. Circuit have found that a House of Congress 
has standing to defend its institutional interests.\84\ In this 
line of cases, the plaintiff was authorized to act on behalf of 
the House or Senate to vindicate the House's, or the Senate's, 
institutional interest that had been challenged by the 
Executive Branch. This line of cases is clearly distinguishable 
from the Raines line of cases. In fact, in Raines, the Supreme 
Court even noted that it ``attach[ed] some importance to the 
fact that [plaintiffs] have not been authorized to represent 
their respective Houses of Congress in this action, and indeed 
both Houses actively oppose their suits.''\85\ Indeed, ``the 
Raines case was dismissed because the individual lawmakers who 
brought the action failed to allege the requisite 
particularized and concrete injury to themselves, not because a 
legislative body as an institution would lack standing to bring 
an action on its own behalf.''\86\ Thus, authorization by a 
House of Congress is a ``key factor'' in the standing calculus 
in institutional injury cases: ``the fact that the House . . . 
explicitly authorized this suit does more than simply remove 
any doubt that [the House] considers itself aggrieved. It is a 
key factor that moves this case from the impermissible category 
of individual plaintiff asserting an institutional injury to 
the permissible category of an institutional plaintiff 
asserting an institutional injury.''\87\
---------------------------------------------------------------------------
    \84\See, e.g., United States v. AT&T, 551 F.2d 384 (D.C. Cir. 
1976); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 
2008); Comm. on Oversight & Gov't Reform v. Holder, 2013 U.S. Dist. 
LEXIS 140994 (D.D.C. 2013); Senate Select Comm. on Presidential 
Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973).
    \85\Raines, 521 U.S. at 829.
    \86\Comm. on Oversight & Gov't Reform, 2013 U.S. Dist. LEXIS 140994 
at *55.
    \87\Miers, 558 F. Supp.2d at 71.
---------------------------------------------------------------------------
    The ENFORCE the Law Act provides for lawsuits brought 
pursuant to authorization by one House of Congress. It would 
appear, therefore, that this second line of cases is more 
applicable to standing in the lawsuits contemplated by this 
legislation.
    In addition to institutional authorization to bring suit, 
there is another factor that distinguishes the Raines line of 
cases from the cases contemplated by the ENFORCE the Law Act. 
In Raines, the asserted injury was to Congress's vaguely 
defined ``political power'' that would be lost as a result of 
the President's use of the line item veto. The harm alleged was 
not tied to a specific instance of a loss in voting power; 
rather, the Members asserted that they could be injured in the 
future as a result of the line item veto. By contrast, with 
regard to the President's failure to faithfully execute the 
laws, the injury is not some future hypothetical--the President 
is currently refusing to enforce clear provisions in statutes 
passed by Congress. Accordingly, a suit brought to challenge a 
failure to faithfully execute the laws would be based on an 
injury to the House or Senate caused by the President's failure 
to enforce a particular statutory provision. As has been 
observed, ``it is clear that the action in Raines was dismissed 
for lack of jurisdiction because of the `amorphous' nature of 
the claim, not because it was an inter-branch dispute.''\88\ Or 
as the Raines court put it, ``[t]here is a vast difference 
between the level of vote nullification at issue in Coleman v. 
Miller[, a case in which the Court determined the legislators 
had standing,] and the abstract dilution of institutional 
legislative power that is alleged here.''\89\
---------------------------------------------------------------------------
    \88\Comm. on Oversight & Gov't Reform., 2013 U.S. Dist. LEXIS 
140994 at *33.
    \89\Raines, 521 U.S. at 826.
---------------------------------------------------------------------------
    The institutional injuries that could be alleged in light 
of the Obama administration's failures to faithfully execute 
the laws appear to rise to the ``level of vote nullification at 
issue in Coleman.'' This is because in Raines, the Court 
characterized Coleman as holding that ``legislators whose votes 
would have been sufficient to defeat (or enact) a specific 
legislative Act have standing to sue if that legislative action 
goes into effect (or does not go into effect), on the ground 
that their votes have been completely nullified.''\90\ In other 
words, because many of the Obama administration's actions have 
effectively nullified Acts of Congress, according to Raines and 
Coleman there is ``institutional injury'' sufficient to satisfy 
Article III standing. For example, in the Affordable Care Act, 
Congress passed language that stated that the employers who 
fail to provide ``minimum essential coverage'' to their 
employees are subject to a penalty that ``shall apply to months 
beginning after December 31, 2013.''\91\ The Obama 
administration, however, has, without statutory authorization, 
issued two 1-year delays to all, or part, of this mandate. This 
was a nullification of an Act of Congress that should be 
sufficient to confer Article III standing.
---------------------------------------------------------------------------
    \90\Id. at 823.
    \91\Patient Protection and Affordable Care Act Sec. 1513(d) 
(emphasis added).
---------------------------------------------------------------------------
    Thus, the nullification of a legislative act, such as 
delaying the employer mandate, provides an institutional injury 
sufficient to qualify as an Article III case or controversy. If 
Congress explicitly authorizes an institutional lawsuit to 
enforce the nullified law, Congress, or a House of Congress, as 
an institution, should have standing to bring a lawsuit--``[s]o 
long as the courts are convinced that the legislator-plaintiffs 
are speaking on behalf of the institution (the `institutional 
check') and the Executive's act is tantamount to a 
`nullification' of legislative action (the ``injury check''), 
the controversy will be sufficiently direct and concrete to 
satisfy Article III injury-in-fact requirements.''\92\
---------------------------------------------------------------------------
    \92\Enforcing the President's Constitutional Duty to Faithfully 
Execute the Laws: Hearing Before the House Committee on the Judiciary, 
113th Cong. (2014) (statement of Elizabeth Price Foley).
---------------------------------------------------------------------------
    Moreover, there are factors present in the situation 
created by President Obama's repeated failures to faithfully 
execute the laws that were not present in Raines. The Supreme 
Court in Raines was careful to note that,

        our conclusion neither deprives Members of Congress of 
        an adequate remedy (since they may repeal the Act or 
        exempt appropriations bills from its reach), nor 
        forecloses the Act from constitutional challenge (by 
        someone who suffers judicially cognizable injury as a 
        result of the Act). Whether the case would be different 
        if any of these circumstances were different we need 
        not now decide.\93\
---------------------------------------------------------------------------
    \93\Raines, 521 U.S. at 829-30 (internal footnotes and citations 
omitted).

