39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–376 

FAITHFUL EXECUTION 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. 3973] 

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

(H.R. 3973) to amend section 530D of title 28, United States Code, 

having considered the same, report favorably thereon without 

amendment and recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 1 

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

Hearings ................................................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Committee Votes ...................................................................................................... 4 

Committee Oversight Findings ............................................................................... 6 

New Budget Authority and Tax Expenditures ...................................................... 6 

Congressional Budget Office Cost Estimate .......................................................... 6 

Duplication of Federal Programs ............................................................................ 6 

Disclosure of Directed Rule Makings ..................................................................... 6 

Performance Goals and Objectives ......................................................................... 7 

Advisory on Earmarks ............................................................................................. 7 

Section-by-Section Analysis .................................................................................... 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 7 

Dissenting Views ..................................................................................................... 9 

Purpose and Summary 

The Faithful Execution of the Law Act amends section 530D, 

title 28, United States Code, in order to require the Attorney GenVerDate Mar 15 2010 02:09 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR376.XXX HR376

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eral of the United States to report to Congress any time a Federal 

official establishes or implements a formal or informal policy to refrain from enforcing any provision of Federal law. It further requires the Attorney General to report on the reason for the establishment or implementation of such a policy. These changes to section 530D will increase Executive Branch accountability and transparency and help ensure that the President takes care that the 

laws be faithfully executed. 

Background and Need for the Legislation 

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.’’ 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. 

However, President Obama has failed on numerous occasions to 

enforce Acts of Congress that he disagrees with for policy reasons 

and has stretched his regulatory authority to put in place policies 

that Congress has refused to enact. For instance, while Congress 

is currently debating how to reform our immigration laws, the 

President effectively enacted the DREAM Act himself by ordering 

immigration officials to stop enforcing the immigration laws 

against certain unlawful immigrants. When he could not get his 

preferred changes to the No Child Left Behind education law, he 

unilaterally waived its testing accountability provisions. When he 

objected to the work requirements in the bipartisan welfare reform 

law, he granted waivers that are specifically forbidden by the statutory text. Instead of working with Congress to amend Federal 

drug enforcement policy, he has instructed prosecutors to stop enforcing certain drug laws in certain states and mandatory minimum sentences for certain offenses. 

And, most notably, the President has, without statutory authorization, waived, suspended, and amended several major provisions 

of his health care law. These unlawful modifications to Obamacare 

include: delaying for 1 year Obamacare’s employer mandate; instructing States that they are free to ignore the law’s clear language regarding which existing health care plans may be grandfathered; and promulgating an IRS rule that allows for the distribution of billions of dollars in Obamacare subsidies that Congress never authorized. The House has acted to validate retroactively some of the President’s unlawful Obamacare modifications. 

However, rather than embrace these legislative fixes, the President’s response has been to threaten to veto the House passed 

measures. 

The President’s far-reaching claims of executive power, if left unchecked, will vest the President with broad domestic policy authority that the Constitution does not grant him. Although President 

Obama is not the first president to stretch his powers beyond their 

constitutional limits, executive overreach has accelerated at an 


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1 Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before 

the House Committee on the Judiciary, 113th Cong. (2014) (statement of Jonathan Turley, Professor, George Washington University School of Law). 2See 28 U.S.C. § 530D(a). 3 28 U.S.C. § 530D(a)(1)(i). 

4Turley, supra note 1. 

alarming rate under his Administration. Indeed, according to testimony received by the Committee, ‘‘[w]e are in the midst of a constitutional crisis with sweeping implications for our system of government. There has been a mass gravitational shift of authority to 

the Executive Branch that threatens the stability and functionality 

of our tripartite system.’’ 1

To help prevent executive overreach and require greater disclosure when it occurs, on January 29, 2014, Representative DeSantis 

introduced H.R. 3973, the ‘‘Faithful Execution of the Law Act.’’ 

This legislation promotes transparency and honesty in the Federal 

Government by forcing greater disclosure of Executive Branch policies of non-enforcement of Federal laws. The Justice Department is 

already required by law to report to Congress on non-enforcement 

policies based on the grounds that the law in question is unconstitutional.2 H.R. 3973 extends this duty more broadly and extends 

the grounds for such reports beyond constitutional objections by the 

Executive Branch. 