    The current circumstances related to President Obama's 
failure to faithfully execute the laws are different than the 
circumstances present in Raines. First, because the President 
is ignoring statutory provisions that restrict his authority, 
it is not a real option for Congress to pass more legislation 
to remedy the situation. The separation of powers cannot be 
preserved by Congress passing new legislation that effectively 
says, ``we really mean it this time,'' in all the areas in 
which the President is failing to faithfully execute the law. 
Accordingly, without judicial review there is effectively no 
way for Congress to defend the separation of powers.
    Second, there are no other plaintiffs to bring a 
constitutional challenge to many of the Obama administration's 
lawless actions. This is because these actions by the President 
are ``benevolent'' suspensions of the law, in which whole 
classes of people are exempted from the requirements of Federal 
law. As David Rivkin and Elizabeth Price Foley have observed, 
``[n]o one person was sufficiently harmed to create standing to 
sue, for instance, when Obama instructed the Department of 
Homeland Security to stop deporting young illegal immigrants. 
Indeed, these actions have helped, rather than harmed 
them.''\94\ In other words, unlike Raines, where other 
plaintiffs were available to challenge the constitutionality of 
the line item veto (and did so in Clinton v. City of New 
York),\95\ if legislative standing were denied to challenge 
President Obama's usurpations of Congress's authority, there 
will be no other way to check the President.
---------------------------------------------------------------------------
    \94\David Rivkin & Elizabeth Price Foley, ``Can Obama's Legal End-
Run Around Congress Be Stopped?,'' Politico (Jan. 15, 2014).
    \95\524 U.S. 417 (1998).
---------------------------------------------------------------------------
    It is also important to note that there is nothing unusual 
or inappropriate about courts weighing in on separation of 
powers disputes. ``Our system of government requires that 
Federal courts on occasion interpret the Constitution in a 
manner at variance with the construction given the document by 
another branch. The alleged conflict that such an adjudication 
may cause cannot justify the courts' avoiding their 
constitutional responsibility.''\96\ Moreover, deciding 
``whether a matter has in any measure been committed by the 
Constitution to another branch of government, or whether the 
action of that branch exceeds whatever authority has been 
committed, is itself a delicate exercise in constitutional 
interpretation, and is a responsibility of this Court as 
ultimate interpreter of the Constitution.''\97\ The courts have 
a long history of resolving cases involving the allocation of 
power between the political branches and addressing important 
separation of powers concerns: Morrison v. Olson, 487 U.S. 654 
(1988) (removal of appointed officials); Bowsher v. Synar, 478 
U.S. 714 (1986) (execution of the laws); INS v. Chadha, 462 
U.S. 919 (1983) (legislative veto); Humphrey's Executor v. 
United States, 295 U.S. 602 (1935) (removal of appointed 
officials); Myers v. United States, 272 U.S. 52 (1926) (removal 
of appointed officials).
---------------------------------------------------------------------------
    \96\Powell v. McCormack, 395 U.S. 486, 549 (1969).
    \97\Baker v. Carr, 369 U.S. 186, 211 (1962).
---------------------------------------------------------------------------
    Congress can help itself overcome the standing issues that 
have prevented judicial review in the Raines line of cases. 
Congress can do this by passing the ENFORCE the Law Act to put 
a procedure in place for authorizing the House, or the Senate, 
to seek judicial review of instances in which either body has 
determined that the President has failed to faithfully execute 
the laws. The ENFORCE the Law Act will ensure that the courts 
do not apply prudential standing principles to avoid judicial 
review--prudential standing principles ``can be modified or 
abrogated by Congress.''\98\ It will also ensure that cases 
alleging institutional injuries can be brought on behalf of the 
institution rather than by ad hoc groups of individual Members 
of Congress. In other words, putting a congressional lawsuit 
authorization procedure in place as part of statutory law 
should bolster the House's, or the Senate's, standing in court.
---------------------------------------------------------------------------
    \98\Bennett v. Spear, 520 U.S. 154, 162 (1997).
---------------------------------------------------------------------------
    In addition, by providing for legislative standing 
statutorily, Congress can provide for special court procedural 
rules, including expedited review, for cases brought pursuant 
to the legislation. These special procedural rules can 
significantly increase the speed by which a case challenging 
the President's failure to faithfully execute the law makes its 
way through the courts. The court procedural rules in the 
ENFORCE the Law Act are similar to those in the Line Item Veto 
Act. Litigation challenging the constitutionality of the line 
item veto made it through the district court and was decided by 
the Supreme Court within 7 months of the Act's effective 
date.\99\
---------------------------------------------------------------------------
    \99\See Raines, 521 U.S. 811.
---------------------------------------------------------------------------

                                Hearings

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

                        Committee Consideration

    On March 5, 2014, the Committee met in open session and 
ordered the bill H.R. 4138 favorably reported, without 
amendment, by a rollcall vote of 18 to 14, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 4138.
    1. An amendment by Mr. Conyers to provide that nothing in 
the Act would limit or otherwise affect any action taken by the 
President, the head of a department or agency of the United 
States, or any other officer or employee of the United States 
in order to combat discrimination and protect the civil rights 
of the people of the United States. Defeated by a rollcall vote 
of 11 to 16.

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

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     11      16
------------------------------------------------------------------------

    2. An amendment by Mr. Nadler to provide that nothing in 
the Act would limit or otherwise affect the constitutional 
authority of the executive branch to exercise prosecutorial 
discretion. Defeated by a rollcall vote of 11 to 17.

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

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

    3. An amendment by Ms. Jackson Lee to provide that nothing 
in the Act would limit or otherwise affect the ability of the 
executive branch to comply with judicial decisions interpreting 
the Constitution or Federal laws. Defeated by a rollcall vote 
of 13 to 18.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................              X
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     13      18
------------------------------------------------------------------------

    4. An amendment by Mr. Johnson to provide that nothing in 
the Act would limit or otherwise affect any action taken by the 
President, the head of a department or agency of the United 
States, or any other officer or employee of the United States 
that concerns a right protected by the Constitution of the 
United States. Defeated by a rollcall vote of 11 to 15.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     11      15
------------------------------------------------------------------------

    5. An amendment by Mr. Cicilline to provide for the 
quarterly report by the General Accountability Office to submit 
to the House and Senate Judiciary Committees a report on the 
costs of any civil action brought pursuant to this Act, 
including the attorneys' fees of any attorney that has been 
hired to provide legal services in connection with a civil 
action brought pursuant to the Act. Defeated by a rollcall vote 
of 11 to 16.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     11      16
------------------------------------------------------------------------

    6. An amendment by Mr. Cicilline to provide that an 
attorney who is not a regular employee of the legislative 
branch, who is hired to provide legal services in a civil 
action brought pursuant to this Act to the House of Congress 
that brought such action consult with any Member of that House 
who requests a consultation with the attorney regarding the 
civil action. Defeated by a rollcall vote of 13 to 17.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
                                                ------------------------
    Total......................................     13      17
------------------------------------------------------------------------

    7. Motion to report H.R. 4138 favorably, without amendment. 
Passed by a rollcall vote of 18 to 14.

                             ROLLCALL NO. 7
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Coble (NC).................................      X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................      X
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Ms. Farenthold (TX)............................      X
Mr. Holding (NC)...............................      X
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................      X
Mr. Smith (MO).................................      X
[Vacant].......................................

Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Mr. Scott (VA).................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................              X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Garcia (FL)................................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
                                                ------------------------
    Total......................................     18      14
------------------------------------------------------------------------

                      Committee Oversight Findings

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

               New Budget Authority and Tax Expenditures

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

               Congressional Budget Office Cost Estimate

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

                    Duplication of Federal Programs

    No provision of H.R. 4138 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 4138 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
4138 puts a procedure in place to permit the House of 
Representatives, or the Senate, to authorize a lawsuit against 
the Executive Branch for failure to faithfully execute the 
laws.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 4138 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title.
    Section 1 provides for the short title of the legislation, 
the ``Executive Needs to Faithfully Observe and Respect 
Congressional Enactments of the Law (ENFORCE the Law) Act.''
Section 2. Authorization to Bring Civil Action for Violation of the 
        Take Care Clause.
    Section 2(a) puts a procedure in place to permit the House, 
or the Senate, to authorize a lawsuit against the Executive 
Branch for failure to faithfully execute the laws. 
Specifically, section 2(a) provides that if the President, or 
any other officer or employee of the United States, establishes 
or implements a formal or informal policy to refrain from 
enforcing any provision of Federal law in violation of the 
requirement that the President ``take care that the laws be 
faithfully executed,'' the House or the Senate may, by adoption 
of a resolution, authorize a civil action to seek declaratory 
or injunctive relief. Any such lawsuit may be brought by the 
House of Representatives, the Senate, or both Houses of 
Congress jointly.
    Section 2(b) provides for the content of a resolution to 
authorize a lawsuit by the House or the Senate. Section 2(c) 
provides for special court rules for any lawsuit brought 
pursuant to the legislation: the case must be heard by a three-
judge panel in the district court; appeal is directly to the 
Supreme Court; and the district courts and the Supreme Court 
are required to expedite the consideration of any case filed 
pursuant to the legislation.
                            Dissenting Views

                              INTRODUCTION

    H.R. 4138, the ``Executive Needs to Faithfully Observe and 
Respect Congressional Enactments of the Law Act of 2014'' 
(ENFORCE Act), is a deeply flawed bill, both because of its 
substance and because of the process by which the Committee 
considered it. The bill would enable one House of Congress to 
sue the President, Federal officers, and even Federal employees 
if that House determines that any of those individuals has 
failed to ``take Care that the Laws be faithfully executed'' as 
required by Article II, Section 3 of the U.S. Constitution.\1\
---------------------------------------------------------------------------
    \1\U.S. Const. art. II, Sec. 3.
---------------------------------------------------------------------------
    The bill is problematic for several reasons. First, it is a 
faulty solution in search of a non-existent problem because 
none of the examples of executive action cited by the bill's 
proponents actually demonstrate any failure by the President to 
execute the laws. Rather, each of them represents the exercise 
of enforcement discretion, authority that stems from the 
President's duty to ``take care'' that he ``faithfully'' 
execute the laws, i.e., the very provision that the bill's 
supporters cite. Second, the bill raises serious separation-of-
powers concerns and would likely be unconstitutional as 
applied. Congress likely cannot meet the standing requirements 
of Article III in an action brought under this bill because the 
kind of injury that would be alleged--that is, a generalized 
injury that the President failed to comply with a law--is 
insufficiently concrete to meet the Constitution's requirement 
of a case or controversy.\2\ Additionally, the bill would 
likely force Federal courts to decide political questions, 
which are questions that the Constitution commits to the 
political branches or which are otherwise unfit for a judicial 
forum. Moreover, the bill threatens to turn Congress into a 
super enforcement agency with the ability to bring civil 
actions whenever it disagrees with an exercise of enforcement 
discretion not only by the President, but by potentially 
thousands of Federal officers and employees. Finally, the bill 
could potentially result in numerous, lengthy, and complex 
court cases for which taxpayers would have to pay the legal 
bills. Also, it must be noted that there was almost no 
meaningful deliberative process surrounding the Committee's 
consideration of the bill, further calling the soundness of 
this legislation into question.
---------------------------------------------------------------------------
    \2\See discussion infra.
---------------------------------------------------------------------------
    For the foregoing reasons, which are more fully discussed 
below, we dissent from the Committee report and urge our 
colleagues to oppose this bill.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    Section 1. Short Title. Section 1 sets forth the short 
title of the bill as the ``Executive Needs to Faithfully 
Enforce and Respect Congressional Enactments of the Law Act of 
2014'' or ``ENFORCE the Law Act of 2014.''
    Section 2. Authorization to Bring Civil Action for 
Violation of the Take Care Clause. Section 2(a) describes 
procedures for either House of Congress to bring a civil action 
against the President for violation of the ``take care'' 
clause. Specifically, if one House adopts a resolution 
declaring that the President, the head of any Federal 
department or agency, or any other Federal officer or employee 
has established or implemented a formal or informal policy, 
practice, or procedure not to enforce a Federal law in 
violation of the ``take care'' clause, that House would be 
authorized to bring suit and seek declaratory relief and other 
relief that a court may deem appropriate based on a declaratory 
judgment or decree.
    Section 2(b), in turn, details the specific requirements 
for a resolution under section 2(a).
    Section 2(c) prescribes special rules for Federal courts to 
follow in considering a civil action under section 2(a). 
Specifically, the action is to be heard by a three-judge panel 
of a Federal district court of competent jurisdiction, and the 
court's decision would be reviewable only by direct appeal to 
the Supreme Court. A notice of appeal must be filed within ten 
days, presumably of the final decision by the three-judge 
district court panel. In addition, subsection (c) declares it 
to be the ``duty'' of the district courts and the Supreme Court 
to expedite consideration and disposition of any civil action 
and appeal under this bill.