Currently, when the Department of Justice stops enforcing a law 

on the grounds that it is unconstitutional, the Attorney General is 

required, pursuant to 28 U.S.C. § 530D, to report to Congress. Section 530D provides in relevant part: 

The Attorney General shall submit to the Congress a report of 

any instance in which the Attorney General or any officer of the 

Department of Justice establishes or implements a formal or informal policy to refrain from enforcing, applying, or administering any 

provision of any Federal statute, rule, regulation, program, policy, 

or other law whose enforcement, application, or administration is 

within the responsibility of the Attorney General or such officer on 

the grounds that such provision is unconstitutional.3

The Faithful Execution of the Law Act strengthens this provision 

by requiring the Attorney General to report to Congress when any 

Federal official establishes or implements a formal or informal policy to refrain from enforcing a Federal law and to provide the reason for the non-enforcement policy, regardless of whether it is 

being done on constitutional or policy grounds. 

According to testimony from Professor Jonathan Turley regarding H.R. 3973, ‘‘it is hard to see the argument against such disclosures. Too often Congress has been informed of major changes by 

leaks to the media.’’ 4 Congress should not have to rely on media 

leaks and other unofficial sources to find out that the Executive 

Branch has decided not to enforce Federal laws. Congress cannot 

possibly know the extent of Executive Branch non-enforcement of 

the laws without mandatory disclosure of all non-enforcement policies by the person who should be fully aware of such policies, 

namely the Attorney General, the nation’s chief law enforcement 

officer. 

Enactment of H.R. 3973 is essential if Congress is going to play 

an active role in overseeing that the separation of powers between 

the branches is maintained and that the President is faithfully executing the laws. 


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Hearings 

The Committee on the Judiciary held 1 day of hearings on legislation to enforce the President’s constitutional duty to faithfully 

execute the law. Testimony was received from Rep. Jim Gerlach (RPA); Rep. Tom Rice (R-SC); Rep. Diane Black (R-TN); Rep. Ron 

DeSantis (R-FL); Jonathan Turley, Professor, George Washington 

University Law School; Christopher Schroeder, Professor, Duke 

University School of Law; and Elizabeth Price Foley, Professor, 

Florida International University College of Law. 

Committee Consideration 

On March 5, 2014, the Committee met in open session and ordered the bill H.R. 3973 favorably reported, without amendment, 

by a rollcall vote of 17 to 11, 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. 

3973. 

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

Act would limit or affect any action taken by the Attorney General 

or any officer of the Department of Justice or any other Federal officer that concerns the foreign affairs of the United States. Defeated by a rollcall vote of 11 to 18. 

ROLLCALL NO. 1 

Ayes Nays Present 

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

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

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) ......................................................... 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] ......................................................................


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

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

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

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

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

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

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

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

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

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

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 18 

2. Motion to report H.R. 3973 favorably, without amendment. 

Passed by a rollcall vote of 17 to 11. 

ROLLCALL NO. 2 

Ayes Nays Present 

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

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

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

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

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

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

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

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

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 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 3973 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. 3973 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

§ 551. 


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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. 3973, will increase Executive Branch accountability and transparency and help 

ensure the that President takes care that the laws be faithfully executed. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 3973 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 ‘‘Faithful Execution of the Law Act.’’ 

Section 2. Amendment to Section 530D of Title 28, United States 

Code. 

Section 2 makes two changes to 28 U.S.C. § 530D. First, it expands the reporting requirements to cover non-enforcement policies 

of any ‘‘Federal officer.’’ Section 530D currently requires the Attorney General to report to Congress on non-enforcement policies 

adopted by the Attorney General and any other official at the Department of Justice. Second, it expands which non-enforcement 

policies are covered by the law. Currently, section 530D only requires reports to be made when a non-enforcement policy is adopted on the grounds that a Federal law is unconstitutional. Section 

2 requires a report whenever a policy of not enforcing Federal law 

is established or implemented regardless of the reason. 