                               BACKGROUND

         I. THE ``TAKE CARE'' CLAUSE AND ENFORCEMENT DISCRETION

    Article II, section 3 of the U. S. Constitution states, 
among other things, that the President ``shall take Care that 
the Laws be faithfully executed.''\3\ In interpreting the 
``take care'' clause, courts have employed two lines of 
reasoning that superficially may seem to be in tension. One 
line of decisions holds that the President is obligated to 
implement and enforce statutes as written by Congress and that 
the President has no authority to disregard such statutes.\4\ A 
second line of decisions, however, makes clear that, in 
implementing his charge to take care that the laws be 
faithfully executed, the President and the executive branch 
that he heads have the authority, and, indeed, the duty not to 
enforce a law in some instances because he has the discretion 
to determine how a law is enforced or implemented in light of 
enforcement priorities and limited resources, among many 
potential factors. As the Supreme Court has stated, ``an 
agency's decision not to prosecute or enforce, whether through 
civil or criminal process, is a decision generally committed to 
an agency's absolute discretion.''\5\
---------------------------------------------------------------------------
    \3\U.S. Const. art. II, Sec. 3.
    \4\See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 
(1952); Kendall v. U.S., 37 U.S. (12 Pet.) 524 (1838).
    \5\Heckler v. Chaney, 470 U.S. 821, 831 (1985).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\Id. at 832.
    \7\Kate M. Manuel & Todd Garvey, Prosecutorial Discretion in 
Immigration Enforcement: Legal Issues, Congressional Research Service 
Report for Congress, R42924, Dec. 27, 2013, at 17 [hereinafter ``CRS 
Immigration Report''] (``no court appears to have invalidated a policy 
of non-enforcement founded upon prosecutorial discretion on the grounds 
that the policy violated the Take Care Clause, and one Federal 
appellate court has opined that real or perceived inadequate 
enforcement does not constitute a reviewable abdication of duty'') 
(quoting Texas v. United States, 106 F.3d 661, 667 (5th Cir. (1997)) 
(internal marks omitted).
---------------------------------------------------------------------------

                  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\
---------------------------------------------------------------------------
    \8\Flast v. Cohen, 392 U.S. 83, 99 (1968).
    \9\Dep't of Commerce v. House of Representatives, 525 U.S. 316, 
328-29 (1999).
    \10\U.S. Const. art. III, Sec. 2.
    \11\Raines v. Byrd, 521 U.S. 811, 819 (1997) (quoting Muskrat v. 
U.S., 219 U.S. 346, 356 (1911)).
    \12\Id. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).
---------------------------------------------------------------------------
    To satisfy the constitutional standing requirements in 
Article III, the Supreme Court imposes three requirements. 
First, the plaintiff must allege a personal injury-in-fact, 
which is actual or imminent, concrete, and particularized. 
Second, the injury must be ``fairly traceable to the 
defendant's allegedly unlawful conduct.''\13\ Third, the injury 
must be ``likely to be redressed by the requested relief.''\14\
---------------------------------------------------------------------------
    \13\Dep't of Commerce, 525 U.S. at 329 (quoting Allen, 468 U.S. at 
751).
    \14\Id. In addition to the constitutional questions posed by the 
doctrine of standing, Federal courts also follow a well-developed set 
of prudential principles that are relevant to a standing inquiry. 
Unlike their constitutional counterparts, prudential standing 
requirements are judicially created and ``can be modified or abrogated 
by Congress.'' Bennett v. Spear, 520 U.S. 154, 162 (1997). These 
prudential principles require that: (1) the plaintiff assert his own 
legal rights and interests, rather than those of a third party; (2) the 
plaintiff's complaint fall within the ``zone of interests'' protected 
or regulated by the statute or constitutional guarantee in question; 
and (3) the plaintiff not assert ```abstract questions of wide public 
significance' which amount to `generalized grievances' pervasively 
shared and most appropriately addressed in the representative 
branches.'' Valley Forge Christian Coll. v. Ams. United for Separation 
of Church and State, 454 U.S. 464, 475 (1982) (quoting Warth v. Seldin, 
422 U.S. 490, 499-500 (1957)).
---------------------------------------------------------------------------
    Raines v. Byrd is the Supreme Court case that established 
the current standard for evaluating whether individual Members 
of Congress have standing to sue the executive branch.\15\ In 
Raines, the Supreme Court dismissed a suit by Members 
challenging the constitutionality of the Line Item Veto Act, 
holding that their complaint did not establish that they had 
suffered a personal, particularized, and concrete injury.\16\ 
The Court held that a congressional plaintiff may have standing 
in a suit against the executive branch if he or she alleges 
either: (1) a personal injury (e.g., loss of a Member's seat), 
or (2) an institutional injury that is not ``abstract and 
widely dispersed'' and amounts to vote nullification.\17\ In 
Raines, the Court concluded that the plaintiffs asserted an 
institutional injury, but their votes were not nullified 
because of the continued existence of other legislative 
remedies. These legislative remedies included the ability of 
``a majority of Senators and Congressman [to] vote to repeal 
the Act, or to exempt a given appropriations bill (or a given 
provision in an appropriations bill) from the Act. . . .''\18\
---------------------------------------------------------------------------
    \15\521 U.S. 811 (1997).
    \16\Id. at 818-820.
    \17\Id. at 829.
    \18\Id. at 824.
---------------------------------------------------------------------------
    It appears that an institutional plaintiff has only been 
successful in establishing standing when it has been authorized 
to seek judicial recourse on behalf of a House of Congress. In 
the past, a one-house resolution that specifically authorizes 
judicial recourse has satisfied this authorization requirement, 
although authorization alone is only one part of the standing 
analysis.\19\
---------------------------------------------------------------------------
    \19\See Comm. on the Judiciary, U.S. House of Representatives v. 
Miers, 558 F. Supp. 2d 53, 71 (D.D.C. 2008) (finding that House 
Judiciary Committee had standing to sue to enforce a congressional 
subpoena in part because it ``ha[d] been expressly authorized . . . by 
the House of Representatives as an institution'' to bring the suit by 
House resolution).
---------------------------------------------------------------------------
    The Raines vote nullification requirement would likely not 
be satisfied in cases where an institutional plaintiff files 
suit to challenge an executive action because, unlike in the 
subpoena enforcement context, legislative actions that remedy 
the institutional plaintiff's injury could exist. Therefore, 
whether or not the Raines vote nullification standard applies 
to institutional plaintiffs may be an important factor in 
determining if an authorized institutional plaintiff has 
standing to challenge an executive action.
    If the Raines vote nullification standard were applied to 
institutional plaintiffs, the existence of legislative remedies 
may prevent an institutional plaintiff, like a House of 
Congress, from establishing standing. The following actions 
could serve as potential remedies to executive actions: the 
repeal or disapproval of executive branch regulations or 
guidance documents establishing the challenged policies; 
employing the power of the purse to restrict the use of funds 
to administer objectionable programs; legislation eliminating, 
limiting, or clarifying the scope of agency discretion with 
regard to the implementation of existing laws; and oversight 
activity. Because the Constitution requires parties to meet 
Article III standing requirements, Congress cannot simply 
overcome those requirements by claiming to grant itself 
standing to sue.

                        CONCERNS WITH H.R. 4138

   I. H.R. 4138 IS A FUNDAMENTALLY FLAWED SOLUTION TO A NON-EXISTENT 
                                PROBLEM

    An initial problem with H.R. 4138 is that it is based on 
the false premise that President Barack Obama has failed in his 
duty to take care that he faithfully execute the laws. Over the 
course of two House Judiciary Committee oversight hearings on 
the ``take care'' clause, H.R. 4138's proponents sought to 
portray certain actions of President Obama as examples of his 
failure to execute the law. They cited, for example, the 
President's Deferred Action for Childhood Arrivals (DACA) 
program, which temporarily defers removal of certain young 
adults who were brought into the country as young children.\20\ 
In addition, they cited several decisions by the Administration 
to delay or clarify the implementation of certain provisions of 
the Patient Protection and Affordable Care Act (ACA) as 
examples of the President's failure to faithfully execute the 
laws.\21\ Finally, they alleged that the Justice Department's 
revised charging guidelines for certain non-violent, low-level 
drug offenders amounted to a failure to enforce the law.\22\ 
The modified charging guidelines direct prosecutors to charge 
certain low-level, nonviolent drug offenders with offenses that 
do not trigger mandatory minimum sentences.\23\
---------------------------------------------------------------------------
    \20\See generally Enforcing the President's Constitutional Duty to 
Faithfully Execute the Laws: Hearing Before the H. Comm. on the 
Judiciary, 113th Cong. (2014) [hereinafter Enforcing Constitutional 
Duty Hearing]; President's Constitutional Duty to Faithfully Execute 
the Laws: Hearing Before the H. Comm. on the Judiciary, 113th Cong. 
(2013) [hereinafter Faithfully Execute Hearing].
    \21\Id.
    \22\See Enforcing Constitutional Duty Hearing.
    \23\Attorney General Eric H. Holder, Jr., Annual Meeting of the 
American Bar Association's House of Delegates, Aug. 12, 2013, http://
www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.
---------------------------------------------------------------------------
    Rather than being examples of constitutional violations, 
however, these examples merely illustrate the President's 
exercise of enforcement discretion in light of limited 
available resources, which is not only within the President's 
constitutional authority, but is required by the ``take care'' 
clause. For instance, the decisions to delay the employer 
mandates and to allow the renewal of otherwise non-ACA-
compliant health insurance plans for a temporary time period 
were attempts to phase-in implementation of the ACA and were 
not an attempt to prevent implementation. Moreover, the 
provision of subsidies for those in Federal exchanges was 
consistent with the text, history, and purpose of the ACA. It 
would defy common sense to suggest that the President would act 
to undermine his signature legislative accomplishment.
    In response to questions regarding the Administration's 
legal authority for delaying implementation, the Treasury 
Department explained that this delay ``is an exercise of the 
Treasury Department's longstanding administrative authority to 
grant transition relief when implementing legislation like the 
ACA. Administrative authority is granted by section 7805(a) of 
the Internal Revenue Code.''\24\ Section 7805(a) provides that 
``the Secretary [of the Treasury] shall prescribe all needful 
rules and regulations for the enforcement of this title.''\25\
---------------------------------------------------------------------------
    \24\Letter from Mark J. Mazur, Assistant Secretary for Tax Policy, 
U.S. Department of the Treasury to Chairman Fred Upton, et al., at 2 
(July 9, 2013), available at http://democrats.energycommerce.house.gov/
sites/default/files/documents/Upton-Treasury-ACA-2013-7-9.pdf) 
[hereinafter ``Mazur Letter''].
    \25\26 U.S.C. Sec. 7805 (2014).
---------------------------------------------------------------------------
    As the Treasury Department further explained, ``[t]his 
authority has been used to postpone the application of new 
legislation on a number of prior occasions across 
Administrations.''\26\ The Department provided several past 
examples where it had delayed or waived a statutory 
requirement, including its decision during the George W. Bush 
Administration to delay implementation of standards return 
preparers must follow to avoid penalties under the Small 
Business Work Opportunity Act of 2007 until 2008 despite the 
fact that Congress made those changes effective as of May 25, 
2007.\27\
---------------------------------------------------------------------------
    \26\Mazur Letter at 2.
    \27\Id.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    With respect to the Administration's implementation of 
DACA, and its immigration-related enforcement decisions more 
generally, the exercise of discretion in immigration 
enforcement is squarely within the President's authority. The 
Supreme Court has consistently held that the exercise of such 
discretion is a function of the President's powers under the 
``take care'' clause and has reiterated this principle in the 
immigration enforcement context as recently as 2012 in its 
decision in Arizona v. United States.\31\ As both 
Representative Luis Gutierrez (D-IL) and Professor Schroeder 
pointed out during the second hearing on the ``take care'' 
clause, DACA is not a case where the President has decided 
simply to not enforce the law for an entire class of 
people.\32\ Although the policy applies broadly, immigration 
authorities must still make particular decisions regarding 
removal of an individual on a case-by-case basis to ensure that 
the individual meets DACA's qualifications.
---------------------------------------------------------------------------
    \31\132 S. Ct. 2492 (2012). The Court relied upon the ``broad 
discretion'' exercised by Federal immigration officials, including 
``whether it makes sense to pursue removal at all,'' in striking down 
almost all of Arizona's sweeping anti-immigrant law (SB 1070). Id. at 
2499. Because Arizona's law could result in ``unnecessary harassment of 
some aliens (for instance, a veteran, college student, or someone 
assisting with a criminal investigation) whom Federal officials 
determine should not be removed,'' the Court concluded that the law 
``violates the principle that the removal process is entrusted to the 
discretion of the Federal Government.'' Id. at 2506.
    \32\Enforcing Constitutional Duty Hearing.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \33\Memorandum from Bo Cooper, General Counsel, INS, INS Exercise 
of Prosecutorial Discretion, July 11, 2000, at 17-18, available at 
http://iwp.legalmomentum.org/reference/additional-materials/
immigration/enforcement-detention-and-criminal-justice/government-
documents/Bo-Cooper-memo%20pros%20discretion7.11.2000.pdf/view.
    \34\6 U.S.C. Sec. 202 (2014).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    As with DACA, the revised Justice Department charging 
guidelines still require particular charging decisions to be 
made on a case-by-case (not class-wide) basis to ensure that a 
particular offender meets the required criteria. Assessing the 
particular facts of a case to the appropriate criminal charge 
is a core function of prosecutorial discretion, the wide 
latitude that prosecutors have in determining when, whom, how, 
and even whether to prosecute apparent violations of the law. 
Far from violating the ``take care'' clause, prosecutorial 
discretion derives from this obligation to ``take care'' to 
``faithfully'' execute the law.
    Regarding the seeming tension between the duty to execute 
the laws and decisions not to enforce the law, Professor 
Schroeder testified:

        At first blush, it may seem paradoxical to say that an 
        agency is executing the laws when it decides not to 
        enforce the law, but the paradox is completely 
        eliminated once one recognizes that executing laws 
        encompasses many activities, not all of which can be 
        performed at any given time. Insofar as making 
        decisions about where and when to enforce frees up 
        resources for other activities constitutive of law 
        execution, non-enforcement decisions are part of the 
        overall process of executing the laws.\37\
---------------------------------------------------------------------------
    \37\Enforcing Constitutional Duty Hearing (Schroeder statement at 
7).