Changes in Existing Law Made by the Bill, as Reported 

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

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

TITLE 28, UNITED STATES CODE 

TITLE 28—JUDICIARY AND JUDICIAL 

PROCEDURE 

* * * * * * * 


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PART II—DEPARTMENT OF JUSTICE 

* * * * * * * 

CHAPTER 31—THE ATTORNEY GENERAL 

* * * * * * * 

§ 530D. Report on enforcement of laws 

(a) REPORT.— 

(1) IN GENERAL.—The Attorney General shall submit to the 

Congress a report of any instance in which the Attorney General or any officer of the Department of Justice— 

(A) or any other Federal officer establishes or implements a formal or informal policy to refrain— 

(i) from enforcing, applying, or administering any 

provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of 

the Attorney General or such officer øon the grounds 

that such provision is unconstitutional¿ and state the 

grounds for such policy; or 

* * * * * * * 


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1 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’’]. 

Dissenting Views 

INTRODUCTION

H.R. 3973, the ‘‘Faithful Execution of the Law Act of 2014,’’ 

would require the Attorney General to report to Congress any instance when any Federal officer establishes or implements a formal 

or informal policy to refrain from enforcing, applying, or administering any Federal law as well as to state the grounds underlying 

such a non-enforcement policy. It does this by expanding 28 U.S.C. 

§ 530D(a)(1)(A), which currently only requires the Attorney General 

to report to Congress any instance when the Attorney General or 

other Justice Department officer establishes or implements a nonenforcement policy on the grounds that the relevant provision of 

law is unconstitutional. 

The burdensome mandate that H.R. 3973 would impose on the 

Attorney General will not only result in confusion and drain already-limited law enforcement resources, but would also present 

separation-of-powers concerns when applied in certain circumstances, such as the conduct of foreign policy. H.R. 3973 would 

require the Attorney General to oversee all Federal officers and 

would require him to determine in every instance when they 

prioritize enforcement of some classes of cases over others, whether 

such exercises of discretion constitute a ‘‘policy’’ of non-enforcement. It is also very troubling that there was absolutely no deliberative process concerning this bill as there was neither a legislative hearing nor a Subcommittee markup of the bill. 

Simply put, this bill is a thoroughly flawed solution in search of 

an imaginary problem. Over the course of two House Judiciary 

Committee oversight hearings on the issue of whether President 

Barack Obama has failed to faithfully execute the laws,1 the bill’s 

proponents failed to identify a single credible example of such failure. It is clear that the bill’s proponents have confused constitutional violations with the President’s legitimate exercise of enforcement discretion, which not only is well within his authority but is, 

in fact, required by the United States Constitution’s command that 

he ‘‘take care’’ to ‘‘faithfully’’ execute the laws. 

For these reasons and others explained in greater detail below, 

we must dissent from the Committee report on this bill and urge 

our colleagues to oppose it. 


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2 28 U.S.C. § 530D(a)(1)(A) provides: 

(1) In general.—The Attorney General shall submit to the Congress a report of any instance in 

which the Attorney General or any officer of the Department of Justice— 

(A) establishes or implements a formal or informal policy to refrain- 

(i) from enforcing, applying, or administering any provision of any Federal statute, 

rule, regulation, program, policy, or other law whose enforcement, application, or 

administration is within the responsibility of the Attorney General or such officer 

on the grounds that such provision is unconstitutional; or 

(ii) within any judicial jurisdiction of or within the United States, from adhering 

to, enforcing, applying, or complying with, any standing rule of decision (binding 

upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer. 3 U.S. CONST. art. II, § 3. 4 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). 

DESCRIPTION AND BACKGROUND

DESCRIPTION

Section 1. Short Title. Section 1 sets forth the short title of the 

bill as the ‘‘Faithful Execution of the Law Act of 2014.’’ 

Section 2. Amendment to Section 530D of Title 28, United States 

Code. Section 2 amends 28 U.S.C. § 530D(a)(1)(A). In pertinent 

part, section 530D requires the Attorney General to report to Congress any instance when the Attorney General or other Justice Department officer establishes or implements a formal or informal 

policy to refrain from enforcing, applying, or administering any 

Federal law on the grounds that such provision is unconstitutional.2 H.R. 3973 amends this reporting requirement to require 

the Attorney General to make such a report: (1) when a Justice Department official ‘‘or any other federal officer’’ establishes or implements a non-enforcement policy; and (2) requires that the report 

state the grounds, not limited to unconstitutionality, underlying 

any policy of non-enforcement. 