    In short, the examples that the proponents of H.R. 4138 
cite to justify its radical scheme to allow one House of 
Congress to sue the President fail to support the underlying 
premise of the bill, which is that routine exercises of 
enforcement discretion amount to violations of the President's 
duty to take care that the laws be faithfully executed. In the 
absence of any credible examples of such a failure to meet his 
constitutional obligations, the justification for the bill 
fails.

II. H.R. 4138 VIOLATES SEPARATION-OF-POWERS PRINCIPLES AND WOULD LIKELY 
                     BE UNCONSTITUTIONAL AS APPLIED

A. Congress Would Likely Lack Article III Standing to Sue
    Congress would likely lack the constitutionally-required 
standing to sue pursuant to H.R. 4138 because the alleged 
injury--i.e., the alleged failure to take care that a law be 
faithfully executed--is not the kind of a concrete and 
particularized injury to Congress sufficient to confer Article 
III standing on Congress to sue pursuant to the ENFORCE Act. 
Rather, it amounts only to a generalized complaint that the 
executive branch did not follow the law. The Supreme Court has 
made clear that injury ``amounting only to the alleged 
violation of a right to have the Government act in accordance 
with law was not judicially cognizable'' for Article III 
standing purposes.\38\ To allow standing based on an 
``undifferentiated public interest in executive officers' 
compliance with the law . . . is to transfer from the President 
to the courts the Chief Executive's most important 
constitutional duty, to `take care that the Laws be faithfully 
executed.'''\39\ Congress cannot simply ``give itself'' Article 
III standing where it does not exist, as some Members of the 
Committee Majority contended during the markup debate on this 
bill.
---------------------------------------------------------------------------
    \38\Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-576 (1992).
    \39\Id. at 577.
---------------------------------------------------------------------------
    Article III's standing requirements enforce the 
Constitution's separation-of-powers principles. The separation 
of law-making from law-execution is a distinctive feature of 
the U.S. Constitution, and as part of this structural 
separation, the Supreme Court has held that the Constitution 
bars Congress from vesting itself with the power to appoint 
officers charged with executing Federal laws, including through 
litigation.\40\
---------------------------------------------------------------------------
    \40\Buckley v. Valeo, 424 U.S. 1, 138-140 (1976).
---------------------------------------------------------------------------
    Representative Trey Gowdy (R-SC), H.R. 4138's sponsor, 
repeatedly claimed during the markup that the bill merely 
``codifies'' the Supreme Court's decision in Coleman v. Miller, 
where the Court held that members of the Kansas legislature who 
voted against ratification of a proposed amendment to the U.S. 
Constitution had standing to sue the state's lieutenant 
governor for acting beyond his authority when he cast the tie-
breaking vote for ratification.\41\ The Court reasoned that the 
legislators had a ``plain, direct and adequate interest in 
maintaining the effectiveness of their votes'' and, therefore, 
had standing under Article III because the legislators had the 
right to have their votes against ratification be given full 
effect under the Constitution.\42\ After finding that the 
legislators had standing, the Court ultimately held that 
because Article V of the Constitution grants Congress undivided 
power to control the amendment process, questions about the 
ratification process were ``political questions'' that were 
non-justiciable.\43\
---------------------------------------------------------------------------
    \41\307 U.S. 433 (1939).
    \42\Id. at 437-438.
    \43\Id. at 450.
---------------------------------------------------------------------------
    Raines, however, significantly limited the reach of the 
Coleman decision to challenge executive action, making it clear 
that in order for legislators to have standing, they must 
allege an injury that would amount to vote nullification, that 
is, that other legislative remedies are not available to 
address the asserted institutional injury.\44\ As the Court in 
Raines noted, it is not enough that a Member simply lost a vote 
or cannot garner majority support for a position. To establish 
vote nullification for Article III standing purposes, a 
legislative plaintiff must establish that his or her votes will 
in the future be nullified.\45\ So long as future Senators and 
House Members retain the power to vote to repeal an Act or deny 
appropriations or take any number of other measures in response 
to executive action, their votes cannot be said to have been 
nullified and they cannot meet Article III's requirement that 
they suffer a concrete injury.\46\
---------------------------------------------------------------------------
    \44\Raines, 524 U.S. at 824.
    \45\Id.
    \46\Id.
---------------------------------------------------------------------------
    Here, none of the examples raised by H.R. 4138's proponents 
establish that the votes of Members of Congress were nullified. 
Rather, in each case, Congress retains the power to repeal or 
disapprove executive branch regulations or guidance documents 
establishing the challenged policies; employ the power of the 
purse to restrict the use of funds to administer objectionable 
programs; pass legislation eliminating, limiting, or clarifying 
the scope of agency discretion with regard to the 
implementation of existing laws; deny confirmation of nominees; 
and engage in oversight of executive branch activity. Any 
action pursuant to H.R. 4138 to challenge executive action, 
therefore, would not meet the test for Article III standing for 
legislators as articulated in Raines.
    H.R. 4138's proponents also cannot rely on court decisions 
finding standing for one House of Congress to sue to enforce a 
subpoena. In the subpoena enforcement context, the 
institutional plaintiff is alleging a concrete injury to a 
special prerogative of the legislative body--i.e., to defend 
the power of the legislative body to perform its oversight and 
information gathering duties.\47\ By contrast, H.R. 4138 
contemplates lawsuits where no special prerogative of Congress, 
or one House of Congress, is at stake. Rather, any suit to 
enforce the ``take care'' clause necessarily only alleges an 
``undifferentiated public interest in executive officers' 
compliance with the law'' which is insufficient to establish 
Article III standing.\48\
---------------------------------------------------------------------------
    \47\See Committee on the Judiciary, U.S. House of Representatives 
v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). Similarly, in INS v. 
Chadha, the Court found institutional standing for the House and Senate 
to intervene because the alleged injury--a challenge to the 
constitutionality of the one-House legislative veto--threatened a mode 
of Congressional action. INS v. Chadha, 462 U.S. 919 (1983).
    \48\Lujan, 504 U.S. at 577.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \49\Elizabeth Price Foley, Why Not Even Congress Can Sue the 
Administration Over Unconstitutional Executive Actions, Daily Caller, 
Feb. 7, 2014, available at http://dailycaller.com/2014/02/07/why-not-
even-congress-can-sue-the-administration-over-unconstitutional-
executive-actions/.