BACKGROUND

Article II, section 3 of the United States 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 at first blush. One line of decisions holds that the President is obligated to implement and enforce statutes as written by Congress and that the President has 

no authority to disregard such statutes.4 A second line of decisions, 

however, makes clear that, in implementing his charge to take care 

that the laws be faithfully executed, the President and the executive branch that he heads have the authority, and, indeed, the duty 

not to enforce a law in some instances because he has the discretion to determine how a law is enforced or implemented in light of 

enforcement priorities and limited resources, among many potential factors. As the Supreme Court has stated, ‘‘an agency’s decision 

not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’’ 5


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6 Id. at 832. 7Kate M. Manuel & Todd Garvey, Prosecutorial Discretion in Immigration Enforcement: Legal 

Issues, Congressional Research Service Report for Congress, 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). 8See generally Enforcing Constitutional Duty Hearing; Faithfully Execute Hearing. 9 Id. 

10See Enforcing Constitutional Duty Hearing. 11 Attorney General Eric H. Holder, Jr., Annual Meeting of the American Bar Association’s 

House of Delegates, Aug. 12, 2013, http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech130812.html. 

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 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

CONCERNS WITH H.R. 3973

I. H.R. 3973 IS A FUNDAMENTALLY FLAWED SOLUTION TO A

NON-EXISTENT PROBLEM

An initial problem with H.R. 3973 is that it is based on the false 

premise that President 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. 3973’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.8 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.9 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.10 The modified charging guidelines direct prosecutors to charge certain low-level, nonviolent drug offenders with offenses that do not trigger mandatory minimum sentences.11

Rather than being examples of constitutional violations, however, 

these examples merely illustrate the President’s exercise of enforcement discretion in light of limited available resources, which is not 

only within the President’s constitutional authority, but is required 

by the ‘‘take care’’ clause. For instance, the decisions to delay the 

employer mandates and to allow the renewal of otherwise nonACA-compliant health insurance plans for a temporary time period 


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12Letter 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’’]. 13 26 U.S.C. § 7805 (2014). 14Mazur Letter at 2. 15 Id. 16 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’’]. 17 Id. at 6 (emphases in original). 18 Id. 

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.’’ 12 Section 7805(a) provides that ‘‘the Secretary [of the Treasury] shall prescribe all needful rules and regulations for the enforcement of this title.’’ 13

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.’’ 14 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, 

2007.15

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.’’ 16 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.’’ 17

He also noted that such discretionary enforcement decisions were 

routine and were too numerous to count.18

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 


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19 132 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. 20 Enforcing Constitutional Duty Hearing. 21Memorandum 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-Coope 

r-memo%20pros%20discretion7.11.2000.pdf/view. 22 6 U.S.C. § 202 (2014). 23 CRS Immigration Report at 1. 24 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 2012 in its decision in Arizona v. United States.19 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.20 Although the policy applies 

broadly, immigration authorities must still make particular decisions regarding removal of an individual on a case-by-case basis to 

ensure that the individual meets DACA’s qualifications. 

Immigration officials may exercise enforcement discretion in individual cases or ‘‘prosecutorial discretion may be more formalized 

and generalized through agency regulations or procedures.’’ 21 In 

fact, Congress expressly directed the Secretary of Homeland Security to establish ‘‘national immigration enforcement policies and 

priorities.’’ 22 The Administration’s DACA policy comports both 

with the statutory directive to establish national enforcement priorities and with the responsibility to exercise prosecutorial discretion 

under the ‘‘take care’’ clause of the Constitution. 

While some critics argue that DACA can be distinguished because the possibility for relief is extended to persons who fall within a larger category, this ignores the fact that specific decisions to 

defer action still are made on a case-by-case basis. It also overlooks 

the fact that the executive branch has exercised its enforcement 

discretion on a categorical basis for decades. For example, the Kennedy Administration extended voluntary departure to persons from 

Cuba on a categorical basis, which allowed many otherwise deportable individuals to remain in the United States for an extended period of time.23 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.24

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, 


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25 Enforcing Constitutional Duty Hearing (Schroeder statement at 7). 26 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2014). 27Memorandum from Laurence H. Tribe to Democratic Staff of the House Judiciary Committee 2 (Mar. 3, 2014) (on file with H. Committee on the Judiciary, Democratic Staff) [hereinafter ‘‘Tribe memo’’]. 28 Id. 29Pub. L. No. 87–195, 75 Stat. 424–2 (1961). 30Tribe memo at 3. 31 Id. 

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.25

In short, the examples that the proponents of H.R. 3973 cite to 

justify its burdensome new reporting requirement 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. 3973 RAISES SERIOUS SEPARATION-OF-POWERS CONCERNS

H.R. 3973 may pose as-applied political question problems. In a 

memorandum to House Judiciary Committee Democratic staff analyzing H.R. 3973, Professor Laurence Tribe of Harvard Law School 

noted that the practical effect of the bill would be analogous to expanding the Administrative Procedure Act 26 to require the Attorney General to submit a reasoned report every time any executive 

agency exercised its discretion not to enforce a statute.27 Requiring 

the executive branch to explain its decision not to enforce a statute, 

he noted, may, in many circumstances, pose serious problems of judicial enforcement.28

Professor Tribe used the hypothetical example of regime change 

developments in Ukraine and Egypt. Section 508 of the Foreign Assistance Act 29 prohibits the executive branch from spending funds 

to assist a country whose leader was deposed in a coup. The State 

Department has yet to announce whether these developments in 

Ukraine or Egypt are coups, and thus has not yet enforced the Act. 

Nevertheless, the practical effect of H.R. 3973 would be to require 

either the State Department to make such an announcement or the 

Attorney General to issue a section 530D report explaining why the 

State Department was not enforcing the Foreign Assistance Act.30

Should the Attorney General or Secretary of State remain silent, 

a court would rightfully be loath to involve itself in enforcing the 

reporting requirement under H.R. 3973.31 Indeed, under the varVerDate Mar 15 2010 00:39 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00014 Fmt 6601 Sfmt 6601 E:\HR\OC\HR376.XXX HR376

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32 Id.; Baker v. Carr, 369 U.S. 186 (1962). The Court outlined the factors for determining 

when a question was political and, therefore, not appropriate for decision by a court: 

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. 

Id. at 217. 

33 Unofficial Tr. of Markup of H.R. 3973, the ‘‘Faithful Execution of the Law Act of 2014,’’ by 

the H. Comm. on the Judiciary, 113th Cong. (Mar. 5. 2014). 34Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., dissenting). 35 Id. at 609 (internal quotation marks and citations omitted). 36 424 U.S. 1, 126 (1976). 

ious factors outlined by the Supreme Court in Baker v. Carr for determining whether an issue is a political question that is inappropriate for judicial determination, a court would likely determine 

that enforcing section 530D in the context of foreign affairs would 

present a clear political question.32

To highlight this flaw in the bill, Ranking Member John Conyers, 

Jr. (D-MI) offered an amendment to clarify that the conduct of foreign affairs is outside the bill’s scope. As he explained, by applying 

this legislation to the State Department, it ‘‘would put our Nation 

in the untenable position of being forced to disclose certain critical 

legal and policy positions to other nations—including our enemies—when it is not in our best interest to do so.’’ 33 Unfortunately, his amendment failed by a party-line vote of 11 to 18. 

Beyond the foreign affairs context, H.R. 3973 would pose problems. The mere requirement that the executive branch report on 

whether it plans to enforce a law touches on what Justice Scalia 

has called the ‘‘ ‘common law’ of judicial review of agency action.’’ 34

Courts frequently fail to discipline the executive branch when a decision involves ‘‘a sensitive and inherently discretionary judgment 

call, . . . the sort of decision that has traditionally been nonreviewable, . . . [and decisions for which] review would have disruptive practical consequences.’’ 35 While this would present an asapplied as opposed to a facial problem for H.R. 3973, it is worth 

noting the possibility of future concern. 