    Professor Jonathan Turley, another Majority witness, 
testified at the first hearing on the ``take care'' clause that 
courts are quite hostile toward recognizing Member standing for 
purposes of pursuing constitutional violations.\50\ While not 
commenting directly on Congress's institutional standing, he 
noted that the current situation is one where no one could 
successfully raise a President's failure to faithfully execute 
the laws as an issue in court.\51\
---------------------------------------------------------------------------
    \50\Faithfully Execute Hearing at 58.
    \51\Id. at 59.
---------------------------------------------------------------------------
    In his dissent in United States v. Windsor, no less a 
conservative than Justice Antonin Scalia, joined by Chief 
Justice John Roberts and Justice Clarence Thomas, criticized a 
dissent by Justice Samuel Alito that tracked the reasoning 
underlying H.R 4138, writing:

        Heretofore in our national history, the President's 
        failure to ``take Care that the Laws be faithfully 
        executed,'' could only be brought before a judicial 
        tribunal by someone whose concrete interests were 
        harmed by that alleged failure. Justice Alito would 
        create a system in which Congress can hale the 
        Executive before the courts not only to vindicate its 
        own institutional powers to act, but to correct a 
        perceived inadequacy in the execution of its laws. This 
        system would lay to rest Tocqueville's praise of our 
        judicial system as one which ``intimately binds the 
        case made for the law with the case made for one man,'' 
        one in which legislation is ``no longer exposed to the 
        daily aggression of the parties,'' and in which ``the 
        political question that the judge must resolve is 
        linked to the interest of private litigants.''

        That would be replaced by a system in which Congress 
        and the Executive can pop immediately into court, in 
        their institutional capacity, whenever the President 
        refuses to implement a statute he believes to be 
        unconstitutional, and whenever he implements a law in a 
        manner that is not to Congress's liking.

                              .    .    .

        If majorities in both Houses of Congress care enough 
        about the matter, they have available innumerable ways 
        to compel executive action without a lawsuit--from 
        refusing to confirm Presidential appointees to the 
        elimination of funding.\52\
---------------------------------------------------------------------------
    \52\U.S. v. Windsor, 133 S. Ct. 2675, 2703-05 (2013) (Scalia, J., 
dissenting) (internal citations and marks omitted).

For these reasons, Justice Scalia concluded that the Court had 
no power to decide the suit. We agree with Justice Scalia's 
view and believe, for that reason, that Congress would fail to 
meet the Constitution's standing requirements in any civil 
action pursuant to H.R. 4138.
B. H.R. 4138 Presents a Political Question Problem
    The ENFORCE Act presents a grave political question 
problem. Federal courts will not hear a case if they find that 
it presents a political question. The Supreme Court has held 
that Federal courts should not hear cases that deal directly 
with issues for which the Constitution has directly given 
responsibility to the other branches of government or for which 
a judicial forum is otherwise inappropriate. In the leading 
decision, Baker v. Carr, the Court enumerated the various 
factors that would make a question political:

        Prominent on the surface of any case held to involve a 
        political question is found a textually demonstrable 
        constitutional commitment of the issue to a coordinate 
        political department; or a lack of judicially 
        discoverable and manageable standards for resolving it; 
        or the impossibility of deciding without an initial 
        policy determination of a kind clearly for nonjudicial 
        discretion; or the impossibility of a court's 
        undertaking independent resolution without expressing 
        lack of the respect due coordinate branches of 
        government; or an unusual need for unquestioning 
        adherence to a political decision already made; or the 
        potentiality of embarrassment from multifarious 
        pronouncements by various departments on one 
        question.\53\
---------------------------------------------------------------------------
    \53\369 U.S. 186, 217 (1962).

    Professor Laurence Tribe of Harvard Law School, in a 
memorandum to House Judiciary Committee Democratic staff 
analyzing a bill similar to H.R. 4138, noted that the Supreme 
Court's jurisprudence regarding section 701(a)(2) of the 
Administrative Procedure Act (APA)\54\ indicates how unwilling 
the Court is to become involved with telling an executive 
branch agency how to exercise its discretion.\55\ He noted 
Justice Scalia's opinion in Norton v. South Utah Wilderness 
Alliance, where Scalia said:
---------------------------------------------------------------------------
    \54\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2014).
    \55\Memorandum from Laurence H. Tribe to Democratic Staff of the 
House Judiciary Committee 5 (Mar. 3, 2014) (on file with H. Committee 
on the Judiciary, Democratic Staff) [hereinafter ``Tribe memo''].

        If courts were empowered to enter general orders 
        compelling compliance with broad statutory mandates, 
        they would necessarily be empowered, as well, to 
        determine whether compliance was achieved--which would 
        mean that it would ultimately become the task of the 
        supervising court, rather than the agency, to work out 
        compliance with the broad statutory mandate, injecting 
        the judge into day-to-day agency management.\56\
---------------------------------------------------------------------------
    \56\542 U.S. 55, 66-67 (2004).