III. IMPLEMENTATION OF H.R. 3973 WILL CAUSE CONFUSION AND DRAIN

ALREADY-LIMITED RESOURCES

H.R. 3973 poses substantial practical difficulties. The bill expands 28 U.S.C. § 530D’s reporting requirement to include any purported non-enforcement policy of any Federal officer, but does not 

define the term ‘‘federal officer.’’ In Buckley v. Valeo, the Supreme 

Court defined ‘‘Officers of the United States’’ to include ‘‘any appointee exercising significant authority pursuant to the laws of the 

United States.’’ 36 Under that definition, the set of Federal officers 

may number in the hundreds, if not the thousands. Because H.R. 

3973 does not define ‘‘federal officer,’’ the statute might be read to 

encompass all ‘‘Officers of the United States’’ under Article II of the 

Constitution. Thus, H.R. 3973 could conceivably reach routine enforcement decisions by a low-level Federal officer. Nevertheless, 

H.R. 3973 would require the Attorney General to monitor every exVerDate Mar 15 2010 00:39 Mar 08, 2014 Jkt 039006 PO 00000 Frm 00015 Fmt 6601 Sfmt 6601 E:\HR\OC\HR376.XXX HR376

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ecutive branch agency to find and report all instances in which a 

Federal officer adopts a policy-formal or informal-to refrain from 

enforcing any Federal statute, rule, or regulation. That task could 

prove quite onerous, if not impossible. 

In terms of what is meant under the amended statute by a ‘‘policy’’ not to enforce, to the extent that H.R. 3973’s proponents mean 

to limit its reporting requirement to those instances where an executive branch official decides entirely not to enforce a provision of 

law, it may be less problematic. If, however, the bill’s proponents 

mean to include cases like the DACA program, which was an exercise in enforcement discretion, then the bill would require officials 

to report the reason to Congress anytime they decide not to enforce 

a provision of law in a set of cases. But, as Professor Schroeder’s 

testimony showed, executive branch officials never have sufficient 

resources to enforce the laws in each and every case to which they 

would apply. If they have to report to Congress every time they 

prioritize some classes of cases over others in allocating scarce resources, their resources will be even further stretched, and enforcement of the law will suffer. 

IV. THERE WAS AN ALMOST COMPLETE ABSENCE OF GENUINE

DELIBERATIVE PROCESS

Further calling into question the soundness of H.R. 3973 is the 

fact that the Committee did not thoroughly vet it. The Committee 

failed to hold a single legislative hearing on this bill and did not 

hold any Subcommittee markup of the bill. Finally, this Report is 

being filed less than two days after the full Committee markup of 

the bill—which itself was perfunctory—and without a budgetary 

impact estimate from the Congressional Budget Office. In the absence of any thorough consideration of the bill’s provisions and its 

potential real-world implications, it is no surprise that the bill is 

vague and perhaps broader in scope than its authors intended. 

CONCLUSION

H.R. 3973 is an ill-considered and deeply flawed bill. It is based 

on the false premise that President Obama has violated his constitutional duty to ‘‘take care’’ that he ‘‘faithfully’’ execute the laws. 

None of the examples that the bill’s proponents rely on constitute 

a failure to execute the law. Rather, they are all examples of the 

President’s exercise of his authority to use discretion in enforcing 

the law, which stems from the very ‘‘take care’’ clause that the 

bill’s proponents claims he is violating. Moreover, H.R. 3973 can 

present serious separation-of-powers concerns in specific contexts 

whereby a court may be drafted into deciding questions that the 

Constitution reserves for the political branches or for which a court 

is otherwise ill-equipped to decide. Finally, H.R. 3973 imposes an 

incredibly large practical burden on the Attorney General to monitor the activities of potentially thousands of executive branch officers and make determinations as to whether their routine discretionary decisions amount to a ‘‘policy’’ of non-enforcement. Particularly in light of the fact that this bill does not provide extra resources to carry out its requirements, this burden will inevitably 

divert limited resources away from the Justice Department’s core 

law enforcement function. 


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For all of the foregoing reasons, we strongly urge our colleagues 

to oppose H.R. 3973. 

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. 

HAKEEM JEFFRIES. 

DAVID N. CICILLINE. 

Æ 


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