Professor Tribe explained that although Justice Scalia was 
interpreting the APA, there was nothing about his analysis that 
would not fall under the Court's political question 
jurisprudence as well.\57\ Virtually all of the factors 
enumerated in Baker v. Carr would be implicated by allowing 
Congress to sue the President over enforcement of the ``take 
care'' clause. Professor Tribe concluded that in such a civil 
action, a judge would be put in the position of directing a 
Federal officer how to exercise his or her discretion in 
enforcing a law, and doing so would cut at the heart of 
separation of powers and, for that reason, would likely lead to 
the invalidation of a statute like H.R. 4138.\58\
---------------------------------------------------------------------------
    \57\Tribe memo at 5.
    \58\Id. at 6.
---------------------------------------------------------------------------
    Recognizing that the ENFORCE Act could upend the carefully 
balanced separation-of-powers inherent in the Constitution, 
several Members offered amendments to limit the potential 
damage that the legislation could do. For instance, Committee 
Ranking Member John Conyers, Jr. (D-MI) offered an amendment to 
exclude from the bill's scope any executive action taken to 
combat discrimination and protect civil rights. As 
Representative Conyers noted, both the Emancipation 
Proclamation and Executive Order 9981, by which President 
Truman desegregated the Nation's armed forces, were actions 
that were contrary to then-existing law. Had the ENFORCE Act 
been in place when those actions were taken, Congress could 
have sued the President based on an alleged failure to 
faithfully execute then-existing law. Notwithstanding this 
point, the amendment was defeated by a party-line vote of 11 to 
16.
    Similarly, Representative Hank Johnson (D-GA) offered an 
amendment to exclude from the bill's scope any executive action 
taken to protect constitutional rights to allow maximum 
flexibility for the President and executive branch officials to 
exercise their discretion so that constitutional rights could 
be protected. This amendment recognized that in some 
circumstances, protecting rights would require a President to 
refrain from taking action. Nonetheless, the Committee rejected 
the amendment by a party-line vote of 11 to 15.
    Representative Jerrold Nadler (D-NY) offered an amendment 
to exclude from the bill's scope any exercise of the executive 
branch's clearly established authority to exercise 
prosecutorial discretion. As outlined extensively above, the 
exercise of prosecutorial discretion stems from the President's 
obligation to ``take care'' in ``faithfully'' executing the 
laws. Such discretion in setting enforcement priorities and in 
determining the manner of implementing laws is required in 
light of the limited resources available to enforce laws. To 
the extent that H.R. 4138's proponents claim that the bill does 
not hamper traditional enforcement discretion, they should have 
had no objection to adopting this amendment. Notwithstanding 
this, the Committee rejected the amendment by a 11 to 17 party-
line vote.
    Also in recognition of the need to protect separation-of-
powers, Representative Sheila Jackson Lee (D-TX) offered an 
amendment to exclude from the bill's scope any executive action 
to protect the executive branch's ability to comply with 
judicial decisions interpreting the Constitution or Federal 
laws. If separation-of-powers principles require anything, it 
is that each branch must respect its constitutional role. When 
a court issues a decision interpreting the Constitution or a 
Federal law, the other branches must abide by the decision. The 
executive branch's ability to fulfill its obligation to comply 
with judicial decisions should not be hampered by a civil 
action by Congress pursuant to this bill. Basic respect for 
separation of powers required adoption of this amendment. 
Nonetheless, the Committee rejected it on a party-line vote of 
13 to 18.
C. H.R. 4138 Would Make Congress a Super Enforcement Agency
    The ENFORCE Act would essentially empower one House of 
Congress to become a general enforcement body able to rove over 
the entire field of administrative action by bringing cases 
against the President whenever it disagrees with the President 
or any component of the executive branch's exercise of 
enforcement discretion. Effectively, one House of Congress 
could seize for itself the scope of power of the Justice 
Department and executive enforcement agencies. This bill would 
intrude on a core function of the presidency and the 
constitutional duties of the President in determining how to 
implement or enforce the law. The bill radically and 
dangerously undermines the balance between the extensive 
administrative functions that are committed to the executive 
branch and the legislative functions of Congress.\59\
---------------------------------------------------------------------------
    \59\See Morrison v. Olson, 487 U.S. 654, 658, 685 (1988) (noting 
that a statute is suspect if it ``involve[s] an attempt by Congress to 
increase its own powers at the expense of the executive branch'' and if 
Congress ``impermissibly interferes with the President's exercise of 
his constitutionally appointed function,'' which would include his 
obligation to take care that the laws be faithfully executed).
---------------------------------------------------------------------------

        III. H.R. 4138 IS AN INVITATION TO WASTEFUL SPENDING OF 
                             TAXPAYER MONEY

    H.R. 4138 potentially could open the floodgates to possibly 
endless litigation over any number of decisions of not only the 
President, but of any Federal officer or employee. Such 
litigation would be time-consuming, complex, and expensive, 
particularly when outside counsel is retained. For instance, a 
law firm hired to represent the House in its defense of the 
Defense of Marriage Act charged $520 an hour for its services 
and received an initial $500,000 fee.\60\ The House ultimately 
spent $1.5 million on that litigation.\61\ The cost of what 
would likely be frivolous litigation under H.R. 4138 would have 
to be borne by American taxpayers.
---------------------------------------------------------------------------
    \60\Letter from Representative Nancy Pelosi, Democratic Leader, to 
Representative John Boehner, Speaker of the House, Concerning 
Litigation on the Defense of Marriage Act, April 20, 2011, available at 
http://www.democraticleader.gov/news/press/pelosi-questions-boehner-
house-contract-outside-doma-counsel.
    \61\Jennifer Bendery, DOMA Defense by House Republican Leaders Has 
Cost Nearly $1.5 Million, Huffington Post, Oct. 16, 2012, available at 
http://www.huffingtonpost.com/2012/10/16/doma-house-
republicans_n_1971666.html.
---------------------------------------------------------------------------
    Recognizing that in its unconstitutional scheme to use the 
courts to mediate political disputes between one House of 
Congress and the President, this bill threatens to drain 
precious limited public resources, Representative David 
Cicilline (D-RI) offered an amendment requiring that the 
Government Accountability Office issue quarterly reports to the 
House and Senate Judiciary Committees setting forth the costs 
of any litigation pursued under the ENFORCE Act. In response to 
Representative Cicilline's concerns about costs, the Majority 
simply indicated that any cost was worth the price. 
Unfortunately, the Committee rejected this common-sense, good-
government amendment by a party-line vote of 11 to 16.
    In addressing another point broadly related to costs, 
Representative Cicilline offered an amendment to ensure that 
any outside counsel hired to represent a House of Congress in 
litigation pursuant to the ENFORCE Act must consult with any 
Member of that House who requests consultation. As 
Representative Cicilline noted, Members had been denied the 
opportunity for such consultation when the House hired outside 
counsel to represent it in litigation defending the 
constitutionality of the Defense of Marriage Act. To avoid a 
similar situation from arising under this bill, Representative 
Cicilline offered his common-sense amendment. Unfortunately, 
the Committee rejected it by a party-line vote of 13 to 17.

 IV. THERE WAS A NEAR COMPLETE ABSENCE OF GENUINE DELIBERATIVE PROCESS

    Further undermining the soundness of H.R. 4138 is the fact 
that there was an utter lack of deliberative process regarding 
this legislation. The Committee never held a single legislative 
hearing on this bill, nor did it hold any Subcommittee markup. 
In fact, the final text of this bill was not made available 
until just the day before the markup. Taking into consideration 
the fact that the Majority provided only the minimum notice for 
the markup of this bill, that no single member of the Majority 
voted for any one of the six amendments offered by Democratic 
Members, and that we have not received any budgetary impact 
estimate from the Congressional Budget Office, it is plainly 
obvious that the entire legislative process is an unserious 
attempt to legislate.

                               CONCLUSION

    H.R. 4138 is highly problematic for many reasons. It is 
based on the false premise that the President is failing to 
faithfully execute the laws. Moreover, it violates separation-
of-powers principles and is likely unconstitutional as applied 
in several ways. First, Congress likely cannot meet Article 
III's standing requirements in any civil action under this 
bill. Second, this legislation would likely force courts to 
decide political questions, which courts have wisely refrained 
from deciding. Third, it would make Congress the ultimate 
enforcement agency by allowing it to second-guess through 
litigation even routine discretionary enforcement decisions 
with which it might disagree. Finally, the legislation fails to 
account for the potentially limitless costs of engaging in 
litigation every time one house of Congress disagrees with the 
President.
    For these reasons, we strongly oppose H.R. 4138.

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

                                  
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